Volume 89 — New York Reports

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made at the January term, 1881, which affirmed a decree of the surrogate of Washington county on the final accounting of defendants as executors of the will of George Stover, deceased. (Reported below, 24 Hun, 109.)</p> <p>The material facts are stated in the opinion.</p>

Hoose to perform the duties of, or in anywise to act in said school as principal,” and “ to officially recognize James M. Cassety as the principal teacher.” The material facts are stated in the opinion.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made November 23, 1881, which reversed an order of Special Term denying a motion on the part of plaintiff for leave to amend the summons and complaint herein, by striking out the name of the defendant and inserting in its stead the names of three individuals as defendants, and by inserting the necessary averments required by reason of such change. The order of General Term granted the motion. (Reported below, 25 Hun, 475.)</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made May 2, 1881, which overruled plaintiff’s exceptions and directed judgment on an order dismissing the complaint on trial. (Mem. of decision below, 15 J. & S. 547.)</p> <p>This action was brought to recover damages for the death of Patrick Littlewood, plaintiff’s intestate, alleged to have been caused by defendant’s negligence.</p> <p>The answer alleged and it was admitted on the trial that plaintiff’s intestate during his life-time brought suit against defendant for the injuries sustained by him at the time and place mentioned in the complaint herein, which action was tried and judgment recovered, which was paid by defendant.</p>

Appeal by Clark Brooks from an order of the General Term of the Supreme Court in the second judicial department at the December term, 1881, which reversed an order of Special Term, denying a motion on the part of plaintiff that said Clark Brooks be required to deliver to the sheriff of the city and county of Hew York certain property belonging to the defendant in this action, against whom an attachment had been issued herein.

Appeal under chapter 211, Laws of 1881, from judgment of the General Term of the Supreme Court, in the fourth judicial department, made January 11, 1882, which affirmed an award of the board of audit. The material facts are stated in the opinion.

12. (Beported below, 26 Hun, 508.) The claim presented to the board of audit alleged “ that in or about the month of August, 1868, he, said claimant, made and entered into a contract with the State of New York for the erection, on the west bank in the lower bay of New York, of a structure for quarantine purposes, under and in pursuance of the act of the legislature of the State of N ew York, entitled “ An act in relation to quarantine in the port of New York, and providing…

, Fifth avenue, from Ninetieth to One Hundred and Twentieth streets. (Mem. of decision below, 24 Hun, 650.) The facts are sufficiently stated in the opinion.

<p>The provisions of the Railroad Acts (§ 1, chap. 282, Laws of 1854; § 1, chap. 469, Laws of 1873 ; § 1, chap. 710, Laws of 1873) authorizing the purchasers on foreclosure sale of the property and franchises of a railroad corporation, to organize a new corporation for the purposes of the transfer, do not prevent a sale or transfer by such a purchaser to a corporation already existing and capable of holding the property and exercising the franchises; the authority so given by said provisions was intended to meet a case where there is no such existing corporation.</p> <p>It is not essential for the purchasing company to file a map of the line thus acquired where it is already constructed.</p> <p>The provision of the State Constitution (Art. 3, § 18) prohibiting legislation authorizing the “ construction or operation of a street railroad;” except in the cases specified, is prospective in its operation, and has no reference to or effect upon previously existing laws.</p> <p>Accordingly, held, that said provision did not affect the provision of the Railroad Act of 1839 (§ 1, chap. 218, Laws of 1839) authorizing railroad corporations to contract with other like corporations “ for the use of their respective roads; and that a contract between a railroad company which had acquired the right and had constructed and was operating a road over Atlantic avenue in the city of Brooklyn, and the defendant, by which the latter was authorized to run its trains over the road of the former on said street, was not forbidden by said constitutional provision.</p> <p>The provisions of the Railroad Act of 1850 (Chap. 140, Laws of 1850) were not rendered inoperative as to railroads running “over, under, through or across streets, by the Rapid Transit Act, so called (Chap. 606, Laws of 1875), as by the latter act, it is declared that it “ shall not be construed to repeal or in any manner to affect” the former.</p> <p>By defendant’s charter, its terminus in Brooklyn was “ at or near Atlantic avenue;” its line, as shown upon the map and survey filed, stopped twelve feet south of the south line of the avenue. It acquired the right to run its cars upon the tracks of the L. I. Co. whose road was constructed along the center of the avenue, and tracks were constructed by the L. I. Co. connecting those of the two roads ; similar curved tracks had long been used by the L. I. Co. to reach its depot south of the avenue and for other purposes. The L. I. Co., by its charter, had the right to build such appendages as it deemed necessary, and branches when land was offered without expense. Seld, that by defendant’s charter its terminus was not necessarily south of the avenue, and there was nothing therein to prevent it from making such terminus in the center thereof where it could connect with the other road; that the connecting tracks were authorized by the charters of the two companies, and the provision of the act of 1850(§ 28, subd. 6), authorizing railroad companies to connect their roads, and in no respect could they be considered as a separate and independent line, and so requiring all the steps necessary to a newly-organized street railway.</p> <p>The map required to be filed by a railroad company is sufficient if it shows the alignment and profile ; it is not essential that it should show all the connections, turnouts and switches.</p> <p>At the time of the passage of the act of 1859 (Chap. 484, Laws of 1859), providing, among other things, for the relinquishment by the L. I. Co. of the right to use steam power within the city of Brooklyn, it was rightfully running its trains by steam through Atlantic avenue. In pursuance of that act it relinquished such right in consideration of a payment made to it, which was assessed upon property benefited, and the road was thereafter operated by horse power until 1876, when the common council of said city passed a resolution, authorizing the use of steam in drawing cars on said avenue, and the legislature passed an act (Chap. 187, Laws of 1876) authorizing such use by the L. I. Co., and immediately thereafter the use of steam power was resumed. In 1879 defendant under its contract ran its cars on the avenue in the same way. Held, that the act of 1876 removed the restriction, leaving the original charter power of the L. I. Co. in full force ; that it had the right to determine what motive power should be used, both as to its own cars, and as to others which it could lawfully permit to come upon its road ; and as, by its lease to defendant, the latter was authorized to use steam power, it could lawfully use it to run its cars on the avenue.</p> <p>Also held, that said act of 1876 was pot violative of the provision of the State Constitution (Art. 3,§ 18) which prohibits the passage of any private or local hill granting “ any exclusive privilege, immunity or franchise whatever.”</p> <p>Also held, that the question, whether said act was violative of the constitutional prohibition against legislation impairing the obligation of contracts, could not be presented in actions brought by the State against defendants to which the assessed land-owners, who alone had such contract rights, if any existed, were not parties.</p> <p>It is the duty of this court to determine a constitutional question only when it is directly and necessarily involved in the issue to be determined.</p> <p>It seems that it is only when some person attempts to resist the operation of an act claimed by him to impair the obligation of a contract, and calls in the aid of the judicial power to pronounce it void as to him, his property or rights, that the.objection of unconstitutionality can be presented and sustained.</p> <p>The attorney-general, in an action brought by him, represents the whole people and a public interest. No question can be presented in such action affecting only mere individuals and private rights.</p>

Appeals by Henry It. Pierson and by certain policy-holders from an order of the General Term of the Supreme Court, in the third judicial' department, made at the February term, 18S2, which affirmed, save so far as relates to the item of interest, an order of Special Term passing the accounts of said Pierson, as' receiver of the North American Life Insurance Oompany.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made at the January term, 1881, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought against defendant, as receiver of the Atlantic Mutual Life Insurance Company, to recover for services rendered by plaintiff’s firm as attorneys and counselors for said company in opposing the application for the appointment of receiver, and upon appeals to the General Term from the order making the appointment to the Court of Appeals from the order of affirmance, and for various other services after the appointment of the receiver.</p> <p>The Special Term gave judgment for the services prior to such appointment, but decided against the plaintiff as to the subsequent services.</p>

(Reported below, 26 Hun, 435.) This action was brought to foreclose a mortgage upon a certain leasehold estate in the cjty of New York, executed by defendant Conrades to secure his bond given to' Harrison Johnston, father of the plaintiff. Conrades conveyed the estate to defendant Warnsdorfer January 1, 1875, subject to said mortgage, which the latter assumed. Plaintiff claimed by assignment from his father, dated October 29, 1879, and recorded November 5, .1879.

Appeals from judgments of the General Term of the Supreme Court, in the third judicial department, entered upon orders made September 20, 1881, which affirmed judgments in favor of plaintiffs, entered upon decisions of the court on trial at Special Term.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made July 18, 1879, which reversed a judgment in favor of plaintiff, entered upon an order overruling a demurrer to the complaint and which sustained the demurrer and directed judgment thereon. (Reported below, 18 Hun, 383.)</p> <p>The substance of the complaint is stated in the opinion.</p>

<p>Appeal from 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 in favor of defendant, entered upon the report of a referee.</p> <p>The nature of the action and the material facts appear in the opinion.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, in favor of defendant, entered upon an order made February 18, 1882, upon a case submitted under section 1279 of the Code of Civil Procedure. The controversy was as to whether defendant, who had entered into a contract with plaintiff, as trustee under the will of Abram W. Jackson, for the purchase of a house and lot of which the testator died seized, was bound to complete the purchase. The will of Jackson after various legacies contained this clause:</p> <p>“ Sixth.—I give, devise and bequeath all the rest and residue of my estate, both real and personal (after the payment of the above legacies), to my three youngest children, Abram W., Ida Amelia and Ernest in fee. And it is my will, and I do hereby direct my executors to invest all the said rest and residue of my estate either in real estate or in bonds and mortgages and to keep it so invested from time to time, and apply the interest thereof to the support, maintenance and education of my said three children until they shall respectively arrive at the age of twenty-one years, and after they shall respectively arrive at the age of twenty-one years, then it is my further will that my said executors do pay to each of them the interest of his or her respective one-third of said rest and residue, it being my intention to declare hereby that my executors shall pay the said interest to each of my said children as he or she shall arrive at the age of twenty-one years, and that before said time it shall be expended by said executors for the maintenance and education of said children, as long as they remain respectively under the age of twenty-one years. It is my further will that the interest only and no part of the principal of said rest and residue of my estate shall be paid or distributed to my said children so long as any two of them shall survive, and that after the death of any two of my said children the principal and capital of said rest and residue of my estate shall be equally divided between the survivor and the heirs of the two deceased children, it being my intention hereby to devise and bequeath to each of my said three youngest children one equal third of the said rest and residue of my estate, and that, upon the death of each one of them, his or her heirs shall receive the share to which his or her ancestor was entitled.</p> <p>“ And I do hereby authorize and empower my said executors to sell and convey my real estate for such prices as thev shall deem proper, and in fee-simple or any less estate, and to invest the proceeds from time to time in bonds and mortgages or in other productive real estate, for the purpose of carrying out the intentions of this will.”</p> <p>Three executors were named in the will, all of whom qualified ; one of them died prior to 1879. In that year the other two executors, having paid all the debts and legacies without a sale of the real estate, and having rendered a final account as executors, made application to the Supreme Court to be discharged from the trusts, in which application the three children of the testator, who were then of age, joined. By order of said court the application was granted, and Elbert O. Farrar, the plaintiff, and Frederick It. Hawley were appointed executors and trustees; afterward Hawley made application for leave to resign. The submission contained a copy of an order granting the application, signed by a justice of said court, but not showing on its face that it was an order of the court. Plaintiff and Hawley conveyed the premises in question to Ernest M. Jackson, in December, 1879, who thereafter gave a mortgage" thereon for $5,000, and afterward reconveyed subject to the mortgage to plaintiff as executor and trustee. Plaintiff contracted to sell and defendant to purchase subject to the mortgage; the latter refused to complete his purchase upon the grounds that neither the plaintiff alone nor in conjunction with Farrar had any power to convey under the will; that the conveyance to Jackson was colorable only and not a valid execution of the power;, that the purchase by plaintiff of Jackson was not an investment of the funds as prescribed by the will. Plaintiff offered and agreed to procure Hawley to join with him in the deed and also to procure and deliver a deed from Jackson of any interest he might have.</p>

<p>Where a judgment by default, of a court of general jurisdiction, recites that the summons was personally served upon a defendant, the recital is sufficient to show that the court acquired jurisdiction, and a defect in the proof of service attached to the judgment-roll does not show want of jurisdiction or affect the validity of the judgment.</p> <p>All intendments are in favor of tlie validity of the judgment, until want of jurisdiction is affirmatively shown.</p> <p>It seems that upon motion made to vacate a judgment because of informality of the proof of service of the summons, the informality may be cured by amendment.</p> <p>The statute of limitations was not a defense to a proceeding under the Code of Procedure (§ 375), to make ajudgment, recovered against one or more of several persons jointly indebted upon a contract, binding upon one not originally served with the summons, unless such defense existed at the time the action was commenced. The action was commenced by service of summons on the joint contractor (§ 99), and the proceeding was not a new action but a proceeding at the foot of the judgment.</p> <p>The provision of said Code (§ 379), giving to the one sought to he charged by such proceeding the right to set up any defense which may have arisen subsequent to the judgment, places him in as good a position as though judgment had not been entered, but in no better.*</p>

<p>Appeal from order of the General Term of the Supreme Court, in the third judicial department, made September 20, 1881, which affirmed an order of Special Term, denying an application on the part of the relator for a peremptory writ of prohibition.</p> <p>The nature of the writ sought for and the material facts are stated in the opinion.</p>

(Reported below, 14 J. & S. 222.) This action was for the alleged conversion of a quantity of personal property. The action was originally brought against the sheriff of the county of Yew York. Before the time to answer expired, the sheriff’s indemnitors were, pursuant to the Code of Civil Procedure (§§ 1421-6 , substituted. The complaint alleged in substance the execution and delivery to plaintiff of a chattel mortgage upon the property by Daniel Whelan, ihe then owner.

(Reported below, 21 Hun, 93.) This action was brought to obtain a judicial construction of the will of William Wager, deceased. The material facts are stated in the opinion.

This action was brought by plaintiffs, the widow and only child of John H. Lent,. late of Le Eoy, Genesee comity, who died June 20, 1863, against defendants as executors and trustees under the will of said deceased, for an .accounting, and for an extinguishment of the unexecuted trusts under the will and transfer to plaintiffs of the residue of the estate.

This action was brought to recover the amount of a check drawn on the First National Bank of Newark, and delivered by plaintiffs to defendant for collection. The drawee was and had been for fifteen years the collecting agent for defendant in New Jersey under an agreement that all collections made should be credited to defendant in a collection account, which was settled every Tuesday.

This action was brought upon two policies of insm-ance issued by defendant to the firm of Ellsworth & Son, upon a stock of goods. The material facts are stated in the opinion.

This action was brought to recover the amount of an award made to plaintiffs for an interest in lands taken for the widening of Sackett street, in the city of Brooklyn. The material facts are stated in the opinion.

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. The material facts are stated in the opinion.

(Reported below, 23 Hun, 299.) This action was brought by plaintiff, as executor of the will of Christopher R. Robert, deceased, to obtain a judicial construction of said will, and a decision as to the validity of certain provisions thereof. The will, after various specific devises and bequests, among them a bequest to the testator’s wife of $30,000, contained these clauses: “ Fow'thly.

<p>Plaintiff's complaint contained three counts; the first alleged in substance that on October 80,1877, he got upon the rear platform of one of defendant’s cars, as a passenger; that the conductor, without asking him for his fare or giving hinran opportunity to pay it, violently threw him off from the car in front of a car passing upon an adjoining track, and he was run over and injured ‘‘to his damage $10,000.” The other two counts relate to the same accident, alleging that it occurred through defendant’s negligence, each closing “to his damage $10,000.” In the prayer for relief plaintiff asked damage “ to the amount of $20,000.” Upon the trial the court ruled in substance that plaintiff could only recover under the first count; he.obtained a verdict for $15,000. Defendant claimed that as said count only alleged $10,000 damages, the verdict was unauthorized. Held untenable ; tjiat the general prayer for damages at the close of the complaint controlled ; but that if, in order to sustain the recovery, the first count should have alleged $15,000 damages, the defect was one that could be amended on appeal. (Code of Civil Procedure, § 722.)</p> <p>Also held, that defendant was liable for the act of the conductor in throwing plaintiff from the car.</p> <p>The evidence was conflicting as to the circumstances of the accident, plaintiff and two witnesses testifying that he was pushed or thrown from the car by the conductor, the latter and another witness for defendant that this was not so, but that plaintiff jumped from the car. R., one of plaintiff’s witnesses, a car-driver who had been discharged by defendant, was asked .on cross-examination, in substance, if he did not have a conversation with P., another car-driver, in which he sought to induce P. to testify falsely that his brakes were out of order so as to fix the company with liability in another case ; this R. denied. P. was called as a witness for the defendant, and the offer was made to prove by him such a conversation ; this was objected to and excluded. Held error.</p> <p>It is competent for a party against whom a witness has been called to prove acts or declarations of his, showing feelings of hostility or malice on his part toward such party. If upon cross-examination he denies such facts, they may be proved by other witnesses, as the inquiry into his state of feeling toward the party is not collateral.</p> <p>It seems, however, that the evidence to show hostile feelings of a witness should be direct and positive and not very remote.</p> <p>Schultz v. Third Ave. B. B. Oo. (14 J. & S. 211), reversed.</p>

<p>Defendant purchased and paid for certain lands which he caused to be deeded to F., upon an oral understanding that the latter would hold them subject to his order. F., thereafter, at the request of defendant, pursuant to such understanding, and without other consideration, conveyed the lands to defendant’s son, the plaintiff, who agreed orally to hold the title for the use and benefit of defendant and subject to his order. Defendant went into possession at the time of the original purchase, managed the lands and received the rents and profits. Plaintiff, at the request of the defendant, conveyed the lands, receiving for a portion of the purchase-money, two bonds and mortgages; one bond and accompanying mortgage defendant sold for his own benefit, and at his request plaintiff assigned them, not questioning his father’s title. The other bond and mortgage was, with plaintiff’s knowledge, delivered to defendant, and upon the refusal of the latter to deliver them up on demand plaintiff brought this action in equity to have it adjudged that he was owner of them and entitled to the possession. Held, that the provision of the statute of uses and trusts (1 E. S. 728, § 51) declaring that where a grant is made to one person, the consideration being paid by another, no use or trust shall result in favor of the latter, but title shall vest in the former, had no application; that, conceding the trust to be invalid, it having been executed by plaintiff, the right to the purchase-money vested at once in the defendant; that plaintiff, by operation of law, took the bond and mortgage as trustee for defendant, and those securities being personal property the statute had no application.</p> <p>It seems that if said statute, or the provision of the statute of frauds prohibiting the creation of trusts in lands, save by a writing (2 E. 8. 134, § 6), applied, plaintiff had no such right to the securities as a court of equity would enforce.</p> <p>Bobbins v. Bobbins (15 J. & S. 193), reversed.</p>

Appeal by the assignors from, an order of the General Term, of the Court of Common Pleas in and for the city and county of Hew York, made February 6, 1882, which modified and affirmed as modified an order of Special Term on settlement of the accounts of Adrian Yan Sinderin, as assignee for the benefit of creditors of Milan Hulburt and William A. Hul-' burt, composing the firm of Merwin, Hulburt & Co. The material facts are stated in the opinion.

The highway was four rods wide. Defendant’s road crossed it by a cutting about twenty feet below the surface of the highway. The act complained of was the construction of a bridge for the highway, twenty-four feet wide, with fences running from the sides of the highway to each end of the bridge. The material facts are stated in the opinion.

This action was brought to foreclose a mortgage for the sum of $6,000, executed September 12, 1876, by the defendant Thompson, to one Abiel E. Helmer, and assigned by Helmer, on the 5th day of April, 1878, to the plaintiff. Thompson defended the action upon the ground of usury. In July, 1878, by order of the Special Term, it was directed that the questions of fact arising upon the answer should be tried by a jury, and interrogatories were framed for that purpose.

<p>Appeal from judgment of the General Term of the Oourt of Common Pleas in and for the city and county of Hew York, entered upon an order made January 3, 1881, which affirmed a judgment in favor of defendant, entered upon an order non-suiting plaintiff on trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

(Reported below, 23 Hun, 420.) This action was brought to recover the amount of certain deposits alleged to have been made by plaintiff with defendant. ’ The facts disclosed by plaintiff’s evidence were substantially as follows: The plaintiff received from the administrator of her father’s estate, by checks signed by him as administrator and payable to her order, two separate sums of $500 each.

(Eeported below, 23 Hun, 632.) This action was brought to restrain defendant from an alledged infringement upon plaintiff’s trade-mark. The material facts are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made December 31, 1880, which affirmed a judgment in favor of plaintiffs, entered upon a verdict, and affirmed an order denying a motion for a new trial. (Eeported below, 23 Hun, 445.)</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

(Reported below, 23 Hun, 244.) This action was brought to recover damages for injuries alleged to have been occasioned by defendants’ negligence. The material facts are stated in the opinion.

<p>Defendant issued a policy of fire insurance, which limited the time for bringing an action upon it to a “ term of twelve months next after the loss or damage shall occur.” A loss was not payable under it until sixty days after the proofs required by it “ shall have been received at the office of the company in New York, and the loss shall have been satisfactorily ascertained and proved.” In an action upon the policy, held, that the period of limitation prescribed did not commence to run until a loss became due and payable, and the right to bring an action had accrued; and so, that an action brought within twelve months after the expiration of sixty days from the time of the loss was not barred by the limitation.</p> <p>Johnson v. II. Ins. Oo. (91 111. 93; 33 Am. Rep. 47), Fullarn v. AT. T. U. Ins. Oo. (7 Gray, 61), disapproved.</p> <p>The policy contained a condition that if the premises became vacant or unoccupied during the life of the policy, without the consent of the company indorsed thereon, it should become void. The insurance was upon a dwelling-house which was described in the policy as “ occupied by a tenant for farm purposes.” It became unoccupied, and that fact having been communicated to defendant’s general agents, they, on the day the vacancy occurred, wrote in the policy after the words above quoted the following : “ The dwelling-house being unoccupied for a short time, but being in charge of a trusty person living near by, shall be no prejudice to the policy.” Vacancies also occurred after that during the life of the policy, and the house was vacant and unoccupied at the time of the fire, but whenever the house was unoccupied, it was in charge of a trusty person living near, who inspected and attended to it daily. Held, that the words so written in did not apply solely to the then existing vacancy, but worked a modification of the original contract; and that there was no forfeiture.</p> <p>It was proved that one of the general agents, when informed that the house was again vacant, declared “ that this clause upon the policy would hold good if it (the house) was unoccupied.” Held, that the evidence was competent and that defendant was hound hy the construction so given.</p> <p>The policy contained a provision that “ the use of general terms or any thing less than a distinct specific agreement, clearly expressed and indorsed on the policy, shall not be construed as a waiver of any printed condition or restriction therein.” Held, that the general agents, unless specially restricted, could dispense with the condition orally as well as hy writing.</p> <p>Walsh v. H F. Ins. Oo. (73 N. Y. 5), Van Allen v. F. J. 8. Ins. Oo. (64 id. 469), and Marvin v. TJ.L. Ins. Go. (85 id. 278), distinguished.</p> <p>The policy also contained a clause declaring that “ in case of the creation of any lien, or the levy of an execution ” upon “ the subject insured,” without the consent of the company indorsed thereon, the insurance should cease. The premises upon which was the building insured were sold on execution issued upon a judgment recovered against the insured after the issuing of the policy, they were purchased hy plaintiff, and on that day defendant, hy its said general agents, with notice of the judgment, execution and sale, gave consent in writing to an assignment ■ of the policy to plaintiff, and it was so assigned. Reid, that by the consent to the assignment, the policy became in effect a new contract between the parties unaffected hy the forfeiture.</p>

<p>By the by-laws of the “ New York Cotton Exchange ” a seat in the Exchange, the right to which is evidenced by a certificate of membership, is transferable by assignment of the certificate to members under certain prescribed rules and restrictions. Held, that such a right was property, and as such passed to a receiver appointed in supplementary proceedings on execution against the owner; and that the receiver had a right to reeem the seat when it had been pledged by the judgment debtor as collateral for a loan.</p> <p>In an action by such a receiver to redeem and to compel the holder of a certificate so pledged to re-transfer on payment of the loan, held, that defendant could not defend on the ground of irregularities in the appointment of the receiver, it appearing that the judgment debtor consented ' to the appointment and so waived all irregularities.</p> <p>On trial at Special Term of such an action, defendant demanded a trial by jury. This was denied, and a judgment directing a transfer of the certificate to plaintiff was rendered. Held, that a refusal of the demand was not error, as the action was an equitable one, and the effect of the ruling was to make it impossible to turn it into an action at law and compelled plaintiff to stand or fall in equity; also that the demand did not deny or challenge the equitable jurisdiction; and as no motion was made to dismiss the complaint or for judgment on the ground that no equitable cause of action had been shown, and as no exception was taken to the findings of law or fact, the defendant, by not objecting, submitted to the equitable jurisdiction and the question could not he considered here.</p>

the Supreme Court, in the second judicial department, made December 14, 1880, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.

This action was brought by plaintiff, a creditor of the Ophir Gold Mining Company, a corporation organized under the General Manufacturing Act (Chap. 40, Laws of 1848), to enforce the liability imposed by said act (§ 10), when the whole amount of capital stock has not been paid in.

(Reported below, 15 J. & S. 302.) This action was brought to recover the amount of an alleged indebtedness of defendant on a deposit account of the New Orleans, St. Louis and Chicago Railroad Company, which plaintiff claimed had been attached under a warrant of attachment issued in an action brought by plaintiff Bills against said railroad company. The material facts are stated in the opinion.

(Reported below, 23 Hun, 651.) This action was brought by plaintiff, as administratrix of the estate of Sarah Byron, deceased, to compel defendants, as administrators of the estate of Alexander Waldron, deceased, to account for and pay over an alleged trust fund in the hands of their intestate at the time of his decease. The defendants’ answer set up the statute of limitations, and the surrogate’s decree on settlement of their accounts.

Motion to dismiss an appeal from judgment of the General Term of the City Court of Brooklyn. The material facts are stated in the opinion.

<p>Appeal from judgment of the General Term of the City Court of Brooklyn, entered upon an order made July 15, 1880, which affirmed a judgment in favor of defendants, entered upon an order dismissing the complaint upon trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 5, 1877, which affirmed a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial.</p> <p>This action was brought to recover the value of a quantity of quince trees, shipped by defendant’s road at New York city for transportation to Geneva, New York, and alleged to have been lost en route through the negligent delay of the defendant.</p> <p>The material facts are stated in the opinion.</p>

(Reported below, 25 Hun, 146.) This action was brought to recover' damages for injuries alleged to have been caused by defendant’s negligence. The case is reported, upon a former appeal, in 80 N. Y. 458. Defendant was, at the time of the injury, one of the board of directors and managers of the Vermont Central railroad, and one of three of said board who were operating the Ogdensburg and Lake Champlain railroad, under a contract with that company.

(Reported below, 15 J. & S. 61.) This action was brought to recover back moneys paid by plaintiffs under a contract for the purchase of certain United States bonds, which contract plaintiffs claimed a right to rescind because of non-performance on the part of defendants. Defendants who where bankers and brokers were employed by plaintiffs to purchase for their account and risk, §100,000 of “ United States sixes ” of 1881, and the same amount of United States bonds of 1867.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made April 10, 1882, which reversed an order of Special Term vacating an assessment “for regulating, grading, curb, gutter and flagging Eighty-second street between Eighth avenue and the Boulevard.” (Reported below, 27 Hun, 12.)</p> <p>The grade of said street was originally established in 1853, it was changed by the commissioner .of public works, and the work for which the assessment was laid was done to conform the grade with that of Eighth avenue under claim of authority given by the act chapter 593, Laws of 1870.</p>

<p>Under the provisions of the Code of Civil Procedure in reference to service of summons by publication (§§ 440, 441,787), such service is not complete until the expiration of at least six full weeks from the time of the first publication, or, when service is made out of the State, until the expiration of that period after such service.</p> <p>Where, therefore, after the granting of an order of publication, summons was served on defendant out of the State on November 25,1881, and judgment by default was entered January 20, 1882, held, that the judgment was premature ; and that an order setting it aside was properly granted.</p>

Cecelia Baxter asking for the revocation of letters of administration before that issued to Martha E. Yarian, as sole administratrix of the estate of Benjamin Gurser, and for the issuing of joint letters to the said petitioner and said Martha E. Yarian; the other refused to grant joint letters. The order of General Term also vacated and set aside the letters so granted.

This action was brought by plaintiff to subject certain lands alleged to have been bought and paid for by Daniel P. Stafford, but conveyed to his wife, the other defendant, in fraud of his creditors, to the payment of two judgments recovered by plaintiff on partnership obligations against the members of the firm of Stafford & Ellis. That firm failed in December, 1874, and made a general assignment for the benefit of creditors.

(Mem. decision below, 25 Hun, 567.) This action was brought to restrain the collection of a tax assessed by the board of assessors of the city of Brooklyn upon the capital stock and personal property of the plaintiff. The material facts are stated in the opinion.

(Reported below, 24 Hun, 241.) This action was brought to recover damages resulting from alleged negligence on the part of defendant in performance of its duty as agent for plaintiff. The case is reported on a former appeal in 77 R. Y. 320.

(Reported below, 8 Daly, 476.) On the 6th of January, 1879, the Commercial Fational Bank of Chicago drew its draft upon the defendant, payable to the order of Wirt Dexter, for $254.50, and bearing this number: “Fo. 73,436.” On the 8th day of January, 1879, the defendant was advised by the Commercial Fational Bank that this draft had been so drawn.

This action was brought to recover the amount of certain deposits made with defendant, a savings bank. The material facts are stated in the opinion.

Appeals from orders of the General Term of the Supreme Court, in the first judicial department, made April 10, 1882, which affirmed orders of Special Term vacating attachments issued before judgment in the actions above entitled. The applications to vacate the attachments were made by Frederick Frelinghuysen, who was appointed receiver of the defendant, after the issuing and levy of the attachments.

Appeals from orders of the General Term of the Supreme Court, in the fourth judicial department, entered upon orders made October 28, 1881, which affirmed the decision of commissioners appointed under section 22 of the General Railroad Act, to examine the proposed route of the Mew York, Lackawanna and Western Railroad Company, in the county of Erie. Said proposed route crosses the lands and the tracks of the petitioners in the city of Buffalo.

(Reported below, 23 Hun, 95.) This action was brought by plaintiff as receiver, appointed in proceedings supplementary to execution against defendant Lafayette Moore, to set aside, as fraudulent as to creditors, two deeds executed in February, 1878, one by said debtor to defendant Werner, and one by the latter to Mary E. Moore, wife of the debtor; also to set aside two mortgages upon the premises so conveyed, executed by Mrs. Moore at her husband’s request, to the defendants…

The other allowed an amendment of the petition upon which the proceedings were instituted, by striking out a clause in and by which the company agreed, in the construction of its roadway, to construct a draw-bridge by which free and unobstructed access could be given to the docks of the land-owners from the Hudson river.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made at the March term, 1881, which affirmed a judgment in favor of defendant, entered upon a verdict, and affirmed an order denying a motion for a new trial. (Reported below, 24 Hun, 363.)</p> <p>The nature of the action and the material facts are stated in v the opinion.</p>

<p>It seems that a warrant of commitment in such case is simply an authority and direction to the sheriff or other officer to take the prisoner to the penitentiary ; he is not detained by virtue thereof, but by virtue of the judgment, and if the officer furnishes the keeper with a certified copy of the j udgment, it is sufficient evidence of his authority, and he need not retain the mittimus.</p> <p>It seems also if the prisoner has been properly and legally sentenced to prison he cannot be released, because of a defect in the mittimus. When he is safely in the proper custody, there is no office for a mittimus to perform.</p> <p>Where the certified copy of the minutes of the court furnished the keeper imperfectly described the crime of which the prisoner was convicted, held, that the keeper could, upon return to a writ of habeas corpus, show by the records of the court what the precise crime was ; and so, that the sentence was legal, and the detention authorized.</p> <p>It seems that this cannot be shown by parol evidence, but should be proved by the records.</p> <p>Where, however, the facts were shown by affidavit without objection, held, that the court was authorized to hold it sufficient and to act thereon.</p> <p>A certified copy of judgment described the offense of which the prisoner was convicted as “ an assault and resisting an officer ; ” the sentence was iniprisonment.for one year and a fine of $500, the prisoner to stand committed until payment, etc. Held, that this did not describe the crime of resisting the execution of process within the meaning of the statutory provision declaring that offense (§ 17, chap. 69, Laws of 1845), but simply showed a conviction for an assault and battery.</p> <p>But held that if the sentence was excessive, the sentence to imprisonment for one year was authorized and the balance only could be held void; that the prisoner, therefore, was not entitled to his discharge until the expiration of the year.</p>

These are motions to correct remittiturs herein. The cases are reported ante, p. 440. The grounds of the motion are stated in the opinion.

(Reported below, 25 Hun, 206.) This action was brought to recover damages for alleged negligence, causing the death of Hugh Devlin, plaintiff’s intestate. Defendant Smith entered into a contract with the supervisors of the county of Kings, by which he agreed to paint the inside of the dome of the court-house in that county. Smith was not a scaffold-builder, and knew nothing of that business.

These are appeals from two judgments of the General Term of the Supreme Court, in the first judicial department, entered upon orders which affirmed decrees of the surrogate of the county of New York; one made upon settlement of the accounts of the executors of the will of Elisha Riggs, deceased; the other settling the accounts of the same persons as trustees under said will. (Reported below, 26 Hun, 90.) The material facts are stated in the opinion.

<p>Plaintiff, at tlie request of E., laid a small main in the lands of the latter in front of a row of dwelling-houses, for the purpose of supplying them with gas. It was made large enough to supply annother row of houses, which B. proposed to erect, and was connected with a large main running through a street. E. sold the houses and the owners contracted with defendant to supply their houses with gas. Whereupon defendant disconnected the small main from the large main in the street and connected it with its own main laid in the same street. Held, that an action to restrain defendant from so using said small main and to compel it to reconnect it with plaintiff’s large main, was maintainable ; that the action of defendant was a trespass upon plaintiff’s property, and the character of the injury was such that an injunction was proper.</p>

(Reported below, 15 J. & S. 31.) This action was brought originally by the members of the firm of F. S. Weeks & Co. to recover damages to their stock of goods occasioned by the alleged wrongful acts of the defendant. After the commencement of the action said firm became bankrupts, and the present plaintiffs, as assignees in bankruptcy, were substituted as plaintiffs. The material facts are stated in the opinion.

<p>The plaintiffs, who were attorneys and counselors, were employed in one or the other capacity by defendant H. in various suits and legal proceedings between him and defendants L. & J. H. Ingersoll; one was an action for malicious prosecution brought by him during the progress of the litigations. H. made an oral agreement with plaintiffs that they should be paid for their services out of any moneys he should obtain or become entitled to from any of the suits or proceedings, and " should have a lien for all sums that might be owing or due them for their said services and for the services of each of them,” .which lien should be superior to any right he might have. All of these actions and proceedings were finally, by agreement of the parties, submitted to an arbitrator, who among other things awarded to H. $10,000 as damages for the malicious prosecution. In an action to enforce their alleged claim and lien upon the award, wherein the value of plaintiffs’ services was found to be more than the amount thereof, held, that the agreement operated as an equitable assignment, which attached to the. award as soon as it was made, and was good against H. or any attaching creditor, and this, although it was for damages on account of a personal tort ; that it was not needful in order to make such assignment or lien valid and effectual that notice thereof should have been given to the debtors.</p> <p>People, exrel. Stanton, v. Tioga G. P. (19 Wend, 73), distinguished.</p> <p>It seems that such notice would have been necessary only to defeat a subsequent bona fide payment by the debtors.</p> <p>Watts v. Porter (3 E. & B. 743), stated to have been overruled.</p> <p>Before the said award was made, defendant B. recovered a judgment in this State against H. which was assigned to defendant Ivins. Two days before the time fixed by the award for the payment of the $10,000 Ivins brought an action in Connecticut against H. upon the judgment, an attachment was issued therein which was served in that State on h. Ingersoll who then resided therein, and the sheriff returned the writ with his indorsement that L. Ingersoll disclosed an indebtedness on the part of the garnishees to H. of $10,000. The Ingersolls had no notice of the lien of plaintiffs upon the award, until after service of the attachment. Ivins, after the commencement of this action, recovered judgment in the Connecticut action, and after return of execution unsatisfied, a scire facias was issued according to the law and practice of that State against the Ingersolls, to compel payment by them of the amount of the judgment ; they appeared in answer thereto and informed the court of plaintiffs’ claim: it ordered notice to be given to plaintiffs of the attachment proceedings. Plaintiffs did not appear, and the scire facias is still pending. Prior to the commencement of this action, L. Ingersoll had removed to this State, and all the other parties were then, and at the time the attachment was served, residents therein. Held, that the debt created by the award had its situs in this State and so was not affected by the attachment; also that, as at the time of the service thereof the debt did not belong to H., nothing was attached, and as to plaintiffs the attachment was a nullity. -</p> <p>It seems that the judgment herein may be used to defeat the Connecticut attachment.</p> <p>But held, that the Ingersolls, if they desire, might have, as part of the judgment herein, an injunction restraining Ivins from proceeding further in the foreign jurisdiction.</p> <p>No greater force or efficacy will be given to a foreign than to a domestic attachment.</p> <p>By the award H. was found indebted to various parties connected with the litigation in specified sums, and among them to J. H. Ingersoll. It was claimed, on behalf of the Ingersolls, that these items should be allowed as offsets. Held untenable, as the items were not payable to the two Ingersolls, who owe the amount of the award claimed, and as provision was made for their payment by deduction from another sum due H., to be ascertained as prescribed by the award.</p> <p>It seems that plaintiffs could claim no general lien, as attorneys, upon the award.</p> <p>It seems also that plaintiffs could not base their claim to an equitable lien upon the mere promise of H. that they should be paid out of any moneys recovered.</p> <p>An agreement, either oral or in writing, to pay a debt out of a designated fund does not give an equitable lien upon the fund or operate as an equitable assignment.</p>

This action was brought to recover damages for the breach of a contract of employment. Plaintiff’s complaint alleges that on the 1st day of January, 1878, the defendants entered into an agreement with him by which it was agreed that he should work for the defendants for the term of one year from the 1st day of January, 1878, to the 1st day of January, 1879, for the sum of $1,052 per year.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made April 10, 1882, which reversed an order of Special Term vacating an assessment upon certain lots of the petitioner for regulating and grading One Hundred and Sixth street in the city of Hew York, from Third avenue to East river. (Reported below, 27 Hun, 22.)</p> <p>The objections to the assessment are stated in the opinion.</p>

This action was brought to recover a balance of the purchase-price of certain premises conveyed by plaintiff to defendant. Defendant admitted that the balance claimed was unpaid, but set up as a counter-claim an indebtedness of plaintiff to one Lynch, a real estate broker, for commissions in effecting a sale of the premises, and an assignment of the claim to defendant.

(Reported below, 15 J. & S. 104.) This action was brought to recover an alleged balance due for moneys had and received. The material facts are stated in the opinion.

(Mem. of decision below, 25 Hun, 434.) The grounds of objection, and the facts pertaining thereto, are stated in the opinion.

(Reported below, 24 Hun, 210.) This action was brought to recover possession of two lots in the village of Middletown, Orange county, of which John J. Scott died seized. In 1862 he made a will by which his executor was authorized to sell all his real and personal estate, and pay the proceeds to his widow. In April, 1864, he had a child born, a daughter in whose interest this action was brought. In May, 1864, the testator died.

These are cross appeals from a judgment, in favor of plaintiff, of the General Term of the Supreme Court, in the first judicial department, entered January 21,1881, upon a case submitted under section 1279 of the Code of Civil Procedure. (Reported below, 22 Hun, 517.) The material facts are stated in the opinion.

entered upon the report of a referee. (Eeported below, 15 J. & S. 1.) ' This action was brought to recover a balance alleged to be due under a contract between the plaintiffs and Augusta McC. Little, defendant’s testator, for the performance by the former of certain work in the construction of a building in the city of Hew York.

(Eeported below, To J. & S. 229.) This action was brought to recover the proceeds of the sale of a quantity of “ Esparto grass ” belonging to plaintiffs, who were doing business at Liverpool, England, which was consigned by them to the firm of E. & C. Stokes at Philadelphia, for sale on their account. That firm employed defendants, who were brokers doing business in New York, to make a sale; this they did and received the proceeds.

(Reported below, 25 Hun, 49.) This action was brought to have it adjudged that certain proceedings to bond the plaintiff in aid of defendant, the Sodus Bay and Corning Railroad Company, were void and- the bonds issued under it invalid, to restrain the negotiation or disposition of said bonds, and for judgment that the same be delivered up to be canceled.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made March 21, 1881, which affirmed a judgment in favor -of plaintiff, entered upon the report of a referee. (Reported below, 23 Hun, 509.)</p> <p>This action was brought to foreclose a mortgage to secure $2,000, executed December 1, 1870, by defendants Chapman W. Avery and wife upon certain premises situate in the village of Jamesville, Onondaga county.</p> <p>The mortgage contained a covenant on the part of Avery to keep the buildings upon the premises insured for $2,000, loss, if any, payable to the mortgager Said mortgage was duly recorded on the day of its date. Avery, in compliance with the covenant, kept the buildings insured for the benefit of plaintiff until November 16,1874, when the policy expired. He then took out a policy in his own name for $2,000, omitting the clause making the loss payable to plaintiff. On March 6, 1875, said Avery executed to defendant Egbert I. Avery a mortgage upon the same premises for the sum of $1,400, which mortgage contained a covenant on the part of the mortgagor to keep the premises insured for $3,000, loss, if any, payable to the mortgagee, and soon after, at the request of the parties to said mortgage, the insurance company wrote in said $3,000 policy a provision making the loss payable to said Egbert. On November 13, 1875, when said policy expired, said Chapman procured another for $2,000, loss, if any, payable to Egbert, which was delivered to the latter, and was renewed in 1879, the premiums being paid by Chapman. On October 13, 1877, the buildings were destroyed by fire. The referee found that Egbert had no actual notice or knowledge that plaintifl’s mortgage contained said covenant xmtil after the fire. The only question litigated 'was as to the right to the insurance money. The referee held that plaintiff had the priority of right, in case of any deficiency, to the extent of such deficiency.</p>