UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty Library -/:*> .V PRACTICE REPORTSv CONTAINING CASES UNDER THE CODE OK CIVIL PROCEDURE THE GENERAL STATE OF NEW YORK, SELECT DECISIONS WITH A BRIEI; DIGEST OF ALL POINTS ToFT^PlwtW^WWrxirED IN THE STANDARD NEW YORK REPORTS ISSUED DURING THE PERIOD COVERED BY THIS VOLUME. N EW S BRI ES. VOL. II. ALBANY, N. Y. W. C. LITTLE & CO., LAW PUBLISHERS, 1886. 5 9 $4 . H6| v. 7 Entered according to act of Congress, in the year eighteen hundred and eighty-five, BY \V. C. LITTLE & CO., iu the office of the Librarian of Congress, at Washington. TIIK AUOTS COMPANY. PHINTKU* AND STRHKOTYPEUS, AI.HANY, N. Y. 6195 TABLE OF CASES EEPORTED IN THIS VOLUME. A. PAGE. Aken agt. Kellogg and others. . 136 Alvord agt. lletsel 88 American Insulator Co. agt. Bankers and Merchants' Tele- graph Co 120 Armituge agt. Hoyle et al 488 B. B&ker agt. Johns 464 Bannerman agt. Quackenbush et al 82 Banuerman agt. Quackenbush et nl 293 Bigart agt. Jones 491 Binney agt. Wheatar 519 I>onnell agt. Griswold 451 Bowe agt. United States Reflec- tor Company and others 440 Bowker and others agt. Wells and others 150 Bridgman agt. Hall 173 Briggs agt. The Titan 22 Burkhart agt. Babcock 512 c. Campbell Printing Press Co. agt. Altrogge 819 Carter agt. Talcott 852 Cole agt. Cole et al 516 Coon agt. Diefendorf 889 Crane agt. Evans 310 D. Davidson agt. The Mayor, &c., of New York.., . 182 FAQS. Dennison agt. Taylor 538 Dick agt. Livingston 10 Doctor agt. Schnepp 52 Dodge agt. Colby 475 Douglass agt. Macdurmid 289 Durant agt. O'Brien 313 E. Early agt. Early 239 Eberle agt. Kauffeld 488 F. Farnum agt. Barnum 396 Flanagan agt. Hollingsworth. . . 391 Foster agt. The New York Cen tral and Hudson River Rail- road Co 416 Frazer agt. Ward 47 G. Goldsmith agt. Union Mutual Life Insurance Co , 32 H. Howe ag. Welch 507 Hughen agt. Woodward 127 I. In the Estate of John Bair, deceased 323 In re Mary Braiser 154 HOWARD'S PRACTICE REPORTS. Cases Reported. In the Estate of Cecelia L. Booth, deceased IK' In the Estate of Tunis Cooper, deceased .... 8y In the Estate of Ellis H. Elias, deceased 15!S In the Estate of Frederick Grote, deceased 140 Isclin ct al. agt. Henelin et al. . . 21 1 In the Estate of Charles Morgan, deceased 1 ( J . J. Jacqnin agt. Jacquin 51 Jacquin agt. Jacquin 2Gd Jenkins agt. City of Hudson .. 211 Johnson and another agt. Dun- can 36(> K. Kiernan agt. Renting 8'J Kipp agt. Rapp et al 1(59 L. Lee agt. Lee. M. Mason agt. Mason ct al Matter of the Attorney General agt. Atlantic .Mutual Life In- surance 'Co Matter of Caainano Matter of Case agt. Campbell. . Matter of Cohen & Company. . . Matter of Goodrich Matter of Henry Matter of Karr Matter of King Matter of Lowell. . . 514 14C, 240 21)1 250 405 30? 285 PAGE. Matter of Martin 26 Matter of Nassau Cable Co. .... 124 Matter of the New York, Lack- a wanna and Western Railway Co 225 Matter of Catharine Shaffer, de- ceased 494 Matter of Smith 431 Matter of the Thirty-fourth Street Railroad Company. . . . 3(59 McCredie agt. The City of Buf- falo 33G McKenna agt. Bolger 411 Moore agt. Taylor and another, 343 Morrison agt. Lawrence 72 Motel agt. Sixth Avenue Rail- road Company 30 N. Negley agt. The Counting Room Co 287 Nelson agt. Tenney 272 o. O'Donohue et al. agt. Simmons, 461 Olmstead agt. Keyes 1 Overheiser agt. Morehouse 257 P. Pakas agt. Racy 277 Palmer agt. The Pennsylvania Co 156 Payn agt. The Mutual Relief Society of Rochester 220 People ex rd. Cole agt. Board of Supervisors of Greene Co., 483 People ex rcl. Holler agt. Board of Contract, &c., of the City of Albany 423 HOWARD'S PRACTICE REPORTS. Cases Reported. PAGE. People ex rel. Pres. , &c. , of D. and II. Canal Co. agt. Roosa and others. . ... 454 K. Reyher agt. Reyher 74 Roof agt. Meyer 20 Rosenbaum agt. Union Pacific Railway Company 45 s. Schneider et al. agt. Altman. . . 448 Schroeder agt. Wanzor 13 Scott and others agt. Reed 52 1 Siedenbach agt. Riley 143 Staats agt. Wemple 161 Stark agt. Stark and another. . . 360 Stoughton agt. Lewis 331 Sayer agt. Mac Donald 119 Spencer agt. Wait 117 Sulton agt. .Newton 56 T. Thatcher et al. agt. Rankin 459 Timerson agt. Timerson 526 The Mayor agt. Heuft 149 The National Bank of Port Jervis agt. Hansa 200 The People ex rel. Cass agt. Hosmer et al 472 The People ex rel. Lent agt. Carr . . .501 The People ex rel. Pres. , &c. , of D. and H. Canal Co. agt. Keator et al 479 The People ex rel. Ray agt. Davenport 17 The People agt. Seeley 105 The People agt. Wise 92 The People ex rel. Wright agt. Common Council of Buffalo, 61 The People ex rel. Wright agt. Geuung 324 Turuo agt. Parks et al 35 u. United States Ice and Refriger- ating Company agt. Read et al., 253 V. Van Rensselaer agt. City of Albany 42 Van Wyck agt. Horowitz 279 w. Ward agt. Comegys et al 428 Ward agt. Ward and others... 345 Wells agt. Lachenmevcr 252 Westover agt. The ^Etna Life Insurance Company 163 Westover agt. The /Etna Life Insurance Company 1.S4 Wunncnberg agt. Geraty 131 Wyckoff agt. Devlin 333 TABLE OF CASES CITED IN THE OPINIONS IN THIS VOLUME. 77 ^ Y 336 147 Mutual Life Ins. Co A. PAGE. Abbott's Digest, 357, paragraphs 180, 1 81, 182 ...................... 59 Ackerman agt. De Lude ............ 20 Week. Dig., 544 ........... 390 Adams agt. Fields ................. 21 Vt. , 256 _____ .............. 114 Adams agt. Bush .................. 2 Abb. (N. S.), 112 ............ 229 Addison on Torts (3d ed.), 312 ................................... 304 Albany City National Bank agt. ) 93 N Y 363 339 City of Albany ................. f Alden agt. Clark .................. 11 How., 269 ........ ' ......... 205 Allen agt. Everitt ................ 12 B. Munroe, 371 . ........... 114 Alston agt. Holland ................ 4 Chy. App. Cases, 168 ....... 436 American Mills Co. agt. Schnitzer. . . 1 Daily Reg., June 16, 1884. ... 55 American Union Telegraph Co. agt. ) n N" Y 408 477 Middleton ................... . . f Anonymous ........................ 6 Cow. , 390 ................. 238 Armstrong agt. Armstrong ......... 29 Ala. (N S.), 538 ............ 114 Attorney General agt. Atlantic Mutual Life Ins. Co ............ Ayers agt. Covill ........... ....... 18 Barb. ,263 ................. 100 B. Babbitt et al. agt. Selectmen of Savoy, 3 Gush. ,530 ................ 340 Bailey on Principal and Agent, by Loyd, 327 ....................... 298 Baker agt. Baker ................... 23 Hun, 856 .................. 209 Baker agt. City of Utica ............ 19 N. Y., 326 ................ 66 Baker agt. Ludlow ................. 2 Johns. Cas., 289 ............ 394 Bancroft agt. The Inhabitants of | ..Q pink *n6 340 Lynfleld ..................... f Bangs agt. Story ........... . ....... 7 Hill, 250; 4 N. Y., 315 ..... 205 Bank of Genesce agt. Spencer ....... 18 N. Y., 150 ................. 205 Bank of Chenango agt. Brown ...... 26 N. Y., 467 ............... 374 Bank agt. Simonton ................ 14 Rep., 315 .................. 436 Bank of California agt. Collins ...... 5 Hun, 209 ................... 452 Barbour on Parties, 3lil .......................................... 402 Barbour on Parties, 42, 43 ...................................... 172 Barnes agt. Newcomb .............. 89 N. Y., 108 ............... 146 Baring agt. Corry .................. 2 B. & Aid., 137 .............. 299 Baskin agt. Baskin ............ ..... 36 N. Y., 416 ............ 116, 497 HOWARD'S PRACTICE REPORTS. Table of Cases Cited. PAGE. Bates agt, Plonsky T 28 Hun, 112 361 Bates agt. Rosekrans 4 Abb. (N. S), 276; 37 KY., 409, 430 Bates agt. Drake 53 N. Y., 21 1. . . .-. 435 Bates agt. Stearnes 23 Wend. ,482 470 Batsy agt, Briggs 56 X. Y., 407 493 Becket agt. Howe L. ,1. R. (X. S.), Prob. & M., 1, 11(5 Beddow agt. Beddow 9 Ch. Div. ,89 235 Beebe agt. Elliott 4 Barb. , 457 , 470 Bennett agt. Mathews 40 How., 428 240 Bettis agt. Goodwill 32 How., 14? 84 Bevan ct n.l. agt. Cooper c.t al 72 X. Y., 317 7(5 Beyer agt. The People 36 X. Y., 3G9 109 Binneyagt.LcGal j 1 *bb., 283; 10 How., 301; 19 ( Barb., 592; 2 Law Bull., 55, 84 Bish. Crim. Law (7th ed ), sec. 533 100 Bish. Stat, Crimes (2d ed.), sec. 62 1 100 Bish. Stat. Crimes (2d ed ), sec. 225 100 Bliss agt. Bliss 7 Bosw., 339 299 Blodget agt, Conklin and Arnold 9 How., 4J2 238 Blount agt. Gobler 77 N. Y., 451 145 Boerumagt. Schenck 4i X. Y., 181, 190, 191 218 Bolen agt, Crosby 49 X. Y. , 183 453 Boiler agt. Mayor, &c 40 N. Y. Sup. Ct. R., 537 91 Bowen agt Id ley 1 Ed w. Ch. ,148 41 Bowman agt. Norton 5 C. & P. , 177 193 Boyce agt. Brown 7 Barb , 80 98 Boylan agt. Me A voy 29 How. , 279 40 Bradford agt. Bradford 19 Ohio State, 546 142 Broadbent agt. Barlow 3 DeGex, Fisher & Jones, 507, 43(5 Briggs agt. Wells 12 Barb., 507 470 Brown agt. Leavitt 26 Maine, 251 235 Brown agt . Lynch 50 X. Y. , 427 1 56 Brown agt. Riekerts !5 Johns. Ch , 553 402 Brown agt. Turner 15 A la , 832 524 Bull agt. Church 5 Hill, 206 515 Burke agt. Thome 44 Barb., 363 430 Butterficld agt, Forrester 11 East, 60 421 Butterworth agt, Gould 41 X. Y., 451 534 Butts agt. Wood 37 X. Y.,317 251 C. Cagger agt. Lansing 64 N. V. , 4 1 7 470 Canclccugt. Hayward 37 N. Y., G53 340 HOWARD'S PRACTICE REPORTS. ix Table of Cases Cited. PAGB. Carley agt. Hodges .19 Hun, 187 452 Carhart agt. Blaisdell 18 Wend., 531 59 Carlton agt, Carltou 85 N. Y.. 33 135 Carman agt. Townsend 6 Wend. , 206 524 Case agt. Campbell 17 Week. Dig., 473 180 Cassidy agt. Meacham 3 Paige, 312 213 Catlett agt. Catlett 35 Mo. ,340 114 Catlin agt. Billings 16 X. Y. , 622 361 Cavanah agt. Morrow 67 How., 1. 215 Chadwick agt. Bray 1 Civil Pro R., 425 90 Chaffee agt. The Baptist Missionary ) IQ p. V s~ 40T Society ' Chapman agt, Lathrop 6 Cow., 110 299 Chase agt. Peck 21 N. Y., 581 367 Chen's Appeal 45 Penn. St , 228 142 Chipman agt. Montgomery 63 N". Y. , 221 66 Christman agt. Moran 9 Penn. St. , 233 235 Churchill agt. Prescott 2 Bradf., 304 197 City of Buffalo agt. Bellinger 76 N. Y. , 3!)3 339 Cily of Erie agt, Magill 101 Penn t filfj 420 Clark agt. Dakin 2 Barb. Ch., 36 213 Clark agt. Jacobs 56 How., 519 367 Clark agt. Woodruff 18 Hun, 423; 8:5 N. Y., 325. . . 402 Cocks agt. Weeks 7 Hill, 45 510 Cohen agt. Virginia 6 Wheat. ,420 506 Com. agt. Cooley 10 Pick., 37 It} Com. agt, Macomber 3 Mass., 439 103 Com. agt, Kenniston . 5 Pick., 420 103 Com. agt. Tarbox 1 Cush. ,66 103 Com. agt. Wright 1 Cush.', 62 103 Commissioners of Excise agt. McGrath 27 Hun, 425 29 Commonwealth agt, Dallas 4 Dull., 518 505 Comfort agt. Rivett 2 M. & Sel.. 510 303 Compton agt. Mitton 7 Halst. ,70 116 Coleman agt, Second Ave. R. R. Co.. 38 X. Y., 201 254 Collyer on Part., sees. 123, 129 274 Coles agt. Trecothick 9 Ves. , 249 113 Cook agt. Parsons Finch's Prec. in Ch. , 185 113 Cook agt. Whipple 55 N. Y., 166 365 Cook agt, Turner 15 M. & W., 127 141 Cooley's Const. Lim. (5th ed.), 258 340 Cooper agt. Smith 43 Supr. Ct., 9 229 Cottle agt. Vanderlmyden 11 Abb. (N. S.), 17 195 Craig agt. Craig 3 Barb. Ch., 76, 94 348 Vor, II ii HOWARD'S PRACTICE REPORTS. Table of Cases Cited. PAGE. Crocker on Sheriffs (2d ed.), sec. 39 213 Cragin agt. Lovell 88 K Y., 258 476 Cribbenagt. Scbillinger 30 Hun, 284 53 Crogan agt, Livingston 17 X. Y., 223 41 Culler's Bankrupt Laws 299 Cushman agt. Addison 52 N. Y., 628 274 D. Daggett agt. Mead 11 Abb. N. C., 116 263 Davidson agt. Alfaro 80 JN T . Y., 660 36 Davies, Mayor, etc., agt. City of I gg ^ y 397 339 New York ) Davis agt. Shields 26 N. Y., 352-358 115 Dayton on SUIT. (3d ed.), 396 409 Dawley agt. Brown 79 N. Y., 390 471 De Peyster agt. Michael 6 N. Y., 4G7, 492, 493, 494, etc., 330 Devlin agt. Bevins 22 How., 290 431 Dibble agt. Hathaway II Hun, 574-575 322 Dickinson agt. Gilliland 1 Cowen, 481 11 Dilleber agt. Home Ins. Co 87 N. Y., 7, 83 359 Dillon agt. Sixth Avenue R. li. Co. . 46 Supr. Ct., 21 43 1 Dimmick agt. Cooley 4 Civil Pro. Reps., 141 344 Dodge agt. Dodge 31 Barb., 413 515 Dos Passes on Stock Brokers and Stock Exchanges, 162-163.... 485 Downer agt. Eggleston 15 Wend. , 51 303 Downey agt. State 4 Mo. , 572 104 Dows agt. Congdon 16 How., 571; 28 N. Y.,122.. 11 Dunlop agt. Patterson Fire Ins. Co. . 74 N. Y., 145 49 Dunscombe agt. K Y., H: and/ g4 N y m _ _ 2M N. R. R. Co ) Dupuy agt. Wurtz 53 N. Y., 556 112 Durkin agt, The City of Troy 61 Barb., 437 421 E. Eagan agt. Moore 2 Civil Pro. R., 300 364 Eddington agt. Mutual Life Ins. Co., 67 N. Y., 196 167 Edington agt. ^Etna Life Ins. Co 77 N. V., 504 191 Edington agt. Mutual Life Ins. Co. . 67 N. Y., 185 191 Egbert agt. Wood 3 Paige, 517 274 Eland agt. Karr 1 East, 375 303 Elwes agt. Elwcs. 2 Lee's Cases, 573 196 Embury agt. Connor 1 Coiust., 511-517 443 Engel agt. Fisher 15 Abb. N. C., 72 341 HOWARD'S PRACTICE REPORTS. xi Table of Cases Cited. \ Equitable Life Assurance Society ) 75 N y 511 439 agt. Cuyler .................. ) Estate of Thorn .................. 4 Mo. Law Bui., 48 ........... 41 Eustice agt Holmes ................ 3 Denio, 244 ................. 1 45 Evanturel agt. Evanturel ........... L. R., 6 P. C., 1 .............. 142 Eversou agt. Gerham ............... 1 Abb., 167. . ................ 84 Ex parte Brown ................... 2 Bradf., 22 ................. 199 F. Fadner agt. The People ............ 2 N. Y. Crim. Rep., 553 ...... 100 Fair agt. Mclver ................... 16 East, 130 .................. 303 Fairlee agt. Bloomingdale .......... 67 How., 292 ................ 51 Faucett agt. Vary ....... ........... 59 N. Y., 597 ................ 365 Favrill agt. Railway Company ...... 2 Exch R., 344 ............... 234 Ferris agt. Van Vechten ............ 73 N. Y., 113 ................ 436 Field's Lawyer's Briefs, vol. 3, sec. 538, ............................. 100 Ford agt. Whitridge ................ 9 Abb., 416 .................. 238 Fox agt. Hazeltine ................. 10 Pick. , 275 .......... . ...... 235 Frostman agt. Schaulting .......... 21 Weekly Dig., 358 .......... 344 Fredicanagt. Guardian Mutual Life | 63 N. Y., 392; 45 How., 462, Ins. Co ....................... ) 230, 232 Fulton agt. Roosevelt .............. 1 Paige, 178 .................. 41 Gamble agt. Village of Watkins ____ 7 Hun, 448 ....... ............ 342 Garner agt. Gladwin ................ 12 Weekly Dig., 10 ........... 36 Garrison agt. Garrison ............. 67 How., ^71 ................. 84 Geib agt. Topping ................ 83 N. Y., 46 ................. 74 Genet agt. Davenport ............... 58 N. Y., 607 ................ 7 Gere agt. Gundlach ............... 57 Barb., 13 ................. 21 Gere agt. Gundlach ................ 57 Barb., 15 .................. 362 Gibbon agt. Ogden ................ 9 Wheat., 188 ............... 505 Glaubensklee agt. Hamburgh and | q . , , ,Q, I2j American Steam Packet Co . . . . i Godolphin, pt. 3, chap. 1, sec. 1 .................................. 409 Groff et ai. agt. Kinney ........... 1 How. (N. S.), 59 ............ 51 Grattanagt. Metropolitan Life Ins. Co. 80 N. Y., 281 .......... 191, 223 Greenbaum agt. Stein .............. 2 Daly, 223 ................. 229 Greenleaf on Evidence, sec. 243 ................................. J91 Guillane agt, Guillane ........... 3 Sw. & Tr., 200 ............ 116 Griffiths agt. De Forest ............. 16 Abb., 292 ............. 83 xii HOWARD'S PRACTICE REPORTS. Table of Cases Cited. H. PAGE. Hadsell agt. The Inhabitants of? Q r.. a[T r 7 oA, 335 ........ 411 Haydock agt. Coope ............... 53 X. Y., 08 ................ 218 Head agt. Smith ................... 44 How., 470 ................. 229 Ilecrman agt, Clarkson ............ 64 X. Y., 171 .............. 342 Hellnigel agt. Manning ........... 97 X. Y., 60 ................. 307 Henderson agt. Bannister ........... 1 City Ct, R., 125 ............. 290 Henry agt. Salina Bank ............ 1 N. Y. , S3 ................. 130 Herman agt. Aaronson ............. 8 Abb. [X. S.], U>5 ............ 40 Her/ford agt. Davis ................ 102 U. S. R. , 235 ............ 322 High on Extraordinary Sureties, sec. 431 and cases cited in note ---- 71 Hilliard on Sales (3d ed.), 239 .................................... 304 Milliard on Sales (3d Ind. ed.), 309-405 ............................ 304 Hilton agt. Snishcimer .............. Daily Reg. , March 27, 1885 ---- 36 Hiltown Road ...................... 18 Pcnn. St., 233 ............. 235 Hitchcock agt. Peterson ............ 14 Hun, 38!) .................. 523 Hoag agt. Lamont ................. 00 N. Y. , 96 ................. 153 llodgc agt. Gallup .................. 3 Denio, 527 ................. 11 Hodges agt. Buffalo ................ 2 Denio, 110 ................ 342 Hogan agt Stroub .................. 24 Wend. ,458 ............... 299 Howe agt, Howe .................... 5 Weekly Dig, 400 ........... 210 Ilooley agt. Gieve ................. 9 Abb. X. C. , 41 ............. 435 Hopfensach agt. Hopfensach ........ 61 How., 498 ................. 416 Houghton agt, Mathews ............ 2 Bos. & P., 490 .............. 299 Howard agt, Tiffany .............. 3 Sandf., 095 ................ 98 Howard agt. Sexton ................ 1 Den., 440 .................. 247 HOWARD'S PRACTICE REPORTS. Table of Cases Cited. Hoystradt agt. King-man ............ 22 N. Y., 372 ................ 115 Hoyt agt. Thompson's exrs .......... 19 N. Y., 208 ............... 2,">6 Hoyt agt. Godfrey ................. 88 N. Y., 069 ........... _____ 523 Hurlburt agt. Durant .............. 88 N. Y., 121 ............. ____ 142 I. Illinois Trust and Savings Bank agt. ) lg Federal ^ teFj 858 _ . 436 First National Bank .......... . > Ilott agt. George .................. 8 Curt,, 172 .................. 116 In re Harbour ..................... 52 How., 94 ................ . . 21 In re Brady ........................ 66 N. Y., 215 ................. 241 In re N. Y., L. and W. R. R. Co., to acquire lands In the Goods of Bosanquet .......... 2 Robt., 577 ................. 116 In the Goods of Janaway ........... 44 L. J., P. & M., 6 ........... 116 In the Matter of Benson ........... 10 Daly, 166 .................. 243 In the Matter of Fink ............... 59 How., 145 ................. 285 In the Matter of Fowler ............. 8 Daly ...................... 286 In the Matter of Roberts ............ 59 How., 136 ................. 243 In the Matter of the Will of Phillipps, 98 N. Y., 267 ................. 497 / ) J. Jackson agt. Westerfleld ............ 01 How., 399 ................. 141 James agt. Patten ................. 6 N. Y. , 9 .................. 1 15 Jar. on Wills (vol. 1, R & T. ed.), 145, ............................. 409 Jewett agt. Miller ................. 10 N. Y., 402 ................. 219 Johnson agt. Cornwall .............. 26 Hun, 499 .................. 352 Johnson agt. Johnson ............... 14 Wend. ,642 ............... 527 Jones agt. Fetch .................... 3 Bosw., 66 ................. 404 Jones agt. N. Y. and Erie R. Co ____ 29 Barb., 6:33-680 ............. 229 Jones agt. U. S. Slate Co ........... 16 How., 129 ................. 364 Judson agt. Stilwell ................. 24 How., 553 ................. 299 Juillard agt. Chaffee ................ 99 N. Y., 529 ................. 145 K. Kaufman agt. The People .......... 11 Hun, 82 .................. 109 Keator agt. The Ulster and Dela- | ~ TT *, 047 ware Plank Road ............. i Keiguin agt. Keiguin .............. 3 Gush., 611 .................. 116 Kennedy agt. Life Insurance Co. . . . 32 Hun, 35 .................. 135 Kennett agt. Robinson ............. 2 Id. Marsh. (Reg.), 84 ........ 301 Kent agt. Quicksilver Mining Co ... 78 N. Y. , 159 ................ 256 Kiefer agt. Webster ................ 6 Hun, 526 ................... 54 xiv HOWARD'S PRACTICE REPORTS. Table of Cases Cited. PAGE. King agt. Brown .................. 3 Term, 574 ................. 70 Kingagt. Maldwin ................. 17 Johns., 384 ............... 527 King agt, Lynn .................... 2 Durn. & East, 314 .......... 16 Kipp agt. Bank of New York ....... 10 Johns., 63 ................ 435 Knowles agt. Gee ................. 8 Barb. ,300 ................. 98 Koppel agt. Hendricks ............. 1 Barb. 449 .................. 21 L. Lampkin agt. Douglass ............. 27 Hun, 517 ................. 54 Lathrop agt. Clapp .............. 40 N. Y., 328 ................ 450 Lang agt. Wilbrahane ............. 2 Duer, 171 .................. 470 Law agt. Harmony. ............... 72 N. Y., 408 ................ 350 Lawton agt. Kiel .................. 51 Barb., 30 ................. 365 Lautz agt. Buckingham ............ 4 Lans , 484 .................. 16 Lawrence agt. Cooke .............. 32 How., 12(5 ............... 352 Leading Cases in Eq. (White & Tutor [4th ed.J ), vol. 1, 2:J7-259, 216 Le Couteulx agt City of Buffalo ____ 33 X. Y., 333 ............... 839 Ledwith agt. Union Trust Co ....... 2 Dem., 439 .................. 3U8 Le Fevre agt. Toole et al ........... 84 N. V., 95 .................. 76 Lemayne agt. Stanley .............. 3 Lev. , 1 .................... 113 Lent agt. Howard ................. 89 N. Y, 169 ................ 493 Levy agt. Levy ---- ............... 3 Madd. , 245 ................. 41 Lewis agt. Merritt .................. 98 N. Y., 206 ........... ... 414 Lewis agt. Smith ........... ....... 9 N. Y., 502 ............... 517 Like agt. McKinstry ............... 41 Barb., 186 .............. 477 Little agt. Lynch ................. 34 Hun, 396; 1 How (N. S.), 95, 71 Lobdell agt. Lobdell ............... 36 N. Y., 327 ................ 15 Loeschigkagt. Hadfleld ..... \ 51 K Y " Q '> 5 Robt 2(5: 19 I Abb., 169 ................... 274 Lowber agt. The Mayor, etc., of ) - Abb ^ 4g7 ^ 235 New York .................... ) Ludlow agt. Ludlow ............... 35 N. J. Eq., 489 ............. 116 M. Malmesbury Railroad Co. agt, Budd, 2 Ch. Div., 113 .............. 235 Markham agt. Jandon .............. 41 N. Y., 2:J6 ................. 434 Marshall agt. Meech ................ 51 N. Y., 143 ................. 171 Martin agt. Hawks .................. 15 Johns., 405 ................ 171 Martin agt, Martin ................ 3 How. , 203 .................. 3<0 Mason agt. Jones ................... 2 Barb., 221) ................. 81 Matter of Baker ...... ............. 11 How., 418 ................. 87 Matter of Becker ................... 28 Hun, 207 .................. 40 Mutter of Case agt. Campbell ........ 17 Week. Dig., 473 ............ 87 HOWARD'S PRACTICE REPORTS. Table of Cases Cited. Matter of Curser 89 N. Y., 401 263 Matter of Application of Mayor f j. 49 N Y 150 232 New York ' Matter of Application of N. Y. C. ) ^ ^ y 64 233 andH. R. R ? Matter of Davis 19 How., 323 87 Matter of Everett 10 Daly. 9!) 449 Matter of Kerrigan 2 Civil Pro., 334 308 Matter of Sarah Miles 4 Dana (Ivy.), 1. . . 114 Matter of North agt. Cary 4 N. Y. Sup. Ct. R., 357 178 Matter of Prospect Park and C. I. ) 05 JT y 489 23 R. R. Co ) Matter of Surplus Moneys, etc., in / 04 ]sr y gn r 517 estate of .lohn C. Zahrt f Maxon agt. Scott 55 N. Y. , 247 520 Mayer agt. Mias 8 Moore, 275 ; 1 Ring ,311 304 McAdams Marine Ct. Pr. (2d ed ); 36 21 McFarren agt. St. John 14 Hun, 387 362 McKenzie agt. L'Armoreaux 11 Barb., 516 405 Mcllvaine agt. Hilton 7 Hun, 59 1 520 Me Murray agt. McMurray 41 How., 41 40 Mechanics' and Traders' Bank agt. ) u N y Week D - 120 _ m Healey ) Meech agt. City of Buffalo 39 N. Y., 198 339 Meel agt. Brothers 10 Wend., 495, 496 299 Merchant agt. Sessions 5 Civ. Pro. Repts., 24 '. . . . 344 Merchants' Bank agt. Thompson. ... 55 N Y. , 12 367 Miallagt. Brain 4 Mad. Rep.. 119 518 Mickleagt. Mattock 17 N. J. Law, c8 116 Miller agt. Franklin Bank 1 Paige, 444 160 Miller agt. Miller 32 Hun, 481 57, 260, 263 Miller agt. Brenhams 68 N. Y., 83 508 Miner agt. Mechanics' Bank 1 Peters, 46, 64 378 Mitchell agt. Butel 10 Ward, 495 299 Mitchell agt. Van Buren 27 N. Y. , 30') 364 Mitchell agt. Mitchell 16 I lun, 97; 77 N. Y., 596. . . . 496 M'Mnlkin agt. Hovey 46 How. , 405 513 Mollen agt. Tusca 87 N. Y., 166 .217 Monarque agt. Monarque 80 N. Y. , 3 .10 3;> 1 Moore agt. Hageman 6 Hun, 290 404 Morgan agt Schuyler 79 N. Y. , 490 Morrison agt Tumour 18Ves.,176 113 Morse on Arbitration and Award, 104, 105, 536 253, 235 Moultrie agt. Hunt 23 N. Y., 394 Ill xvi HOWARD'S PRACTICE REPORTS. Table of Cases Cited. PAGK. Mott agt. The Union Bank 8 Bosw. , 591 ; 88 N. Y. , 18 238 Murray agt. Hanken 30 Hun, 37 53 Musgrove agt. Lusk 2 Tenn. Ch. , 576 41 N. Nason agt. Luddington 56 How., 172 247 National Bank, &c. , agt. Temple. ... 39 How. , 432 522 Naylor agt. Lane 5 Civ. Pro Rep., 150 30 Neale agt. Neales 9 Wall. (U. S.), 1 15 Nelson agt. Bostwick 5 Hill, 37 . Newman agt. Goddard 3 Hun, 70. Newton agt. The Mutual Benefit ) lg Hun 5gf .^ _ lg( . Life Ins. Co ) New York and Oswego Railroad f 57 ^ Y 473 44 Company agt. Van Horn f Niles agt. Battershall.. . \ 2 Robt - 146 ' ]8 Abb -' 161 - 27 ( How., 381 84 Noonan agt. The City of Albany 79 N. Y., 470 43 Norris agt. Beyea 13 N. Y., 273 493 o. Ocean National Bank agt. Olcott. .... 46 N. Y., 12, 19 213 O'Donohue agt. Simmons 31 Hun, 267 462 O'Dougherty agt. Remington Paper ) Q[ ^ m ^ ('o \ O'Jriara agt, Dudley 'Jo N. Y., 403 161 Oliver agt. King 8DeG., Mac. & G., 110 215 Orton agt. Orton 3 Keyes, 486, 488 409 P. Parish Will Case 25 N. Y., 9 167 Park agt. Park 80 N. Y'., 156 '20!) Parsons on Cont., 183 274 Parsons on Contracts (vol. 2), 516 ;!9.> Patrick agt. Metcalfe 37 N. Y. , 332 534 Payne agt. Burnham 62 N. Y., 69 219 Peasley agt. Safety Deposit Life Ins. Co Penkernelli agt. Bischoff 2 Abb. N. C., 107 271 Penley agt. Waterhouse 3 Iowa, 418 510 People agt. Allen 42 Barb. ,203 178 People agt. Allen 51 How., 97, 99, 100 178 j. 15 Hun, 227 1(5(5 HOWARD'S PRACTICE REPORTS xvii Table of Cases Cited. PA(JB. People agt. Atlantic Mutual Life I 74 N y 177 147 Ins. Co ) People agt. Brundage 78 N. Y., 403 506 People agt. Collins. 19 Wend. ,56 71 People agt. Common Council, etc. . . 45 Barb., 473; 3 Keyes, 81 69 People agt. Comstock 78 N. Y., 356 374 Peopleagt. Dowling 84 N. Y., 478 110 People agt. Draper 28 Hun, 1 109 People agt. Flagg 46 N. Y., 401 373 People agt. Gardner 45 N. Y., 812 503 People agt. Goodwin 50 Harb., 562 505 People agt. Green 2 Wend. , 274 500 People agt. Hall 80 N. Y., 117 340 People agt. Halsey 37 N. Y., 344 71 People agt. Isaacs IKY. Crim. R., 148 97 People agt. Jacobs 5 Hun, 428, 433; 66 N. Y., 8. . 209 People ex rel. Joyce agt. Brundage . . 78 N. Y., 403 504 People ex rel. Judson agt. Thatcher. . 55 K Y., 525 839 People agt, Lucas 25 Hun, 610 268 People agt. Mann 97 N. Y., 532 504 People agt. Marine Court 23 How., 427 21 People agt. Mayor 31 Hun, 296 88 People ex rel. Morris agt. Adams .... 9 Wend., 464 342 People agt. Reilly 25 Hun, 587 209 People ex rel. Steiner agt. Morrison. . 78 N. Y., 84 341 People agt. Stevens 5 Hill, 616 87 People agt. Supervisors 68 K Y., 11', 119 379 People agt. Supervisors 51 N. Y., 401 379 People agt. Supervisors 68 K Y., 115 388 People ex rel.The Albany and Green- ) 67 How., 477; affirmed, 34 Hun, bush Bridge Company agt. > Weaver and others ) People ex rel. The Wallkill Valley x Railroad Company agt. Keator - 67 How., 277 455 and others - People agt. Vilas 36 N. Y., 459 339 Perry agt. Chester 53 N. Y., 241 36 Peters agt. Public Administrators. . . 1 Bradf., 200-207 199 Petrie agt. Lansing 66 Barb. , 557 403 Phelps agt. Phelps 6 Civ. Pro. R., 117 365 Phipps agt. Carman 23 Hun, 15 '; 84 N. Y., 650 ... 74 Phipps agt, Carman 26 Hun, 518 156 Pickard agt. Yencer 10 Weekly Dig., 271 173 Pickard agt. Yancer 21 Hun, 403 344 VOL. II Hi xviii HOWARD'S PRACTICE REPORTS. Table of Cases Cited. PAGE. Pier agt. George 8G 1ST. Y., 613 452 Pinney agt. Orth 88 N. Y., 447 414 Pierson agt. The People 79 N. Y., 424 191 Pleasant Valley agt. Calvin 13 N. W. Rep., 80 436 Pomeroy agt. Rickets 27 Hun, 242 55 Potter's Dwarris on Statutes, 156, 187 263 Powell agt. Powell 71 N. Y., 71 145 Powell agt. Fry 19 Hun, 600 271 Pratt agt. Adams 7 Paige, 639, 641 215 . o j 17 S. C. Rep., 428; S. C., 3 Am. Pratt agt. McGee ] _, ( Prob. Rep., 171 410 Pritchard agt, Pritchard 4 Abb. N. C., 298 210 Prouty agt. Swift 10 Hun, 232 38 Pursell agt. Fry 19 Hun, 595 59 E. Rabone agt. Williams 7 T. R., 360 298 Ramsey agt. Ramsey 13 Gratt. , 664 114 Randolph agt. Stedman 4 Abb., 262; 3 E. D. Smith, 648, 513 Rapalee agt. Stewart 27 K Y., 313 215 Redfield on Wills (vol. 3), 97 196 Redf. Surr. Pr., 243 ... 408 Regina agt. Mankelton 6 Cox Crim. Cases, 143 108 Regina agt, Timmins 8 Cox Crim. Cases, 401 108 Regina agt. Oliver 10 Cox Crim. Cases, 403 109 Remsen agt. Beekman 25 N. Y., 552 527 Rex agt. Morton 12 Cox Crim. Cases, 456 100 . ,., ( 54 How., 213; S. C., on appeal, Reynolds agt. Mason { 6 W/i, 531.. . .I. ....... 452 Ricketts agt. The Mayor 57 How. , 320 183 Riggs agt. Weydell 17 Hun, 515 ; 78 N. Y. , 586 . . . 363 Roadley agt. Dixon 3 Russ. Rep., 192 518 Robert agt. Ditmas 7 Wend , 522 59 Roberts' Case 59 How., 136 286 Robert agt. Corning 8!) N. Y., 225 350 Rochester and G. V. R. Co. agt. ) co Barb 234 _ 229 Clark Nat. Bank ' Rodermuncl agt. Clark 46 N. V., 354 217 Uoper agt. Town of Launburg 90 N. C., 427; ;iO A. B. L. C.,:i03, 340 Ross agt. Crary 1 Paige, 416 402 Rouf agt. Meyer 2 How (N. S.), 20 362 Roy agt. Roy's Ex'rs 16 Gratt., 418 114 Rumsey agt. Goldsmith 3 Denio, 494.. ..r 497 HOWARD'S PRACTICE REPORTS. xix Table of Cases Cited. PAGE. Russell agt. Hartt 87 K Y., 19. 112 Ryan agt. Kiiorr 19 Hun, 540 463 Ryder agt. Gilbert 16 Hun, 165 862 s. Salisbury agt. McClaskey 26 Hun, 262 247 Saudford agt. Jackson and others. . . 10 Paige, 266 517 Sandford agt. Jackson 10 Paige, 270 513 Saunders agt. Gillette 8 Daly, 184 30 Saunders agt. Le Roy 23 Bosw., 228 83 Savage agt. Burnham 17 N. Y., 561 350 Savage agt. Burnham 17 N. Y. , 561 517 Schetler agt. Smith 41 N. Y., 828 79 Schincker agt. The People 83 N. Y., 194 109 Schriver agt. Schriver 86 N. Y., 575 367 Schuyler agt. Thompson 15 Abb. (N. S ), 230 247 Sehrner agt. Hawkins 2 Esp. N. P. , 626 303 Sedgwick on Statutory, etc., La\v, 92 _.. 66 Selden agt. Colter 2 Va, Cas , 53;J 113 Seligmau agt. Wullacb ,, .6 N. Y. Civil Pro. Rep., 202. . . 449 Settle agt. Van Evera 49 N. Y., 230 503 Shackleton agt. Hart 20 How., 39 172 Seymour agt. Billings 12 Wend., 285 090 Shank agt. Conover 56 How ,437 120 Sharp agt. Fancher 29 Hun, 193 28 Sheldon H. B. Co. agt. Eickmyer ' 90 N Y 607 256 H. B. Co i" Sheppard's Touchstone (vol. 1), p. 400 409 Sherman agt. Smith 42 How. , 198 523 Shultz agt. Hoagland 85 N. Y., 464 219 Smith agt. Cutler 10 Wend., 589 232 Smith agt. Hall 67 N. Y., 48 145 Smith agt. Kidd 68 N. Y., 139 311 Smith agt. ftpooner 3 Taunton, 246 478 Stevenson agt. Abington 1 1 W. R , 935 142 State agt. Farrard 3 Halst., 333 99 State agt. Bean 19Vt.,539 104 Staunton agt. Parker 19 Hun, 59 167 Stephenson agt. Hanson 4 Civil Pro. Rep., 104 336 Stevens agt. Middleton 26 Hun, 470 5S Stief agt. Hart 1 Couist. , 20, 30 66 Stoddard agt. Trenbath 24 Hun, 183 344 Stoddard agt. Clarke 9 Abb. (N. 8.), 314 390 xx HOWARD'S PRACTICE REPORTS. Table of Cases Cited. PAGE. Stokes agt. Stickney 90 JS. Y. , 323 452 Story on Part., 346 274 Story on Agency (2d Am. ed.), 390 : 298 Southpark Comrs. agt. Kerr 13 Federal hep., 502 436 Sullivan agt, Sullivan 66 N. Y. , 37 515 Button agt. Newton 2 How. (N. S.), 56 260 Suydam agt. Belknap 20 Hun, 87 241 , 287 Swift agt. Swift 34 Beav., 266 439 T. Tallcott agt. Hess 31 Hun, 282 219 Taylor agt. Okey 13 Ves., ISO 303 Taylor agt. Plumer 3 Maule & Selwyn, 562 436 Taylor agt. Porter 4 Hill, 141 443 Teho agt. Robinson 1 Eastern Rep. , 7U8 510 Terry agt. Wiggins 47 N. Y., 517 492 Tiemeyer Turnquist 85 N. Y., 516 520 The Board of Supervisors Orleans / . Lans 24 339 Co. agt. Bowen ) The Commercial Warehouse Co. Grober. j. 45 N. Y.,393 ................ 49 The King agt. The Inhabitants of / g Rarn & Ado]>> 6 - < 395 Sedgley ....................... ' The Smelting Co. agt. Richardson. . . 3 Bur. , 134 ................... 395 Thompson agt. Hickey ............. 8 Abb. N. C. , 159 ............. 16 Thompson agt. Brown .............. 4 Johns. Ch., 61!) ............. 402 Tobias agt. Ketchum ............... 32 N. Y., 319 ................. 350 Tobias agt, Ketcham .............. 32 N. Y., 319 ................. 517 Tolley agt. Greene ................ 2 Sandf. Ch. ,9 ............... 352 Tompkins agt. Brown .............. 1 Denio, 247 .................. 510 Trott agt. Skidmore .............. 6 Jur. (X. S.), 76 ' ............ 113 Truman agt. Richardson ............ 68 N. Y., 61 ; ................. 341 Tucker agt. Westgarth ............ 2 Add., 352 ................. 196 Turno agt. Parks ........ ........... 2 How. (N. S. ), 35 ............ 344 Tyler on Infancy and Coverture, 76 ............................... 278 Tyson agt. Blake ................... 22 N. Y., 558 ................. 493 V. Van Rensselaer agt. Owen .......... 48 Barb., 61 .................. 470 Van Voorhees agt. Kelly ..................................... 88 Van Walhoffen agt. Newcombe ..... 10 Hun, 236 ................. 356 Vassear agt. Livingston ............. 3 Kern., 249, 252 ............ 430 Vernon agt. Vcrnon ................ 53 N. Y., 351 ............ 350, 515 HOWARD'S PRACTICE REPORTS. xxi Table of Cases Cited. PAGE. Victor agt. Henlein 34 Hun, 552, 565 217 Vincent agt. The People 5 Park., 100 100 w. Wade on the Law of Notices, sec. 1324 524 Wager agt. Wager 89 N. Y., 161 493 Wakeman agt. Sherman 9 N. Y., 85 510 Walcutt agt. Holcomb 31 N. Y., 125, 126 6 Walker agt. Frobister 6 Vesey, 70 232 Walker agt. Johnson 8 How., 240 290 Wallace agt. Bennett 41 Barb., 92, 95, 96 263 Waller agt. Lacy 1 Man. & Gr., 54 436 Waller agt. Waller 1 Gratt., 454 114 Walsh agt. Darrah 52 N. Y., 590 342 Walter agt. Sackwood 28 Bosw., 240 88 Washington agt. Buruhum 63 N. Y., 135 368 Week agt. Root 14 N. Y. Week. Dig., 90 493 Weeks agt. Southwick 12 How., 170 514 Wehle agt. Conner 83 N. Y. , 237. , 49 Weinbrenner agt. Johnson 7 Abb. (N. 8.), 202-207 214 Wells on Attorneys, sec. 373-379 171 Wells on Replevin, 399-551 304 Wells et at. agt. Wells et al 88 N. Y., 323 351 Wentzlar agt. Ross 50 How., .".97 55 Wetzell agt. Bussard 11 Wheat., 309 510 Werbolousky agt. Greenwich Ins Co., 5 Code Civ. Pro., 303 364 Wigram on Wills, Proposition I (2d Am. ed., 1872), 58; Proposition II, Id., 66 408 Weismer agt. Douglass. 64 N. Y., 91-105 443 Wilbur agt. Baker 2-t Hun, 24 344 Wilkinagt. Raplee 52 N. Y., 248 156 Wilkins agt. Batterman 4 Barb., 47 171 Williams agt. Walker 2 Sandf. Ch., 325 311 Wms. on Exrs., (6th Am. ed.), 1113 -1051 409 Williston agt, Williston 41 Barb., 535 15 Willis agt. Mott 36 N. Y., 486 496 Wilson agt. White 7 Cow., 477 338 Williamson agt. Williamson 64 How., 450 365 Wilson agt, Little 2 N. Y., 448 435 Whalen agt. Supervisors 6 How., 278 247 Wharton's Grim. Law (vol. 2), sec. 1407 100 Whart. Prac and Pleadings (vol. 1, 4th ed.), 271, 281 100 Wharton on Evidence, sec. 591 167 xxii HOWARD'S PRACTICE REPORTS. Ixew York Revised Statutes Cited. PASS. Wheeler agt. Newbould 16 K Y., 398 435 Wooden agt. \Vaffle G How., 145 98 \Voodruffagt.ImpenalFireInsur-) on N' Y *521 4-t~ ance Co ) Wright agt. Delafield 25 X. Y., 266 430 Wright agt. Williams 2 Wend., 642 390 T. Young agt. White 7 Beav., 506 , 299 z. Zabriskie agt. Smith 13 K Y., 333..'. 453 Zimmerman agt. Erhard 59 How., 11 51 Zogbaum agt. Parker 55 N. Y., 120 36 CONSTITUTION OF NEW TORK CITED. PAGE. PAGE. Const. N. Y., art. 3, 18 182 Const. N. Y., art. 0, 13 502 art. 1, $$ 1 and 6, 443 art. 5, 5, 6, 12,14, 503 UNITED STATES EEVISED STATUTES CITED. PAGE. PAGE. U. S. R. S., 639 460 U. S. Statutes at Large, 330. ... 467 NEW YORK REVISED STATUTES CITED. PAGE. PAOK. 1 R. S., 725, 30. 81 BANKS' SIXTH EDITION. 2 R. S., 65, 49 81 3 R. S. (Oth ed.), 128 159 617, $26 390 3 R. S. (7th ed.), 2291 195 308, 31 470 309, 36 470 EDMONDS' EDITION. 145, 145, sub. 2 526 2 R - s -> 91 258 92, 41 262 HOWARD'S PRACTICE REPORTS. xxiii New York Session Laws Cited. 2R. 1 R. 1R. 3R. 2R. 3R. 1845, 1847, 1848, 1848, 1849, 1850, 1857, 1869, 1870, 1870. 1870] 1871, 1871, 1812, 1873, 1873, 1874, 1875, 1877, 1877, 1877, 1879. FIRST EDITION. PAGE. 1R. 3R. 1R. 2R. SIXTH EDITION. S., 449, 8 PAGE. . . 102 S 693 ^ 12 13 14. . . ... 138 SEVENTH EDITION. S 1985 S 30 97 114 ... 1.7 SECOND EDITION. S., 114 ... 177 S., 816, 817, g 8, 9. .... 389, g 42, 43, 44, 45. 390, 391, 392, 1, 5, 12, 16, 17.... . . 86 . . 100 6, . . 101 S 444 178 R 438 246 376 . . 177 FIFTH EDITION. S., 8, 42 ... 246 S 992 17 . . 455 994 8 . 455 992, 17 . . 480 979, Sub. 15, g 2-5. . . . 484 PAGE. . . 16 NEW YORK chap 150 S 6 SESSION LAWS CITED. PAGE. 468 1880, 1880, 1880, 1880, 1880, 1880, 1881, 1881, 1882, 1882, 1882, 1883, 1883, 1883, 1884, 1884, 1884, 1884, 1884, 1884, 1885, chap. 566, 1 " 365 7 471 " 245 . . 58 " 105 109 " 56, 14 . 101 " 40 12 452 30, $ 3 . . 174 " 378 468 " 245 . . 263 140 372 " 269 . . 454 " 028 27 " 676, 649 . . 95 " 902 ^ 8 146 " 535 . . IPO " 359 7 . . . 159 " 417, 1701 . . 155 " 394 159 " 410, 223... . . 159 " 598 4 20 174 " 410 . . 473 " 419 . ... 16 " 234 . 246 " 32 ... 438 " 3o9 ... . . 340 " 654 . . 325 " 298 . . 424 " 820 ... 27 " 218, 1, 2 . . 17 " 136 . 335 " 410 . . 64 " 304 183 " 488 64 " 510 . . 130 " 252 . 125 . . 319 " 417 ... 57 " 315 " 817 58 ". 252 . . 371 " 318 ... 261 " 252 . . 423 " 310.. 16 XXIV HOWARD'S PRACTICE REPORTS. Sections of the Code of Civil Procedure Cited. SECTIONS OF THE CODE OF PKOCEDURE CITED. PAGE. Code, 308 . 513 317 57 Code, 317 321 PAGE. 260 6 SECTIONS OF THE CODE OF CRIMINAL PRO- CEDURE CITED. Crim. Pro., 275 104 Criin. Pro., 290 282 98 284 98 289 103 291 S 323 PAGE. . 103 . 103 97 SECTIONS OF THE CODE OF CIYIL PRO- CEDUPvE CITED. Code C. P. 14 PAGE. . . . 208 Code C. P., 586 PAGE. 49 60 . .. 171 636 54 66 . 345 6 6-19 362 3 90 . 41 709 441 t$ 315 . . . 21 721 248 S, 370 512 is 723 21 390 . . . 508 8 723 365 S$ 420 289 724 ... . 21 432, sub. 3.. . . 156 724 205 S 438 133 g 724 238 8, 439. . . . 133 738 83 448 .. 403 8 738 . . . . 290 449 . . 172 740 362 451 .. 294 8 779 . . . 156 (5 484 . 478 a 779 205 525 .. 122 8 797 . . . 525 526 .. 123 8 819 . 29 ^ 528 . . 121 8 829. . 414 550.., . 521 S 833.. . 191 HOWARD'S PRACTICE REPORTS. Sections of the Pen al Code Cited. Code C. P., 834... PAGE. 190 Code C. P., 2472 PAGE. . 308 834 .. 166 2508 41 . 41 835... 191 2511 835 .. 500 2512 . 41 3 837 .. ..130 2611 . . Ill 1016. . . 248 2643. . . 194 1166. . . 248 2690 . 323 1240. . 207 2706 . 159 1241 i 208 2710.. . 160 1245 21 2714 . 159 1278 . 83 2718 . 140 1533 . . 515 2814 . 323 1758 . 526 2817 . 308 1769. . . 207 2832 308 . 308 1773 . . 207 2858 1835 . 57 3017 . 117 1836 57 3160 . 334 1835 . 262 3169 . 55 1836 262 3169 . 335 1871 212 3234 . . 389 1932... 83 3240 . 270 1932. . . 294 3246 57 1934... 294 346 263 1935... 294 3247 7 2239 . 89 3251 289 2243... 90 325 9 513 22-19... 90 3268 834 28 2265... 90 3271 2456... 40 3343 45 2458... 120 3343 . 209 2467. . 162 3352 7 2468... 162 3355 . 41 2476... 112 PAGE. . 96 SECTIONS Penal Code 94 OF THE PENAL CODE CITED. PAGE. 96 Ppnnl fWIn. S 649 8549.. 97 1175 68 VOL. II iv ERRATA. In Westover agt. The ^Eltna Life Insurance Company (ante, p. 193), in thirteenth line from bottom of page, after the word " to " insert the words " an action could make." In Ward agt. Comeygs et al. (ante, p. 429), in first line from top of page, after the word "reply" strike out "set up to the" and insert the words "to an." HOWARD'S PRACTICE REPORTS, YORK. NEW SERIES SUPREME COURT. JOHN OLMSTBAD agt. MARY L. KEYES, HELEN M. YOSBUKGH, ei al Costs Who liable for, in case of transfer, &c., of cause of action Code of Procedure, section 321 Code of Civil Procedure, sections b247, 3352. Under section 321 of the Code of Procedure, one taking an assignment or becoming in any manner possessed of a cause of action after suit brought thereon is liable for all the costs of the action "the same as if he were a party," as well those accruing before as after the assignment. Section 3247 of fhe Code of Civil Procedure took effect September 1, 1880, and at that date section 321 of the old Code was repealed, but section 3352 of the Code of Civil Procedure protects all rights lawfully accrued or established previous to the repeal of section 321. Where the right to the costs claimed had become fixed and established by judgment, and the interest of the person, in the cause of action had been acquired prior to the repeal of section 321, his liability for the costs still continues. Under the second subdivision of section 3247, it being the same as section 321 of the Code of Procedure, a person becoming in any manner possessed of a cause of action after suit brought thereon is liable for all the costs of the action " the same as if he were a party," as well those accruing before as after he became so possessed. Fifth Department, General Term, April, 1885. Before BARKER, HAIGHT, BRADLEY and LEWIS, JJ. APPEAL from an order of the Monroe Special Term deny- ing the motion of Mary L. Keyes to compel Lemuel W. Bignall to pay her the costs, etc. VOL. II 1 HOWARD'S PRACTICE REPORTS. Olmstead agt. Keyes. Richard C. Steel, for Mary L. Keyes. Zouis Marshall, for Lemuel W. Bignall. HAIGHT, J. The plaintiff as trustee collected the sum of $1,811 upon a life policy of insurance issued upon the life of Lester V. Keyes. This money was claimed by the defendant Helen M. Yosburgh and others, children of the deceased by his first wife ; and also by the defendant Mary L. Keyes, his widow. This action was brought to determine their conflicting claims. It was tried at the Cayuga special term and result- ing in a judgment in which the defendant, Mary L. Keyes, was awarded the money in question and costs against the other defendants. Appeals were subsequently taken from the judg- ment upon the part of the defendants, Helen M. Yosburgh and others, children of the first wife, to the general term and court of appeals, and the judgment was in each court affirmed, with costs. Motion was then made upon the part of Mary L. Keyes to compel Lemuel W. Bignall to pay her the costs allowed her upon the entry of the judgment of the special term, fifty-six dollars and seventy-five cents, and also the costs allowed her in the general term upon the affirmance of the judgment, seventy- eight dollars and ninety-four cents, upon the ground that Lemuel W. Bignall, after the entry of judgment and before appeal was taken, purchased the interests of the children by the first wife of the deceased and took an assignment thereof and then prosecuted the appeal in their names. The motion was denied, and from the order entered thereon this appeal was taken. The first question which it becomes necessary to determine is, whether or not Bignall did in fact purchase the claim of Helen M. Yosburgh and others, children by the first wife ? The papers read upon the motion disclose the following facts : Charles M. Baker's affidavit states that he was the attorney HOWARD'S PRACTICE REPORTS. Olmstead agt. Keyes. for the plaintiff in the action : "And is informed and believes that after the rendering and entry of the judgment and before any appeal therefrom the rights and claims and cause of action of the defendants Catherine C. Livingston, Helen M. Vos- burgh, Eichard A. Keyes, Frederick A. Keyes, Cora lona Keyes and Helen M. Vosburgh as administratrix of the goods, chattels and credits of Huldah Keyes, deceased, became the property of said Lemuel W. Bignall by assignment, purchase, transfer or contract therefor, and that said Bignall acquired his right, interest and property therein for the purpose of taking an appeal from said judgment to the general term of said court and also to the court of appeals, and did cause such appeal to be taken in the names of said defendants, both to said general term and court of appeals. That his information is derived from the statements made under oath by one Artemas C. Vosburgh, by one T. William Meacham and by said Lemuel W. Bignall; said statements under oath were made in course of proceedings supplementary to execution taken under an order, of which schedule " B " hereto annexed is a copy ; that he was present when each of said statements were made, that they were reduced to writing and respectively signed in his presence by persons making them." He further states that in or about August, 1882, at Syracuse, N. Y., he had a conversation with Lemuel W. Bignall in relation to the action and the judgment for costs rendered therein and in this conversation Bignall said : " That when he acquired his interests in said action it was understood or agreed that the defendants in whose names appeals were to be taken were to be relieved and protected against liability for further costs. Deponent then inquired what was the arrangement as to costs already in judgment before appeal to the General Term, to which said Bignall answered that nothing was said about that. In the proceedings supplementary to execution referred to in the affidavit of Mr. Baker, the testimony of Artemas C. Vosburgh appears, and is as follows : " I am husband of HOWARD'S PRACTICE REPORTS. Olmstead agt. Keyes. Helen M. Vosburgh, one of the defendants in above entitled action. "While the action of John Olmstead against Mary L. Keyes and others was pending, I acted as gent for Frederick A. Keyes, Eichard A. Keyes, Cora lona Keyes, Catherine C. Livingston and my wife, and also Mrs. Vosburgh as adminis- tratrix. I was authorized to act as agent for each one of the above named defendants as their agent. I had a transaction with Lemuel W. Bignall ; Mr. Bignall was to take the case from where judge DWIGHT left it, to the general term, and if necessary to the court of appeals, and in the event of his winning the case he was to pay me, as the agent for the above named parties, three hundred dollars, and in case of his losing the case nothing. All above three hundred dollars he was to keep for himself. I think a memorandum was written and signed by Mr. Bignall and myself. * * * Mr. Bignall was to take the case and I be relieved from any further expense in the case. I communicated this agreement to all whom I represented, and they ratified it." T. William Meacham also testified in the proceedings as follows : " I know Lemuel W. Bignall ; have had a conversa- tion with him in reference to case of John Olmstead agt. Helen M. Vosburgh and others. I signed a bond or undertaking in this action for Mr.Bignall at his request ; my recollection of it is he had purchased the claim of Mrs. Keyes' children that is, Mrs. Huldah Keyes' children ; one was Mrs. Vosburgh, Mrs. Livingston, Cora lona Keyes, and I supposed of Frederick and Richard A. Keyes. He did not say when he obtained his interest." Lemuel W. Bignall himself also testified, in substance, that while the case of John Olmstead agt. Mary L. Keyes and others was pending in the supreme court he had a transaction with Helen M. Yosburgh and certain other defendants in relation to the matter in controversy ; that it was after judge DWIGHT had rendered his decision and before the appeal was taken to the general term ; that soon after judge D WIGHT gave his opinion, Mr. Yosburgh, the husband of Helen M. HOWARD'S PRACTICE REPORTS. Olmstead agt. Keyes. Yosburgh, stated to him that he was not going to appeal the case ; that he, Bignall, reported the statement to Mr. Mai-shall and that Mr. Marshall suggested that he should have Mr. Yosburgh transfer the case to him so that the case might be appealed to the general term and if necessary to the court of appeals ; that in the transaction he dealt with both Mr. Yosburgh and Mrs. Yosburgh ; that the paper delivered to him was signed by Mrs. Yosburgh ; that the whole object of the transfer was to enable Messrs. Ruger, Jenney, Brooks & French to appeal the case to the general term and to the court of appeals if necessary. That he thought the chances of success were sufficiently sure to warrant his having it transferred to him. In case they succeeded he was to pay $300 in full payment. Otherwise the defendant's were not to have anything. That his recollection is that Mrs. Yosburgh signed the only paper that passed between them. In opposition to the motion, Mr. Bignall read his own affidavit in which he says that prior to January, 1879, Yosburgh became indebted to him in a considerable sum of money loaned to him which he could not Qplleet from Yos- burgh ; that one day Yosburgh stated to him the facts in this case and he became interested therein, believing that he might possibly be able by the collection of the same, to receive payment on his account. That after the trial and decision in favor of Mary L. Keyes, Mr. Yosburgh was somewhat discouraged, but that Messrs. Ruger and Marshall who had become intensely interested in -the case and the questions therein, were desirous of having the same tested in the appellate courts ; that partly to please them and for the purpose of securing the payment to himself of the indebtedness to Yosburgh, and in the hope of obtaining some remuneration for his trouble in the matter, he urged Yosburgh to continue the action, and in mew of the facts agreed that he would take- care of the charges of the form of Ruger , Jenney, JBrooks <& French, and in case the suit terminated in favor of the children of Huldah Keyes, Yosburgh was to have $300 ; that his object HOWARD'S PRACTICE REPORTS . Olmstead agt. Keyes. was not to acquire by assignment the title to the cause of action, but to secure himself for his claim and trouble, and to do a favor to his friends Messrs. Ruger, Jenney, Brooks & French ; that thereupon Mrs. Yosburgh alone executed a paper in substance as stated, but that he does not believe that it was in form an assignment ; that he has caused diligent search to be made, but it cannot be found ; that his impression is that it was a mere embodiment of the foregoing facts. He also in his affidavit denies the statement sworn to by Mr. Baker as to the conversation had with him. It will be observed that the affidavit of Mr. Bignall, read in opposition to the motion, modifies in some respects his testi- mony taken in the supplementary proceedings, and that he denies the statement sworn to by Mr. Baker. We are, how- ever, of the opinion, after a careful reading of the affidavits, that it must be found as a fact that he became a purchaser of the claim of the children by the first wife to the money in controversy after judgment and before appeal ; that he caused the appeals to be taken and was to have the money in case he succeeded ; that in consideration for the claim he was to pay the expenses, and if successful, the sum of three hundred dollars. In the second place it becomes necessary to determine whether he is liable for the costs under the facts as disclosed. Section 321 of the old Code provides : " In actions in which the cause of action shall by assignment after the commence- ment of the action, or in any manner become the property of a person not a party to the action, such person shall be liable for the costs in the same manner as if he were a party, and .payment thereof may be enforced by attachment." In the case of Walcott agt. Holcomb (31 N. 7., 125, 126), DENIO, Ch. J., says : The provisions of the Code of Procedure in respect to the liability for costs of persons not parties to the record, is broader than the former practice of the courts or the corresponding provisions in the Revised Statutes. It embraces in its language the case of one defending an action HOWARD'S PRACTICE REPORTS. Olmstead agt. Keyes. in the name of the defendant on. the record, and of a respond- ent on appeal. In the case of Genet agt. Davenport (58 N. Y., 607), it was held that under section 323 of the Code of Procedure, one taking an assignment of a cause of action after suit brought therein, is liable for all of the costs of the action the same as if he were a party as well those accruing before as after the assignment. It appears that executions have been issued upon the judg- ment against the judgment debtors residing in the state, and that such executions have been returned unsatisfied, and that Bignall is not an attorney or counselor of the courts in this state. The section of the Code quoted, as construed by the authorities referred to, appears to cover the case and to establish the liability of Bignall, if the section in question remains in force and unrepealed, so far as this case is concerned. Section 3247 of the Code of Civil Procedure took effect September 1, 1880, and at that date section 321 of the old Code was repealed. Section 3352 of the Code of Civil Pro- cedure, however, provides that " nothing contained in any provision of this act other than in chapter fourth, renders ineffectual or otherwise impairs any proceedings in an action or a special proceeding, had or taken pursuant to law or any other lawful act done or right, defense or limitation, lawfully accrued or established before the provision in question takes effect, unless the contrary is expressly declared in the provision in question. As far as it may be necessary for the purpose of avoiding such a result or carrying into effect such a pro- ceeding or other act or enforcing or protecting such a right, defense or limitation, the statutes in force on the day before the provision takes effect, are deemed to remain in force, not- withstanding the repeal thereof." The cost on affirmance in the court of appeals is not asked in the notice of motion herein. It is only the cost allowed on entering judgment of the special term and affirmance in the general term. The judgment of the special term was HOWARD'S PRACTICE REPORTS. Olmstead agt. Keyes. entered May 19, 1879, and that of the general term February 28, 1880, so that the right to these costs became fixed by judgment before section 321 of the Code of Pro- cedure was repealed. It is true the appeal in the court of appeals was prosecuted afterwards, but it was not successful and does not consequently affect the judgment theretofore entered. An undertaking was given and a stay of proceedings secured pending the appeal to the court of appeals. Had it not been for the stay thus procured pending such appeal, this motion might have been made and granted before the repeal of section 321. To hold that Bignall is not liable under sec- tion 321 would be to relieve him from liability, because of the stay which he procured and which it is now determined was without merit and improper. It is such a result that section 3352 was intended to prevent. That section protects all rights lawfully accrued or established. The right to these costs had become fixed and established by judgment, and the interest of Bignall in the claim had been acquired prior to the repeal of section 321, and it appears to us that his liability for the costs still continues. If, however, we are wrong in this conclusion, we are still of the opinion that Bignall would be liable under section 3247 of the Code of Civil Procedure. That section provides : " Where an action is brought in the name of another by a transferee of the cause of action, or by any other person who is beneficially interested therein; or where after the com- mencement of an action, the cause of action becomes by transfer or otherwise the property of a person, not a party to the action ; the transferee or other person so interested is liable for costs, in the like cases, and to the same extent as if he was the plaintiff ; and where costs are awarded against the plaintiff the court may, by order, direct the person so liable to pay them. Except in a case where he could not have been lawfully directed to pay costs personally if he had been a party as prescribed in the last section his disobedience to the order is a contempt of court. But this section does not apply to a HOWARD'S PRACTICE REPORTS. Olmstead agt. Keyes. case, where the person so beneficially interested is the attorney or counsel for the plaintiff if his only beneficial interest con- sists of a right to a portion of the sum or property recovered as compensation for his services in the action." It will be observed that the first clause of the section pertains to cases in which action is brought in the name of another by a transferee or by a person beneficially interested, and that the second clause pertains to cases where the cause of action becomes the property of a person not a party after the commencement of the action. This second clause of the section is in substance a copy of section 321 of the Code of Procedure. The wording is in substance the same, and in the cases in which other words are made use of, they are used synonymously ; as, for instance, the words " by transfer or otherwise " are used in the place of the words " by asssignment or in any other manner." This second clause is not modified by that which follows, except that it does not apply where the person is the attorney or counsel of the plaintiff, if he has no beneficial interest aside from his compensation for his services in the action. The second subdivision of the section, being the same as section 321 of the Code of Procedure, the construction 01 that section as made in the case of Genet agt. Davenport (supra) must control. Order reversed, with ten dollars costs and disbursements, arid the motion granted. LEWIS, J., concurred ; BRADLEY, J., not voting ; BARKER, J., not sitting. VOL. II 2 10 HOWARD'S PRACTICE REPORTS. Dick agt. Livingston. SUPKEME COURT. WILLIAM H. DICK agt. HENRY "W". LIVINGSTON. Complaint Demurrer Mortgage Owner of a junior mortgage not per- mitted to single out one of several parcels covered by his and an oldar mortgage and redeem tJiat one parcel Parties. There is no general rules of law or equity which permits the owner of a junior mortgage to single out one of several parcels covered by his and an older mortgage and redeem that one parcel. His only right is to redeem the whole. The foreclosure of the older mortgages though not valid to cut off the younger is valid as a transfer of the rights of the older mortgagee to the purchaser or purchasers at that sale, and from them to their assignees. As the junior mortgagee or his assignee could not redeem a single lot out of the several mortgaged, from the older mortgagee, neither can he redeem a single lot from one who is the assignee of the older mortgagee, because such assignee succeeds to all the rights of the older mortgagee. If a part of premises covered by a prior mortgage can be redeemed by a junior mortgagee, all the parties who purchased at the prior mortgage sale, or their grantees, and the prior mortgagees should be parties. In such case it is always a question what amount shall be paid, and the owner of every parcel covered by the prior mortgage and the plaintiff in the foreclosure suit should be before the court. Ulster Special 2 J erm, April, 1885. DEMURRER to complaint. C. A. Baurhyte and It. E. Andrews, for defendant. Beale & JBeale, for plaintiff. WESTBROOK, J. The owner of a junior mortgage, not made a party to the foreclosure of two prior mortgages, brings this suit against the defendant, who is the owner of one piece of property covered by the three mortgages, which title of the defendant is through the sale under the prior mortgages, to redeem the one parcel. To this complaint there is a demurrer which is well taken for two reasons. HOWARD'S PRACTICE REPORTS. 11 Dick agt. Livingston. First. There is no general rule of law or equity which per" mits the owner of a junior mortgage to single out one of several parcels covered by his and an older mortgage and redeem that one parcel. His only right is to redeem the whole. The foreclosure of the older mortgages though not valid to cut off the younger is valid as a transfer of the rights of the older mortgagee to the purchaser or purchasers at that sale, and from them to their assignees. The defendant holds, therefore, the one piece of property sought to be redeemed with the same rights as against the younger mortgage which the owner of the older mortgages had. As the junior mort- gagee or his assignee could not redeem a single lot out of the several mortgaged from the older mortgagee, neither can he Tedeem a single lot from one who is the assignee of the older mortgagee became such assignee succeeds to all the rights of the older mortgagee. The cases cited by the plaintiff have no application. Two of them {Hodge agt. Gallup, 3 Denio, 527 ; Dickinson agt. Oilliland, 1 Cowen, 481) relate to redemptions by a mortgagee from a sale under a general judgment which is regulated by statute ; and Dows agt. Congdon (16 Sow., 571) simply decides that a railroad .company which had acquired title to a part of premises covered by a mortgage upon which it had erected valuable improvements, was entitled to have the premises sold in the inverse order of alienation, and if the parcels which should be sold prior to that of the company did not pay the mortgage, then the company could protect itself by paying the actual value of the property without its improvements, which value the court would ascertain without a sale. Even the doctrine of the last case, adopted for reasons peculiar to that case, and which reasons do not exist in this, is questioned with great force by EMOTT, J., when the case was before the court of appeals (28 N. Y., 122, 131, 133). The permission, however, to a party to a foreclosure suit to pay his prop9rtion of a mort- gage given, because the court supposed the owner had peculiar equities entitling him to protection is a very different 12 HOWARD'S PRACTICE REPORTS. Dick agt. Livingston. tiling from allowing the owner of a junior mortgage to single out one lot in regard to which he has no special equities, from several covered by his and the prior mortgage and redeem that one lot. To make the cases at all parallel his mortgage should cover but the single lot sought to be redeemed and there should be special equities favoring it ; and also all the parties having an interest in the questions involved should, as they were in Dows agt. Congdon, be before the court. The state, ment last made brings us to the second ground for sustaining the demurrer, which is : Second. All the parties who purchased at the prior mort- gage sale, or their grantees, and the prior mortgagees should be parties. If a part of premises covered by a prior mortgage can be redeemed it must always be a question what amount shall be paid ? In that question the mortgagee, or if he has parted with his interests, as he has in this case, the parties who succeed thereto should be brought in. It is apparent in this case, that even though the right to redeem exists, the owner of every parcel covered by the prior mortgage, and the plain- tiff in the foreclosure suit should be before the court. With- out their presence the court cannot decide what sum should be paid to redeem that one lot. Even though the party is only obliged to pay the amount it brought at the foreclosure sale, in the ascertainment of that sum all have an interest and should be parties. The defendant is entitled to judgment on the demurrer with costs, on payment of which, in twenty days, the plaintiff may serve an amended complaint. HOWARD'S PRACTICE REPORTS. Sckroeder agt. Wanzor. SUPREME COURT. ERNESTINE SCHROEDER, respondent, agt MOSES G. WANZOR, impleaded, &c., appellant. Cemetery lots Deed When cemetery' lots inalienable Complaint Anstcer Form of denial in answer which does not put in issue material allegations in complaint. Where it appeared that a certain lot in Greenwood cemetery was purchased by the husband of the plaintiff as a burial lot for herself, her husband and their family, and that it had been greatly improved, not only at his but at her expense, and their family dead had been placed in the lot as their final resting place : Held, that these facts were sufficient to disable the husband from afterwards conveying it away to another person, and thereby devoting it to a distinct and different purpose. The plaintiff had become so far interested in the property by its improvement, and the interment of her parents as to prevent her husband from making a legal or valid sale of it. The case of Thompson, agt. Rickey (8 Abb. N. G., 159 ; opinion by VAN VORST, J.) cited with approval. A denial in an answer ' ' on information and belief of all the allegations in the complaint contained not hereinbefore admitted or denied and not containing the allegation that the defendant had not sufficient knowledge or information to form a belief as to the other statements in the com- plaint, and for that reason he denied them, does not put in issue a material allegation of the complaint, and all such allegations will be taken as admitted. First Department, General Term, March, 1885. Before DAVIS P. J., BRADY and DANIELS, JJ. APPEAL from a judgment recovered on trial at the special term. George Bethwine Adams, for appellant. Sidney H. Stuart, for respondent. DANIELS, J. The controversy determinable by the judg- ment relates to the title of Moses G. Wanzor to a lot of land 14 HOWARD'S PRACTICE REPORTS. Schroeder agt. Wanzor. in Greenwood cemetery. It was purchased, and a deed taken for it from the Cemetery Association, by John Schroeder the plaintiffs husband, and he executed and delivered a deed of the same lot to the appealing defendant. The plaintiff claimed to have become so far interested in the property by its improvement, and the interment of her parents as to prevent her husband from making a legal or valid sale of it. It was alleged in the complaint that the lot had been purchased for the sole and only purpose, and as a place of burial for the dead of the family of the plaintiff and defendant, and that it had afterwards been improved by them by the expenditure of large sums of money, in caring for, beautifying and protecting the lot, and erecting a monument thereon. And that in addition to the interment of her parents, one of the sons of herself and her husband, and a brother of her husband had been interred in the lot. These allegations were not denied in the answer of her husband, neither were they in the answer of the other defendant. He did state in his answer after making specific admissions that " on information and belief he denies all the allegations in the said complaint con- tained not hereinbefore admitted or denied." But this statement neither denied directly the other allegations contained in the complaint, nor did it contain the allegation that the defendant had not sufficient knowledge or information to form a belief as to the other statements in the complaint, and for that reason that he denied them. And these are the only forms of denial which the Code has provided may be inserted in the answer. It has not permitted a material allegation in the complaint to be put in issue by the form of denial adopted by this defendant. He has neither made a direct denial of the other allegations in the complaint, nor averred that he had no knowledge' or information sufficient to form a belief as to such statements. For that reason these allegations contained in the complaint also stand admitted as to him, and the case is to be considered and disposed of with these facts established in that manner, in favor of the plaintiff. From them it HOWARD'S PRACTICE REPORTS. 15 Schroeder agt. Wanzor. appears that the property was acquired as a burial lot for the plaintiff aud her husband, and their family, and that it had been greatly improved, not only at his but at her expense, and their family dead had been placed in the lot as their final resting place. These facts were sufficient to prevent her husband from making such a disposition of the lot as was designed to be made in favor of the defendant, and which was to be followed by the removal of these bodies from the ground. For by the understanding that the lot was acquired as a family burial place, and it had been improved by the expen- diture of money by the plaintiff with that understanding, and to beautify and adorn it, and it had been so used, her husband had disabled himself from afterwards conveying it away to another person and thereby devoting it to a distinct and different purpose And she became entitled to the judgment which was recovered by her specifically devoting this lot of land to the object for which it had been purchased and improved. In this respect the case was brought within the principle of Lob- dell agt. Lobdell (36 N. Y., 327), where a father had verbally agreed to convey a piece of land to his son in case he entered upon it and improved it. That, it is true, included the entire legal title to the land, but if such an agreement can be held valid as it then was, when it includes the legal title, by the same reasoning upon which that can be accomplished, its legality is capable of being sustained, where the agreement to be implied may include an interest less than the legal title. The same point was discussed in Neale agt. Neales (9 Wall. U. S., 1) where it was declared that " equity protects a parol gift of land equally with a parol agreement to sell it, if accompanied by possession and the donee, induced by the promise to give it, has made valuable improvements on the property (Id., 9)." And this rule was followed in the decision of Williston agt. Williston (41 Barb., 635). Beyond that it would be offensive to the moral sense, and therefore should not be sanctioned by the court, to permit this 16 HOWARD'S PRACTICE REPORTS. Schroeder agt. Wanzor. property to be made the subject of speculative disposition, after these bodies had there been buried, with permission to the purchaser to remove them from their resting place. Such an interference with them was not sanctioned by the common law (King agt. Lynn 2 Durn. de East, 344; Com. agt. Cooly, 10 jPick., 37). And it was so considered in a very appropriate opinion delivered by Mr. justice VAN YORST in Thompson agt. Hiokey (8 Abb. N. O., 159). And the con- clusion then and now arrived at, is in no manner impaired in its strength by the case of Lautz agt. Buckingham (4 Lansing, 484), in which neither of the controlling circumstances was presented which are included in this case. The defendant appealing will not be deprived of the money paid by him as a consideration for the deed by this determination, for as long as he may be unable to obtain the land itself he will be at liberty to recover the consideration upon a rescission of his purchase. Good order, public decency and a just regard for the repose of the remains of the dead, require, under the facts of this case, that the judgment from which the appeal has been taken, should be affirmed. And this policy has been embodied in the legislative acts of the state for the manage- ment and government of the property of rural cemetery associ- ations. (Laws 1871, chap. 419; Laws 1879, chap. 310; Laws 1880, chap. 566, Sec. 1.) The judgment should be affirmed, with costs. HOWARD'S PRACTICE REPORTS. 17 The People ex rel. Ray agt. Davenport. SUPREME COURT. THE PEOPLE ex rel. CORDELIA RAY agt. JOHN DAVENPORT, as auditor, and LAWRENCE D. KJERNAN, as clerk to Board of Education. New York (city of) Colored schools Teachers in How to be removed Mandamus. By the act of 1884, chapter 248, the teachers in the colored schools, when said act was passed were continued as such teachers in the ward schools and primaries until removed in the manner provided by law. The words ' ' removed in the manner provided by law," mean the manner provided by the statutes relating to such removals. Those statutes provide for a removal by the board of trustees, and by the board of education, and a license of a teacher may also be revoked for any cause affecting the morality or competency of such teacher. The act of 1884 does not warrant the dropping of a teacher under a provision of a by-law of the board of education. The clear intention of the legislature was to continue the teachers in the colored schools until they were removed for some misconduct. New York Chambers, January, 1885. LAWRENCE, J. The relator is, I think, entitled to a peremptory mandamus in this case. Section 1 of chapter 248 of the Laws of 1884, provides that, " the colored schools in the city oi New York, now existing and in operation, shall hereafter be classed and known, and be continued as ward schools and primaries, with their present teachers, unless such teachers are removed in the manner provided by law, and such schools shall be under the control and management of the school officers of the respective wards in which they are located, in the same manner and to the same extent as other wards schools, and shall be open for the education of pupils for whom admission is sought, without regard to race or color." Section 2 repeals all acts or parts of acts inconsistent with the provisions of said act. It is niu claimed on the part of the board of education, that VOL. II 3 18 HOWARD'S PRACTICE REPORTS. The People ex rel. Ray agt. Davenport. the relator has ever been removed from her position as teacher, under the provisions of the statutes providing for the organi- zation of the board of education and prescribing the powers and duties of said board, and of the board of trustees of the several wards. The provisions in respect to sucli removals are contained in sections 1038 and 1042 of the consolidation act (See Manual of the Board of Education, pp. 20, 34). Neither is it alleged that the license of the relator has been revoked for any cause by the written certificate of the city superin- tendent and the written concurrence of two of the inspectors for the district for which the teacher is employed, as prescribed by section 1042 of the consolidation act (/See Manual of 1884, jp. 32). It is however alleged that, by the provisions of the act of 1884, the school to which the relator was attached became a ward school, under the provisions of the by-laws of the board of education relating to ward schools, and that by those by-laws but one teacher could be allowed for every thirty-five pupils of a grammar grade, and one for every fifty scholars of a primary grade, and that additional teachers could only be employed by the ward trustees, when authorized by the committee on teachers of the board of education. The respondents further aver, in their return, that the number of pupils returned by the principal of the school in question for the year 1883 was eigthy of the grammar grade, and that the number of teachers allowed by the by-laws aforesaid was, therefore, two only, and that two teachers, in said return named being senior in rank to the relator, were assigned to the two positions of first and second assistants, as prescribed by section 35 of the by-laws of the board of education. After examining the act of 1884, I am of the opinion that the teachers in the colored schools, when said act was passed, were continued as such teachers in the word schools and primaries until removed in the manner provided by law. I am also of the opinion that the words " removed in the manner provided by law." mean the manner provided by the statutes relating to such removals. As already shown, those HOWARD'S PRACTICE REPORTS. 19 The People ex rel. Ray agt. Davenport. statutes, provide for a removal by the board of trustees, and by the board of education, and that a license of a teacher may also be revoked for any cause affecting the morality or competency of the teacher {See sees. 1038, 1040 and 1042 of the Consolidation Act). In this case the relator was dropped under a provision of a by-law of the board of education, and not removed in the manner prescribed by the statute above referred to. This procedure I do not think was warranted by the act of 1884. I think that the clear intention of the legislature was to continue the teachers in the colored schools until they were removed for some misconduct. If there is any inconsistency between the act of 1884 and the by-laws of the board of education, the former must control, particularly in view of the fact that the act of 1884 provides that all acts or parts of acts inconsistent with the provisions of said act are hereby repealed. If the by-law of the board of education, upon which the learned counsel for the respondent relies, has the force and effect which he attributes to it, it is to my mind entirely inconsistent with the provisions of the act of 1884, respecting the "present teachers" in the colored schools. Indeed, the effect of the by-law in question seems to me, upon the facts stated in the return, to have been rather to increase the salaries of the two teachers who were the seniors in rank to the relator, than to " remove " the relator " in the manner provided by law." The learned counsel for the respondents has not furnished the court with a brief in this case, and I have considered it solely upon the points neces- sarily presented by the return to the alternative writ. No objection was taken on the oral argument to the form of remedy, and I have, therefore, assumed that no such objection is intended to be urged. Let an order be entered that a peremptory mandamus issue to the effect prayed for by the relator. 20 HOWARD'S PRACTICE REPORTS. Roof agt. Meyer. CITY COUKT OF NEW YORK. CLARENCE M. ROOF agt. PHILIP MEYER. Jurisdiction City court of New York Code of Civil Procedure, sec- tions 815, 723, 724. Where a judgment was recovered and entered in the city court of New York and execution issued thereon for more than $2,000, and the excess was remitted and the judgment and execution was amended nuncprn tune. On motion by a subsequent execution creditor to vacate the judg- ment and execution for want of jurisdiction and other alleged defects and irregularities : Held, that the jurisdiction of this court extends to any action wherein the complaint demands judgment for a sum of money only, whatever may be the amount claimed. The amount claimed does not affect the juris- diction of this court. If jurisdiction vests at the commencement of the action, it cannot be ousted by any subsequent act, although entry of judgment for the excess of its jurisdiction may have been an irregularity which the defendant might have objected to, a third party cannot. There being no want of jurisdiction, if there are any defects or irregulari- ties in the judgment, or proceedings or execution, they can be taken advantage of only by the defendant. The alleged irregularities and informalities, may be amended or corrected by an order to be entered herein. Special Term, February, 1885. MOTION by Charles Doll, a subsequent execution creditor to vacate the plaintiffs judgment and execution. HYATT, J. It appears from the moving papers that the plaintiff had a claim against the defendant and that he brought suit thereon by serving a summons and notice on the defend- ant on January 23, 1885, three days prior to the commence- ment of the Doll action ; the judgment which was entered thereon was for more than $2,'000, but the excess was remitted and the judgment and execution amended nuncpro fame. The defendant does not object to the validity of the judg- ment, execution and sale thereunder, nor does the moving party herein attack the same upon the ground of fraud or collu- sion. A subsequent judgment creditor is the only objecting party. He alleges several grounds for setting aside the pro- HOWARD'S PRACTICE REPORTS. 21 Roof agt. Meyer. ceedings in this action ; one as to the jurisdiction of the court, and the others relating to alleged defects and irregularities in the proceedings. Section 315, Code Civil Procedure, provides that the jurisdiction of this court extends to any action wherein the complaint demands judgment for a sum of money only. The language of this section is intended, as its terms show, to include any money judgment action whatever may be the amount claimed. This court has jurisdiction over all such actions. That the amount claimed does not affect the juris- diction of this court was held in In re arbour (52 How., 94) ; People agt. Marine Court (23 How., 447). if jurisdiction vests at the commencement of the action, it cannot be ousted by any subsequent act (Koppel agt. Heindricks, 1 Barb., 449 ; Me Adam's Marine (Jt. Pr. [%d ed.^\, 36). Jurisdiction having been thus acquired in this action regularly, all subsequent proceedings can be, at most merely irregular, and errors and irregularities may be disregarded or amended. The court cannot be ousted of jurisdiction. The court having jurisdic- tion, its judgment is not void, as between the parties, and a fortiori as to third parties. Entry of judgment for the excess of its jurisdiction may have been an irregularity, which the defendant might have objected to, a third party cannot. Section 1245 of the New York Consolidation Act, provides that any portion of a claim may be remitted in this court. There being no want of jurisdiction in the case at bar, if there are any defects or irregularities in the judgment or proceedings or execution, they can be taken advantage of only by the defendant. In the conceded absence of fraud, there being no want of jurisdiction, a subsequent execution creditor has no standing in court for the purposes of this motion (Gere agt. Gundlach, 57 Barb., 13). The alleged irregularities and informalities may be amended or corrected by an order to be entered herein (Code Civil Pro, sees. 723, 724). The motion to vacate the judgment is denied, with ten dollars costs, and the stay of proceedings vacated. NOTE. Affirmed March General Term. [Eo. 22 HOWARD'S PRACTICE REPORTS. Briggs agt. " Tne Titan." U. S. CIRCUIT. FBEALON BKIGGS agt. " THE TITAN " and JOHN H. STAKRIN and " THE HILLS." Negligence Obscured liglits Look-out Speed Fellow servant Pilot not a fellow-servant of a deck Jiand. The pilot and the deck hand were not fellow-servants. When a tow hides a light on a tug, the tug is liable. The "Hills" is liable also for excess in speed and for not having a look-ou-t. Both parties being to blame, neither may claim to be excused by the others and the decree of the district court giving $3,000 damages, one-half against the " Hills " and one-half against "The Titan" to the libel- ant, Briggs, is affirmed. Southern District of New York, February, 1885. THE district court waived the point as to whether the deck hand was a fellow-servant on " The Titan," but held as " The Titan " was in fault and " The Hills " was also in fault, " The Titan " had a right to claim an apportionment of the damages on The Hills." Peckham t& Tyler, for the libelant Briggs. E. D. McCartv and P. C. Cantine, for " The Titan." Owen & Gray, for " The Hills." WALLACE, J. Upon the proofs it seems perfectly clear that both the Titan and the Hills were in fault for the colli- sion, by reason of which the libelant was injured. The collision took place about seven o'clock in the evening of September 22, 1882, in the Hudson river, about 1,000 feet out from the Jersey shore, somewhat above the Pavonia ferry slip. The tide was ebb, running about three miles an hour. The wind was light and the night was gray, but fairly clear. The Titan was proceeding up the river bound for HOWARD'S PRACTICE REPORTS. Briggs agt. " The Titan." Hoboken, against the tide, at a speed of about four miles an hour on a line with the westerly shore, but heading in some- what towards the shore, towing the float Mohawk, which was heavily loaded with two rows of railway ,cars and was lashed to her starboard side. The float, as lashed, projected some twenty feet beyond the bow of -the Titan and had an umbrella or shed roof, which slopes on each side to within about six inches of the top of the cars. This umbrella obscured the green light on the starboard side of the Titan, so that it did not show an uniform and unbroken light from right ahead to two points abaft the beam on the starboard side and there was no green light on the starboard side of the float. " The Hills " had left the New York side at 23d street, bound for Jersey City, light, and proceeded on her course down the river and bearing to the westward at a speed of about fifteen knots with the tide. She had no lookout but her pilot, who was acting at the time as master and was at the wheel in the pilot house, saw the Titan when nearly half a mile away. He was able to see the vertical white lights of the Titan and the white light of the float, but was unable to see the green light of the tug, because it was obscured from view by the cars and the umbrella of the float. Not seeing the green light he assumed the tug and float were going down the river and kept rapidly approaching them at full speed. Soon after seeing the tug and float he observed the ferry-boat Gould, which had left her ferry at Hoboken and was coming by the westward of the Titan about 150 feet away and passed across the Titan's bow, but as he supposed across her stern. The Gould gave a signal of two whistles to the Hills and the Hills responded by a like signal. The Titan supposing the signal of the Hills in answer to the Gould was a signal to herself, answered the Hills signal with two whistles, but the pilot of the Hills supposed these were a signal to the Gould. The Hills starboarded somewhat for the Gould and passed her on her port side a couple of hundred feet away, and that her pilot when within a hundred feet of the Titan, still assuming 24 HOWARD'S PRACTICE REPORTS. Briggs agt. "The Titan." that the Titan was going down the river and seeing that a collision with her was imminent, hard-ported his wheel to go under her stern. The result was that the Hills came into collision with the bow of the float, and the shock was so severe that the libelant, who was on the Hills, was thrown down and his skull was fractured. The Hills could have avoided the collision with proper effort at the time she came abreast the Gould, being then about a hundred yards away from the Titan. She maintained her full speed from the time her pilot first saw the Titan until the time of the collision. If the pilot in charge of the Hills was warranted in assuming that the Titan was going down the river, as he was overtaking and intending to pass her, he assumed the responsibility of passing her safely, and unless he allowed ample distance for the purpose he was bound to slacken speed and if need be to reverse in order to avoid collision. In this behalf it was his duty to maintain a diligent observation iu order to govern himself as circumstances might require. Instead of doing this he found his vessel within one hundred feet of the Titan bearing upon her float amidship, and sought to save a collision by the manoauvre in extremis of hard-porting his wheel. For a distance of nearly half a mile his view was unobscured except for the brief interval when the Gould was between him and the Titan. Probably he relied upon his first observation when he concluded the Titan was going down the river, and rely- ing upon this permitted his attention to be distracted by watching the Gould. Undoubtedly the appearance of the Titan and the float with their vertical white lights apparently in a cluster while the vessels were approaching each other, with no back ground by which to determine readily in which direc- tion the lights were moving, and no green or red light to indicate that she was approaching, was well calculated to mis- lead the pilot of the Hills. But it seems impossible to believe that the real situation would not have been discovered if proper diligence had been exercised. The Hills should be held in fault for not having a look-out. It is only when a HOWARD'S PRACTICE REPORTS. 25 Briggs agt. " The Titan." look-ont would have been of no service in guarding against a collision that his absence can be excused. The situation here was peculiarly one in which the observation and judgment of a look-out might have been useful. It was one of these doubt- ful situations in which different points of observation might, suggest different conclusions, and in which two men might form a different opinion from the same standpoint. There was enough in the rapidity with which the vessels were approaching each other, to attract attention and suggest a probability that they were not going in the same direction. The Hil]s was also in fault for pursuing such a high rate of speed at night, and with the tide, upon waters customarily traversed by numerous vessels, when she was rapidly nearing a tow. The situation required a high degree of vigilance and circumspection, yet she disregarded every rule of prudent navigation in reliance upon the hypothesis which might be erroneous, and proved to be so. "While ordinarily a vessel has a right to assume that another vessel is not derelict in the observance of the rules of navigation, this presumption is not to be carried so far as to exonerate her from ordinary precau- tions on her own part, or to excuse her from the consequence of a mistake when by slight exertion and without any peril to herself or to other vessels she could certainly avoid hazard. There was ample room, plenty of time and no intervening obstacle in the way of perfect safety if the Hills had slackened speed while she was passing the Gould. After this it was obvious that the danger of collision with the Titan was imminent and she should have been stopped and reversed. Instead of doing this the pilot took the chances of a mano3uvre which could only be justified by the certainty that he was cor- rect in supposing the Titan was going away from him. The Titan was in fault for so locating her starboard light that it was not visible as required by the rules. No doubt is entertained that it was obscured by the umbrella of the float and by the cars on the float forward of the place on the tug where it was located so that it was not visible to the pilot of the Hills. VOL. II 4 HOWARD'S PRACTICE REPORTS. Matter of Martin. The rule requiring lights may as well be disregarded altogether as to be only partially complied with and in a way which fails to be of any real service in indicating to another vessel the position and course of the one carrying them. The libelant was a deck hand upon the Hills, but was not at the time on duty and had no part in her navigation. The pilot was in command, within the case of Chicago, <&c., Rail- road Company agt. Ross, decided recently by the supreme court ; he was not a fellow servant of the libelant and the latter is entitled to recover for the injuries he sustained by the colli- sion against the Hills as well as the Titan. Treating the pilot as the master he was responsible for the management and navigation of his vessel. He was negligent in failing to have a lookout stationed where he ought to have been, and negligent otherwise. The collision was solely the result of his negligence and the libelant had no part or lot in it. The decree of district court is affirmed, with interest and costs of appeal. SUPEEME COURT. In the Matter of HORATIO A. MARTIN. Security for costs A person suing in the name of the* overseer of the poor, for a violation of the excise law, cannot be required to give security for costs Section 3271 of the Code of Civil Procedure does not apply Jurisdiction Supreme court no jurisdiction by a mere notice of motion to make an order in an action pending in a justice's court. A person who brings an action in the name of the overseer of the poor under chapter 628 of the Laws of 1857, as amended by chapter 820 of the Laws of 1873, to recover penalties for a violation of the excise law cannot be required to file security for costs under section 3271 of the Code of Civil Procedure. Section 3W1 does not apply (Sharp agt. Pancher, 29 Hun. 193, criticised and not followed; Jioard of Commissioners of Excise agt. McGrtilfi, 27 Hun, 425, followed). HOWARD'S PRACTICE REPORTS. 27 Matter of Martin. The supreme court cannot obtain jurisdiction to make an order in an action pending in a justice's court, by a mere notice of motion. A party to an action pending in justices' court, cannot make a motion in the supreme court to control the procedure in such action. Ulster Special Term, March, 1885. APPLICATION to compel one Luzerne J. Smalling, who is prosecuting the petitioner before a justice of the peace of the town of Windham, Greene county, in the name of the over- seers of the poor of such town, for violations of the excise law, to give security for costs. D. H. Daley, for motion. Gideon Hill, opposed. WESTBROOK, J. Chapter 628 of the Laws of 1857, as amended by chapter 820 of the Laws of 1873 (3 R. S. [1th. ed.'], 1985, sec. 30), and which is the act to regulate the sale of intoxicating drinks, provides, "in case the parties or persons whose duty it is to prosecute for any penalty imposed for any violation of the provisions of this act shall, for jthe period of ten days after complaint to them that any person has incurred such penalty, accompanied with reasonable proof of the same, neglect or refuse to prosecute for such penalty, any other person may prosecute therefor, in the name of the overseers of the poor of the town in which such alleged penalty was incurred, and in the manner provided by section 22 of this act as the same is amended by section 1 of this chapter. " One Luzerne J. Smalling has commenced an action under the clause quoted against the petitioner, Horatio A. Martin, to recover penalties for alleged violations of the excise law in the name of the overseers of the poor of the town of Windham, before a justice of the peace of such town. The defendant in such action by petition asks that said Smalling may be compelled to give security for the costs of such action. 28 HOWARD'S PRACTICE REPORTS. Matter of Martin. The motion should be denied for the following reasons: First. Notwithstanding the decision of the general term in this department, in Sharp agt. Fancher (29 Hun, 193), I should be exceedingly loathe to hold that section 3271 of the Code of Civil Procedure applies to a person who prosecutes to recover penalties in the name of the overseers of the poor incurred by violation of the excise act. That section authorizes the court in its discretion to " require the plaintiff to give security for costs " " in an action brought by or against * a person expressly authorized by statute to sue or to be sued" It is true the court in the case mentioned, which was an action similar in all respects to the one now sought to be restrained, say that the section referred to does cover an action of this character, because it " could not be brought except by the express authority of the statute," but the reason is based upon a part, and not upon all the words of the section. It will not be disputed that a statute gives the action, and that there is "no common-law liability" apart from such statute, but in the case referred to, and also in this, there neither was nor is a motion to " require the plaintiff to give security for costs," as provided by the section of the Code already quoted. The decision in the reported case was, as this is, upon a motion by the defendant in an action to compel a person authorized to sue in the name of the plaintiffs to give security for costs. For that relief in such an action no provision is made by the section. It simply provides that " in an action brought by or against * * * a person expressly authorized by statute to sue or to be sued * * * the court may in its discretion require the plaintiff to give security for costs." This language would certainly seem to be unmistakable. A statute which authorizes a person " to sue or to be sued " confers only authority to become plaintiff or defendant in an action, and gives no right to bring suit in the name of another ; and the power to require " tJie plaintiff" in an action " to give security for costs " does not reach the case of an individual who is authorized not to become a plaintiff, i. e required again to act in the proceedings, but without regard to the time of their occur- rence. The affidavits read in opposition to the motion, fully and satisfactorily explain these transactions and remove any suspicion of impropriety on the part of the commissioner. The order granted by this court on the 25th day of October, 1883, appointing N. K. Hopkins, Brigham Clark and Robert Dunbar commissioners in this proceeding, should be vacated and set aside, and the commissioners removed. HOWARD'S PRACTICE REPORTS. 237 Negley agt. The Counting-Room Company. CITY COUET OF NEW YOKE. CHARLES NEGLEY agt. THE COUNTING-ROOM COMPANY. Practice On opening defaults when the judgment is allowed to stand as security Effect of the lien, Where a judgment by default is opened on condition that the lien of the judgment shall stand as security, the plaintiff, if he finally succeeds, must enter a new judgment by filing a fresh roll containing all the papers in the case, the same as if no former roll had been filed. The order opening the default in legal effect modifies the judgment by depriving it of its ordinary character as a res adjudicata, but leaves it in full force as a lien or collateral security. If the plaintiff fails in the action the security is returned by canceling the collateral judgment, which loses its legal vitality and effect when the action fails. But if the plaintiff succeeds the security judgment is not impaired, but may be enforced, if necessary, by the plaintiff in aid of the final judgment. In case of appeal the trial or final judgment is the one to be appealed from, and no reference need be made to the security judgment. Special Term, August, 1885. , C. J. Judgment was taken against the defend- ant by default. It was subsequently, upon motion, so far opened as to permit the defendant to come in and defend upon the merits, the judgment in the meantime to stand as security. The action was afterwards tried and a verdict was rendered in favor of the plaintiff, on which he entered a fresh judgment for the amount of the recovery, with costs, as taxed. The defendant insists that this practice is irregular as there cannot be two judgments for the same debt. But the claim is without force or merit, as the first judgment is merely col- lateral to the other and security only for its payment. In Hall agt. Templeton (4 Weekly Dig., 120) this court held that where a judgment by default is opened on condition that the lien of the judgment shall remain as security, the plaintiff, if he finally succeeds, must enter a new judgment by filing a fresh roll containing all the papers in the case, the same as if 238 HOWARD'S PRACTICE REPORTS. Negley agt. The Counting-Room Company. no former roll had been filed, and that in case of appeal the trial or final judgment is the one to be appealed from, and no reference need be made to the security judgment. This decision accords with the ruling made in Mott agt. The Union Bank (8 Bosw., 591 ; affirmed, 38 N. T., 18). The order opening the default in legal effect modifies the judgment by depriving it of its ordinary character as a res adjudicata, but leaves it in force as a lien or collateral secu- rity (38 N. Y.< at p. 20). Until the final determination of the controversy no execution can be issued on the security judgment to enforce its payment (Ford agt. Whit/ridge, 9 Abb. Pr., 416). The right to continue the lien of the judgment results from the general power which the court has to regu- late its judgments, and from section 724 of the Code, which provides that " the court may upon such terms as justice requires " relieve a party from a judgment taken against him by default through inadvertence. Under this authority the lien of the judgment opened may, as one of the conditions upon which it is opened, be retained by way of security (2 Johns. Cases, 286; 6 Cow., 390; 7 id., 477; 9 How. Pr., 442 ; 35 Him, 637). If the plaintiff fails in his action the security is returned by canceling the collateral judgment, which loses its vitality and effect when the action fails. But if the plaintiff finally suc- ceeds in the action the orderly practice is to issue an execution upon the final judgment, which is the real judgment in the case, and if that proves unproductive then to pursue whatever lien the collateral judgment gives ; or if a levy has already been made on the collateral judgment, or a proceeding has been founded thereon, and either has been preserved by the order opening the default, it will not be impaired, but may be enforced if the plaintiff finally recovers in the action. But the court, in controlling the execution of its own process, may no doubt, on application, direct the manner of its enforcement so that the rights of all parties may be preserved and enforced without injury or oppression to either. It is clear, therefore, HOWARD'S PRACTICE REPORTS. Early agt. Early. that the security judgment is to remain of record unimpaired until the judgment entered upon the verdict has been paid, reversed, or in some legal form removed from the judg- ment docket. N. Y. COMMON PLEAS. JULIA H. EARLY agt. MAURICE E. EARLY. Referee's fees in divorce suits Who to pay. In an action for divorce on the ground of alleged cruelty, brought by a wife against her husband, even where the wife prevails, the defendant, the husband, will be compelled to take up the report and pay the referee's fees. Special Term, August, 1885. THE plaintiff brought a suit in January last against her husband for limited divorce on the ground of alleged cruelty. The parties were married in this city on May 10, 1879. The case was sent before a referee, whose bill amounts to $150. This sum the defendant alleges his inability to pay, as well as denying the charges brought against him. YAN HOESEN, J. There is but one course to pursue in this matter, and that is to require the defendant to take up the referee's report. That report may or may not be con- firmed. The plaintiff may or may not prevail in the action. But the court has ordered a reference' for the purpose of informing its conscience. The conduct of that reference has involved a bill for referee's fees. "Who is to pay them ? The referee is the officer of the court and must be paid. The party prevailing would under ordinary circumstances advance them. But that party is the wife, who is without means save such as the husband may provide. Except where it is apparent that the wife's case is without merit, it is the practice of the court to compel the husband to furnish to the wife the means of 240 HOWARD'S PRACTICE REPORTS. Matter of Caamano. carrying on her suit. It is said that in this action the wife cannot succeed. As to that I have no opinion to express, but the orderly course of business is to bring before the court the testimony that has been taken, together with the report of the referee. In order to do that the fees of the referee should be paid. The judge who examines the report and the testi- mony will determine whether or not alimony should be allowed. But as a preliminary to obtaining that determina- tion I must order the defendant to pay the fees of the referee. Of course only the legal fees need be paid. Let the proper order be prepared and left with Mr. Jarvis, the clerk, for transmission to me. SUPREME COURT. In the Matter of RAMON CAAMANO, an imprisoned debtor. Imprisoned debtor Discharge from arrest under the insolvent law When granted That defendant converted money received in a fiduciary capacity, does not prevent his discharge. Where the petitioner was arrested for converting to his own use moneys and securities belonging to the plaintiff, while acting in a fiduciary capacity, and was imprisoned in default of bail, and on his application for a discharge his examination showed that in violation of his trust he had used the money and property for his own benefit: Held, that he was entitled to his discharge, because it did not appear that he had disposed or made over any part of his own property, with a view to the future benefit of himself or his family, or with intent to injure or defraud any of his creditors. Special Term, August, 1885. ANDREWS, J. After a careful examination of this case I have reluctantly come to the conclusion that the application for the discharge of the petitioner must be granted. There is no dispute about the facts upon which the order of arrest was obtained. Caamano, having in his possession a large HOWARD'S PRACTICE REPORTS. 241 sum of money belonging to Mrs. Roderiguez, who resided in Spain, used the same for his own purposes, and then, under a power of attorney which he held, raised $40,000 more by mortgaging Mrs. Roderiguez's real estate, which was situated in New York, and used this sum in the same manner. The latter transaction was so deliberately planned, acd so carefully and coolly carried out, as to leave no possible doubt that he is a man who hesitates at nothing to accomplish his purposes. He has no possible claim upon the sympathy or tender con- sideration of the court, and did the law permit it would be but justice that he should be imprisoned for a long term of years. He must, however, be accorded the rights secured to him by the laws of this state, and I am of the opinion that, upon complying with the provisions of the Code, he must be discharged. In Suydam agt. Belknap (20 Hun, 87), which was an appli- cation like this, the petitioner was arrested for converting to his own use moneys and securities belonging to the plaintiff while acting in a fiduciary capacity and was imprisoned in default of $35,000 bail. He applied for a discharge, and his examination showed that in violation of his trust he had used the money and property for his own benefit. It was, never- theless, held by Mr. justice WESTBROOK that he was entitled to his discharge, because it did not appear that he had dis- posed or made over any part of his own property with a view to the future benefit of himself or his family, or with intent to injure or defraud any of his creditors. On appeal the order for the discharge was affirmed. The court at general term said : " This case is distinguishable from that In re Brady (69 N. Y., 215), because the charge is that the defendant received money in a fiduciary capacity for which he has not accounted. The defendant Brady was charged with a dispo- sition of his property with the intention of defrauding his creditors, and for that reason it was held that his proceedings were not just and fair. This case does not show any appro- priation of this kind, and therefore that he has property VOL. II 31 242 HOWARD'S PRACTICE REPORTS. Matter of Caamano. attainable by recourse to his grantee or otherwise. The money received was disposed of by him, and though improp- erly used does not subject him to the rule established by the case referred to. We . cannot sav under the circumstances that his proceedings have not been just and fair." It seems to me that this case is decisive of the present application. With regard to the first money appropriated by Caamano the cases are identical. With regard to the $40,000, 'the learned counsel for the plaintiff claims that the decision iu Suydam agt. Belknap, is not applicable, because the money was obtained through a mortgage, and when it came into Caamano's possession was to be regarded as his money, and that he has therefore disposed of his own money with intent to defraud his creditors, or for the future benefit of himself or members of his family. I am not able to concur in this view. From a moral standpoint Caamauo's conduct in raising money by mortgag- ing his principal's property, and then appropriating it to his own use, was, if possible, more infamous than in so appro- priating moneys which had lawfully come into his possession, for in the former case he committed a double crime. This, however, does not change the legal aspect of the matter. The $40,000 was not in the eye of the law his money, but that of Mrs. Roderiguez, and when he appropriated it he was disposing of her money and not his own. So far as this application is concerned the $40,000 must be regarded as money which, though obtained by a previous fraud, was held by Caamano in a fiduciary character, and upon a trust, which the law would imply to pay it over to Mrs. Roderiguez, whose property had been incumbered to raise it. Viewed in this light, the decision in Suydam agt. Belknap, is jnst as applica- ble to the $40,000 as to the moneys previously appropriated, and I am constrained by it to hold that Caamano is entitled to his discharge. The distinction between cases like the present one and that presented In the Matter of Brady (69 N. Y., 216), is pointed HOWARD'S PRACTICE REPORTS. 248 Matter of Caamano. out in the opinion of the general term. In the latter case the petitioner had disposed of his own property with intent to defraud the creditors who opposed his discharge, and the affidavit required by the statute that he he had not done so was therefore untrue, and his proceedings were held not to be just and fair. It may well be, as was held in In the Matter of Roberts (59 How., 136), that it is worse for the debtor to dispose of the creditor's property than for him to dispose of his own, and that the former act as well as the latter ought to prevent his discharge. It is not, however, so provided in the statute, and the views of the learned judge who decided the Roberts case were expressly disapproved by the general term of the court of common pleas (In re Fowler, 8 Daly, 85). Counsel for the plaintiff also calls attention to the fact that portions of the fund with which the $40,000 was mingled were given by Caamano to his wife, his brother and brother- in-law, and claims that his conduct " does not make it a violent supposition that he purposely turned over a large part of Mrs. Roderiguez's property for the future benefit of himself and various members of his family. Of course, if he had disposed of Mrs. Roderiguez's property in this manner, he could not be discharged. The burden of proof, however, to show such disposition of her property is on the plaintiff (In the Matter of Benson, 10 Daly, 166). Not only is such disposition not shown by the plaintiff, but the examination of the debtor, which stands uncontradicted, establishes the contrary. The testimony is that the real estate conveyed to his wife was inherited by her from her mother, and a satisfactory explanation is given why the title was taken in Caamano's name and of the subsequent conveyance. The testimony is also to the effect that the payments to his relatives were for full consideration out of moneys that belonged to them. There is no evidence that Caamano disposed of his own property or that of Mrs. Roderiguez for the future benefit of himself or members of his family, or with intent to defraud his creditors, and an order must be granted directing him to 2U HOWARD'S PRACTICE REPORTS. Jenkins agt. City of Hudson. execute an assignment to a trustee, and that he be discharged upon complying with the provisions of the Code relating to the assignment and delivery of his property. SUPREME COUKT. MARY C. JENKINS, as administratrix, &c., of DANIEL JENKINS, deceased, agt. THE CITY OF HUDSON. Jury Effect upon a verdict when the, entire jury is unsworn and no objection made Code of Civil Procedure, sections 721, 1016, 1166. If a trial proceeds, and a verdict be rendered without a jury being sworn, such a verdict is not irregular and void, when neither party asked that the oath should be administered. That which the law requires to be done for the protection of a party, may be waived, and the failure to object is a waiver. Nor can failure to object be excused by alleged ignorance. Ulster Special Term, May, 1885. MOTION to set aside the verdict of a jury for irregularity. C, A. Baurkyte and C. P. Collier, for defendant and motion. Andrews <& Edwards, for plaintiff and opposed. WESTBROOK, J. In this case the plaintiff, whose husband was killed by the upsetting of a load of hay in the city of Hudson, recovered a verdict for $2,500 against the city in an action tried at the Columbia circuit, in April, 1885, for negli- gently causing such death by permitting one of its streets, upon which the deceased was traveling at the time of the accident, to be out of repair. The defendant now moves, at special term, to set aside the verdict upon the ground that the jurors were not sworn. In the county of Columbia, as in all the counties of this (the HOWARD'S PRACTICE REPORTS 246 Jenkins agt. City of Hudson. third) judicial district, the practice has been to swear the trial jurors in a body at the commencement of court for the trial of all the civil causes at that circuit. It seems that the clerk neglected this duty at the circuit at which this cause was tried and after the selection of the jury, the trial proceeded with- out anything being done or said as to the swearing of the jury. The trial was begun April 13, 1885, the cause submitted to the jury on the twenty-second, and the verdict rendered on the twenty-third. The counsel for the defendant did not learn that the jury was not sworn until the said twenty-third day of April, about an hour previous to the verdict. The question which this motion then presents is : If a trial proceeds, and a verdict be rendered without a jury being sworn, is such a verdict irregular and void if neither party asked that the oath should be administered ? In other words, is the swearing of the jury essential to the validity of the verdict ? The question, though novel in the form in which it is presented the omission to swear an entire jury involves no new principle but one well settled. That which the law requires to be done for the protection of a party may be waived, and the failure to object is a waiver. Neither can the failure to object be excused by alleged ignorance, for a party is presumed to know what he could easily have ascer- tained ; and if a party wishes for his protection that to be done which the law directs, ordinary diligence requires him to make inquiry whether or not the statute has been complied with, and not to sit with folded arms and assume that others will care for his rights, or to watch, with closed lips, to see if some omission does not occur which will render all that is done of no effect. The Code of Civil Procedure (sec. 1166) declares "the first twelve persons who appear, as their names are drawn and called, and are approved as indifferent between the parties, and not discharged or excused, must be sworn, and constitute the jury to try the issue." This portion of the section quoted (it was added to by 246 HOWARD'S PRACTICE REPORTS. Jenkins agt. City of Hudson. chapter 234 of the Laws of 1883 by disqualifying jurors related by consanguinity or affinity in the same cases in which judges are disqualified; but requiring the objection to be made before opening the case) is almost a literal transcript of the Revised Statutes (Qd ed., 438, sec. 61), as indeed the most of the provisions of the Code in regard to jurors are. The statute and the Code undoubtedly prescribe a rule to be followed, both as to who the twelve jurors are to be, and the administration of the oath, but it was never supposed that, in regard to either, the requirements could not be waived. If for example the first twelve found indifferent were not sworn, but some others were without objection taken, would the ver- dict be set aside as irregular because the statute requirement, that such first twelve must be the jury, is jurisdictional ? That portion of the section is as mandatory as the other, and if the objection fails in the one instance it must in the other. And what is true of the provisions of this section is equally true of others in regard to the drawing, summoning, selection and qualifications of jurors ; and various other provisions regulating the practice of the courts. They all speak of cer- tain things to be done, and yet when those have been omitted in every instance, when such omission has been made the ground of a motion, it has been held to be waived by want of the interposition of an objection at the proper time. In Bennett agt. Matthews (40 How., 428), the alienage of one of the jurors was made the ground of a motion to set aside the verdict, and as an excuse for not making the objec- tion upon the trial, ignorance of the fact was urged. The statutes of the state declared an alien " incapable * * * of serving on any jury " (3 R. S. [5th ed.~\, 8, sec. 42), but the court nevertheless denied the motion, holding that the failure to make the objection was a waiver, even though the fact of the alienage of the juror did not " come to their knowledge until after the trial. So, too, when motions have been made to set aside verdicts upon the ground that one or more of the jurors was related HOWARDS PRACTICE RETORTS. 24? Jenkins agt. City of Hudson. to one of the parties within the degree which rendered jurors incompetent, though the fact was unknown at the time of the trial, it has been held that the failure to object waived the objection (Schuyler agt. Thompson, 15 Abb. [N. ], 220 ; Salisbury agt. McClaskey, 26 Hun, 262). So, too, it has been held that express statutes as to the mode of selecting a referee and as to his being sworn, can be waived by not making the objection ( Whalen agt. Supervisors, 6 How., 278 ; Keator agt. The Ulster and Delaware Plank Road 7 How., 41 ; Nason agt. Luddington, 56 How., 172). In Howard agt. Setxon (1 Den., 440) it was decided that though a statute of the state required arbitrators to be sworn, yet a procedure with the trial without demanding it to be done was a waiver. The opinion of the court, per BRONSON, 'J., bears directly upon the present motion because he likens the provisions of the statute requiring arbitrators to be sworn to those requiring judges and jurors also to be sworn, and argues that because the necessity of an oath can be waived in regard to the latter (judges and jurors), it can be in the case of arbitrators. The exact question involved in this matter was, however, presented in Hardenburgh agt. Cra/rey (15 How., 307). One of the jurors in that case had not been sworn and that fact was unknown to the parties. A motion was made to set aside the verdict on that ground, and the court (HARRIS, /.) held, writing an opinion to sustain it, that the failure to object was a waiver, and that ignorance did not excuse the want of an objection. The fact is, and so judge HARRIS held, that the language of the statute then in force, which is identi- cal with that of our present Code, required a juror to be sworn in each case ; and the practice of swearing jurors in a body for all the issues of a circuit can only be upheld by the absence of an objection to the non-swearing in the case which is tried. When, therefore, the counsel for the defendants undertake to excuse the want of an objection by the plea cf ignorance, in addition to the answer hereinbefore given, that 248 HOWARD'S PRACTICE REPORTS. Jenkins agt. City of Hudson. what a party can readily know, he is presumed to know, it can also be said that they knew when they commenced the trial of the action that the oath required by the Code well and truly to try that issue had not been administered, and. therefore, when they proceeded with the trial without demand- ing its administration, they deliberately and with knowledge waived ihe doing of the very thing, on account of not doing which they now move. The principle is fundamental that when a court has juris- diction of the subject-matter and the parties, statute and con- stitutional rights may be waived, and the failure to object is a waiver {People agt. Globe Mutual Life Insurance Company, 82 ; seepage 91 and authorities there cited' see, also, pages 95, 96, 97). There is no reason why that principle is not decisive of this case. It has been applied again and again, as has been shown, in instances very similar to the present, and it would be a grievous wrong, when no injury has been done, to nullify the long and expensive trial which has been had. If then there was no curative statute this motion should be denied. The Code, however, declares (sec. 721): "In a court of record, when a verdict, report or decision has been rendered, the judgment shall not be stayed, nor shall any judgment of a court of record be impaired or affected, by reason of either of the following imperfections, omissions, defects, matters or things, in the proofs, pleadings or other proceedings. * * * 1*2. For an omission on the part of a referee to be sworn, or for any other default or negligence of the clerk, or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party has not been prejudiced." It will be observed that the omission to swear a referee is expressly declared not to be fatal to the report. This pro- vision was inserted in 1879 for the purpose, as is declared in the codifier's notes, of quieting " doubts in cases where the direction of section 1016 (post), had not been followed." Section 1016 is the one which requires the referee to be sworn, HOWARD'S PRACTICE REPORTS. 240 Jenkins agt. City of Hudson. and which provides that the waiver of the oath " may be made by written stipulation or orally. If it is oral, it must be entered in the referee's minutes." Its insertion in that section, and in the subdivision which has been quoted, shows the intent of the section. The neglect to swear the jury was the "default or negligence of the clerk," and as that was inapplicable to the case of a referee the addition referred to was made. As then the neglect to swear a referee does not o per se vitiate a report or judgment ; and as the necessity of an oath to a referee is as great as that to a jury ; and as the omission to swear was the " default or negligence of the clerk," it must be held that the want of the oath to the jury in this case does not, unless the party swearing has been prejudiced, vitiate the verdict. The oath of a juror cannot be received to impeach a verdict, nor are the declarations of a juror after it has been rendered any evidence. The affidavit of the juror; and those stating conversations with another juror are not received as evidence upon this motion. Excluding these to which reference has been made, as the law clearly requires they should be, there is an entire abs ence of proof to show that the defendant has been injured. The affidavits on the other hand submitted by the plaintiff as well as the proceedings of the trial, of which the judge writing this opinion has personal knowledge, satisfy him that the defendant has received no injury by the omission to swear the jury, and that therefore section 721 of the Code, as well as well-established practice, requires the denial of this motion. VOL. II 32 250 HOWARD'S PRACTICE REPORTS. Matter of Henry. SURROGATE'S COURT. In the Matter of a Motion to Remove a Special Guardian in the Estate of JAMES GRIFFITHS HENRY, deceased. Special guardian Who should not be appointed Rule 10 of the surrogate's court. In a controversy over probate a special guardian of an infant interested in the estate should not be appointed upon the nomination of the pro- ponent; nor should any person be appointed such guardian who is associated in business with the proponent's attorney or counsel. Rule 10 of the surrogate's court must be strictly enforced, unless perhaps when it is clearly apparent that the interests of the infant will be best subserved by the establishment of the disputed paper as a will. In case a special guardian has been inadvertently appointed in disregard of Rule 10 he should be superseded. New York county, July, 1885. ROLLINS, 8. The paper purporting to be the last will and testament of James Griffiths Henry was admitted to probate as such on October 25, 1883, having been theretofore pro- pounded by Sarah M. Henry, whom it named as its executrix. On October 17, 1884, Evan J. Henry filed in this court a peti- tion for revocation of such probate, declaring himself therein to be the father of decedent and his only next of kin, and pro- testing that the proponent, who claims to be decedent's widow, had never been his lawful wife. On the 24th of April, 1885, the proponent filed a petition alleging that her husband left him surviving an infant son, whereof she was the mother, and that by the will here in dispute such son was named as a beneficiary. The petition concluded with a prayer for the appointment of Charles G. Cronin, esq., as special guardian to protect the rights of such infant in the proceeding for revocation. An order appoint- ing Mr. Cronin such special guardian was thereupon entered. It was entered improvidently, involving, as it did, a violation of Rule 10 of the surrogate's court, by which rule it is, among HOWARD'S PRACTICE REPORTS. 25l Matter of Henry. other things, provided that in a proceeding for probate a special guardian will not be appointed on the nomination of a proponent to represent the interests of an infant. The order is also obnoxious to Rule 10 in another particular. In an affidavit filed by Mr. Cronin in opposition to this motion he admits the truth of the statement in the moving papers that he is connected in business with Mr. Woodbury, " who may," he says, "and probably will, act as counsel for the propo- nent" in the proceeding for revocation. Mr. Cronin insists, however, that in that proceeding the interests of the child and those of the mother are identical. If this were the case, and if no contingency could arise in which their respective interests would clash, I might decline to vacate this appoint- ment in spite of its irregularity. But, in case the validity of proponent's marriage and the legitimacy of her child shall be established upon the trial of the preliminary issue involv- ing those questions, I am convinced that the infant should be represented, not by a guardian selected by the proponent employed in the office of her counsel and in natural sympathy, therefore, with her wishes, but by one who can determine without prejudice what attitude the best interests of the infant will require him then to take in the proceeding for revocation (See Matter of Tunis Cooper's Estate, N. T. Daily Regis- ter, April 24, 1885 ; 4 Surr. Deo., ). The order of April twenty-fourth must, therefore, be vacated. I think it proper to add that this decision involves no reflection upon the personal character or attainments of the present guardian, to whom the surrogate of his own motion has repeatedly intrusted the protection of the interests of infant parties to proceedings in this court. 252 HOWARD'S P*RACtlCE REPORTS. Wells agt. Lachenmeyer. SUPREME COURT. CHARLOTTE F. WELLS agt. AUGUST LACHENMEYER. Husband and wife Liability of husband for tfie wife's debts Question for jury. In a suit to recover for moneys advanced to the wife of defendant, where evidence was given tending to show that some portion of such advances was made for the purpose of procuring necessaries of food and clothing, it was a question of fact for the jury to determine whether or not such advances were made because of the wife's necessities, and under such circumstances that the same should be chargeable to the husband. First Department, General Term, August, 1885. Before DAVIS, P. J., DANIELS and BRADY, JJ. APPEAL from judgment on dismissal of complaint. Albert -Day, for appellant. J. C. J. Langbein, for respondent. PER CURIAM. There was sufficient evidence tending to establish the alleged marriage to require that question to be sent to the jury. In respect to the advances made by the plaintiff to the wife of the defendant, assuming her to have been his wife, there was evidence tending to show that some portion of such advances was made for the purpose of procur- ing necessaries of food and clothing. It is a question of fact for the jury to determine whether or not such advances were made because of the wife's neces- sities, and under such circumstances that the same should be chargeable to the husband. It was not necessary to show that the plaintiff herself made the purchases. If she handed money to the wife for that purpose, that fact is equivalent, we think, to the act of furnishing the necessaries. The jury might well have found on the evidence that some portion at least of the money so advanced was directly applied to the HOWARD'S PRACTICE REPORTS. 253 United States Ice and Refrigerating Company agt. Resd el al. specific object, to wit, the purchase of clothing and of neces- saries by the wife. It was error to take the case from the jury on all the ques- tions involved, and therefore we think a new trial should be ordered. Judgment reversed, new trial ordered, costs to abide event. SUTKEME COURT. THE UNITED STATES ICE AND REFRIGERATING COMPANY agt. SAMUEL C. REED et al. Corporation When deemed to have acquiesced in illegal acts of their trustees. A. trustee of a corporation, whose attendance is necessary to make a quorum, cannot act upon a claim in his own favor to bind the corpora- tion, and by his presence he thus acts. Such a transaction could be at once assailed in a court of equity, and would be set aside in a suit brought by the corporation, or in the event of its unwillingness to proceed at the instance of the stockholders interested at the time. But such conduct and action on the part of the trustees of a corporation may, with knowledge thereof, be acquiesced in and accepted by the corporation and the stockholders, in which event they could not after- wards assail it, especially when such acquiescence has continued for several years, and the stock donated has been actually received by the donee, and has formed the subject of new engagements and liability on his part with others. When stockholders neglect to promptly and actively condemn the unau- thorized act of the trustees, and to seek judicial relief, they will he deemed to have acquiesced in it, and an unconscionable agreement will not be disturbed when there has been a ratification of it after time has been had for consideration. Special Term, August, 1885. Silas M. Stilwell and William Fullerton, for plaintiff. E. L. Fancker, for defendants. 254 HOWARD'S PRACTICE REPORTS. United States Ice and Refrigerating Company agt. Reed et al. VAN VORST, J. The learned counsel for the plaintiff, in his brief and argument submitted, subjects the action of the trustees of the plaintiff corporation, in donating to the defend- ant Reed all the shares of stock owned by the corporation, to severe criticism. The trustees occupied a fiduciary position, and as far as the defendant Reed was concerned, being him- self a trustee, he was prohibited from acting in his own favor upon a resolution donating to himself the property of the cor- poration, although he had rendered services to the corporation as president, for which he had received no salary, and had paid out moneys in its behalf. No salary had been thereto- fore affixed to the office, and the amount of his disbursements for the corporation was not stated in the resolution and do not appear to have been adjusted in an orderly way. A trustee, whose attendance is necessary to make a quorum, cannot act upon a claim in his own favor to bind the corporation, and by his presence he thus acted. And such a transaction could be at once assailed in a court of equity, and would be set aside in a suit brought by the corporation, or in the event of its unwillingness to proceed, at the instance of the stockholders interested at the time. These conclusions are amply sustained by authority in this state (Dunscorribe agt. N. Y. H. and N~. R. R. Co., 84 N. F., 190; Butts agt. Wood, 37 N. Y., 317; Coleman agt. Second Ave. R. R. Co., 38 N. Y., 201). But such conduct and action on the part of the trustees of a cor- poration may, with knowledge thereof, be acquiesced in and accepted by the corporation and the stockholders, in which event they could not afterwards assail it, especially when such acquiescence has continued for several years, and the stock donated has been actually received by the donee, and has formed the subject of new engagements and liability on his part with others. The resolution donating this stock was passed on the 16th day of September, 1879, as the minutes of the trustees shows, and the stock immediately passed to Reed. Neither the cor- poration itself nor any stockholder made any objection at the HOWARD'S PRACTICE REPORTS. 255 United States Ice and Refrigerating Company agt. Reed et cd. time, and failed altogether to take anj action adversely to it until this suit was brought, in November, 1884, more than five years after Heed received the stock in pursuance of the resolution. Randall, who was a stockholder and also a trustee, was not present at the meeting when the stock was donated to Reed. He has testified that he received no notice of this meeting. A notice was, however, prepared by Reed to be mailed to him, and was given to a messenger for that pur- pose. Whether actually mailed does not appear. Under the evidence he received no notice. Bradley was a trustee, although Reed believed he was not. Whether or not he was notified of this meeting does not appear. He did not attend. Randall was, however, afterwards informed of the resolution and he approved of it. On the 16th day of August, 1880, an agreement in writing was entered into between the defendant Reed, as a party of the first part, the plaintiff corporation of the second part and Ezra A. Hoyt of the third part. By this agreement Reed, amongst other things, sold to Hoyt 4,500 shares of the stock of the plaintiff corporation, which amounts included the shares donated to Reed by the resolution above mentioned. It was a part of this agreement that the resignation of the three trustees should be obtained, and that the control of the cor- poration should substantially fall into the hands of Hoyt and such trustees as he should designate. Hoyt became president of the corporation in 1880, and a majority of the trustees was of his selection, and he and they assumed the management of the corporation. How soon he became actually acquainted with the. fact of the passage of the resolution in 1879 does not distinctly appear. The book containing the minutes of the trustees was under his control. He had, however, applied to Reed, and had obtained from him extensions of time in which to pay installments upon the purchase of Reed's stock. Early in January, 1881, he first called Reed's attention to the resolution of the trustees in question, and said in substance that it was not right, and he added, " I can bring that up if I 256 HOWARD'S PRACTICE REPORTS. United States Ice and Refrigerating Company agt. Reed et al. want to," to which Reed replied " that he might bring it up." Hoyt then said, " I want you to put off the payment of this, and I will not bring it up." Hoyt, however, did not bring up the subject. After this he attempted to sell the shares he had purchased from Reed to others. Randall also co-operated with Hoyt in endeavoring to sell the stock purchased from Reed. These acts amount to an acquiescence in the lawfulness of the title of Reed to this stock on the part of those engaged therein. The corporation itself was a party to the agreement by which Reed sold the stock to Hoyt. That is an acquiescence on its part as to his right to sell these shares standing in his name on the books of the corporation. Hoyt and his man- agement acquiesced for years, until, for reasons personal to himself, this action was directed to be brought in 1884. Hoyt has been prosecuted by Reed for the balance remaining due on his agreement for the purchase of these shares. The com- pany itself has become bankrupt and has passed into the hands of a receiver. It is too late after such long acquiescence for the corporation to recede. The stockholders at the time have not objected. At least they have remained silent. That amounts to acquiescence, after such lapse of time. As to stockholders buying into the corporation afterwards, they certainly cannot impeach a transaction consummated and ratified by the corporation be fore they acquired title to their stock. Acts which are not "per se " illegal or " malum pro- hibitum,"" but which are ultra vires, affecting, however, the interests of stockholders only, may be made good by the assent of stockholders (Kent agt. Quicksilver Mining Co., 78 N. Y,, 159 ; Sheldon E. B. Co. agt. Eickmyer H. B. Co., 90 N. Y., 607 ; Hoyt agt. Thompson, Exrs., 19 N. Y., 208). And when stockholders neglect to promptly and actively con- demn the unauthorized act of the trustees, and to seek judicial relief, they will be deemed to have acquiesced in it, and an unconscionable agreement will not be disturbed when there has been a ratification of it after time has been had for con- sideration (Kent agt. Quicksilver Mining Co., supra). HOWARD'S PRACTICE REPORTS. 257 Overheiser agt. Morehouse. After considering the questions raised, and upon all the facts appearing in evidence, there must be judgment for the defendants dismissing the plaintiffs' complaint, with costs. SUPREME COURT. AMBROSE L. OVERHEISER agt. PHEBE O. MOREHOUSE, execu- trix of, &c., of ALANSON MOREHOUSE, deceased. Costs, uvon the reference of a claim against a decedent "When recoverable Disbursements recoverable. When upon a reference of a claim under the Revised Statutes against a deceased per-son's estate a report has been made in favor of the claim, costs are not recoverable, unless the payment of such claim has been unreasonably neglected or resisted. A large reduction of the balance claimed by the bill as presented justifies the resistance. Neither is it unreasonable for the executrix, who is a sister of the claimant when such claim is for board furnished to the decedent and his wife, the defendant, during a period of several years, and the value thereof is one of the questions in dispute, to insist that the amount to be paid shall be established by a reference. Nor is it unreasonable for the residuary legatee under the will of the decedent, who is a stranger to the whole transaction, to inquire by means of a reference into the justice and legality of the claim. Upon such a reference, however, " the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary dis- bursements to be taxed according to law." The clause in section 317 of "The Code of Procedure," which gave them, was not repealed by the adoption of part 2 of " The Code of Civil Pro- cedure;" nor by chapter 245 of the Laws of 1880, which professed to repeal 'The Code of Procedure " left unrepealed by chapter 318 of the Laws 1877, with the exceptions therein stated. The repealing act of 1880, retained and preserved "the right of a prevailing party to recover " such disbursements, using the exact language of said section 317. Upon a full consideration of the question, the decisions in Sutton agt. Newton (2 How. [N. 8.], 56) and in Hall agt. Edmunds (67 How., 202) adhered to; and Miller agt. Miller (32 Hun, 481) held untenable. When the question to be determined relates to the status of a statute which is involved in a maze of legislation, the same weight cannot be VOL. II 33 258 HOWARD'S PRACTICE REPORTS. Overheiser agt. Morehouse. given to a decision of the general term as there would be to one involv- ing a pure legal principle. In such a case, it is the duty of the special term when it sees plainly that statutory provisions have been overlooked to follow its own clear convictions, stating its reasons therefor respect- fully, thus leaving to the general term a review of the subject. Ulster Special Term, August, 1885. MOTION for costs upon a reference of a claim against the estate of a deceased person under the Revised Statutes. A. F. B. Chace, for plaintiff and motion. R. E. Andrews, for defendant and opposed. WESTBROOK, J. The plaintiff, who has obtained the report of a referee in his favor for the sum of $4,468.62, moves for the confirmation of the report and for costs. To the former, as there has been no case with exceptions presented, nor any cause shown why the plaintiff should not have a confirmation of the report, he is entitled, but to the latter there are serious objections to be considered. It was a reference under part 2, chapter 6, title 3, article 2 and section 36 of the Revised Statutes (2 Edm. ed., 91). The claim as presented was for $9,013.08, upon which there was a credit given for $1,800, making the balance claimed by the bill as originally presented $7,213.08. Subsequently, how- ever, an amended bill was presented by which the balance claimed was $9,462.68. The report of the referee found the indebtedness of the deceased to the plaintiff to be $7,829.99, and that of the plain- tiff to the deceased $4,072.73, leaving due from the latter, at the time of death, to the former, $3,757.26. The referee allowed interest on the balance found due to the plaintiff from the day of the commencement of this proceeding (May 3, 1882), which was $711.36, making the total sum found due at the date of the report (June 26, 1885) $4,468.62. It was conceded upon the argument, and so the law is, that HOWARD'S PRACTICE REPORTS. 269 Overheiser agt. Morehouse. to justify the recovery of costs as in an action in which costs are given, the claim of the plaintiff must have been unreason- ably resisted. Whether or not the plaintiff is entitled to referee's fees and disbursements will be hereinafter considered, but the question first to be discussed is, was the payment of the claim of the plaintiff unreasonably resisted or neglected. The reduction of such claim from $7,213.08, as originally presented, to $4,468.62, and the establishment of a set-off of $4,072.73 instead of $1,800, as allowed upon the bill as presented, are facts which conclusively demonstrate that the resistance to the demand of the plaintiff was not only not unreasonable, but, on the contrary, reasonable and necessary. It was strenuously, however, urged by the counsel of the plaintiff that as he had proved his claim by the defendant, she had full knowledge of its justice, and therefore it should have been paid without a reference. To this argument there are two answers : 1st. The justice of the cause of action of the plaintiff alone, unless the bill as presented gave a proper credit, would not make resistance to the payment of the balance demanded unreasonable. The defendant may have proven the integrity and propriety of the plaintiff's charges, but either her evidence or some other testimony submitted to the referee satisfied him that the credits or set-off upon or to the bill as presented were over $2,000 greater than the plaintiff's affidavit attached thereto admitted. The resistance was to the pay- ment of the balance demanded, and its large reduction is the justification of the defense made. 2d. The defendant (the executrix) is the sister of the plaintiff. The claim of the plaintiff was for board of the deceased and his wife (the defendant), and horse keeping during a period of six years (from February 2, 1875, to February 2, 1881) ; and as the payment and allowance of such an account, involving among other things questions of value, by a sister in favor of a brother out of the residuary of an estate devised to strangers, was sure to be contested upon an accounting, it was not unreasonable that the defendant should for her own protection insist that 260 HOWARD'S PRACTICE REPORTS. Overheiser agt. Morehouse. the amount to be allowed and paid should be fixed and estab- lished by a legal proceeding. Neither was it unreasonable for the residuary legatee under the will of the deceased, " The Children's Aid Society of the city of New York,'' to inquire strictly and sternly into the validity of a claim of the character of that presented by the plaintiff, concerning which it had no knowledge. It was hardly reasonable to suppose that board, lodging, and horse keeping would be furnished by a needy brother-in-law to a relative abundantly able to pay (the circumstances of the parties were conceded upon the motion) for a period of six years, and an indebtedness allowed to accumulate of several thousand dollars. This was scarcely to be expected, and the residuary legatee, itself a trustee charged with a sacred trust in behalf of helpless ones, only did its duty reasonably, in making the defense. For the reasons which have just been given, the motion, so far as it asks for costs generally and for an allowance, must be denied, and with the enunciation of this conclusion we are brought to the second question : Is the plaintiff entitled to referee's fees, witnesses fees and disbursements ? It will be conceded that by section 317 of " The Code of Procedure" such fees and disbursements were given. That section provided that when a claim against a deceased per- son's estate was referred under the provisions of the Revised Statutes, as this one was, that " the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law." It will be further conceded that if this provision is unrepealed, or if it has since been re-enacted, that the plaintiff is by this motion entitled to their allowance. In Sutton agt. Newton (2 How. \N. /6'.j, 56) the judge writing this opinion, after a careful examination of the question, came to the conclusion that the provision quoted was still in force. That conclusion, in the light of Miller agt. Miller (32 Hun, 481) and of an unreported case (Dodd agt. Dodd\ to which allusion will be presently made, he is asked to reconsider. The request will HOWARD'S PRACTICE REPORTS. 261 Overheiser agt. Morehouse. be cheerfully complied with, and sach reconsideration will not be conducted with a view to sustain a previous conclusion, but to reach the exact right of the proposition to be considered. Section 317 of the old Code, "The Code of Procedure," regulated the recovery of costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue. The same sec- tion further declared (a quotation already in part given is repeated to show its connection) : " But this section shall not be construed to allow costs against executors or administra- tors, where they are now exempted therefrom, by section forty-one of title three, chapter six, of the second part of the Revised Statutes ; and whenever any claim against a deceased person shall be referred, pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law." The first thirteen chapters of our present code, " The Code of Civil Procedure," took effect (chap. 318, Laws of 1877) September 1, 1877. That act (chap. 318, Laws of 1877) was passed May 22, 1877, and it suspended the operation of the present Code, known when first enacted as " The Code of Remedial Justice," from May 1, 1877, the date when it orig- inally took effect, to September 1, 1877, as just stated. The general repealing act of " The Code of Procedure " was passed June 5, 1877, and it declared among other things : " Section 1. The following acts and parts of acts heretofore passed by the legislature of the state are hereby repealed, to wit : * * * 4. All of the Code of Procedure, except the following sec- tions and parts of sections thereof, to wit : * * * Sections three hundred and eleven to three hundred and twenty-two, both inclusive." As then, section 317 of the old Code was expressly retained by the repealing act of 1877, it is clear that, after the first thirteen chapters of our present Code took effect, and until at least the subsequent nine chapters of the present Code, 262 HOWARD'S PRACTICE REPORTS . Overheiser agt. Morehouse. known as " Part II of the Code of Civil Procedure," took effect (September 1, 1880), "the prevailing party" in a reference of the.character of the present, recovered " the fees of referees and witnesses and other necessary disbursements to be taxed according to law." In an action, however, against executors or administrators, even though a recovery was had, 110 costs were taxable unless the court so ordered, upon the ground either that the defendant had refused to refer the claim or that he had unreasonably neglected or resisted pay- ment (2 Edm. ed. -of R. S., 92, sec. 41). By sections 1835, 1836 and 3246 of such " Part II of the Code of Civil Pro- cedure," the rule for the recovery of costs " in an action," prescribed by section 317 of the old Code, was preserved. The present Code, however, neither in the section referred to nor in any other part, expressly states whether or not the remaining provision of section 317 of the old Code, which provided that in references of the character of the present, the prevailing party should " recover the fees of referees and witnesses and other necessary disbursements to be taxed accord- ing to law," is still in force. It is true that section 3246 of the present Code is a substantial re-enactment of section 317 of its predecessor, with the clause of that section providing for disbursements in references of the character of this omitted, but as such omission merely, without a declaration that the new section is a substitute for or a repeal of the old, does not make any inconsistency between the two, it follows that the new section is no repeal by implication of any part of the old. The present section (3246), and those to which it refers (1835, 1836), only give the rule in regard to costs " in an action" and as the proceeding had in this case is not " an action," but is one upon a (to use the exact language of section 317 aforesaid) " claim against a deceased person * * * referred pur- suant to the provisions of the Revised Statutes," the two are not in the least inconsistent. The correct view, therefore, is that the adoption of part two of the present Code did not repeal the provision referred to in section 317 of the old HOWARD'S PRACTICE REPORTS. 263 Overheiser agt. Morehouse. (Potter's Dwarris on Statutes, 156, 157 ; Wallace agt. Bennett^ 41 J3arb., 92, 95, 96, and cases there cited ; Matter of Curser, 89 N. Y., 401). Part two of the present Code passed the legislature May 6, 1880. Four days afterwards (May 10, 1880) chapter 245 of the Laws of 1880 was passed. By its first] section (subd. 4, page 369), the old Code was repealed. If that act had contained nothing more, very clearly the whole of the old section 317 would have been swept away. It did not, how- ever, stop with a simple repeal, but it further provided (pages 374, 375) : " Sec. 3. The repeal effected by the first section of this act is subject to the following qualifications : * * * 8. It does not affect the right of a prevailing party to recover the fees of referees and witnesses and his other necessary dis- bursement* upon the reference of a claim against a decedent, as provided in those portions of the Revised Statutes left unrepealed after this act takes effect." The point now distinctly presented is, do the words, " as provided in those portions of the Revised Statutes left unre- pealed after this act takes effect," refer to " the fees of referees and witnesses and his other necessary disbursements," or do they refer to " the reference," of which the reservation also speaks ? In other words, was it the intention of the clause to retain the provision in old section 317, giving referees' fees and other disbursements in a reference, which had taken place according to and under the provisions of the Revised Statutes ; or did it intend to give or retain referees' fees only in those cases in which the Revised Statutes gave them ? Miller agt. Miller (32 Him, 481) and Daggett agt. Mead (11 Abb. N. l ^- One of the early cases in which a set-off of the vendor's paper in an action brought for the goods was not allowed {fair agt. Mclver, 16 East, 130) resembled the present case in the feature that the paper of the vendor was obtained for the purpose of using it in payment for the goods bought ; but the case is distinguished from the present in the circumstance that the purchaser there was not the bona fide owner of the bill of exchange which was offered to the acceptor in payment for the goods bought, but was acting for the benefit of the real owners, one of whom, knowing that the vendor had not been regular in his payment, informed defendant, who made the purchase, that he was in doubt as to the acceptor's affairs, and upon his solicitation and suggestion, defendants under- took to secure the payment of the bill by purchasing goods of the acceptor ; after the delivery of them offering the bill in payment, which he refused to take. The acceptor shortly afterwards failed, and in an action brought by his assignee against the defendants to recover for the price of the goods, it was held that the defendants could not set off the bill against the o acceptor's assignees, as they were not the holders of it in their own right, but merely held it as trustee of the real owners. " As such trustees," says BAGLEY, J., " they could not set it off against a demand upon them in their own right." Lord ELLENBOROUGH went beyond this, declaring that he was not satisfied with the previous decisions of lord KEN YON in Eland agt. Cor (1 East, 375), that upon the sale of goods for ready money the condition is performed by offering in payment the 804 HOWARD'S PRACTICE REPORTS. Bannerman agt. Quackenbush et a*. vendor's own paper, but in subsequent cases his view was not concurred in, but that of lord KENYON was held to be the law (See the cases in Hillard on Sales [8e? ed.~\, 239). Where the agreement is to pay cash, there is no reason why the vendor should refuse to receive his own paper, if it is due, as equivalent to cash, and it has been so held (Mayer agt. Mias, 8 Moore, 275; 1 Ring., 311). There is not in such a case that fraud which exists where a contract is made for the purchase of goods for cash and possession of them obtained with a preconceived intention not to pay for them. What appears in the present case is, that upon a sale of goods a delivery of them was obtained with a preconceived intention to pay for them in the depreciated paper of the vendor, which had been bought for that purpose, and does not amount to a connivance (Mayer agt. Mias, 8 Moore, 275 ; Id., 1 Bing. Kennet agt. Robinson, 2 Id. Marsh. [Reg.~], S-i ; Hillard on Sales [3d 2nd. edJ\, 309-405 ; Wells on Replevin, pp. 399-551). For the goods being delivered upon the promise to pay cash upon the Saturday following, the posses- sion in the first instance was lawful, and the plaintiff being the owner of the goods, as he had authorized the sale of them only for cash, was entitled to a restoration of them on the breach of that condition, then a demand of them of the defendant and a refusal on their part to give them up was necessary before an action could be maintained for a conver- sion, or, more properly, for the wrongful detention then ot the goods (Hall agt. Robinson, 2 N. Y., 295 ; Addison on Torts [Zded.], 312). But there has been no demand for the restoration of the goods, but a demand only, as in Chapman agt. Lathrop (supra), for the purchase-money. At least there is nothing in the evidence to show how any demand has ever been made for the restoration of the property by the plaintiff, or by any one in his behalf. The complaint appears to have been framed with a view of recovering as in an action for tort. It first avers a sale and delivery of the goods for cash, payable the HOWARD'S PRACTICE REPORTS. 305 Bannerman agt. Quackenbush et al. day after the delivery, a demand of payment and a refusal. It then avers that the plaintiff was induced to deliver the goods by deceit, trick and device, practiced upon him by the defendant. It sets forth the representations of the defend- ants, upon which he was induced to deliver the property, which it avers were false and made with the fraudulent intent to obtain the goods without paying for them, and demands judgment for $535.38, which is the price of the goods, with interest. The evidence could not sustain this complaint, for it was not shown that the representations were made with a fraudu- lent intent to obtain the goods without paying for them, but with an intent to pay for them chiefly in the protested paper of the vendor and supposed owner, which, as I have said, is not a conversion. The complaint shows that the possession which the defendants obtained was lawful, as it avers a delivery under an agreement to pay the cash for them upon the fol- lowing day. It avers a breach of that payment by a refusal to pay cash and the setting up of a pretended claim as an offset against the plaintiff's bill, but there is no averment that the plaintiff had rescinded the contract or demanded a return of the property, and that the defendant had refused to restore it, which was essential to sustain an action for a wrongful detention, the taking having been lawful. The only action that was maintainable, therefore, under the complaint, was an action for the sale and delivery of the goods, and as that affirms the contract of sale, the right of set-off exists unless the defendants knew when they made the contract that the Renz Hardware Company were the owners, but were acting as factors, or the circumstances were such as should have put them upon inquiry, and there was nothing in the evidence to warrant such a finding. The shears had been manufactured by the company, and the defendants, therefore, having ordered a certain quantity of an article of the company's manufacture, and the company having in the correspondence that ensued, and in a bill delivered with the VOL. II 39 306 HOWARD'S PRACTICE REPORTS. Bannerman agt. Quackenbush et al. goods, acted as principal, the defendants had a right to assume that the company were selling an article of which they were the manufacturers and owners. The plaintiff having, when advised of the order, eent the shears to the company's place of business in the city, made them his factors in the sale by delivering the goods into their possession, thereby enabling them to sell and deliver them in their own name. By this he brought himself within the operation of the rule referred to, for under these circumstances the company cannot be regarded as brokers employed to sell the property, and exceeded their authority by selling it in their own name. There is nothing in the case to show that the defendants had any intimation that the shears belonged to the plaintiff, or that there was nothing that should have put them upon inquiry, and as they had in their possession at the time of the sale and delivery an indorsed note of the company's which was past due, they had the right, regarding the company as principals in the transaction, to tender it in part payment or to set it off in an action brought for the price. There would be no doubt of this if the Renz Hardware Company were the owners of the goods, and it is the same where the company acted as owners and the buyer knew them only as such up to the time when their note was offered to them in part payment for the goods. It may be that the plaintiff had the right to rescind the sale under the circumstance? a point upon which I express no opinion and bring an action for a conversion or wrongful detention on the defendants refusing to give up the property upon demand when they were advised of the plaintiff's owner- ship, but he made no such demand and can maintain no such action. The action which he has brought is maintainable only as an action for the recovery of the contract-price which necessarily affirms the sale and entitles the buyers to their set- off. A demand is not required where it is apparent from the conduct of the person who has the goods that it would be use- HOWARD'S PRACTICE REPORTS. 807 Matter of King. less ; but that does not appear here. All that appears is when the company's clerk said to one of the defendants something about an arrest, lie replied " well, go ahead ; we are prepared," which must be understood as applying to the threatened arrest and cannot, as matter of law, be declared sufficient to hold that a demand was necessary. Upon the review of the facts and the law, it appears that the charge of the judge was erroneous in instructing the jury that if the defendants had knowledge or notice on the day they received the goods, or on the day following, that the property was the plaintiff's, and that they then had it in their power to return it, that they were liable for the contract price ; or, in other words, that they could not set oft the note in the action for the price of the goods. There must, therefore, be a new trial. Judgment reversed, new trial ordered, costs to abide the event. LARKEMORE and VAN HOESEN, J J., concur. SURROGATE'S COURT. In the Matter of KING, minors. Guardian Limitation of the surrogate's authority to remove testamentary guardian Code of Civil Procedure, sections 247-2, 2817, 2832, 2858. One who is a lawful incumbent of the office of guardian, either by appointment of the surrogate or by virtue of a testamentary provision, can successfully resist in this court an application for his removal until such facts and circumstances have been established as furnish statutory warrant for his suppression. If, within the meaning of subdivision 2 of section 2817 of the Code of Civil Procedure, a guardian has been guilty of "misconduct in the execution of her trust," and has thereby become " unfit " to be con- tinued in her office, she must be removed; otherwise the surrogate is powerless to displace her. New York county r , July, 1885. 308 HOWARD'S PRACTICE REPORTS. Matter of King. ROLLINS, *S. This proceeding is brought by Donald Mackay, as one of the executors of Elizabeth R. B. King, deceased, for the removal of Pliebe Fullerton, the testament- ary guardian of Mrs. King's children. It is provided by the seventh subdivision of section 2472 of the Code of Civil Procedure that the surrogate's authority to supersede the guardian of an infant " must be exercised in the cases and in the manner prescribed by statute." In view of these restrictive provisions it is manifest that one who is a lawful incumbent of the office of guardian, either by appointment of the surrogate or by virtue of a tes- tamentary provision, can successfully resist in this court an application for his removal, until such facts and circumstances have been established as furnish statutory warrant for his suppression (Matter of Kerrigan, 2 Civil Pro., 334 ; Led- with agt. Union Trust Co., 2 Dem., 439). The various causes which will justify the surrogate in removing a guardian appointed under title seven of the eigh- teenth chapter of the Code are fully set forth in the six sub- divisions of section 2832. It is declared in the last of these subdivisions that a guardian of the person may be deprived of his office whenever " the infant's welfare will be promoted by the appointment of another guardian." The legislature lias seen fit to restrain the surrogate's authority as regards testamentary guardians within somewhat narrower limitations. He can only direct the removal of such a guardian upon the grounds assigned in section 2858 ; that is, " in cases where a testamentary trustee may be removed as prescribed in title 6 of this chapter." This is a reference to section 2817, whose second subdivision alone has any possible application to the case at bar. If, within the meaning of that subdivision, this respondent has been guilty of " misconduct in the execution of her trust," and has thereby become " unfit " to be continued in her office, she must be removed ; otherwise the surrogate is powerless to displace her. Now, there are no allegations in this petition that seem to HOWARD'S PRACTICE REPORTS. 309 Matter of King. me to require comment, except such as are in some way asso- ciated with the shameless behavior of the respondent's son, Richard Butler, towards the children, whom their mother had, by testamentary direction, intrusted to the respondent's care. I am so profoundly impressed with the truth of these revela- tions and with the desirability of placing these infants under new conditions, not only for preventing future mischiefs, but for effacing from their minds, if possible, the memory of indignities which they have already suffered, that if I had power under the circumstances here existing, to substitute another guardian in place of this respondent, I should not hesitate to exercise it. But have I such power ? It is not suggested that the respondent connived at her son's disgraceful practices, and it is not claimed that she ever heard of them until about the time when they came to the knowledge of the petitioner. Nor does it appear that she knew or had reason to believe that evil consequences were likely to flow from the intimate relations that were allowed to exist between these children of a common household. Her treatment of her son since the discoveries which gave rise to the present proceeding has furnished no just cause for criticism. She is taken to task by petitioner's counsel for protesting her belief in the boy's innocence. But her credulity is per- haps not unnatural in a mother, and it does not seem to have betrayed her into any act or omission that can fairly be inter- preted as " misconduct in the execution of her trust." This petition must, therefore, be denied. 810 HOWARD'S PRACTICE REPORTS. Crane agt. Evans. SUPREME COURT. LEWIS B. CRANE agt. THOMAS EVANS and another. Attorney and client Bond and mortgage Authority of attorney to receive interest, or part of principal sum on bond and mortgage of client. B. being the attorney and agent of the mortgagee, as such, so long as he had the bond and mortgage in his possession is authorized to receive the interest accruing thereon, and the mortgagor is safe in paying the same to him. But the possession of these papers alone gives him no authority to receive a part of the principal sum secured by the mortgage before it was due. A mortgagor who pays interest or principal upon a mortgage to any one other than the mortgagee himself, when the person receiving the moneys has not in his possession the obligation, does so at his peril. In order to hold the principal to such payment he must be prepared to prove express authority. Special Term, July, 1885. THE above action was brought to foreclose a mortgage made by David W. Evans in 18T9, to the plaintiff to secure the sum of $5,000 payable January, 1884. The defense was payment. On the trial plaintiff produced the bond and mortgage men- tioned in the complaint upon which he claimed interest from January, 1884. The defendants produced on the trial a satisfaction-piece of the mortgage, purporting to have been signed by the plaintiff in July, 1883, at which time the mortgage was marked " satisfied " in the register's office, but plaintiff had no knowledge of this " satisfaction " until July, 1884. Defendant also produced a paper purporting to be the bond of David W. Evans, bearing the same date and notarial certificate as appeared on the bond produced by the plaintiff, and in addition thereto, indorsements of payments of principal and interest, and receipt in full of the principal July, 1883. The acknowledgment in the bond produced by plaintiff contained the words " to me known and known to me" in written characters, while the same words in the acknowledg- HOWARD'S PRACTICE REPORTS. 311 Crane agt. Evans. ment of the bond produced by defendant were in printed characters. The bond produced by plaintiff had no indorse- ments of any payments. The trial lasted two days. Messrs. David N. Carvalloand Daniel T. Ames, experts in handwriting, were called by the plaintiff and testified that the bond produced by defendants was a forgery. The defendants called Dr. Charles M. Cresson, of Philadelphia, an expert in handwriting. Further facts appear in the opinion. Charles W. Dayton, for plaintiff. Burrill, Zabriskie & Burrill, for defendants. VAN VOKST, J. Baker was the attorney and agent of the plaintiff, the mortgagee, and as such, as long as he had the bond and mortgage in his possession, was authorized to receive the interest accruing thereon. Possessed of these instruments, under the facts of this case, the mortgagor was safe in paying the interest to him. But the possession of these papers alone gave him no authority to receive a part of the principal sum secured by this mortgage before it was due. To be so authorized he should have been specially and pointedly directed by the mortgagee to collect or receive it. The time fixed by the bond for the payment of the principal sum was the mortgagee's highest exprassion of his intentions as to the time for the payment of the principal. Of such limitations upon the power of the attorney to receive money upon the mortgage the mortgagor was bound to take notice. The receipt therefore by Baker from the mortgagee of the sum of $1,000, in the month of February, 1882, towards the principal sum, not then due, was wholly unauthorized. This payment was concealed from the plaintiff, and he is not bound by it (Smith agt. Kidd, 68 N. Z.,'130; Williams agt. Walker, 2 Sandf. Ch., 325.) In October, 1882, the plaintiff withdrew from Baker the land and mortgage. That ended all semblance of power or 812 HOWARD'S PRACTICE REPORTS. Crane agt. Evans. authority on the part of Baker to receive anything on the mortgage. A mortgagor who pays interest or principal upon a mortgage to any one other than the mortgagee himself, when the person receiving the moneys has not in his possession the obligation, does so at his peril. In order to hold the principal to such payment he must be prepared to prove express authority. Baker, according to the evidence, retained in his own hands, after the delivery to the plaintiff of the original documents, a cop} 7 of the bond purporting to be executed by the mortgagor. Plaintiff was wholly ignorant of the existence of another bond in the hands of Baker. It is quite likely that, with a fraudulent purpose, Baker, shortly after the execu- tion of the bond and mortgage in suit, caused to be prepared a duplicate bond, and it is upon this duplicate that all pay- ments of interest as well as of principal are indorsed. His purpose undoubtedly was that, in the event that the bond and mortgage should be taken from him by the plaintiff, he might have in his hands the appearance of an instrument which should enable him to receive money from the mortgagor. In that he seems to have succeeded, for at different times after- wards he applied to the mortgagor for payment of parts of the principal sum, although not due, and he received the same, and in the end a forged satisfaction-piece of the mortgage was delivered to the mortgagor with the duplicate bond. The evidence justifies the conclusion which I have reached that the so-called duplicate bond is also a forgery. Although purporting to bear date with the genuine bond it was not written on a similar blank. The printed form of the acknowledgment differs in material points from that found upon the genuine bond. The seals also differ. Crime is often detected by circumstances which the foresight of the perpe- trator can neither discern nor guard against. The signature of the obligor is so well simulated that he might himself be deceived. The ink spots even on the real bond are imitated on the false instrument. But an inspection of the signature, and by a comparison of it with genuine signatures of the HOWARD'S PRACTICE REPORTS. 313 Durant agt. O'Brien. obligor, satisfies me that it is a forgery. This conclusion is supported by the testimony of experts. But the care and diligence of the attorney for the plaintiff has been rewarded by a discovery of evidence which puts the matter at rest. The acknowledgment upon this blank was not in the form printed for the stationers who sold it, until the year 1880, and after the time the bond and mortgage bear date. This is shown by the testimony of employes of the stationer and printer. The guilty party thus furnished the means of detecting his crime. The mortgagor is dead, and no light upon this subject can be had from him. But even were the bond in question a genuine instrument, then there were two bonds, for some unaccountable reason, executed and outstand- ing, when he paid the mortgage. And yet, when he received the satisfaction-piece, it was accompanied only by this instru- ment, the bond and mortgage remaining in the hands of the mortgagee. From all the evidence, I am justified in deciding that the whole amount of principal is due and unpaid upon the bond and mortgage, and there must be judgment of foreclosure and sale. SUPREME COURT. EDWARD A. Don ANT agt. JOHN O'BRIEN. Referee When report will not be set aside on the ground that referee was biased Relations from which bias will not be inferred. While courts should be careful to see that no improper relations exist between a referee and one of the parties to an action, and that nothing occurs during the progress of the trial which shall in anywise tend to produce a favorable impression in behalf of one of the parties to the reference, yet such scrutiny should not be carried to the extreme length of holding that because a referee sustains friendly relations to the kin of one of the parties, relations so close as to lead to his employment as his legal adviser, and the legal adviser of his estate, that such relations VOL. II 40 314 HOWARD'S PRACTICE REPORTS. Durant agt. O'Brien. would bias his judgment in the action in which he had been appointed referee. When the referee had heard the proofs, and made his report finding in favor of the plaintiff, and from the judgment perfected upon such report defendant had appealed to the general term, which general term had affirmed the judgment, and the defendant had appealed to the court of appeals, and while such appeal was still pending defendant made a motion to set aside the report of the referee upon the ground that such referee was biased in favor of the plaintiff: Held, that the motion resting solely and only upon the ground that the referee was the friend and legal adviser of the nephew of the plaintiff, such fact of itself would not warrant the inference of bias and partiality, and especially when it appeared that this was known to the counsel of the party moving before the trial of the action was commenced. Special Term, May, 1885. MOTION by defendant to set aside the referee's report. A. Lee Wager and Hamilton Harris, for defendant and motion. Thompson & Andrews, for plaintiff and opposed. WESTBROOK, J. ' The plaintiff, Edward A. Durant, as the assignee of A. J. Williams & Co., brought this action against the defendant John O'Brien, to recover for an alleged balance due to them, as sub-contractors under the defendant, for work done and materials furnished upon the Clinton state prison and warden's house, at Dannernora, in this state. By order of this court the action was referred, on the 18th day of January, 1882, to Abraham V. De Witt, counselor-at-law, at Albany, N. Y. The referee was suggested by the counsel of the defendant, and consented to by the counsel for the plaintiff. After a number of hearings before the referee, the cause was finally submitted to him for a decision on the 1st day of July, 1882. The report of the referee was made on the 1 7th day of August, 1882, and was in favor of the plain- tiff for the sum of $5,251.97. From the judgment perfected upon such report, the defendant appealed to the general term HOWARD'S PRACTICE REPORTS. Durant agt. O'Brien. of this court, and tlie appeal was argued in that court on the 5th day of December, 1882, and by its decision, rendered on the 3d day of February, 1883, the judgment entered upon the referee's report was affirmed, with costs. Within a few days thereafter an appeal was taken by the defendant to the court of appeals, which is still pending, unargued and undecided. The defendant now moves to set aside the report of the referee upon the ground that such referee was biased in favor of the plaintiff, and such bias is sought to be inferred from the relations which the referee sustained to one Allen B. Durant, a nephew of the plaintiff, as his attorney and counsel and friend. There is no proof presented upon this motion tending to show that Mr. De Witt was in any way connected either as a friend or legal adviser with the plaintiff in the action ; but it is insisted that because he was the friend and the legal adviser of the nephew of the plaintiff Allen B. Durant, and because he was employed in behalf of the estate of Allen B. Durant to conduct certain proceedings before the surrogate of the county of Albany, and because the plaintiff and Allen B. Durant were on friendly terms, that therefore the referee must have been biased in favor of the plaintiff. This infer- ence, it seems to me, is most illogical and unjust. If adopted as sound it would prevent a judge from sitting in a cause in which any of the parties thereto were of kin to a friend and companion of such judge, and towards whom the judge had occupied the relation of legal adviser. Prior to the appointment of Mr. De Witt as referee in this action, he had acted as the legal adviser of Allen B. Durant^ the nephew, and when the parties and counsel in this action met before him for the first time for the hearing of this cause, the referee explained fully to the counsel his intimacy with Durant, and the relation which he bore to him, saying to them that he did so to enable the defendant's counsel, if they so desired, to have another referee appointed in his place. The counsel for the defendant refused to change the referee 316 HOWARD'S PRACTICE REPORTS. Durant agt. O'Brien. and insisted upon proceeding with the trial of the action before him. After this occurrence, and during the trial of the action before the referee, Allen B. Durant was taken ill, from which illness he never recovered. Daring such illness, and on the 20th of June, 1882, Mr. De Witt drew the last will and testament of Mr. Durant, and on the fifth of July following drew the codicil thereto. In November following A. B. Durant died, and in a contest in regard to such will before the surrogate, which was long after Mr. De Witt's connection with this cause as referee had ceased, Mr. De Witt acted as the counsel for the estate. There is, however, no evidence tending to show that Mr. De Witt ever consulted or advised with the plaintiff in regard to the nephew, his family or estate ; on the contrary, the affidavit of Mr. De Witt and of the plaintiff both show that there was no intimacy what- ever between them, and that they were merely passing acquaintances, and the only social intercourse between them consisted of formal calls by Mr. De Witt on new-years' days at the house of the plaintiff. While courts should be careful to see that no improper relations exist between a referee and one of the parties to an action, and that nothing occurs during the progress of the trial which shall in anywise tend to pro- duce a favorable impression in behalf of one of the parties to the reference, yet such scrutiny should not be carried to the extreme length of holding that because a referee sustains friendly relations to the kin of one of the parties, relations so close as to lead to his employment as his legal adviser, and the legal adviser of his estate, that such relations would bias his judgment in the action in which he had been appointed referee. In the present case, as has already been said, the defendant and his counsel were fully informed, before the trial of the reference was commenced, tliat such relations existed between the referee and the nephew of the plaintiff. What- ever inference could justly and properly be drawn from such relation, could have been drawn as well when the trial of this cause commenced as it can be now. The defendant and his HOWARD'S PRACTICE REPORTS. 317 Durant agt. O'Brien. counsel then knew that Allen B. Durant, the nephew of the plaintiff was the friend and client of the referee. If that fact would of itself bias and disqualify the referee, it was then known and they had no reason to believe that because of the reference the relation which Mr. De Witt then sustained to Allen B. Durant would be broken ofJ and his friendship sus- pended. All that has transpired since simply evidences the continuance of friendship and relations which existed when the trial of this action was begun, and from which no more unfavorable conclution can now be drawn than could have been drawn at the commencement of the trial. The referee was well known to the counsel of the defendant, at least, if not to the defendant himself, when the relationship between the referee and the nephew were disclosed, and if such counsel, with minds keenly awake to the rights of their client, could see nothing in the relationship which Mr. De "Witt sustained to Allen B. Durant to disqualify him from acting as such referee, it cannot be surprising if the judge to whom this motion is now submitted should be equally unable to see the disqualification which such relationship imposed. Many of the statements made by the widow of Allen B. Durant, as to the closeness of the friendship whrch existed between her deceased husband and the referee, are denied by the latter, and especially and flatly does he deny her general statement that he would uphold the Durants in all their difficulties with her. It is proper also to state that all the trusts and duties confided by the will of Allen B. Durant to the referee, have been renounced, and not accepted by him, and that therefore so much of the motion papers as allege the creation of such fci lists by the will, can have no weight in the determination of this motion. A careful reading of all the papers upon this motion has failed to present to my mind any 'fact which would justify an order setting aside the report and judgment in this action. There are loose assertions in the affidavits presented by the plaintiff to the effect that there was an intimacy between the plaintiff and the referee. Such allegations, however, are by 318 HOWARD'S PRACTICE REPORTS. Durant agt. O'Brien. persons who could not, and did not know the truth of the facts charged. If such intimacy was known to them, then such knowledge should have been used to vacate the order of reference before the report was made, or rather, it should have prevented the naming of the referee by the defendant, and the conclusion to proceed with the trial before him when his relation with Allen B. Durant was fully explained. It is evident, however, from all the allegations of the moving papers, that such general charges were founded upon subse- quent inquiries and not upon actual knowledge. The positive and distinct denials of such intimacy by both the plaintiff and Mr. De Witt, and sustained by others who had the opportunity and means of knowing the truth of what they have affirmed, must be accepted as true, and therefore, all suspicions of bias founded upon such alleged intimacies must vanish, because deduced from supposed facts which have no existence in truth. The motion must, therefore, rest solely and only upon the ground that the referee was the friend and legal adviser of the nephew of the plaintiff. Such fact of itself would not warrant the inference of bias and partiality, and when it further appears that all this was known to the counsel of the party moving before the trial of this action commenced, it can- not be seen upon what possible ground this motion can be granted. If injustice was done by the report, the general term of this court did not discover it ; but if it was in fact committed, the court of last resort in which this action is now pending, will do the defendant justice. It will be unjust to the plaintiff, upon the grounds presented, to subject him to the. costs of another trial, and it would be a very grave reflec- tion upon the character and standing of the referee for this court to assume that he was biased and prejudiced, simply and only because he had been the friend and legal adviser of a relative of the plaintiff. The motion, therefore, to set aside the report must be denied. HOWARD'S PRACTICE REPORTS. 819 Campbell Printing Press Company agt. Oltrogge. K Y. COMMON PLEAS. CAMPBELL PRINTING PRESS COMPANY agt. JOHN F. OLTROGGE. Conditional sales Contract of, must be filed Laws of 1884, chapter 315 Effect of not -filing. Every contract in the nature of a conditional sale agreement must be filed according to the laws of 1884, chapter 315, or it is void as to subsequent purchasers and mortgagees in good faith. The object of the statute is to render secret liens upon personal property ineffectual as to innocent purchasers, and the courts will not permit the statute to be evaded., In determining whether the contract comes within the statute, the whole instrument is to be taken together and the ruling intention of the parties, to be gathered from the whole of it, is what is to be regarded. General Term, June, 1885. Livingston & Olcott, for appellant. C. De Hart Brower, for respondent. DALY, G. J. I think we should hold that the agreement in this case is a mere device to evade what is required by the statute in the case of conditional sales (Laws of N. Y., 18S4, chap. 315). This is a remedial statute, the object of which is to give some protection against loss or injury to persons buying personal property from those who have all the out- ward indicia of ownership by the possession and use of it, the sale of which may be defeated after the article has been paid for by a private agreement, by the terms of which the title to the property was to remain in the person originally contract- ing to sell it until the whole of the purchase-money was paid, which, in such conditional sales, is usually payable in install- ments at periods agreed upon. The statute above referred to provides that unless such an agreement, or a copy of it, is filed in the manner provided for by the act, it shall be void as against subsequent purchasers or mortgagees in good faith, and the act further declares that 320 HOWARD'S PRACTICE REPORTS. Campbell Printing Press Company agt. Oltrogge. such conditional sales shall become absolute, unless within thirty days of the expiration of each and every year thereafter a statement exhibiting the vendor's interest in the property is also filed. This is substantially requiring to be done in the case of conditional sales what has for a long time been required to be done in the case of mortgages of personal property, and in all such remedial statutes the rule is to consider what the mischief was that the Jaw did not previously provide for what remedy the statute meant to give to cure that mis chief and the act is to be so construed as to suppress the mischief and advance the remedy (Co. Litt^ 11, 42 ; Potter's Dwarris, 58). The agreement under consideration declares that the plain- tiffs, the Campbell Printing Press, &c., Co., let, and H. A. Landman hired for use, a printing press, which is particularly described by its name and numbers, for the term of ten months, at the rate of ten dollars a month, payable on the fifteenth of each and every month, beginning November 15, 1884 ; the lessee Landman to furnish suitable and proper foundations for the press at his place of business in Brooklyn ; that he was to keep it insured during the said term in the sum of $800, depositing the policy with the plaintiffs ; that he w*as not, without the plaintiff's consent, to assign the lease, nor sublet the property, nor remove it during the term ; that at the expira- tion of the term he was to deliver up the possession of it to the plaintiff ; and that if default was made in the payment of any of the installments that the plaintiffs were to repossess themselves of the property and enjoy it thereafter as though this agreement had never been made. The agreement further declares that the plaintiffs agreed to sell to Landman a printing press of the same number and description, warranted to do the same and equally good work, for the sum of $700, to be paid in monthly installments of sixty dollars each, payable on the fifteenth day of each month thereafter for the term of ten months, being the same days that the ten payments of ten dollars each was to be paid. The HOWARD'S PRACTICE REPORTS. 321 Campbell Printing Press Company agt Oltrogge. agreement tlien declares that when the whole amount provided for, or the $700 is paid, that the plaintiffs were to deliver to Landman the last named press, boxed on cars at their factory, for which, the agreement says, Landman is to pay the sum of $100, and for the balance ($700) he is to give his notes, pay- able, with legal interest, on the fifteenth of each month as before stated, and that upon the payment of all these notes the plaintiffs are to credit all rents paid for the press, and there is a final provision that this written contract contains the whole agreement ; that the plaintiffs are to be governed solely by it, and not by any verbal agreement. The whole amounts substantially to this : That contempo- raneous with each monthly payment of ten dollars for what is declared to be a lease for ten months of the press delivered to and used by Landman, there is to be a payment by him of sixty dollars on each of the said days during the ten months towards the purchase-money of another press of exactly the same kind, which is to be delivered to Landman at the plain- tiff's factory when the entire $800 is paid by him. It is very plain to my mind that the whole design of this agreement is to evade the law requiring agreements for con- ditional sales to be filed, and the result in the case of this particular agreement has the very mischief which the statute was designed in some degree to guard against, for it is set up in the answer and admitted by the demurrer that the defend- ant, who was ignorant of the agreement between the plaintiffs and Landman, bought the printing press of Landman, paying him therefor the sum of $700, the press being then in Land- man's office and the defendant believing him to be the owner of it. The statute applies to every contract for the conditional sale of chattels which shall be followed by an actual and con- tinued change of possession of the thing contracted for, and the distinction resorted to in this agreement and relied upon to avoid the requirements of the statute was to provide that the press delivered should be held, under what is denominated VOL. II 41 322 HOWARD'S PRACTICE REPORTS. Campbell Printing Press Company agt. Oltrogge. a lease, whilst the payments are being made for the purchase of exactly the same kind of press, and which, when the' pur- chase-money ($800) was all paid, was to be delivered at the plaintiff's factory. But it is obvious that the practical result of this kind of agreement would be in each instance that the press which is declared only to be leased is the one that in reality upon the payment of $800 would be sold, for being then set up upon its foundations in the purchaser's place of business, it would be no object to him to have exactly the same kind of press delivered at the plaintiff's factory, as it would involve the removal of the one already set up and in use and the expense of transporting the other one from the factory of the plaintiff and setting it up on a " proper and suitable foundation," to use the language of the agreement. The calling of what was provided for in that part of the agreement a lease does not necessarily make it so, especially in view of a statute, the object of which is to render secret liens upon personal property ineffectual as against innocent purchasers, unless the agreement creating the lien is filed in the manner provided for in the statute so that notice of it can be obtained upon inquiry, for the whole instrument is to be taken together, and the ruling intention of the parties, as gathered from the whole of it, is what is to be regarded (Hereford agt. Davis, 102 U. S. R., 235; Dibble agt. Ilath- away, 11 Hun, 574, 575.) The agreement was one, in my opinion, that should have been filed under the statute, and I am therefore in favor of reversing the judgment. HOWARD'S PRACTICE REPORTS. 328 In the Estate of John Baier, deceased. SURROGATE'S COURT. In the Estate of JOHN BAIER, deceased. Code of Civil Procedure, sections 2690. 2814 Wlien surrogate will not per- mit an executor or trustee to resign 1m trust. The surrogate cannot justly permit an executor or trustee to resign his trust against the wishes of the legatees or cestuis que trustent, unless suf- ficient reasons are shown to exist for allowing such resignation. New York county, August, 1885. ROLLINS, S. The petitioner's application to be relieved from continuing to act as executrix and trustee cannot, within the restrictions of sections 2690 and 2814 of the Code of Civil jfrocedure, be lawfully granted, unless the surrogate, in his discretion, shall find that " sufficient reasons " exist there- for. The only reason assigned in this petition is embodied in the general allegation that the petitioner is " too busy with her own private matters, and no longer desires to be busied" with her trust. Her counsel supplements this claim for relief by pleading her limited knowledge of the English language and a lack of business capacity which amounts to an inability fitly to dis- charge her duties. He insists that by her retention in office the estate will be incumbered with a " needless appendage." I find that she had sufficient knowledge of English and of business to claim and receive, under the decrees of October 13, 1881, and May 10, 1883, commissions amounting in all to $1,491.76. Her petition expressly asserts that the duties that remain to be fulfilled are of a much simpler character than those which have been performed already; and, as her dis- charge is opposed by the cestui que trust, she must continue to play the modest role of needless appendage until she shows better cause than has yet appeared for being allowed to aban- don it. 324 HOWARD'S PRACTICE REPORTS. The People ex rel. Wright agt. Genung. SUPREME COURT. THE PEOPLE ex rel. MAEY E. WRIGHT agt. AMASA G. GENUNG and SOLOMON L. HOWE, as school commissioners of the county of Tompkins. Cornell University Who entitled to free scholarship under Laws of 1872, chapter 654. The person to be selected for a free scholarship in the Cornell University must be a student from one of the academies or public schools of the county from which he or she is to be selected. The State Normal School, located at Cortland, is not one of the public schools of Tompkins county within the intent and meaning of the statute, and an attendance at such school does not entitle a person to such scholarship. The candidates for such free scholarship should, each year, be selected from scholars in the academies and public schools during that year, and not from the best scholars who have at any time attended the public schools and academies of the county. The position that a person is not a scholar of a high school because she was graduated at the close of its last term, and hence ineligible as a candidate, cannot be sustained. For the purposes of the act she must be regarded as a scholar of that school, at least until the end of the school year, and until that school shall again commence its sessions. The intention of the statute is that she may have all the advantages of that school so long as she is a member of it, and upon her final examination and graduation may then become a candidate for such scholarship. Tompkins Special Term, August, 1885. William Of. Noble, for relator. IF. Ilazlitt Smith, for Amasa G-. Genung and Arthur Curtis. James McLachlin, for Solomon L. Howe and Frank Knapp. MARTIN, -/. This is an application by the relator for a mandamus to compel the respondents to issue to her the certi- HOWARD'S PRACTICE REPORTS. 325 The People ex rel. Wright agt. Genung. ficate required by chapter 654: of the Laws of 1872, to entitle her to a free scholarship in Cornell University. The statute creating such free scholarships and providing to whom they shall be awarded, so far as the same is applicable to the question involved on this application, is as follows : " The several departments of study in the said (Cornell) university shall be open to applicants for admission thereto at the lowest rates of expense consistent with its welfare and efficiency, and without distinction as to rank, class, previous occupation or locality. But, with a view to equalize its advantages to all parts of the state, the institution shall annually receive stu- dents, one from each assembly district in the state, to be selected as hereinafter provided, and shall give them instruc- tion in any or in all the prescribed branches of study in any department of said institution free of any tuition fee or of any incidental charges to be paid to said university, unless such incidental charges shall have been made to compensate for damages needlessly or purposely done by the students to the property of the university. The said free instruction shall, moreover, be accorded to said students in consideration of their superior ability and as a reward for superior scholar- ship in the academies and public schools of this state. Said students shall be selected as the legislature may from time to time direct, and until otherwise ordered, as follows : The school commissioner or commissioners of each county, and the board of education of each city, or those performing the duties of such a board, shall selec 1 : annually the best scholar from each academy and each public school of their respective o unities or cities as candidates for the university scholarship. But in no case shall any person having already entered the said university be admitted as one of such candidates. The candidates thus selected in each county or city shall moet at such place and time in the year as the school commissioner or commissioners in the county, and the said boards of education of the cities in those counties which contain cities shall appoint, and the school commissioner or commissioners and 326 HOWARD'S PRACTICE REPORTS. The People ex rel. Wright agt. Genung. the said board of education, or such of them as shall attend and act, shall proceed to examine said candidates, and determine which of them are the best scholars, and they shall then select therefrom to the number of one for each assembly district in said county or city, and furnish the candidates thus selected with a certificate of such selection, which certificate shall entitle said student to admission to said university, subject to the examination and approval of the faculty of said university (Chap. 654, Laws 1872). The respondents did not at any time during the past year select any candidate or candidates for such free scholarship from the academies and public schools of Tompkins county as required by this statute. They, however, gave notice that at a time and place designated by them they would examine such persons as should attend for that purpose, and thereby determine to whom the scholarship for the year 1885 should be awarded. In pursuance of that notice, and on the thirteenth and fourteenth of the present month, the respondents held such examination. Upon that examination four persons appeared as candidates and were examined. The persons thus examined were Frank Knapp, Arthur Curtis, the relator Mary E. Wright, and Mary Lawrence. Upon the completion of the examination the respondents determined that Frank Knapp was the best scholar, Arthur Curtis the second, the relator third, and Mary Lawrence fourth. Mr. Knapp is, and has always been, a resident of Tompkins county. He attended the public schools of that county until 1882, when he entered the State Normal School at Cortland, N. Y. He continued a scholar in that school until he was graduated in 1884, since which time he has been engaged in teaching. Mr. Curtis is also a resident of Tom pkins county. He was graduated from one of the public schools of that county in the year 18S3, and has not since been a scholar in any of the academies or public schools of the county or state. Both the relator and Miss Lawrence were residents of Tompkins county, and both attended the Ithaca High School, which is one of the public schools of that HOWARD'S PRACTICE REPORTS. 32V The People ex rel. Wright agt. Genung. county, during the school year which commenced in the fall of 1884 and ended in the summer or fall of 1885. At .the end of the last term of such school year they were graduated from that school. Since their graduation neither has been a scholar in any other school. Subsequent to such examination and determination by the respondents, the relator duly demanded of the respondents that they should award her the Cornell scholarship for 1885, and issue to her a certificate of her selection, which they refused to do. That the candidates for this scholarship were not selected as required by law is conceded by all parties. Upon the argument, however, it was stipulated by the parties in interest that the application should be determined upon the sole ground of the eligibility as candidates of the persons examined. It is contended by the relator that neither Mr. Knapp nor Mr. Curtis was eligible as a candidate, and there- fore although they were examined and passed a better examination than she, yet neither of them was entitled to such free scholarship. This contention is denied by the respondents and by Knapp and Curtis ; and thus is presented the only question which it is necessary to determine upon this applica- tion. Was either Knapp or Curtis entitled to such free scholarship, although a better scholar than the relator ? The determination of this question depends wholly upon the statute above quoted. It will be seen by an examination of that statute that one student from each assembly district in the county is to be selected each year by the commissioners for free instruction. The candidates for such free scholarship are to be selected from the scholars of the academies and public schools of the county. From these candidates only is the person to receive free instruction to be selected. From the reading of this statute it is quite apparent, I think, that the person selected for a free scholarship must be a student from one of the academies or public schools of the county to entitle him to the free instruction therein provided for. It is unnecessary to determine whether such applicant must 328 HOWARD'S PRACTICE REPORTS. The People ex rel. Wright agt. Genung. also be a resident of the county or assembly district, as that question does not arise in this case. But that each of the candidates must be a student from one of the academies or public schools of the county to be eligible as an applicant is, I think, quite clear. The claim that the State Normal School, located at Cortland. is one of the public schools of Tompkins county, within the intent and meaning of this statute, can- not, I think, be maintained. Hence, I am of the opinion that Knapp's attendance at the normal school at Cortland does not entitle him to this scholarship. But Knapp and Curtis each contends that he had in former years been a student in the public schools of Tompkins county, and is therefore entitled to become a candidate for this scholarship. The relator, however, while she admits that they were in former years such students, insists that they were not at the time of such examination scholars from the academies and public schools of the county, and hence were ineligible. Thus the question is presented whether the person to receive such scholarship may be selected from the best scholars who have at any time attended the public schools and academies of the county, or whether he must be selected from those who are the best student* in those schools during the school year including or immediately preceding the time of the examination and selection. The statute in effect provides that free instruction is to be accorded to said students in con- sideration of their superior ability and as a reward for superior scholarship in the academies and public schools of the state. One of the purposes of this provision, -then, was to provide such free instruction as a reward for superior acquirements and as an incentive to the students in each of these schools to attain superior scholarship. The statute also provides that the commissioners shall select annually the best scholar from each academy and each public school as candidates for this scholarship. These provisions indicate quite clearly, I think, that the intent of the statute is that the candidates for such scholar- HOWARD'S PRACTICE REPORTS. 329 The People ex rel. Wright agt. Genung. ship sliall be selected from those who are or have been scholars in these schools during the year in which the exam- ination is had, or during the school year immediately preceding the time of the examination, when the examination is in vacation. The commissioners are each year required to select the best scholar from each school as such candidates. This must, I think, be held to intend that the selection shall be made from the scholars in attendance at such school during that year. * If the intent had been to include scholars who had attended these schools years before, some provision would have been made for notice to them so that all might have an opportu- nity to be examined as to their scholarship and to compete for such candidacy. No provision of that kind was made. Moreover it can hardly be said that a person who has been an attendant at a school, but whose relations with that school have been completely terminated years before, is a scholar of or from such school. He may have been educated at that school, but is not, I think, a scholar from it within the intent and meaning of this statute. If the claim of the respondents were to be sustained it would follow not only that the scholars attending each of these schools would be brought into competition with all the scholars who had ever attended them, but it would also enable those who had once been applicants for such candidacy and failed to apply each succeeding year, and perhaps in the end succeed, to the exclusion of the best scholar attending that year. If the construction contended for were to obtain it would practically subvert the purposes of the statute so far as this scholarship is intended as a reward to the scholars in these schools for superior scholarship, as under such a construction it might be indefinitely suspended, if not overthrown, and its purpose as an incentive to superior scholarship be easily defeated. I cannot think it will bear such a construction or that such was its intent. Upon a careful reading of the statute I am of the opinion VOT,. II 42 330 HOWARD'S PRACTICE REPORTS. The People ex rel. Wright agt. Genung. that the intent of this statute was that the candidates for such free scholarship should each year be selected from scholars in the academies and public schools during that year. If correct in this conclusion it follows that neither Knapp nor Curtis was eligible as such candidate and cannot, therefore, be prop- erly selected. . The position that the relator is not a scholar of the Ithaca High School because she was graduated at the close of its last term, and hence is eligible as a candidate, cannot, I think, be sustained. For the purposes of this act she must, I think, be regarded as a scholar of that school, at least until the end of the second year, and until that school shall again commence its sessions. The intention of the statute was that she might have all the advantages of that school so long as she was a member of it, and upon her final examination and graduation might then become a candidate for such scholarship. For the reasons before stated I conclude that neither Knapp nor Curtis was eligible as a candidate for this scholarship, but that both the relator and Miss Lawrence were, and as the relator passed the better examination, and was the best scholar of the two last named, she is entitled to be selected for the scholarship from that county for the year 1885, and to a cer- tificate of such selection. It follows, therefore, that the relator's application should be granted and that of Curtis denied. But as no bad faith upon the part of the respondents" is shown, without costs to either party. HOWARD'S PRACTICE REPORTS. 331 Stoughton agt. Lewis. COURT OF APPEALS. MAKY E. STOUGHTON, plaintiff and respondent, agt. SAMUEL A. LEWIS, impleaded, &c , defendant and appellant. Pi'actice Appeal When motion to dismiss appeal to court of appeals may be made wliere case is on the calendar. The court of appeals will entertain a motion to dismiss an appeal for which there is no foundation, without waiting until the case is reached in its regular order on the calendar. A plaintiff is not precluded from making a motion to dismiss an appeal taken by a defendant, because he (the plaintiff) has noticed the case for argument and placed it upon the calendar. He waives nothing by so doing. It is still optional with him to wait until the case is reached on the calendar, or to make his motion to dismiss on the ground that the 'appeal is unauthorized. Where, in an action to foreclose a mortgage, a complaint containing all the requisite allegations has been served upon defendant, who afterwards obtained a stipulation from plaintiff's attorney for further time to answer, agreeing not to put in any answer and not to ask any further extension of time. Oil the last day defendant served a demurrer which was/ on motion, overruled and stricken out, and plaintiff proceeded as if no demurrer or answer had been interposed and obtained bis judg- ment by default. The defendant appealed to the general term, where it was affirmed, and from the affirmance defendant appeals to this court : Held, that, the demurrer having been overruled, the judgment went by default in the same manner as if no demurrer had been served, and no appeal is allowed from a judgment entered by default. The order overruling the demurrer not having been appealed from cannot be assailed on an appeal merely from the judgment. Decided February, 1885. MOTION to dismiss an appeal. The facts are sufficiently stated in the opinion. Augustus ffaviland, for plaintiff and respondent. 1. The service of the demurrer was a clear violation of the stipula- tion and, therefore, properly stricken out (People agt. Stephens, 52 N. Y., 306; Townsend agt. The Masterson, y the defendant, I am convinced that the injunction cannot be dissolved. The defendant entered into a written contract, whereby he engaged himself to the plaintiffs, for the season, and as it would be impossible for them to prove their damages in an action at law, they are entitled to the injunction. The statements in the defendant's affidavit as to what Prim- rose told him do not amount to such an allegation of fraud in inducing the defendant to make the contract as, if true, would HOWARD'S PRACTI.CE REPORTS. 461 O'Donohue et al. agt. Simmons. enable the defendant to have the contract annulled on that ground. The failure of the plaintiffs to reply to defendant's telegram did not authorize him to make another engagement nor in any way operate to relieve him from the obligations of his contract with the plaintiffs. The motives of the plaintiffs in holding the defendant to the performance of his contract cannot be inquired into, nor is it material how many or how few contracts the plaintiffs have made in the belief that the defendant would keep his- engagement. As I have reached this conclusion from an examination of the defendant's papers, I shall return all the papers to the clerk, arid the respective attorneys will take such course as. they may think proper in regard to submitting or not sub- mitting an order to be entered on this decision. SUPREME COURT. JOSEPH J. O'DoNOHUE et al. } respondents, agt. ZAOHABIAH E. SIMMONS, appellant. Sheriff Bond of indemnity Liability of the sureties thereon, In an action upon a bond of indemnity to the sheriff, it was error to refuse to charge the jury that if neither the sheriff nor any of his deputies judged the property taken under the execution in reference to which the indemnity applied was owned by the judgment debtor, then the defendant was entitled to a verdict. First Department, General Term, September, 1885. Before DAVIS, P. J., BRADY and DANIELS, JJ. APPEAL from a judgment rendered upon a verdict. A. M. Whitehead, for appellant. James M. Smith, for respondent. 462 HOWARD'S PRACTICE REPORTS. O'Donohue et al. agt. Simmons. BEADY, J. This action was brought by the plaintiff's upon a bond of indemnity executed by the defendant and one Michael S. Purcell (since deceased) to the plaintiff's assignor, James O'Brien, then sheriff of the city and county of New York. The case is here for the second time on appeal, and several of the questions which are now presented are kindred to those already passed upon on the first appeal, the result of which is reported in 31 Hun (p. 267). It is not at all improbable that a consideration of all the other exceptions in the case would result favorably to the respondents, but it is not deemed necessary or advisable to consider them for the reason that one exception appears to be fatal to the maintenance of the judgment. The bond is in the usual form of a bond of indemnity, and provides for protection to the sheriff and all persons assisting him from any damages that might accrue to him or them for levying, attaching and making sale under and by virtue of the execution, of all or any personal property which he or they should or might judge belonged to the judgimnt debtor named. The defendant's counsel requested the court to charge that if neither the sheriff nor any of his deputies judged the property taken under the execution in reference to which the indemnity applied was owned by the judgment debtor, then the defendant was entitled to a verdict. The court refused so to charge, and an exception was duly taken. What was said on that subject, if anything otherwise, does not appear, inasmuch as the charge is not given in the record. As said in the case of Clark agt. Woodruff (83 N. Z., 525) " it is never the purpose of these indemnities to make the obligors responsible for trespass which they do not direct or authorize. We should not yield to such a construction. The mischiefs resulting wonld be very great, not only to the parties and to the public, but to the officers themselves." And in the same case in the supreme court (18 ffun, 423) it was said : " It can hardly be supposed that the parties who executed the bond intended to create a roving commission by which the HOWARD'S PRACTICE REPORTS. 463 O'Donohue et al. agt. Simmons. plaintiff would be at liberty to seize by way of experiment, any property which he might even judge to belong to others, and rely upon such bond for protection against loss." The refusal of the judge to charge the proposition stated, necessarily results in a d3claration of a converse proposition, namely, that the defendant would be responsible, if property should be taken by the sheriff which neither he nor his deputies judged to be the property of the judgment debtor, and thus would sanction the seizure of property in the language of Clark agt. Woodruff (supra) by way of experiment. The mere fact of the levy is not to be construed, when an issue is created in regard to it, as the exercise of judgment or an act in conformity to the bond. A jury may be called upon to determine whether the levy was made within the spirit of the bond itself which was designed to secure the appropriation of the property of the debtor, if, in the judgment of the officer intrusted with the execution of the process, it was proper to levy upon and thus to secure its appropriation to the payment of the judgment. It is no answer to this proposition that there was no conflict- ing evidence on the subject of the levy. It may be said that except from the mere act of levying there is no evidence that the property was judged to belong to the judgment debtor by the persons who made the levy. At all events, as already suggested, the defendant was entitled to a submission of the question to the jury, and which was rejected as we have seen, whether the act of the sheriff upon which his liability rested was done in conformity to the bond. For these reasons the judgment should be reversed and a new trial ordered. DANIELS, J., concurred. DAVIS, P. J. (dissenting). The official act of levying property under an execution was sufficient prima facie evi- dence that the officer judged it to belong to the defendant in the execution. There was nothing in the case rebutting or 464 HOWARD'S PRACTICE REPORTS . Baker agt. Johns. impairing this prima facie evidence, and therefore no occasioo to make the charge requested. If there had been a contro- versy by evidence so as to make an issue on the question whether or not the officer judged the property levied on to be that of the execution defendant, then the charge requested would have been proper and its refusal fatal. Otherwise it was not error to decline to charge at all on that question. I dissent from the conclusion that, on the ground considered in the opinion of BEADY, J., there should be a reversal and new trial. SUPREME COURT. FREDERIOA BAKER, respondent, agt. GEORGE JOHNS and CHARLES NETZ, appellants. Ejectment Lease Indian reservation Who entitled to renewal of lease under act of congress Evidence. By the act of congress, approved February 15, 1875, it was provided that the then existing Indian leases should be valid and binding for the term of five years thereafter, unless by the terms thereof they expired before that time. The same act gave the holder of such leases the right to a renewal thereof in case he was the owner of " improvements erected upon " the land leased. George Jemison, a Seneca Indian, residing on the reservation, made to the plaintiff a lease of certain premises (of which those in question are a part) for the term of twelve years, and on the 16th day of June, 1875, the same Jemison executed and delivered to the defendant Johns a lease of the land in question, and the defendant Netz is his tenant, and in possession. Under the act of congress the defendant Johns made application to the council of the Seneca nation on the 25th December, 1879, for renewal of his lease which was gran ted and lease made of that date, and on 20th day of January, 1880, the plaintiff made a like application for renewal of her lease, which was granted by the councilors, and lease made of date of May 8, 1880, which included the land in lease to defendant. In action of ejectment by plaintiff, to recover the land held by defendant : Held, first, that plaintiff had made improvements on the land covered by her lease, and within the meaning of the act of congress was the owner of them, and therefore entitled to a renewal of her lease. HOWARD'S PRACTICE REPORTS. 465 Baker agt. Johns. Second. That the leases to the plaintiff and defendant Johns were in the strict legal sense invalid prior to the act of congress of 1875, and that they had no legal rights in respect to the leased premises, except that afforded by possession, but that act confirmed and made leases then outstanding valid, and established rights under them as effectually as of the time of their execution as if they had been made by persons competent to vest the rights they purported to give. In that view the plaintiff became the lessee of the entire premises covered by her lease by the force of the act from the time it was made, and that to the defendant Johns was ineffectual to vest in him any right to the laud embraced in it. Third. That the plaintiff was entitled to renewal of her lease entire, and the continued possession of the premises covered by it, and the defendant Johns had in fact no existing lease, and no right to any renewal in respect to the premises in question, unless the plaintiff had relinquished them to him in such sense that he might be treated as in possession as her lessee or assignee. Fourth. That the provision in the act of congress for renewal of leases to persons who own improvements, has reference to those only who at the time the application is made, lawfully claim under a lease, or under some one who has taken a lease which is then valid, and does not include one who has unlawfully as against such leaseholder (entitled to renewal), entered and made improvements upon some portion of the premises. Fifth. That it is conclusively established by adjudication that the defendant Johns derived no right to possession of the premises from the plaintiff, and he had no position which enabled or permitted him as against the plaintiff to apply for or take the renewal lease under which he claims, but the right was exclusively in the plaintiff to have a renewal lease covering the entire premises embraced within that first taken by her. Sixth. That as it was the custom, and had been for years, of the council of the Seneca nation to assemble for the transaction of its business, and the action of the council when so assembled was governed by rules and by-laws, and a formal record of the proceedings was kept in a book by the clerk, a copy of such record certified by him is competent evidence- Fifth Department, General Term, April, 1885. Before HAIGHT and BRADLEY, JJ. APPEAL from a judgment, entered in favor of plaintiff, on verdict of Cattaraugus circuit, and from order denying new trial. VOL. II 59 460 HOWARD'S PRACTICE REPORTS. Baker agt. Johns. Ansley <& Davie, for appellants. Henderson & Wentworth, for respondent. BRADLEY, J. The action is ejectment, to recover the pos- session of land which is part of the Allegany Indian reserva- tion and situated in the village of Salamanca, county of Cattaraugus. On the 26th day of May, 1871, George Jemison, a Seneca Indian residing on the reservation, made to the plaintiff a lease of certain premises (of which those in question are a part) for the term of twelve years. And on the 16th day of June, 1874, the same Jemison, executed and delivered to the defendant Johns a lease of the land in question, and the defendant Netz is his tenant, and in possession. The plaintiff had a verdict and judgment from which and from order denying new trial this appeal is taken. By act of congress of February 19, 1875, entitled "an act to authorize the Seneca nation of New York Indians to lease lands within the Cattaraugus and Allegany reservations and to confirm existing leases," it was provided that the president of the United States appoint three commissioners to sur- vey, locate and establish proper boundaries of the villages of Vandalia, Carrollton, Great Yalley, Salamanca, West Salamanca and Red House, on the Allegany reservation, make maps thereof and designate on the maps defined as near as may be the lands therein then leased, and to deposit the sur- veys and maps in the clerk's office of that county for record and preservation. That the then existing leases within those boundaries should be valid and binding for the term of 'five years thereafter, unless by the terms thereof they expired before that time. And at the end of that time and on the expiration of term of leases before then, the Seneca nation should be entitled to the possession of the lands so leased. But it was further provided that the leases should at expira- fion of the term or of that time be renewable for a period HOWARD'S PRACTICE REPORTS. 467 Baker agt. Johns. not exceeding twelve years, and that the persons who may be at such time the owner or owners of improvements erected on such lands shall be entitled to such renewed leases, and con- tinue in possession on such conditions as may be agreed upon by them and the councilors of the nation. And if they could not agree, the terms to be fixed by referees selected in a manner prescribed by the act (18 U. S. Statutes at Large, 330). The surveys and maps were made, filed and recorded pur- suant to that act of congress. The defendant made application to the council of the Seneca nation on the 25th day of December, 1879, for renewal of the lease before mentioned to him which was granted and lease made of that date. And on 20th day of January, 1880, the plaintiff made a like application for renewal of her lease which was granted by the councilors, at a meeting on the 8th day of May, 1880, and lease of that date made to her, which included the land in the lease to the defendant. The plaintiff had made improvements on the land covered by her lease and within the meaning of the act of congress was the owner of them, and therefore entitled to a renewal of her lease. The only question is whether she had the right to include within her renewed lease that portion of the land in question. The defendant Johns claims that he had made and owned improvements on it, and that he was within the act entitling him to renewal of his lease. There is evidence tending to prove that he made improvements on this land in April, 1879 ; that there was a house on it which was built there in 1873, which he bought of one Nelson in 1874, who had purchased it on a mechanic's lien sale shortly before ; that the plaintiff was advised of the purchase by Nelson, and of his purpose to sell it to defendant Johns and made no objection but said that it belonged to her brother and she had no claim on it and it appears that her brother with her permission built the house and lived in it for a short time and left it, and that the plain- 468 HOWARD'S PRACTICE REPORTS. Baker agt. Johns. tiff improved and cultivated the land in question until the defendant Johns took possession without her consent in 1879. As between persons competent to contract, the one prior in time of two stipulations, to the same effect would give the superior right. And such rule should be applied here unless the anomalous situation before the act of congress and the effect of its provisions since do not permit the application of sucli rule. For many years prior to that act the Seneca nation had a system of allotment of lands to respective Indians, for occupation, cultivation and improvement, and in aid of such purpose there was some legislation of this state (Laws of 1845, chap. 150, sec. 6 ; Laws of 1849, chap. 378) pursuant to which individual occupancy was observed. And it was also common for those occupants or those so entitled to occupy to make leases. But our attention is not called to any law which gave legality to any leases to white persons, prior to the act of congress before referred to, except so far as relates to police regulations and to preserve the peace and to prevent intrusion upon the reservation, the legislative power in respect to the tribe and the lands occupied by them is exclusively in congress. And the relation of the Indians is that in the nature of ward of the general government. It, therefore, may be assumed that the leases to the plaintiff and defendant Johns were in the strict legal sense invalid prior to the act of congress of 1875. And that they had no legal right in respect to the leased premises except that afforded by possession, but that act confirmed and made leases then outstanding valid, and established rights under them as effectually as of the time of their execution as if they had been made by persons competent to vest the rights they purported to give. In that view the plaintiff became lessee of the entire premises covered by her lease by the force of the act from the time it was made, and that to the defendant Johns was ineffectual to vest in him any right to the land embraced in it. Then comes the effect of the act in respect to the right to have renewal. That necessarily related to an existing lease and one under which HOWARD'S PRACTICE REPORTS. 4G9 Baker agt. Johns. rights were vested by virtue of it in view of the confirming act, and limited such right to those lessees who were the owners of improvements erected on the lands covered by their leases respectively. And except so far as the lessee had relinquished to another the right to renewal of the lease, is not qualified so as to permit the reduction or severance of the premises covered by it. While the act in terms does not distinguish between con- flicting leases nor declare a preference of those of the earlier dates, in such case it must be assumed that the purpose of the statute was that the rights of the lessees and their assigns, such as the law would recognize in respect to priority should be observed and such is the fair and proper construction and effect of the act and the equitable rule to be applied (Ryan agt. Knorr, 19 Hun, 540). If this proposition is correct it follows that the plaintiff was entitled to renewal of her lease entire, and the continued possession of the premises covered by it, and the defendant Johns had in fact no existing lease and no right to any renewal in respect to the premises in question, unless the plaintiff had relinquished them to him in such sense that he might be treated as in possession as her lessee or assignee. The evidence does not permit the conclusion of any such relation between them. There is nothing appearing in con- nection with the circumstances of his purchase of the house on her part which can be construed as a surrender of the possession of the premises in question to him. And as between those parties the defendant had no right to the possession. The provision in the act of congress for renewal of leases to persons who own improvements has reference to those only who at the time the application is made, lawfully claim under a lease or under some one who has taken a lease which is then valid, and does not include one who has unlawfully as against euch lease holder (entitled to renewal) entered and made improvements upon, some portion of the premises. It appears that the plaintiff resisted the interference by the 470 HOWARD'S PRACTICE REPORTS. Baker agt. Johns. defendant Johns with her possession and enjoyment of the premises which he claims, that in June, 1876, she prosecuted him by action for trespass committed on them in the years 1872, 1873 and 1874, in the county court, and a trial was had and she recovered. And that about the 1st of May, 1879, she commenced an action in this court against him to recover the possession of the same premises, which he defended, and at the trial (May 24, 1880) it appearing that the plaintiff's title on which the action was based at the time of its commencement had expired on 19th February, 1880, a verdict was rendered for the plaintiff for damages for the wrongful detention from her of the premises by the defendant, upon which judgment was entered against the defendant, with costs, pursuant to the statute in such case (2 R. S., 308, sec. 31 ; Lang agt. Wilbra- hane, 2 Duer, 171 ; Van Rensselaer agt. Owen, 48 Bar!)., 61). This recovery is conclusive evidence as to the title of the plaintiff as against the defendant Johns up to the 19th day of February, 1 880, and has no greater or other force or effect beyond that action between them as an adjudication (2 R. S. y 309, sec. 36 ; Beebe agt. Elliott, 4 Barb., 457 ; Briggs agt. Wells, 12 Barb., 567; Cagger agt. Lansing, 64 N. Y., 417; Dawley agt. Brown, 79 N. Y ., 890). And this conclusive effect is wholly given by the statute (Bates agt. Stearns, 23 Wend., 482). Thus is conclusively established by adjudication that the defendant Johns derived no right to the possession of the premises from the plaintiff. And if we are right" in the views above given he had no position which enabled or per- mitted him as against the plaintiff to apply for or take the renewal lease under which he claims, but the right was exclu- sively in the plaintiff to have a renewed lease covering the entire premises embraced within that first taken by her. The contention of the defendant's counsel that the evidence presented a question of fact in respect to the action of the council on the plaintiff's application for the renewal of her HOWARD'S PRACTICE REPORTS. 471 Baker agt. Johns. lease and therefore the direction of the verdict was error, is not, we think, supported. It was the custom, and had been for many years, of the council of the Seneca nation to assemble for the transaction of its business. The action of the councilors when so assembled was governed by rules and by-laws, and a formal record of the proceedings was kept in a book by the clerk. And a copy of them certified by him are competent evidence (Laws of 1847, chap. 365, sec. 7). It is not necessary to hold that the original record or a copy certified by the clerk is conclusive evidence that they were, correctly entered in the book. They would not be such in a direct proceeding within a proper time to attack directly action based upon them. But in a collateral action or proceeding to which the nation is not a party and which involves inquiry into the validity of the execution of a contract made pursuant to the record of the proceedings as entered to which the nation is a party, and executed by the council by its president according to its estab- lished rules and custom, it is very questionable whether their proceedings as they appear on the record, and the execution of such contract in fact so made can be attacked in that man- ner. But here the plaintiff was entitled to the renewal which she received. The only question open to the council of the Seneca nation was that of terms. The nation do not com- plain of them and the defendant cannot. And the terms are in all respects thoSe appearing in the record of the proceed- ings of the council. If the propositions we have adopted as applicable to this case are correct it follows that no error was committed by the trial court, and that the judgment and order should be affirmed. HAIGHT, J., concurred; BARKER, J., not sitting. 472 HOWARD'S PRACTICE REPORTS. The People ex rd. Cass el al. agt. Hosmer et al. SUPEEME COUET. THE PEOPLE ex rel. CASS et al. agt. HOSMEB et al. inspectors of election of the thirty-fourth election district in the twenty- third assembly district ; and twenty-seven other cases against the same inspectors. Election law Registration of voters Duties of board of registration No right to refute to register all duly qualified voters who may fiave made appli- cation for registration within the time prescribed by law. Under the act relating to the registration of voters in the city and county of New York, it is the duty of the inspectors to register every duly qualified voter who presents himself within the place of registration before the hour of nine o'clock in the evening and demands to be sworn, and the true construction of the statute is that the place of registration shall be closed at that hour, but not that the inspectors shall refuse after that hour to register those who have applied within the time prescribed by law. New York Chambers, October, 1885. LAWRENCE, J. The relators show that they are citizens of 'he state of New York, of full age, and have resided in the state more than one year, four months in the county and thirty days in the election district, and that they are duly qualified and entitled by virtue of such citizenship and residence to appear and be registered as voters at the next general election ; that on the 24th of October, inst., they each appeared before said inspectors for said thirty-fourth election district, some of them as early as<7.4:5 o'clock p. M., and all of them before the hour of nine o'clock, p. M., for the purpose of being sworn and examined as to their qualifications as voters and for the purpose of being registered as required by law. It also appears from the affidavits that each of the relators remained continually in the place of registration from the time of his entry therein up to nine o'clock p. M., and that each demanded that the said board of inspectors should register his name, and requested to be sworn by them, but that the said board of inspectors declared HOWARD'S PRACTICE REPORTS. 478 The People ex rel. Cass et al. agt. Hosmer et al. the registry closed at nine p. M. and refused to enter the relators' names on the registry, &c. The act relating to the registration of voters in the city and county of New York (chap. 24 of chap. 410 of the Consolidation act of 1882, as amended April 21, 1883), provides (sec. 1858) that the inspect- ors of election appointed pursuant to the provisions of this chapter, shall at the times in this chapter designated for a general registration, meet in their respective election districts, at the places which, as provided in this chapter, shall be designated therein for such meetings, and at such time's in each election district the said inspectors of election shall openly and publicly do and perform the following acts, viz. : 1. They shall organize as a board by selecting one of their number to act as chairman ; but in the case of failure to so organize within fifteen minutes after the time fixed for the meeting, the chairman shall be selected by lot. 2. They shall receive the application for registration of such male residents of their several election districts as then are, or on the day of election next following the day of making such applications would be, entitled to vote therein, and who shall personally present themselves, and such only. 3. They shall remain in session on each of said days between the hours of eight o'clock in the morning and nine o'clock in the evening,, and shall administer to all persons who personally apply to register the following oath of affirmation, viz. : " You do solemnly swear (or affirm) that you will fully and truly answer all such ques- tions as shall be put to you touching your place of residence, name, place of birth, your qualifications as an elector and your right as such to register and vote under the laws of this state." The next subdivision of this section relates to the entries to be made in the registry, and it is not necessary to set it forth at length. The question in these cases is whether the books of registry are to be closed at nine o'clock in the evening, although duly qualified voters are within the place of regis- tration demanding to be sworn as to their qualifications as voters, or whether it is the duty of the inspectors to register Vor.. II 60 474 HOWARD'S PRACTICE REPORTS. The People ex rel. Cass ei at. agt. Hosmer et al, all such voters as may have made application for registration,, and are within the place of registration at the hour of nine in the evening. I am of the opinion that it is the duty of the inspectors to register every duly qualified voter who pre- sents himself within the place of registration before the hour of nine o'clock in the evening and demands to be sworn, and that the true construction of the statute is that the place of registration shall be closed at that hour, but not that the inspectors shall refuse after that hour to register those who- have applied within the time prescribed by law. The object of the registry law is to enable it to be ascertained who are duly qualified voters. The electors are required to present themselves within certain hours for the purpose of having their qualifications ascertained in each of these cases. The affidavits show that the relators personally presented them- selves for registration before the hour for closing the place of registry had arrived. Surely they should not be deprived of their right to vote when they have done everything which the law required them to do, for the purpose of proving their qualifications as electors. [ am strengthened in this conclu- sion when I compare the phraseology of section 1843 of the act with that of section 1858. Section 1843 provides "that at all elections hereafter held in the city and county of New York, the polls shall be opened at six o'clock in the morning and closed at four o'clock in the afternoon." The language of subdivision 3 of section 1858 is that the inspectors " shall remain in session on each of said days, between the hours of eight o'clock in the morning and nine o'clock in the evening, and shall administer to all persons who personally apply to register the following oath," &c. There is no positive pro- vision that the inspectors shall close their books at nine o'clock in the evening if there are persons waiting to be registered who are duly qualified as voters and who have appeared before them before nine o'clock. In section 1843 the mandate i& that " the polls shall be closed at four o'clock." The language D O of section 1S58 is not mandatory as to the closing of the HOWARD'S PRACTICE REPORTS. Dodge agt. Colby. books, and there is nothing in it from which it can be inferred that the books are to be closed and thereby duly qualified electors deprived of their registration, although they have done everything within their power to obtain such registration, and are personally present before the inspectors when the hour of nine in the evening arrives. The affidavit presented on behalf of the relator Mr. Sherwood is defective, inasmuch a& it is simply corroborative of the affidavit of Cass, and does not show that Sherwood made the same demand in his own behalf as Cass made. The intention undoubtedly was to adopt the affidavit of Cass, and to allege that the same facts existed in the case of Sherwood ; but the affidavit does not state so. In all the other cases I shall direct that peremptory writs issue, but until a further affidavit is presented on behaL Mr. Sherwood his motion must be denied. SUPREME COURT. GEORGE E. DODGE, respondent, agt. JOHN S. COLBY, appellant. Complaint Demurrer Code Civil of Procedure, section 484 Slander of title What must be alleged to maintain Jurisdiction Courts of this state no jurisdiction for trespass to lands without the state Trespass and slander of title cannot be joined. The courts of this state have no jurisdiction for trespass to lands without the state. To maintain slander of title, it must be alleged to have been malicious It is no slander to allege ownership and that plaintiff has no title. Under section 484 of the Code of Civil Procedure, trespass and slander oi title cannot be joined in the same complaint. First Department, General Term, October, 18S5. Before BKADY, P. J., and DANIELS, J. APPEAL from an interlocutory judgment overruling a demurrer to the plaintiff's complaint. 476 HOWARD'S PRACTICE REPORTS. Dodge agt. Colby. Stephen B. Brague, for appellant. John E. Parsons, for respondent. DANIELS, J. The plaintiff has brought this action as the owner of about 300,000 acres of land, situated in the state of Georgia, to recover damages for timber and turpentine taken from the land, and a n so for the slander of his title by the defendant. The complaint contains two causes of action for the timber and turpentine. To present the first of these causes of action it has been alleged that the defendant and others acting with him ' ' have caused various persons to cut timber and to take turpentine, the property of the plaintiff, from the same." The second cause of action has been similarly stated. For that purpose it has been alleged that the defendant and others for whom he was acting, represented to lawless and irresponsible persons that they would protect such persons " in trespassing upon said lands and removing turpentine and timber, the property of the plaintiff, from the same." And that various persons " thus encouraged and pro- tected by the defendant and his said agents, and relying upon their assurance and protection, and directly instigated by them, have taken turpentine and timber from the said lands, the property of the plaintiff, of great value." By these allegations the facts upon which the plaintiff's right to recover has been made to depend, were trespasses upon real estate situated in the state of Georgia, and for such trespasses no action can be maintained in the courts of this state (Gragin agt. Lovell, 88 N. Y., 258). An effort has been made to distinguish this case from that authority, upon the fact that the plaintiff in this action claims to recover the value of the timber and turpentine as so much property belonging to him, which has been converted by the persons who removed it from the land, under the authority or at the instigation of the defendant. But the removal of the timber and turpentine and its appropriation to the use of the persons taking it, will not entitle the plaintiff to maintain HOWARD'S PRACTICE REPORTS. 477 Dodge agt. Colby. this action in this state, for the conversion and appropriation were merely acts by which the trespass itself was made com- plete, and its fruits diverted to the use of the persons commit- ting these wrongs upon the land. A similar proposition was presented in American Union Telegraph Company agt. Middlelon (80 N. Y., 408), but it failed to receive the sanction of the court. And it was held that the acts of trespass themselves could not be separated from those of the removal and appropriation of the property in such a manner as to allow an action to be maintained for the value of the property actually converted. The case i* directly applicable in this respect to the one now under con- sideration, and although it may conflict in this conclusion with the decisions cited from the reports of the state of Pennsyl- vania, it must still be held to be controlling as to its disposition. It has been urged that a different conclusion was arrived at in Newman agt. Godard (3 Hun, 70), but that is a mistaken view of that case, for the propert}^ for which it was held a recovery might there be had was no part of the freehold, but it was personal property, in no manner whatever connected with the premises from which it was taken. This case cannot be brought within the principle upon which that proceeded, but it is to be controlled by the authorities previously men- tioned. Neither of these subdivisons present a cause of action within the jurisdiction of this court, and that part of the demurrer by which this point has been raised was therefore well taken. The residue of the complaint containing what has been relied upon as a third cause of action consists in brief of the charge that the defendant and others acting under his authority had both publicly and privately denied the plaintiff's title to- this land. But in no part of the complaint relating to this cause of action has it been alleged that this denial of the plain- tiff's title was maliciously made, and that is an essential fact the existence of which has been required to sustain an action for the slander of a title (Like agt. McKinstry, 41 Barb., ISO). 478 HOWARD'S PRACTICE REPORTS. Dodge agt. Colby. But it appears further from the allegations contained in this subdivision of the complaint that the defendant and those act- ing with him claimed an adverse title to the property to tho plaintiff, and stated that they had been confirmed in the propriety of that claim by the unanimous decision of four able legal gentlemen who had investigated the subject, and concluded that the plaintiff was not the owner of the land. It is entirely manifest from the alleged statements contained in the complaint that the defendant claimed to be interested as owner in this property. And where a claim may be made of that description, together with the assertion that the plain- tiff is not the owner of the property, an action of slander can- not be maintained for the mere making of the assertion {Smith agt. ISpooner, 3 Taunton, 2-16). And this case, as well as the preceding authority, proceeded further upon the principle that the words by which the title in question may have been assailed, must be shown to have been spoken maliciously. Indeed that is essential in all actions of slander, and before such proof can regularly be given the complaint itself must contain an allegation that such was the fact. In no part of this complaint, therefore, was any cause of action disclosed against the defendant. But if it should be held that each division of the complaint contained a cause of action, then it was subject to the further objection mentioned in the demurrer, that the causes of action were improperly joined. For by section 484 of the Code of Civil Procedure, an action of slander cannot be joined with an action for injuries to real property or for injuries to personal property ; but the causes of action which may be regularly united in the same complaint must belong to one of the sub- divisions contained in that section. The judgment overruling the demurrer was erroneous, and it should be reversed and judgment ordered for the defendant upon the demurrer, with leave to the plaintiff to amend within the usual time on the payment of costs. HOWARD'S PRACTICE REPORTS. 479 People ex rel President, &c., of D. and H. Canal Co. agt. Keator. SUPKEME COURT. THE PEOPLE ex rel. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY agt. ABJRAM P. KEATOR, CONRAD SCHINNEN AND JAMES RODDEN, as assessors of the town of Rosendale in the county of Ulster. Taxation of railroads or canals Evidence of value. The assessors in estimating the value of railroad or canal property, within a town, are not to be governed solely by its cost, but rather, though not exclusively, by its productiveness for railroad or canal purposes. The taxable value of the part of a canal which lies within a town in which the tax is laid, is to be ascertained by valuing, as a part of a whole a continuous way to carry freight from one point to another, and the profits of its use for that purpose (See ante, 454). Ulster Special Term, July, 1885. CERTIORARI to review assessments. /*. & C. F. Cantine, for relators. A. T. Clearviater, for respondents. WESTBROOK, J. The relator, by certiorari, seeks to have its assessments in the town of Rosendale, Ulster county, New York, during the years 1882 and 1883, reviewed and corrected. It is the valuation of its canal within the limits of that town of which the relator complains ; such valuation, including its telegraph line, being $268,000 in 1882, and $292,000 in 1883. The canal extends from Eddyville in the county of Ulster and state of New York, to Ilonesdale in the state of Pennsyl- vania, and is 108 miles in length, five and one-half of which are within said town of Rosendale. The valuation, therefore, of the canal per mile in the town was $-48, 727.26 in 1882 and $49,454 in 1883. The only point to be discussed is the valua- tion of the canal. The valuation of the real estate of other parties than the relator and the Wallkill Yalley railway in such town was examined by the judge writing this opinion 480 HOWARD'S PRACTICE REPORTS. People exrel. President, &c., of D. and H. Canal Co. agt. Keator. upon the certiorari prosecuted by such railway, and such- valuation was found to be forty per cent only of its actual value. That conclusion was recently sustained at general term, and need not now be discussed. The evidence of valuation given upon these proceedings is the same as was given upon the certiorari in the other, except that the appraisers who valued the property of the town upon a recent appeal to the state assessors were examined, and sucli evidence will be found fully to justify the conclusion as to value in the other proceeding. Neither will it be necessary at this time to discuss at any length the value of the canal per mile. That question has also been recently examined in the certiorari brought by the present relator to review the assessments in the town of Marbletown during the same years. The conclusion reached in that proceeding was that the actual value of the canal per mile, estimated as the statute directs the assessors to do, " at its full and true value as they would appraise the same in payment of a just debt due from a solvent debtor " (2 R. S. \^th ed.~\, 992, sec. 17), was not greater than $16,000 per mile. The reasons for reaching that conclusion are contained in the other opinion and to that reference is made. In view of the elaborate argument, however, of the counsel for the respondents it is proper to say a few words in addition to the opinion in the other case. The statute to which reference has been made directs the valuation to be estimated not upon its cost nor upon its value to the relator, but upon the transfer of the property to a creditor in the payment of a debt. No creditor would receive it for any other purpose than as an investment, and in receiving it he would calculate its earning capacity. The canal is undoubtedly of greater value to the relator than it would be to any other person. It is still used as the way to transport its own coal from its mines in Pennsylvania to tide water upon the Hudson. For this purpose it was built, and has ever since been operated. Its tolls are very much less than its operating and maintaining expenses, the latter being more than three times as great as HOWARD'S PRACTICE REPORTS. 481 People ex rel. 1 'resident, &c., of D. and H. Canal Co. agt. Keator. the former. This canal, however, in addition pays something to the relator as an outlet for its own production. If, however, it was parted with to another, the use which the relator makes of it would have very little effect. If the buyer had no coal to transport, when he ascertained that the cost of mainte- nance and operation was three times as great as any receipts he could expect, what would he give ? And if he had coal to transport, what would he give for this old and almost obso- lete way ? The relator, of course, cannot afford to throw away its canal and build a railroad. It would then sink the capital invested in the canal, and invest additional capital in a new mode of transportation. Not only would it sink the capital invested in the canal, but all the money invested in its boats, machinery and appliances, adapted to its navigation, and pay out very large sums for a railroad, cars, appliances and machinery therewith to do its business. In short the aban- donment of its canal by the relator is throwing away its money invested in the structure and the machinery, boats, &c., required for its business, and the expenditure of a very large sum for a new avenue and means of transportation. The creditor buying would, however, have a different problem before him. He has money to invest, and he would have a choice between an investment in a canal, which would involve also a large additional sum for boats, machinery and appliances adapted for the canal, and a railroad. Necessarily he would consider the question from a different standpoint than the relator, for the selection of either involves no sinking and throwing away of capital already invested. The question is, what would such a person give for the canal per mile ? It is difficult to say, it is true, but it certainly would be iinsafe to say that he would give a greater sum per mile than individu- als of the experience, character and standing of the late Mr. Dickson, and Mr. .Young, estimate it to be worth from $5,000 to $8,000 per mile. When its value is put, as it was in the Marbletown case, and as it will be in this, at $16,000 per mile, a sum twice as great as the persons referred to and VOL. II 61 482 HOWARD'S PRACTICE REPORTS. People ex rel. President, &c. , of D. and H. Canal Co. agt. Keator. best knowing its value by their highest figures place it, it is believed that the other taxpayers of the town should be more than satisfied. Neither does the fact that the late Mr. Dick- son, Mr. Young, and others did or do now sustain official relations to the relator, detract from their evidence. They were or are men who grew up on the canal, having passed through all its grades of employment from boatmen up, and their years of faithful service enabled them, not only to speak as experts, but also with the weight of character which hon- orable conduct gives. It has already been said that the other property in the town was valued at forty per cent of its actual value. Do the respondents claim that the same rule was applied to that of the relator ? The law, justice, and official oaths demand that they should have done so. The valuation of the canal per mile during the two years averages 8-19,090. If that be forty per cent of its actual value, then we have the astonishing result, that the respondents found the actual value of the canal about 122,000 per mile. Upon this fact comment is unnecessary. To equalize the taxation of the relator with others in the town, its canal should be appraised at a sum per mile, which forty per cent of $16,000 would produce. With some doubt as to its correctness no costs will be imposed upon the respondents. Their conduct in deliberately valuing other property in the town at only forty per cent of its value, after their attention had been drawn to the error by the opinion in the Wallkill Valley Railway Case has not been overlooked. It was, however, the opinion of a single judge, and perhaps good faith in their action should be imputed. There are some things to which attention has been called now and some which were commented upon in the other proceed- ing against them by the railway, which are worthy of atten- tion on the question of good faith. Believing, however, that wrong practice for years in their town has misled the respond- ents, no costs will be imposed. HOWARD'S PRACTICE REPORTS. 483 People ex rel. Cole agt. Board of Supervisors of Greene County. SUPEEME COUKT. THE PEOPLE ex rel. EDWARD M. COLE agt. THE BOARD OF SUPERVISORS OF GEEENE COUNTY. Courts Contingent expenses Power of court to order publication of terms Duty of county treasurer as to payment Mandamus Courts must determine what is a legal and proper expense and charge to be paid by a county treasurer in regard to the holding of such courts. There are contingent expenses necessarily incurred in the holding of courts for which no express statute provides, and the board of super- visors of a county must provide a fund, to be placed in the hands of its county treasurer, " to pay such contingent expenses as may become pay- able from time to time," and a court held in such county must determ- ine what is a proper and lawful charge upon such fund. Where the relator, in pursuance of an order made by the court, published in his newspaper the terms of the various courts appointed to be held in Greene county, and the clerk, in pursuance of said order, issued a cer- tificate for the amount of the bill for performing the service ordered, payable out of the fund provided for the contingent expenses of the court : Held, that the order for its payment should be obeyed by the county treasurer, and is enforceable against him by mandamus. It is not the prerogative of a board of supervisors nor of a county treasurer to adjudge an order of the court void and incapable of enforcement. Where a bill for publishing the terms of the court (such publication having been done under an order of the court) was presented to the board of supervisors of the county of Greene for audit, and on the rejection of such bill upon the ground that the same was not a legal charge against the county, the relator asked that a mandamus to compel its audit might issue: Held, that although the order made by this court should have been obeyed by the county treasurer, and obedience thereto is enforceable against him, a mandamus against the board of supervisors will not be granted. Greene -Special Term, December, 1884. MOTION by the relator for a mandamus commanding the respondent to audit and allow a bill for printing and publish- ing in his newspaper the terms of courts in the third judicial district, pursuant to an order of this court. 484 HOWARD'S PRACTICE REPORTS. People ex rel. Cole agt. Board of Supervisors of Greene County. E. A. Chase, for relator. Sidney Crowell and J. B. Olney, for respondent. WESTBROOK, J. The relator has, in compliance with an order of this court dated November 5, 1878, published in a newspaper owned and controlled by him and printed in the county of Greene, the terms of the supreme court, circuit court and court of oyer and terminer appointed to be held in the third judicial district of this state, of which the county of Greene forms a part, during the time of such publication. His bill was presented to the board of supervisors of the county of Greene for audit, and on the rejection of such bill, upon the ground that the same was not a legal charge against the county, the relator asks that a mandamus to compel its audit may issue. It should be further stated that the order required the clerk of the court to issue a certificate for the amount of the bill for performing the service ordered, payable out of the fund provided for the contingent expenses of the court. The application presents two questions, viz. : (1st.) Was the order one within the power of the court ; and (2d.) Has the relator chosen the proper remedy ? In the discussion of the first question it will be assumed, for the point is too clear to admit of discussion, that the hold- ing of courts in a county must oftentimes involve expenses for which statutes make no provision. If proof of this asser- tion is needed, it will be found in the many orders made during a session of the court for payments which no express enactment warrants and the justice and legality of which no one will question. Such expenses are properly covered by the term " contingent expenses," which, when " necessarily incurred for the use and benefit of a county, are a county charge " (2 R. S. \lth ed.~\, 979, sub. 15, sec. 2) ; and to enable "their respective county treasurers to pay such contingent expenses as may become payable from time to time, the board of supervisors of the several counties shall annually cause HOWARD'S PRACTICE REPORTS. 485 People ex rel. Cole agt. Board of Supervisors of Greene County. such sum to be raised in advance in their respective counties, as they shall deem necessary for that purpose" (Same vol. and page of R. S., sec. 5). As, then, there are contingent expenses necessarily incurred in the holding of courts for which no express statute provides, and as the board of supervisors of a county must provide a fund to be placed in the hands of its county treasurer, " to pay such contingent expenses as may become payable from time to time," it necessarily follows that a court held in a county must determine what is a proper and lawful charge upon such fund. Either this conclusion must be adopted, or lse the position must be assumed that the county treasurer is to pass upon the validity of every court order directing a payment from the contingent fund. The statute contemplates a payment by the county treasurer " in advance " of an audit by the supervisors, and hence it follows that the assertion just made is correct, that either the court or the county treasurer must determine what is a legal expense against the county and a valid charge upon its contingent fund. It is not difficult to determine as between the two, the court and the county treasurer, where the authority to decide is and should be lodged. The thought is not to be entertained that the legis- lative intent was that the means necessary to conduct the machinery of courts should be under the control of any body or officer other than those who are charged with the official duty of controlling its action and directing its energy. It is true that the power of a court may be abused, but reasoning .against the existence of a power based upon its liability to abuse is as effectual against any other body in which it uaay be supposed to reside as it is in regard to courts ; and as a fact it will be found that courts are as economical in the expenditure of money as boards of supervisors, and their judgment as to legality, need and propriety of an expendi- ture made in connection with the holding of courts in a county, as safe and as wise as that of supervisors or county treasurers. 486 HOWARD'S PRACTICE REPORTS. People ex rel. Cole agt. Board of Supervisors of Greene County. Having reached the conclusion that courts must determine what is a legal and proper expense and charge to be paid by the county treasurer in regard to the holding of such courts, it follows that the order made by the court in favor of the relator should be obeyed by the county treasurer. IN either the propriety nor the need of the order can be now considered. Both were determined when such order was made ; and this court, though held by another judge, will not sit in judgment upon an order duly entered when presided over by one of his associates. To do so would be to confer upon every county treasurer the power to block the machinery of a court by refusing to obey an order as to the disposition of a fund in his hands, placed there to keep such machinery in motion, until the same court held by another judge again passed upon its propriety and legality. If, however, the discretion of the judge who made the order is in this way reviewable, it is due to him to say that there are no facts shown to justify the infer- ence of an abuse of power. The advertisement of the terms of the courts directed by the order was, it seems to me, a wise and proper act. It is important that the people of a county should be informed as to the sittings of courts in their midst, and the very small expenditure incurred for that purpose is scarcely equal to the sum which the county will pay for the increased per diem allowance to its representatives while they have considered the propriety and legality of the charge. This statement is made without any intent to criticise the action of the board of supervisors, or to question its good faith, but only for the purpose of forcibly presenting the comparatively small expenditure which is resisted. While entertaining no doubt that the order made by this court should have been obeyed by the county treasurer, and that obedience thereto is enforceable against him, it is not seen, however, on what ground the mandamus asked against the board of supervisors can be granted. Its members have disobeyed no order of this court ; on the contrary, the order sought to be enforced is upon and against a fund in other HOWARD'S PRACTICE REPORTS 487 People ex rel. Cole agt. Board of Supervisors of Greene County. hands, and against and to another official. While, however, the present motion must for the reason just stated be refused, such denial will be without costs, and without prejudice to the right of the relator to move for a mandamus against the county treasurer. It is evident that the legality of the order of November 5, 1878, has been the subject of controversy, and not the liability of the body against which this proceeding is taken. Indeed, it was stated upon the argument that in refusing to obey the order the county treasurer acted by direction of the board of supervisors. As the court thinks that the action of the county treasurer in refusing to obey the order was unjustifiable, and that of the supervisors in upholding him in such refusal equally erroneous, it cannot award costs against a party who has a real grievance to redress, because he has taken his legal remedy against a party who is morally but not legally responsible for the facts which make a proceeding in a court a necessity. Perhaps it ought to be said, in conclusion, that if at any time an order for payment of a bill out of the fund provided for the contingent expenses of courts is unwise or improvi- dent, any judge to whose attention it is called will cheerfully correct or revoke it, but it is not the prerogative of a board of supervisors nor of a county treasurer to adjudge an order of this court void and incapable of enforcement. 488 HOWARD'S PRACTICE REPORTS. Eberle asrt. Kauffeld. CITY COURT OF NEW YORK. MART EBERLE agt. JOHN KAUFFELD, treasurer of the Abraham Lincoln Conclave No. 8 of the Free Order of the Seven Wise Men. Benevolent society Action for benefits Wfiat must be alleged and proved. The provisions of the constitution and by-laws of a benevolent society providing for the payment of sick or death benefits are in the nature of a contract, and the plaintiff must allege and prove a breach of said provisions before he can maintain an action. The question whether the action should be brought against the subordinate or grand lodge, considered. Trial term, November, 1885 TRIAL by the court without a jury. William E. lliff, for plaintiff. M. E. Goodhard, for defendant. Me ADAM, G. J. The defendant is an unincorporated benevolent association, consisting of more than seven mem- bers, and it is sued according to the statute, in the name of its treasurer, by the plaintiff, the wiflow of Peter Eberle, who died while a member of the order. The action is to recover $500, which the widow claims she is entitled to receive under the constitution and by-laws of the association It has been stipulated that, if entitled to recover, the plaintiff shall have judgment for $250, so that the question of damages is no longer an issue in the case, and the contention is narrowed down to the right of the plaintiff to maintain the action against the defendant. Two objections are urged to a recovery. First. It is said that the plaintiff's husband was not a member in good standing in the order at the time of his death, because on the 22d day of April, 1885, the said Peter HOWARD'S PRACTICE REPORTS. 489 Eberle agt. Kauffeld. Eberle was in arrears to his lodge in the sum of four dollars and sixty-five cents, and that for such default the said Peter Eberle was on the evening of that day suspended from the association. But section 14 of the by-laws, authorizing the suspension of members, only applies to those who have been in arrears for four months ; and there is no proof that Eberle was in arrears for this length of time, so that the suspension was unauthorized, and in consequence illegal and inoperative. Second. That the remedy of the plaintiff is against the " grand conclave " and not against the defendant, which is merely a subordinate lodge, not charged with the duty of levying assessments to pay death benefits, nor with the duty of paying them when the assessments levied for the purpose have been collected. It appears that by the scheme of the order subordinate lodges are called " conclaves," and the grand lodge or central body the " grand conclave." The constitution and by-laws to which Eberle subscribed and by which he is bound, provide the following system of levying and paying death benefits : "Article sixth. The grand conclave makes the assessment in all cases of death ; the subordinate conclave collects the assessment from its own members after notice of the death of a member." "Article seventh. The constitution of the grand conclave governs each subordinate conclave, and each subordinate con- clave pays to the grand conclave the sum of fifty cents for each and every member on its roll, and when collected by the grand conclave a committee of five members pay it over to the widow." By these provisions it will be observed that the " grand conclave " makes the assessments in case of death, and each subordinate lodge after notice so to do collects assessments from its own members at the rate of fifty cents for each member on its roll, and that after the assessments are levied and collected by the grand conclave a committee of five mem- bers selected by the grand conclave pay the death benefits VOL. II (}-j 490 HOWARD'S PRACTICE REPORTS. Eberle agt. Kauffeld. thus collected over to the widow. It is neither alleged nor proved that the " grand conclave " levied any assessments in this instance or that it has collected any funds for death bene- fits from the subordinate conclaves, or that it has paid over to the defendant or to any committee appointed by it any moneys with directions to pay the same to the widow, nor is it alleged or proved that the defendant, as a subordinate lodge, failed to perform any duty owing to the plaintiff in this respect. Under the circumstances no cause of action has been established against the defendant. The constitution and by-laws of an unincorporated association providing for sick or death benefits is in the nature of a contract, and a recovery thereon can only be had by alleging and proving a breach of its terms by the party against whom the recovery is sought. The mode of collecting death benefits in this order may be circuitous, but it is made so by the provisions to which Eberle on becoming a member assented. They apply alike to all similarly situated, and are binding on all who assented to them. It does not follow that the plaintiff is remediless. Pier remedy is to require the grand and subordinate conclaves to perform their duty in the premises, and if they refuse to do so an action for breach of duty will no doubt lie. The complaint must be dismissed, with costs, and without prejudice to a new action on a proper complaint charging the grand or subordinate conclave with breach of the duty imposed upon them by the constitution and by-laws of their order. HOWARD'S PRACTICE REPORTS Bigart agt. Jones. SUPREME COURT. WILLIAM BIGART, as executor of the last will and testa- ment of THOMAS HOPKINS, deceased, agt. FREDERICK C. A. JONES, as administrator, &c., of CECILIA JONES, deceased, and others. Will Construction of Practice Executors Action. Where a will presents upon its face questions of complication, uncertainty and difficulty, an executor may institute and maintain an action for the purpose of obtaining a judicial construction thereof, and for direction to him as to the manner in which he should discharge his duties in executing the will as such executor It is the policy of the law, in regard to the construction of wills, to give effect to every pait thereof, to the end that every beneficiary shall receive the bounty of the testator, according to his intention, as fairly gathered from the entire instrument. Where the testator by his will bequeathed, after the payment of debts and funeral charges, all of his personal and real estate, except a lot which Elizabeth Akin was to occupy, to his wife, to be used and enjoyed by her during her natural life, or until she should marry. Upon the mar- riage or death of his widow his daughter Cecilia became entitled to the use and enjoyment during her natural life of the estate, real and personal: Held, that Cecilia did not take a fee under the will, but that her estate should be regarded merely as a life estate. It follows that at the death of Cecilia, if she had left lawful issue her surviving, such issue would have been entitled absolutely to the estate, real and personal. As Cecilia died without leaving such issue the estate, real and personal, vested in the persons designated in the sixth clause of the will, subject to the payment of the bequest specified in the will. It seems to have been the purpose and intention of the testator to consoli- date into one fund the real and personal estate at the death or marriage of his widow, and to bequeath or devise the same accordingly, subject to the satisfaction of the burdens which he imposed upon his estate for the benefit of the persons designated therein, to whom he gave certain sums by way of legacy. Special Term, November, 1885. THIS action is instituted for the purpose of obtaining a judicial construction of the said will, and for direction to the plaintiff as such executor in regard to its execution. 492 HOWARD'S PRACTICE REPORTS. Bigart agt. Jones. Charles E Patterson, for plaintiff. Martin 1, Townsend, R. A. Parmenter, R. H. McClellan and S. Van Santvoord, for defendants, severally. INGALLS, J. The will in question presents upon its face questions of complication, uncertainty and difficulty, sufficient to justify the plaintiff in asking for instruction from the court in regard to the manner in which he should discharge his duties in executing the will as such executor. Such direction necessarily involves a construction of the will, which I pro- ceed to give without unnecessary prolixity, as I understand its provisions, interpreted as an entire instrument and in accord- ance with what I conclude to have been the intention of the testator as gathered from the will. By such will the testator bequeaths, after the payment of debts and funeral charges, all of his personal and real estate, except a lot which Elizabeth Akin was to occupy, to his wife, to be used and enjoyed by her during her natural life, or until she should marry. Upon the marriage or death of his widow, his daughter Cecilia became entitled to the use and enjoyment, during her natural life, of the estate, real and personal. The fourth item of the will is not to be construed as stand- ing alone ; but in connection with the other provisions of such will, and be interpreted in accordance with what seems to have been the entire scheme devised by the testator, and sought to be effectuated by the draftsman of the instrument. It is the policy of the law in regard to the construction of wills, to give effect to every part thereof, to the end that 'every beneficiary shall receive the bounty of the testator according to his intention as fairly gathered from the entire instrument. This principle of construction is aptly declared by Judge ALLEN in Terry agt. Wiggins (47 N. F., 517), as follows : " But the will must, if possible, be so interpreted as to reconcile its different provisions and give effect to e^ery part of it, and such construction should be put upon the language consistent with the whole scope and terms of the HOWARD'S PRACTICE REPORTS. 493 Bigart agt. Jones. will as to accomplish this result." In my judgment to hold that Cecilia took a fee under the will would render the subse- quent provisions meaningless, and defeat the apparent intent of the testator ; but regarding her estate merely as a life estate which was obviously intended, all of the provisions of the will become harmonious, and each beneficiary will be protected. It is worthy of remark that all of the beneficiaries under the will are relatives of the testator and natural objects of his bounty. Every will must necessarily receive construction according to its peculiar provisions, as it is rare that two are found precisely alike in structure. If this view is correct, it follows that at the death of Cecelia, if she had left lawful issue her surviving, such issue would have been entitled absolutely to the estate, real and personal. As Cecilia died without leaving such issue the estate, real and personal, vested in the persons designated in the sixth clause of the will, subject to the payment of the bequest specified in the will. Such I deem to have been the intention of the testator as gathered from the entire will, and I do not think such intention should be defeated by declaring the devise contained in the sixth item repugnant to the devise contained in the fourth item of the will (Norris agt. Beyea, 13 N. T '., 273; Hat-field agt. Sneden, 42 Barl., 615 ; Terry agt. Wiggins, 47 N. Y., 512; Tyson agt. Blake, 22 N. Y., 558). It seems to have been the purpose and intention of the testator to consolidate into one fund the real and personal estate, at the death or marriage of his widow, and to bequeath or devise the same accordingly, subject to the satisfaction of the burdens which lie imposed upon his estate for the benefit of the persons designated therein to whom he gave certain sums by way of legacy (Lent agt. Howard, 89 .N. Y., 169-177). The executor is justified in asking instruction and the com- plaint can be sustained for that purpose at least (Basty agt. Briggs, 56 N. F., 407 ; Week agt. Root, 14 N. Y. IF. Dig., 90 ; Wager agt. Wager, 89 N. Y., 161). 494 HOWARD'S PRACTICE REPORTS. Matter of Catharine Shaffer, deceased. SURROGATE'S COURT. In the Matter of Proving the last Will and Testament of CATHARINE SHAFFER, deceased. Will Insufficient signing and witnessing of a will. Where a will has been so drawn as to allow blank spaces m the body thereof of such a nature as to allow the insertion of dispositions with- out interlineations, and Where the testatrix does not subscribe her name in the presence of both witnesses, and does not acknowledge her signature to the witnesses, although she informs the witnesses that it is her will she wishes them to witness: Held, that there was no sufficient signing of the will by the deceased in the presence of the witnesses, nor a sufficient acknowledgment to them that she had done so to satisfy the requirement of the statute, and that the paper was not entitled to be admitted to probate. Westchester county, November, 1885. A PAPER intended for a last will and testament was pre- pared and came into the hands of the deceased some time in 1882. There are several blank spaces in the body of it suf- ficiently large to permit the writing of disposing clauses with- out interlineations, and a space at the end of the paper for the signature. Spaces were also left for the day, month and year, which remained unfilled. Then follows an attestation clause, thus : " Subscribed by the testator in the presence of each of us and at the same time declared by her to us to be her last will and testament, and thereupon we, at the request of the testator, sign our names hereto, as witnesses, this day of , 1882. " And is here signed. "CATHARINE SHAFFER, Admix. "J. M. DEARBORN, M't Vernon. "JOHN BERRY, M't Vernon. N. Y." HOWARD'S PRACTICE REPORTS. 495 Matter of Catharine Shaffer, deceased. The paper so executed was propounded for probate bj Charles F. Holm, one of the persons named as executors therein. John Berry, one of the witnesses, testified that the deceased came into his store with a paper so folded that he could see no part of the writing, except the last line of the attestation clause, " and asked me if I would witness her sig- nature, and she made her signature in my presence and asked me to witness it," which he did, and then she said she must ^ro in to see Mr. Dearborn, and get him to do the same thing. Mr. Dearborn's store was a few doors from Mr. Berry's, and he was not present when the paper was signed by Mrs. Shaffer. Berry could not remember that Mrs. Shaffer said it was her last will and testament, but if she had, thinks he would remember it. Mr. Dearborn, the other witness, had no recol- lection whatever on the subject, but admitted the genuineness of his signature. Both of them had acted as witnesses to a will of the deceased in 1878, the circumstances attending the execution of which they recollected. Subsequently, Mary A. King, a servant of the deceased, to whom a legacy of $200 had been given by the alleged will, testified that she accom panied the deceased to the stores of the respective witnesses, and that the deceased substantially asked Mr. Berry if he would sign her will and testament, to which he assented ; that she and the deceased then went to Mr. Dearborn's store and asked him to sign her will. Charles F. Holm, in person (Isaac N. Mills, of counsel), for proponent. Chauncey Shaffer, for Louisa Portens and another, heirs, contestants. Jacob Fromme, for George W. Shaffer, husband, contestant. Joseph II. M. Porter, for Kate M. Pen rose, heir. Win. M. SMnner, Jr., guardian ad litem, for minor heirs. 496 HOWARD'S PRACTICE REPORTS. Matter of Catharine Shaffer, deceased. COFFIN, S. The contestants contend that the will was not properly executed, taking the statements of Mrs. King to be true, because the testatrix did not acknowledge her signature to Dearborn, one of the witnesses, who did not see her sign her name, and cite on this point the case of Mitchell agt Mitchell (16 Hun, 97). There the deceased came into the store where the two witnesses were and handed out a paper and said : " I have a paper that I want you to sign." One of them took the paper and partly opened it and saw what it was. The witness probably, from his testimony, saw the sig- nature. The testator said : " This is my will, I want you to witness it." Then the two witnesses signed the paper under the attestation clause. It does not appear that the other wit- ness saw the testator's signature. The testator then took the paper and said : " I declare this to be my last will and testament." At the time of this transaction the paper had the name of the deceased at the end of the paper, but the. witnesses did not see him sign, nor was there any acknowledg- ment by him of his signature in their presence, unless the facts above stated are such acknowledgment. The court held that there was no acknowledgment of the signature to either of the witnesses and rejected the will. This decision was affirmed on appeal in 77 New York, 596, but by a divided court. In Chafee agt. The Baptist Missionary Society (10 Paige, 85} the testatrix, who had subscribed the will by making her mark, but not in the presence of the attesting witnesses, after- wards, and in their presence, placed her finger on her name and said : " I acknowledge this to be my Jast will and testa- ment." It was held that the will was not well executed. This is approved in the case of Willis agt. Mott (36 N. Y., 486). It is difficult to see any distinction between the case of the putting the finger upon the name with the mark and declaring it to be his last will and testament and that of a presentation of a paper with the testator's signature written by him at the foot of it with a declaration that it is his last HOWARD'S PRACTICE REPORTS. 497 Matter of Catharine Shaffer, deceased. will and testament. I am satisfied on the whole that the decision in the case of Mitchell agt. Mitchell required that more should be done than merely requesting the witnesses to subscribe their names to a paper with the name of the alleged testator at the end of it, which he says is his last will and testament. By doing so he complies with only two of the distinct requirements of the statute. The other one, that he shall sign it in their presence, or acknowledge that he has signed it, is as equally distinct and imperative as the others, and in the absence of proof that he did one or the other, the requirements of the statute have not been sufficiently com- plied with to render it a valid testamentary act. But in the case of Baskin agt. Baskin (36 N. Y., 416) it was held to be a sufficient acknowledgment of the testator's signature where he produces a paper to which he has personally affixed his name, and requests the witnesses to attest it and declares it to be his last will and testament, and that in so doing he does all that the law requires. This doctrine seems to be distinctly affirmed In the Matter of Will of Phillips (98 N. Y., 267). Curiously it appears from the surrogate's report of the case in 8 Denio, 459, that the testator did acknowledge his signature to both the witnesses, Skinner and Beach, during his conversation with each of them ( And see Rumsey agt. Goldsmith, 3 Den., 494). Hence, although the reasoning of judge LEARNED in the case of Mitchell agt. Mitchell may seem the stronger, the result reached in 98 New York is con- trolling here, and assuming that the paper was executed and properly attested in the presence of one witness and presented to the other so executed and attested by him, then if the tes- timony of Mrs. King is to be regarded as true, it might be held that it was well executed as a will. But I am unable to bring my mind to a belief of her credi- bility. She and Mr. Berry are in conflict as to their statements of the transaction. He is one of the leading business men in Mount Vernon, a man of character, intelligence and large experience in affairs, and the same may be said of Mr. Donr- VOL. II 63 498 HOWARD'S PRACTICE REPORTS. Matter of Catharine Shaffer, deceased. born, while Mrs. King had for many years been a servant, a part of the time in the family of the deceased, could neither read nor write, and was named as a legatee in the alleged will to the extent of $200. Mr. Berry's statement of the circum- stances is substantially this : the deceased came to his store alone and asked him if he would witness her signature, to which he assented. She then produced a paper so folded that only one line of the writing could be seen, to wit, "our names hereto as witnesses this day of , 1&82," and of which he did not read a word, signed her name, and he signed his, and thinks she requested him to write his place of residence after it, which he did. She then said she must go and get Mr. Dearborn to do the same thing, and left his store. There was nothing said by her to impress his mind with the fact that it was an important document. He thinks if she had said it was a will he should have remembered it. She was there only two or three minutes. Under these circumstances it seems to me highly improbable that he was informed of the nature of the instrument, and it was not at all unlikely that a person unfamiliar with the manner of the execution of a will, as the deceased was, as is shown by her signing her name at the foot of the attestation clause and appending to it the abbreviation "adm'x." should have omitted to state what the paper was, especially in her anxiety to conceal its contents as manifested by her. Mr. Dearborn, the other witness, had no recollection of the matter whatever, but recognized his signature, which was written above Mr. Berry's, apparently for lack of room below it, and although he knew both Mrs. Shaffer and Mrs. King, he does not remember ever seeing them in his store together. After the lapse of a month from the first examination of these witnesses, Mary A. King was produced as a witness, and was objected to as incompetent, because named as a legatee, to testify concerning any transaction or communication between herself and the deceased. Her examination, how- HOWARD'S PRACTICE REPORTS. 490 Matter of Catharine Shaffer, deceased. ever, was conducted in sncli a manner as to avoid the objec- tion. She testified only to conversations in which she took no part, and which had no relation to any transaction bet'.veen her and the deceased. She was engaged in cleaning house for the deceased, when the latter asked her to go with her to Mr. Berry's store as she wanted to see him. It was but a short distance to the store and was, as she states, between two and three o'clock in the afternoon. It strikes one as a singular proceeding for a lady to take a servant from her work at that hour, to accompany her for no apparent reason. She says she went into the store with deceased " and she shook hands with Mr. Berry and asked him if he would sign her will and testament." He asked her if she was going to die, and she said " no." Then he said " I will sign it." So he went with her up to the desk. " She says they were there about twentyor twenty -five minutes " (Mr. Berry says not more than two or three) and she, witness, was buying ruffling for deceased. They then went to Mr. Dearborn's, where deceased u asked him to sign her will," and he kind of laughed and asked, " have you come with the will ? " and she said, " certainly." They then went back to the desk, while the witness bought some salad dressing. They were at Dear- born's twenty-five or thirty minutes. This witness when asked to whom she had communicated these facts, for some time insisted that she had told them to no person whatever, but after much questioning admitted that she had to her lawyer, who proved to have been not her's, but her son's, but she claimed that he was her lawyer in this proceeding. She finally, after denying that she had done so, acknowledged that she had also told another counsel in the case. Taking into consideration all the facts detailed, the material interest which this witness had at stake, evidenced by her having engaged counsel to look after it, her alleged recollection of conversations which, had they occurred, would have so impressed the minds of the intelligent gentlemen who signed the paper that they would not have been readily forgotten and who, after much 500 HOWARD'S PRACTICE REPORTS, Matter of Catharine Shaffer, deceased. reflection, are unable to recall anything of the kind, lead me to place no credence in the testimony of Mrs. King. It is a pregnant and important fact that Mr. Berry and Mrs. King differ very materially in reference to what both profess to recollect well. The former says the deceased requested him to witness her signature ; the latter says she asked him to sign her will and testament. Both statements cannot be true. One witness is surely in error and I feel constrained to believe Mr. Berry. Mrs. King professes to give all of the conversa- tion and she does not state that Mrs. Shaffer requested Mr. Berry to witness her signature. The two statements are con- flicting and cannot be reconciled, nor can one be taken as amounting to a publication and the other as a request to sign as a witness, thus together making a valid execution. According to her evidence neither of the witnesses was asked by the deceased to sign her will as a witness. That perhaps was not essential, provided the circumstances warranted the inferring of such request. But relying upon the testimony of Mr. Berry, it must be held that there was no publication of the instrument as a will and it must therefore be rejected. No reference has been made to the attestation clause as an aid in the solution of this matter, as it was manifestly untrue as to one of the witnesses and the other one declares that he did not read a word of it. The testimony of Mr. Yetman, offered for the purpose of impeaching Mrs. King as to a statement made by her must be disregarded as no sufficient foundation therefor was laid. The evidence supplied by the attorney who drew the will, the object of which was to show that deceased knew the character of the paper, and which was objected to as incom- petent under section 835 of the Code, has been disregarded by me as wholly immaterial. The deceased was an intelligent lady and it can hardly be assumed that she did not know the contents and nature of the paper she took to Mr. Berry's store ; besides such knowledge on her part is shown by the testimony of Harry Skidmore. HOWARD'S PRACTICE REPORTS. 601 The People ex rel. Lent agt. Carr. An order must be entered denying probate of the paper offered as a will, with costs to proponents and contestants out of the fund to be taxed. COUKT OF APPEALS. THE PEOPLE ex rel. SMITH LENT, respondent, agt. JOSEPH B. CARR, secretary of state, appellant. Surrogates The limitation of seventy years of age, does not apply to surrogates. The provisions contained in section 13 of article 6 of the constitution, tot.be effect that "no person sliall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be seventy years of age," does not apply to persons hold- ing the office of surrogate. Decided November, 1885. Marcus L. Cobb, for relator. Calvin Frost, for respondent. RAPALLO, J. The question to be determined on this appeal is whether the provision contained in section 13 of article 6 of the constitution, to the effect that " no person shall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be seventy years of age," applies to persons holding the office of surrogate. The important judicial functions exercised by surrogates may afford reason for applying to them a disqualification by age similiar to that prescribed with respect to judges and justices of courts, referred to in the constitution. But the question before us is not whether the disqualification shouM have been extended to those officers, or whether it should bo deemed by analogy to apply to them, but whether by the terms 502 HOWARD'S PRACTICE REPORTS. The People ex rel. Lent agt. Carr. of the constitution they are included in it under the designa- tion of persons holding the office of " judge or justice of any court." For the ] urpose of determining this question it is necessary, in the first place, to consider the context in which the language quoted is used in section 13 of article 6 of the constitution, the whole of that article having been adopted by the vote of the people at the same time, in 1869, as a separate article, known as the judiciary article. Section 5 of article 5 establishes a court of appeals, to be composed of a chief judge and six associate judges, and to hold office for the term of fourteen years. Section 6 provides for the continuance of the existing supreme court, to be composed of the justices then in office, with an additional justice to be elected. Section 12 provides that the superior court of the city of New York shall be composed of six judges ; the court of common pleas of the same city, of the three judges then in office, and three additional judges ; the superior court of Buffalo, of the judges then in office, and their successors, and the city court of Brooklyn of such number of judges, not exceeding three, as may be provided by law. Section 13 provides for the election of justices of the supreme court- and judges of all the other courts mentioned in section 12, and declares that the official terms of the said justices and judges, who shall be elected after the adoption of the article, shall be fourteen years, and then follows immedi- ately in the same section the provision " but no person shall hold the office of judge or justice of any court longer than until and including the last day of December next, after he shall be seventy years of age." Section 14 next follows, providing that a compensation shall be established by law for the services of the judges arid justices hereinbefore mentioned, which shall not be diminished during their official terms. It must be observed that up to this point no person has- been designated in the constitution as a judge or justice of any HOWARD'S PRACTICE REPORTS. 502 The People ex rel. Lent agt. Carr. court except the judges of the court of appeals, the justices of the supreme court, and the judges of the superior court aiid court of common pleas of the city of New York, of the superior court of the city of Buffalo, and of the city court of Brooklyn. That the limitation as to age was intended to apply to the judges and justices of those courts is too clear to be capable of misapprehension. The only other officer or body having judicial powers, mentioned in the sections of article 6 preced- ing section 13, is the commission of appeals. That high tribunal had power, under section 4, to hear and determine certain causes pending in the court of appeals ; and by sec- tion 5 it was provided that the decisions of the commission should be entered and enforced as the judgments of the court of appeals. But the commission was not designated in the constitution as a court, nor the commissioners as judges, but as commissioners, and it was therefore assumed that the dis- qualification of age under section 13 did not apply to them, for it is a matter of history that one venerable commissioner held his office without question for several years after he had passed the age of seventy ; and in the case of Settle agt. Van, Evera (49 N. Y., 280), it was decided that section 27 of article 6, which prohibits any judge of the court of appeals from acting as referee, did not apply to a commissioner of appeals because he was not a judge of the court. All the provisions of article 6 of the constitution beaiing upon the question at issue which precede sections 13 and 14: have now been examined, and we next come to section 15, relating to county courts. This section continues the existing county courts and provides Aat the judges thereof then in office shall hold their offices until the expiration of their respective terms, and that their successors shall be chosen by the electors of the counties for the term of six years. These judges come literally within the words of the constitution, for they are judges of courts designated as such by the constitu- tion (People agt. Gardner, 45 N. Y., 812; People ex rel. 504 HOWARD'S PRACTICE REPORTS. The People ex rel. Lent agt. Carr. Joyce agt. Brundaye, 73 N. Y., 403). No judicial officer, other than those who have been already named, is in any part of the constitution designated as a judge or justice of any court. Justices of the peace are mentioned in section 15, and they exercise judicial powers. Two justices of the peace, together with the county judge, compose courts of sessions, with such criminal jurisdiction as the legislature shall prescribe, and such justices may also exercise jurisdiction to a limited extent in civil cases and may hold courts for that purpose. At the same time they exercise other powers. They are in numerous sections of the constitution designated not as judges or justices of any court, but as justices of the peace r and are elected under that designation, and on these grounds it was decided in the late case of People agt. Mann (97 N. Y., 532) that they did not come within the disqualification of age contained in section 13 of article 6. Surrogates are throughout all the provisions of article 6 designated as officers by that name, and not as judges or jus- tices of any court. By section 15 of article 6 it is provided that the county judge shall also be surrogate of his county, but that in counties having a population exceeding 40,000 the legislature may provide for the election of a separate offi- cer to be surrogate, whose term of office shall be the same as that of the county judge, which is six years. By section 19 the legislature is empowered, on application of the board of supervisors, to provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate in cases of their inability or of a vacancy. In section 25 surrogates are coupled with justices of the peace and other local judicial officers. Section 27 refers to surrogate's courts, and for their relief authorizes the legisla- ture to confer upon courts of record in any county having a population exceeding 40,000, the powers and jurisdiction of surrogate. In no part of the constitution are surrogates men- tioned as judges or justices of any court, and at the time of HOWARD'S PRACTICE REPORTS. 505 The People ex rel. Lent agt. Carr. the adoption of article 6, surrogate's courts were not even courts of record, they having been first declared to be such in the Code of 1880. Reading the clause of section 13, which imposes the dis- qualification by reason of age, in connection with all the other provisions referred to, it seems to us more reasonable to suppose that the people who voted for the adoption of article 6 understood the disqualification as applying to persons who, in the constitution itself, were in express terms desig- nated as judges or justices of courts, and were popularly known as such and elected by those designations, than to a.-sume that the voters so minutely analyzed the nature of the functions of officers elected under other names as to discover that some of their duties were of a judicial character, and that therefore they might, though not named as such, be con- strued to be judges. In interpreting constitutions regard must be paid to the popular sense in which words are gen- erally used (People agt. Goodwin,. 50 Barb., 562 ; Common- wealth agt. Dallas, 4 Dall., 218 ; Gibbon agt. Ogden, 9 Wheat., 188 ; Settle agt. Van Ev*ra, 49 N. Y., 280). The constitutional provision in question is quite clear and intelligible as applicable to persons popularly known as judges or justices of courts, and named as such in the constitution itself, but we think it would be unwarrantable to extend it by construction to every officer exercising judicial powers, though not commonly known as a judge or justice of a court, but elected by a different title. The legislature of 1870, which immediately followed the adoption by the people of the judiciary article (art. 6), clearly indicated its understanding of the disqualification in accordance with the views above expressed. The act of 1870 (chap. 86) was passed for the purpose of carrying into effect the provisions of the judiciary article, and section 8 of that act required all the judges and justices of the courts named in article 6, viz., the judges of the court of appeals, the jus- tices of the supreme court, the judges of the court of com- Voi, IT 64 506 HOWARD'S PRACTICE REPORTS. The People ex rel. Leut agt. Carr. mon pleas and of the superior courts of the cities of New York and Buffalo, and of the city court of Brooklyn, and judges of county courts, to file in the office of the secretary of state a certificate of their age, for the purpose undoubt- edly of showing whether they would be disqualified by age from holding their offices before the expiration of the term for which they were elected. It will be observed that there was no provision requiring surrogates or justices of the peace to file any such certificate, clearly indicating that- in the judg- ment of the legislature the disqualification did not apply to those officers. This legislative action, so closely following the adoption of the constitutional provision, is entitled to great consideration by the court in construing the provision (MARSHALL, C. J., in Cohen agt. Virginia. 6 Wheat., 420 ; MARCY, ./., in People agt. Green, % Wend., 274; CHURCH, C. J., in People agt. Brundage, 78 N. Y., 403). Our conclusion is that the office of surrogate of West- chester will not become vacant on the thirty-first of Decem- ber next by reason of the present incumbent, surrogate Coffin, having attained the age of seventy years in July last, and that the secretary of state was right in refusing to give notice of the election of a successor. The orders of the special and general terms should there- fore be reversed and the motion for a mandamus denied, with costs. All concur. HOWARD'S PRACTICE REPORTS. 507 Howe agt. Welch. CITY COURT OF NEW YORK. EPHKAIM HOWE agt. JAMES P. WELCH. Code of Civil Procedure, section 390 Statute of limitations of a foreign state When a defense to action brought here New promise to pay "when able " Burden on plaintiff to prove ability to pay. Before the adoption of the Code of Civil Procedure, the statute of limitations of a foreign state constituted no defense to an action brought here, but section 390 of the Code of Civil Procedure has changed the rule to some extent. In this case the cause of action does not come within the exceptions of section 390, for the reasons: First. The cause of action did not originally accrue in favor of a resident of this state, but in favor of a resident of the state of Ohio. Second. Because before the expiration of the period of limitation the person in whose favor the cause of action originally accrued did not become a resident of the state of New York as he lived and died in Ohio; and because, Third. The cause of action was not assigned before the expiration of the time so limited to a resident of this state. Where it is sought to revive a debt barred by the statute of limitations by a new promise to pay "when able " the burden is on the plaintiff to prove ability to pay. Failure to establish the conditions upon which the new promise was made is a failure to revive a debt barred by the statute of limitations. Special Term, November, 1885. Stickney da Shepard and N. S. Spencer, for plaintiff. Abbott Bros, and Albert A. Abbott, for defendant. BROWNE, J. This is an action brought to recover a balance upon a promissory note for $1,000, dated February, 1868, due February, 1869, drawn by the defendant to the order of John Gregg, who at the time resided in Ohio and continued to reside there until his death in 1877. Administrators of Mr. Gregg's estate were appointed upon his death, who also resided in Ohio up to August 12, 1884, when they assigned the note in question to the plaintiff, a resident of this city. 508 HOWARD'S PRACTICE REPORTS. Howe agt. \Velch. This action was commenced September 21, 1884. When the note became due, the defendant resided in the state of Missouri. In October, 1872, he removed to the State of Iowa and continued to reside there till May, 1883. About January, 1882, the defendant received a credit on the note to the amount of $500 and interest. At the trial all the defenses were waived except the defense that the action was barred by the statute of limitation of the state of Iowa. Before the adoption of the Code of Civil Procedure, the statute of limitation of a foreign state con- siituted no defense to an action brought here (Miller agt. Brenharns, 68 N. Y., 83), but section 390 of the Code has changed that rule to some extent. Its provisions, so far as applicable to case at bar, are as follows : " That where a cause of action * * * accrues against a person who is not a resident of the state, an action cannot be brought thereon * * * after the expiration of the term limited by the laws of his residence for bringing a like action except, first, where the cause of action originally accrued in favor of a resident of this state ; second, where before the expiration of the time so limited the person in whose favor it originally accrued was or became a resident of the state ; or, third, where the cause of action was assigned to and thereafter continuously owned by a resident of the state." The prescriptive laws of Iowa are contained in the Code of Iowa, section 2529 which provides that " the following actions may be brought within the times herein limited respect- ively, after their causes accrue and not afterwards, except when otherwise specially declared. * * * Those founded on written contracts * * * within ten years." Et has been conclusively shown that the cause of action does not come within the exceptions of section 390 of the Code, for the reasons assigned by the learned counsel for the defendant in his brief, from which I quote the following : " Because, first, the cause of action did not original!} 7 accrue in favor of a resident of this state, but in favor of a resident of the state HOWARD'S PRACTICE REPORTS. 509 Howe agt. Welch. of Ohio ; and because, second, before the expiration of the period of limitation the person in whose favor the cause of action originally accrued, did not become a resident of the state of New York, as he lived and died in Ohio ; and because, third, the cause of action was not assigned before the expira- tion of the time so limited to a resident of this state. The period of limitation was ten years from October, 1872. No assignment of the cause of action to a resident of this state was made until August, 1884." It follows, therefore, that the action cannot be maintained unless the cause of action was revived by a new promise to pay the debt or an acknowledgment or admission in writing made by the defendant within the period of limitation. It is claimed by plaintiff that such a promise and admission have been established by certain letters which were received in evidence in which defendant admits an indebtedness to the original payee and also to his administrators. None of the letters- refer specifically to any indebtedness upon the note in suit, nor to any specific sum due thereon to the parties to whom the letters were addressed. Without the aid of extrinsic evi- dence the text of the letters affords no clue to the nature or amount of the debt to which the admission and new promise referred, and it can only be presumed that the letters had rela- tion to the note in suit from the fact that no evidence of other indebtedness was presented. Without questioning its suf- ficiency, it may be assumed that the letters referred to the note in suit, but the promise established by these letters is coupled with a condition that he would pay the debt " when able." This is not the precise language used in the letters, but it is a fair construction of the terms contained in them, excepting the condition in which the promise is predicated upon the payee advancing moneys to aid the defendant in other matters. None of the conditions upon which the promise was predicated have been shown to have been fulfilled. Failure to establish the conditions upon which the new promise was made is a failure to revive a debt barred by the statute of limitations 610 HOWARD'S PRACTICE REPORTS. Howe agt. Welch. ( Wakeman agt. Sherman, 9 N. Y., 85 ; Tompkins agt. Brown, 1 Denio, 247 ; Wetzell agt. Bussard, 11 Wheat., 309 ; Cocks agt. IFtfd&s, 7 Z/-i7, 45 ; JeAo agt. Robinson, N. Y. Gt. App., October 6, 1885 ; 1 Eastern Rep., 768). The evidence offered by plaintiff in support of the defend- ant's ability to pay was not sufficient to submit to a jury as a question of fact. It is earnestly and forcibly urged by the learned counsel for the plaintiff that the fair construction to be given to section 390 of our Code is to allow the same rules of revivor in courts of the state of the residence of the party liable on the contract, and he contends that under the provision of the Iowa Code the pro- scription is removed by establishing a bare written admission of the debt within ten years, and cites the section of the Iowa Code bearing upon the question, which is as follows (sec. 2539) : " Causes of action founded on a contract are revived by an admission that the debt is unpaid, as well as by a new promise to pay the same."' And in support of his contention he claims he is aided by the courts of that state, which gave the statute a construction by its decision in the case of Penley agt. Waterhouse (3 Iowa, 418). An examination of that case does not disclose that the court passed upon the question of the effect of an admission coupled with a condition as to time of payment. The facts upon which the decision was based are susceptible of but a single meaning, to wit, that the party liable admitted the debt and was unable to pay it. Nothing was said as to when or under what circumstances the party would pay it, and I can find nothing in the context that the court went farther in its decision than to determine that the language used in the writings was an admission of the debt, void of all conditions. This is strongly indicated by the fact that it was urged by the defendant there that the language used implied an unwillingness to pay the debt, which, if so found, would deprive the admission of its cogency as an inferen- tial promise to pay. We are thus led to the conclusion that the courts of Iowa in nowise depart from the rule existing in HOWARD'S PRACTICE REPORTS. oil Howe agl. Welch. this state that the admission or acknowledgment must show euch an evident intention to pay the debt that the law will imply a promise to pay, and if there be a condition attached either to the express or implied promise, the creditor must accept the promise with its accompanying condition, or not at all. The statutes of this state and those of Iowa do not differ materi- ally as to what is necessary to revive the debt. Our statute requires a promise to pay the debt or " an acknowledgment ' : in writing, while the Iowa statute requires a like promise or an " admission " of it. The words are synonymous, and such being the case the decisions of our own courts are controlling as to what is necessary to revive a debt barred by the statute of limitation. The plaintiff urges in support of his views that a bare admission of the debt being sufficient, one of the let- ters of the defendant contains such admission in the follow- ing words : " Be patient and I will pay you all." This sen- tence is prefaced by another in the letter referred to upon the same subject, in which the defendant says : " 1 dislike to owe any one a, cent, and will not any longer than I can make the money to pay off all that I owe you and all the rest of mankind." It L a well settled rule of evidence that all parts of the writing should be considered in determining the meaning or intention of the writer. Applying that rule to the letter referred to, it will be readily seen that the defendant intended to limit the promise to pay upon the condition of his ability to make the money to pay his debts. In truth, each of the letters contains an admission of a debt, a promise to pay and a condition of payment, none of which were fulfilled. It is settled beyond dispute that the plea of the statute of limitations is a plea to the remedy, and consequently the lex fori must prevail. Parties sued in our courts may call to their aid the statute of limitation of the place of their residence within the prescribed limits. Section 390 of our Code adopts so much of the Iowa law as limits the number of years within which this action may be brought. It adopts no more. The 512 HOWARD'S PRACTICE REPORTS. Burkhart agt. Babcock. policy of oar law is to exclude the influence of foreign laws upon the jurisdiction or practice of our courts hence the time within which the action may be brought against a resi- dent of Iowa in this state is limited to ten years, subject only to the expirations provided in section 370. The provision of limitations may be assimilated to our statute of limitations, so that in the case of a resident of Iowa it would read ten years instead of six, the exceptions of the statute as to revival to be determined by the laws of our own state. We cannot by implication give the force of law to more of the statute of another state than the express provision of our laws permit. Our state has not adopted the statute of Iowa with respect to causes which revive an action. It retains its right t:> determ- ine the degree of the consideration which revives a debt barred by the statute of limitations of another state. For the reasons stated the verdict directed for the plaintiff will be vacated and judgment directed for the defendant. SUPREME COURT. JOHN M. BURKHART agt. JAMES BABCOCK. Costs Allowance Code of Civil Procedure, section 3252. In an action by a vendor to foreclose a land contract, in which the plain tiff recovers, he is not entitled to the additional allowance provided by section 3252 of the Code of Civil Procedure. Monroe Special Term, August, 1885. MOTION by defendant for retaxation of costs. Q. Van Voorhis, for defendant. II. W. Morris, for plaintiff. ANQLE, J. This is an action by a vendor to foreclose a land contract, in which the plaintiff recovered, and on the HOWARD'S PRACTICE REPORTS. 513 Burkhart agt. Babcock. taxation of costs the per cent provided by section 3252 was allowed to the plaintiff. I regard the case of Randolph agt. Stedman (4 Abb., 262 ; 3 E. D. Smith, 648), as an authority against the allowance of this item. That was an action to foreclose a mechanics' lien and arose under section 308, Code of Procedure, the pro- visions of which are embodied in section 3252 of the Code of Civil Procedure. In it the court say : " It is suggested that the course of procedure is analogous to the foreclosure of a mortgage in which case an extra allowance may be granted. It is very true that this proceeding is analogous to the fore- closure of a mortgage, for which alone provision has been made in the section referred to. It is also suggested that it is in the nature of a claim upon real property ; but it is not in the language of the statute a proceeding for the determina- tion of claims to real property. As it falls, therefore, within none of the cases provided for by section 308, there is no authority for granting an extra allowance." DALY, J., at the conclusion of his opinion, says : " As the point is suggested for the first time, I have conferred with my brethern and they agree with me that we have no powei to grant an extra allowance in such a case." When the above decision was made, section 308, Code Procedure, gave the court power to make allowance, instead of declaring, as section 3252, Code Civil Procedure does, that the plaintiff was entitled to the allowance in certain cases ; but that can make no difference in the question of construction here involved. In M'Mulkin agt. Hovey (46 flow., 405), in an action on the part of a vendor to compel the vendee to complete a land contract the special term said, obiter, that it was not one of the actions named in section 308, Code Procedure. The item complained of must be stricken out. The clerk was perhaps misled by note C, Bliss' Code (vol. 2, p. 990, to sec. 3252), that " allowances may be granted in proceedings to foreclose a mechanic's lien," citing Randolph agt. Foster (supra), but as we have seen the case does not so VOL. II 65 51* IJO WARD'S PRACTICE REPORTS. Mason agt. Mason el al. hold. The same note " C " also says, the allowance may be granted in an action to compel specific performance of a con- tract for the sale of real estate, citing Weeks agt. Southwick, (12 How., 170) ; but as I read that case the court said (p. 171) *' nor is this a case for an extra allowance. The action is not brought to recover money or property, but merely for equit- able relief. Such a case is not within the provisions of three hundred and eighth section of the Code." The motion is granted, without costs. SUPREME COURT. ADELAIDE E. MASON agt. CLARISSA MASON et al. Dower When provision for wife should be held to be in lieu of dower Partition. Where a testator devised one-third of his real property to his widow for life with remainder to his sons, also devising the other two-thirds to ihe sous: Held, that there was thus a total disposition of his realty, and any allow- ance of dower to the widow in addition to the devise would overturn the plain scheme of the will, and is inconsistent with the disposition made of the rest of the estate. In such case the court infers an inten- tion of the testator that the provision for the wife should be in lieu of dower. That the testator has left his widow a life estate in one-third of the prem- ises does not prevent the owners in fee of the two-thirds from partition- ing the property and realizing their shares. The rights of the tenant for life may be protected by provision in the decree. Special Term, November, 1885. Isidor Grayhead, for plaintiff. Jacob L. Hanes, for defendant Clarissa Mason. Horace Secor, Jr., for defendant Sarah A. Mason. John T. Cornell, for guardian ad litem. HOWARD'S PRACTICE REPORTS. 515 Mason agt. Mason et al. BEACH, J. The plaintiff is possessed of an estate of inheritance in an undivided portion of the premises described in the complaint. This fact makes inapplicable section 1533, Code of Civil Procedure, which relates wholly to an action for partition between joint tenants or tenants in common of an estate in reversion or remainder. The case of Sullivan agt. Sullivan (66 N. Y., 37) was met by the above Code provision, and only held that a reversioner could not maintain partition, because of not having either an actual or constructive posses- sion. I do not think it possible that because the defendant Clarissa Mason has a life estate in one-third of the premises, the owners in fee of the two-thirds are prevented from parti- tioning the property and realizing their shares. The rights of the tenant for life may easily be protected by provision in the decree. The testator devised the third of his real property to his widow, the defendant Clarissa Mason, for life, with remainder to his sons. The other two-thirds he devised to them. There was thus a total disposition of his realty, and any allowance of dower to the widow in addition to the devise would over- turn the plain scheme of the will, and is inconsistent with the disposition made of the rest of the estate. In sjich case the court infers an intention of the testator that the provision for the wife should be in lieu of dower ( Vernon agt. Vernon, 53 N. ., 351 ; Dodge agt. Dodge, 31 Barl., 413 ; Bull agt. Church, 5 Hill, 206). Judgment for plaintiff, with costs. 516 HOWARD'S PRACTICE REPORTS. Cole agt. Cole et al. SUPREME COURT. ALIDA J. COLE agt. GEORGK W. COLE et al. WiM Construction of Dower When provisions of icitt must be regarded as intended in lieu of dower. Where there is no direct expression of intention that the provision con- tained in the will shall be in lieu of dower, the question always is whether the will contains any provision inconsistent with the assertion of a right to command a third of the land to be set out by metes and bounds for dower. Tje intention of the testator need not be declared in express words, it may be implied if the claim of dower would be plainly inconsistent with the will. Where the will gave all the testator's real and personal estate to plaintiff (widow) as executrix and John M. Corliss and William Carley as execu- tors in trust for uses and purposes therein stated, among which are the following: "First. To receive and collect the income thereof, and to pay the same for my debts, and the incumbrances upon my estate, after the payment of such sums as may be necessary for the support and education of my family and children, in which matters I desire my executrix and executors to be liberal. Second. To purchase in their own names as such executrix and executors a homestead for my wife and family if I shall not do so in my lifetime, and in such homestead all my children shall be entitled to a home while they remain unmarried. " The testator in his lifetime purchased the homestead and owned it at the time of his death: Held, that the intention of the testator is reasonably clear that the widow should take all of her interest in that homestead under the will. She is given an interest equal to that of each child. The devise mu^t contemplate a homestead discharged of dower, otherwise the object of the testator as expressed m ight be defeated by assumption of dower right, and possible sale of the homestead under such claim. The testator directed that in case of the remarriage of his wife all of his estate shall be divided equally among his four children, and be paid to them respectively as they arnte at full age: Held, that if one-third of the real estate were to be set apart to the widow as dower, a division of all of the estate among such children could not take place until the widow's death notwithstanding a remarriage by her. Thus a provision of the will would be defeated. Special Term, November, 1885. HOWARD'S PRACTICE REPORTS. 617 Cole agt. Cole el al. Robert S. Hudspeth, for plaintiff. Robert H. McCiellan, for defendants. OSBORN, J. This is an action for admeasurement of dower, &c. In November, 1883, upon notice of plaintiff's attorneys, and without opposition on the part of the defend- ants' attorney, the action was sent to a referee to take proof of the material facts stated in the complaint and report thereon to the court. And such report was subsequently made, and in April last interlocutory judgment was granted by me without opposition by defendants' attorney. The case is now before me on application for final judgment in favor of the plaintiff, which is resisted by defendants' counsel, who now maintains that plaintiff is not entitled to dower as claimed ; that such claim is repugnant to the will referred to in the complaint, and that the provisions of such will in favor of the plaintiff having been accepted by her constitute a bar to the demand she makes in this action. The position now taken by defendants' counsel should it, seems to me, have been assumed at an earlier stage in the case, but as counsel for plaintiff has raised no objection to its being now considered, I shall assume that none is claimed. The question presented is certainly difficult of a clear and satisfactory solution. The authorities to which my attention has been directed by plaintiff's counsel, and which I have been able to obtain for examination, argue with much force the general propositions advanced by him, and particularly San- ford agt. Jackson and others (10 Paige, 266); Lewis agt. Smith (9 N. F., 502). But upon a careful analysis of the will in this case, compared with the provisions of the wills referred to in the reported cases above mentioned, and in the light of the more recent decisions of Savage agt. Hurnham (17 N. Y., 561); Tobias agt. Ketoham (32 N. Y., 319); and Matter of Surplus Moneys, &o., in Estate of John C. Zahrt (94 N. IT., 605), I am of opinion that in this case the pro- 618 HOWARD'S PRACTICE REPORTS. Cole agt. Cole et al. visions made for the plaintiff by the will must be regarded as having been intended by the testator in lieu of dower. Where there is no direct expression of intention that the provision contained in the will shall be in lieu of dower, the question always is whether the will contains any provision inconsistent with the assertion of a right to demand a third of the land to be set out by metes and bounds for dower (Matter of Zahrt, supra). The intention of the testator need not be declared in express words ; it may be implied if the claim of dower would be plainly inconsistent with the will. The will under consideration gives all the testator's real and personal estate to this plaintiff as executrix, and John M. Cor- liss and William Curley as executors, in trust for uses and purposes therein stated, among which are the following as stated in the will : " First. To receive and collect the income thereof, and to pay the same for my debts and the incumbrances upon my estate, after the payment of such sums as may be necessary for the support and education of my family and children, in which matters I desire my executrix and executors to be liberal. " Second. To purchase in their own names as such executrix and executors a homestead for my wife and family, if I shall not do so in my lifetime, and in such homestead all my children shall be entitled to a home while they remain unmarried.'" It was conceded on the argument (as I understood it) that the testator in his lifetime purchased the homestead and owned it at the time of his death. I take it that the inten- tion of the testator is reasonably clear that the widow should take all of her interest in that homestead under the will. She is given an interest equal to that of each child. The devise must contemplate a homestead discharged of dower, other- wise the object of the testator, as expressed, might be defeated by assumption of dower right and possible sale of the home- stead under such claim (Miall agt. Brain, -t Mad. Rep., 119 ; Roadley agt. Dixon, 3 fiuss. Rep., 192 ; Sanford agt. Jack- son, 10 Paige, 27<>). HOWARD'S PRACTICE REPORTS. 619 Birney agt. Wheaton. In Lewis agt. Smith (supra) the court says : ' ; There is no person who takes an interest under the will during her (the widow's) lifetime with which the claim of dower will con- flict.'' This can hardly be said of the will in the case at bar. Other provisions of the will, in connection with those I have mentioned, indicate to my mind that the intention of the testator was that the widow's interest in his estate should be in common with his children so long as she remained his widow ; that it should arise from the will, and that she should have no other or further interest. The testator directs that in case of the remarriage of his wife all of his estate shall be divided equally among his four children, and be paid to them respectively as they arrive at full age. If one-third of the real estate were to be set apart to the widow as dower, a divi- sion of all of the estate among such children could not take place until the widow's death, notwithstanding a remarriage by her. Thus a provision of the will would be defeated. If the view I have taken is ^"-i-ect, this action cannot be maintained. Plaintiff's application for final judgment is therefore denied. An order to carry out this decision will be settled by me upon notice to counsel. NEW YORK CITY COURT. EMMA BIRNEY agt. JONAS S. WHEATON. Married women Separate personal effects Wlien may be detained by virtue of innkeeper's lien Evidence. Where husband and wife board at a hotel the husband is presumptively liable for the bill, but it is competent for the hotel-keeper tc stow that the husband was impecunious, and that credit was given to the wife so as to justify the detention of her property by virtue of the hotel- keeper's lien. General Term, November, 1885. Before Me A DAM, G. 0 in cash, being the larger portion of his capital, from the firm, and had concealed its withdrawal by false entries made by him- self in the copartnership books. This statement was commu- nicated to Reed, .the appellant, who admitted that he had with drawn this amount from the funds of the firm, but excused himself for doing so by the statement that losses had been suf- fered in the business, and that his partner Atwater had trans- ferred a large portion of his property to his wife without con- sideration. From this statement and a statement exhibiting the financial condition of the firm to a mercantile agency, the conclusion was drawn by the persons making the affidavit that both defendants, since the making of their purchases, had removed or disposed of their property, or were about to do so, with intent to defraud their creditors. And the latter part of the statement made by the appellant as it was further sus- tained by the information received from Mr. Bradley, showing the transfer of corporate stock by Atwater to his wife, may have been sufficient to support an order for his arrest on this ground against Atwater. But the fact that he may have dis- posed of his property to defraud his creditors, or the creditors of the firm, will not support an order for the arrest of his copartner Heed. To entitle the plaintiff to such an order the law requires that the charge of fraudulent misconduct of the alleged description shall be sustained against the person to be arrested, and that will not be proved simply by showing such misconduct on the part of his partner (National Bank, t&% agt. Temple, 39 How., 432 ; Hathaway agt. Johnson, 55 N~. Y., 93 ; Sherman agt. Smith, 42 How., 198). But neither of the affidavits establishes the fact that any fraudulent disposition was made or intended by Reed. All that has been proved against him is that he drew this amount of money from the business of the firm for the reason that it had suffered severe losses, and his partner Atwater had already HOWARD'S PRACTICE REPORTS. 628 Matter of Cohen & Company. transferred a large portion of his property to his wife with- out consideration. It cannot be inferred from these facts, without further proof, that Reed had either disposed of any part of this sum of money or that he intended to do so, to defraud any of his creditors, and without that inference being supported, the plaintiff was not entitled to an order for his arrest (Hoyt agt. Godfrey, 88 N. Y., 669). In this respect the case is distinguishable from Hitchcock agt. Peterson (14 Hun, 389), where positive fraud was found to be sustained against both of the defendants. To entitle a party to an order of arrest, a reasonably plain case must be made out. That has been so frequently held as to require no reference to the authorities supporting the prin- ciple. Such a case was not made out against the defendant Reed, and the order from which the appeal has been taken should be reversed, with ten dollars costs and also the disburse- ments, and an order made vacating the order of arrest. DAVIS, P. J., and BRADY, J., concurred. N. Y. COMMON PLEAS. In the Matter of the Assignment of JACOB S. COHEN & Co. to SAMUEL P. HINMAN. Removal of assignee What is proper notice in proceedings for removal, where there are three assignors Practice. In a proceeding for removal of an assignee who has misconducted himself , \\ here there are three assignors, one of whom has left the state, notice to one assignor is properly notice to all; though the better course would be to give the statutory five days' notice to the two within the state, in the ordinary way and to serve the absent assignor by depositing a notice in the post-office, addressed to him at his last known place of residence giving double the time. Special Term, November, 524 HOWARD'S PRACTICE REPORTS. Matter of Cohen & Company . DALT, C. J. Where a statute declares what is to be done in giving notice, it must be strictly followed. But except in those particulars which the statute specifies, everything else in reference to the notice is under the control of the courts. All that the statute here specifies is that due notice of not less than five days of the motion to remove the assignee is to be given to the assignor. Where the term due notice is used in a statute, it is generally understood as referring to the length of time that it is to be given ( Wade on the Law of Notices, sec. 1324), and it has no greater signification here, where the length is fixed by the statute. The act simply provides for a notice to the assignor, but in this case there are three assignors, one of whom has left the state and whose whereabouts are unknown, further than that he is somewhere in Florida. The only interest the assignors have under the assignment is the possibility that something may remain after the pay- ment of their creditors to which they would be entitled an interest which would be a joint interest, and where parties have a joint interest as in the case of partners, service of notice upon one has been regarded as equivalent to notice to all (1 Wood's (Jolly er on Partnership, 715 ; Brown agt. Turner, 15 Ala., 832 ; Carman agt. Townsend, 6 Wend., 206). But as this is a statutory provision there may be some doubt as to whether this rule would apply to it, and I think the better course is to hold that the notice should be given to each of the assignors. As two of them are within the state, it can be served upon them in the ordinary way, and as respects the remaining one, who has left the state, and whose precise whereabouts are unknown, the service may be such as the court shall direct, there being nothing in the statute as to the service of notice, except that the time is to be at least five days. We would not, in such a case, be justified in applying the provision made in the act for giving notice to creditors residing out of the state, for that notice is by an advertisement once a week for six weeks ; wftile the provision under con- HOWARD'S PRACTICE REPORTS. 52* Matter of Cohen & Company. sideration here is for a notice of not less than five days, and the delay incurred for such a length of time as six weeks, might be a very serious matter in cases where the assignee had misconducted himself, and where his prompt removal was essential to preserve the assigned property and secure tiie faithful administration of the trust. As the statute has made no provision for a case like this, of an assignor who has left the state and yet requires notice, I think the proper course is to follow as nearly as possible the provision of the Code respecting the service of notices and other papers in actions ; that is, by depositing the notice, as provided in section 797, in the post-office, addressed to the absent assignor at his last known place of residence, giving double the time as required by the next section, which would in this case be ten days. It is true that such a service is a mere formality, but when the party to be served has left the state and his whereabouts are unknown, it is all that the circumstances of the case will admit of. As the statute requires that notice of the motion shall be given, and has not in a case like this provided how it is to be served, all that the court can do in compliance with the statute is to direct the kind of notice to be given, even though it be but a mere formality ; for it is very plain that the statute did not intend that creditors should be deprived of the right which it gives them, to have an assignee removed who has misconducted himself or is incompetent, .because notice cannot be brought home to the knowledge of an assignor who has left the state and whose place of abode could not be ascertained after diligent inquiry. 526 HOWARD'S PRACTICE REPORTS. Timerson agt. Timerson. SUPREME COURT. MARY I. TIMERSON agt. CHARLES "W. TIMERSON. Divorce Adultery Complaint Demurrer When condonation of adul- tery by subsequent cohabitation with knowledge not a bar to an after-brought action for divorce for such adultery. Condonation of adultery by subsequent cohabitation with knowledge does not bar an after-brought action for divorce predicated on such adultery, where the condonation is upon the promise by the guilty party (the hus- band) that he would in all things thereafter treat his wife kindly and in a proper manner, and would be in all things a good and affectionate husband to her, when such promise has been violated Cayuga Special Term, July, 1884. DEMURRER to complaint for divorce on the ground of adultery. L. E. Warren, for defendant. F. D. Wright, for plaintiff. ANGLE, J. The question on tins demurrer is whether condonation of adultery by subsequent cohabitation with knowledge bars an after-brought action for divorce predicated on such adultery, where the condonation is upon the promise by the guilty party (the husband) that he would in all things thereafter treat his wife kindly and in a proper manner, and would be in all things a good and affectionate husband to her, and which promise he has violated. The Code of Civil Procedure (sec. 1758) declares that the plaintiff is not entitled to a divorce, although the adultery be established, where the offense charged has been forgiven by .the plaintiff, and that the forgiveness may be proved, either affirmatively or by voluntary cohabitation of the parties with knowledge of the fact. The language of the Revised Stat- utes (2 R. $., 145, sec. 145, sub. 2) is that the court may denv a divorce in such case. Counsel have cited and exam- HOWARD'S PRACTICE REPORTS. 527 Timerson agt. Timerson. ined many authorities as to whether condonation, evidenced by cohabitation with knowledge, is, by legal inference, condi- tioned upon subsequent kind and proper treatment. The argument in favor of such an implied condition is stated by chief justice SAVAGE in Johnson agt. Johnson (14 Wend., 642, 643, 644), while the argument opposed is set forth in the opinion of senator TRACY in the same case (pages 646, 647). A majority of the court of errors agreed with the chief jus- tice. This case of Johnson agt. Johnson has been subject to some criticism, the above question having been decided by but one majority for the reversal of the decision of the chan- cellor, but it is a binding authority, I think. The case of King agt. Baldwin (17 Johns., 384) was also a case where the decision of the chancellor had been reversed by a majority of one. Afterwards there were dicta condemning the rule in King agt. Baldwin, and the question of its authority came before the court of appeals in jRemsen agt. Beekman (25 N. Y., 552), and the two judges (WRIGHT and GOULD) writing opinions (pages 556, 561), regard King agt. Baldwin as authority settling the rule involved in the case. The present case however involves another question than Johnson agt. Johnson. There the question was whether the law raised a certain implication ; here the complaint avers the exist- ence of the fact which was in Johnson 'agt. Johnson sought to be implied, viz., that the husband actually promised the wife, as part of the agreement, that he would thereafter treat her kindly and in a proper manner. The law is lenient towards the wife in regard to condonation by cohabitation (Harnett agt. Harnett, 55 Iowa, 48). My conclusion is that the violation by the defendant of the conditions of the condonation revives the wife's right of action for his previous adultery, or rather that the alleged condonation is not a bar to such action. Judgment ordered for plaintiff on demurrer to complaint, with leave to defendant to answer on payment of costs of demurrer. 528 HOWARD'S PRACTICE REPORTS. Dennison agt. Taylor. SUPREME COURT. PORTER G. DKNNISON agt. WILLIAM F. TAYLOR. Deed Conveyance Reservation One who parts absolutely with the title to land to another cannot reserve to himself tlie right to its 'purchase-money when subsequently sold. He who conveys the absolute fee of real estate to another cannot retain the right to the purchase-price when subsequently sold. There is a distinction between the occupancy of one's property which must be temporary, unless the title of the owner is acquired, and one which is known to be permanent because the right to maintain it exists; and he who parts absolutely with the title to land to another cannot reserve to himself the right to its purchase-money where subse quently sold, because such a reservation would be inconsistent with the grant. The defendant who was the owner in fee of a farm of land through which a railroad passed, and also of that part thereof which such railroad occupied and upon which it was constructed, which ownership was derived by and through a warranty deed to him from the assignor of the plaintiff, recovered from sucli railroad or its receiver the sum of $1,000 as a compensation for the fee of the land which the road occupied, and for the depreciation in value of the entire farm by reason of such title being acquired to the strip occupied by the railroad : Held, that the defendant's right to such damages was perfect through the deed from the plaintiff's assignor, which the reservation therein contained in favor of the grantor did not and could not reserve to such grantor, because such a reservation would be inconsistent with and repugnant to the deed and the estate in fee which it conveyed to the defendant; and as the defendant recovered such damages for himself and not for the plain- tiff, the latter cannot maintain this action which rests upon the theory that the moneys paid to the defendant therefor were received to and for the use of the plaintiff. Ren&selaer Circuit, January, 1884. j??. H. McClellan and E. L. Fursman, for plaintiff. Mr. Foster, for defendants. WESTBROOK, J. In this cause, which was tried before the court without a jury at the Rensselaer circuit in January, 1884, the plaintiff claimed to recover for certain mone} T s HOWARD'S PRACTICE REPORTS. 629 Dennison agt. Taylor. received by the defendant under the following circumstances : On the 13th day of January, 1873, by deed bearing date on that day, one George T. Dennison and wife conveyed to the defendant a farm situate in the town of Berlin, Rensselaer county and state of New York. At the time of such con- veyance a strip of land about four rods in width and running across the premises conveyed was in possession of the Lebanon Springs Railroad Company, but to it the company had acquired no title, and the fee thereof passed to the defendant Taylor by the deed from Dennison just mentioned. The deed to Taylor contained this clause : " There is reserved all the damages sustained in consequence of railroad crossing lands herewith conveyed." In 1881, in a proceeding instituted by him for that pur- pose against the receiver of the Lebanon Springs Railroad, there was awarded to the defendant the sum of $1,000 for the land occupied by it, and the depreciation in value of the farm by the railroad crossing through it, upon his executing and delivering to the receiver a conveyance in fee of the premises occupied by the railroad. The defendant executed such conveyance and received the $1,000 from the receiver. The plaintiff, who is the assignee of George T. Dennison, the defendant's grantor, demanded from the defendant the sum of $1,000 paid by the receiver of the Lebanon Springs Railroad, and on the refusal of the defendant to pay brought this action to recover the same. The claim of the plaintiff is founded upon the clause in the deed to the defendant hereinbefore given, which " reserved all the damages sustained in consequence of railroad crossing lands conveyed," and upon the construction to be given to such clause and the validity thereof the action depends. The argument of the plaintiff is in brief this : at the time of the conveyance to the defendant the damages were com- plete. The railroad was then in possession of the strip of land through the farm, and the damage done to such farm by depriving the owner of a part of his property, and the depre- VOT, II 67 530 HOWARD'S PRACTICE REPORTS. Dennison agt. Taylor. elation in value of the remainder by reason of the occupation of the strip for railroad purposes had then been sustained, and because then existing they were reserved by the deed to the defendant's grantor. If the premise that all the damages existed at the time of the conveyance was true, and if the grantor of the fee of real estate could legally reserve to himself the purchase-price thereof when subsequently sold by his grantee, it would be difficult to resist the conclusion. The premise, however, is not true, and he who conveys the absolute fee of real estate to another cannot retain the right to its purchase-price when subsequently sold. The premise ignores the distinction between an occupancy of one's property, which must be tem- porary unless the title of the owner is acquired, and one which is known to be permanent, because the right to maintain it exists ; and he who parts absolutely with the title to land to another cannot reserve to himself the right to it* purchase- money when subsequently sold, because such a reservation would be inconsistent with the grant (De Peyster>. Michael, 6 A 7 . Y., 467, 492, 493, 494, &c\ At the time of the con- veyance to the defendant the damage to the farm by the extinguishment of the owner's title in a part thereof had not been sustained, and the right to permanently occupy such part as owner for the purpose of a railroad to the depreciation in value of the remainder had not been acquired. The rail- road was then in possession of a part of the land, either as a squatter or by permission of the owner for a limited time. Such occupation, while it lasted, of course damaged the owner by depriving him of the enjoyment of a part of his property and subjecting him to the annoyance and inconvenience of a railroad track across his farm, but damage to a farm caused by an occupancy of a part, capable of being soon ended and term- inated, is quite another and different thing from an occu- pancy founded upon actual title to the land occupied, which permanently deprives an individual of a part of his farm, and permanently subjects him to the annoyance and inconvenience HOWARD'S PRACTICE REPORTS. 531 Dennison agt. Taylor. of a railroad operated through its center. In other words, a right of occupancy for a short period of time, or an occu pancy which is a trespass, and therefore capable of a speedy determination, depreciates the value of the entire farm much less than one which is permanent, because founded on an acquired right. The damages which had been " sustained " by an occupancy founded upon either a temporary right derived from the owner, or upon no right, but in either case soon determinable, were those which existed at the time of the con- veyance to the defendant ; but a right as owner to occupy had not been acquired by the railroad, and the damage to the owner by the extinguishment of his title to a part of his farm, which injures, both by permanently depriving him of the enjoyment and use of the property taken and the incon- venience to the farm as a whole in future years, had not yet been " sustained." Under such circumstances the conveyance is made to the defendant of the fee of the whole farm, including that occupied by the railroad. Can it be reasonably or even plausibly argued that the grantor intended otherwise than he did ? That when he conveyed to the defendant a strip of land in the possession of a railroad company, war- ranting that the deed of conveyance gave the defendant a good title in fee thereto, he intended to reserve to himself the purchase-price of such land if the railroad company subse- quently acquired it ? To these questions the answer, it seems to me, is plain. The clause in the deed reserved to the grantor the damages which had been " sustained " when the deed was made, and not th^se which would 1)& "sustained" by the extinguishment of the owner's title, which could only have their being when such right was acquired. Nay, the fact that Dennison conveyed the fee of the land occupied by the railroad to the defendant forbids the construction of the res- ervation claimed by the plaintiff. The absolute ownership of property involves the right to its purchase-price when sold, and the reservation of the purchase-price, or any part thereof, to the grantor upon a subsequent sale by the grantee, 532 HOWARD'S PRACTICE REPORTS. Dennison agt. Taylor. would be, as has been before stated, void (De Peyster agt. Michael, 5 N. Y .. 467, 492, 49:5, 494, 2) to the representatives of a decedent, whose death was caused by the negligence of another, abates upon the death of the wrong-doer, and an action cannot be maintained against his representatives. (Hege- rich agt. Keddie, 99 N. Y., 258.) 4. The history of the statutory modi- fications in this state of the rule of the common law as to the sur- vivability of actions given, and the authorities upon the subject collated. (Id.) 5. An action under civil damage act abates on the death of defendant and cannot be revived against his personal representatives. (See Moriorty agt. Bartlett, 99 N. Y., 651.) ABDUCTION. 1 . It is not necessary, to constitute the crime of abduction, as de- fined by subdivision I of section 283 of the Penal Code, that the accused should in any case use any force or practice any fraud or deception, and it is sufficient within the statute if the female is induced by his request, advice or persuasion to go from the place where the accused met and ap- proached such female with the request and solicitation for her to accompany him, or meet him at some other place indicated by the accused, with the intent and pur- pose there to accomplish the act of her defilement. (The People agt. Seeley, ante, 105.) 2. The offense maybe accomplished without an actual manual cap- ture of the female, nor is it neces- sary that she should be taken against her will, nor is it neces- sary that the girl should be taken from her parents or other custo- dian of her person. (Id.) 536 HOWARD'S PRACTICE REPORTS. Digest. ACTION. 1. An action may be brought by one of the next of kin of a de- ceased person "on behalf of herself, and also for the benefit of all the heirs-at-law and next of kin of the said deceased, who will come in and contribute to the ex- penses," against the personal rep- resentatives of the testator, to procure an adjudication upon the validity of his will, and to have a trust dec-hired and established in favor of said heirs at-law and next of kin as against the admin- istrators with the will annexed and for equitable relief. (Varnam agt. Barnum, ante, 2. One next of kin may maintain an action of this character for the benefit of all. (Id.) 3. Where the question is one of a common or general interest of many persons, or where the per- sons w r ho may be made parties are very numerous, it being imprac- ticable to bring them all before the court, then one may sue for the benefit of all. The word "many" is not used in section 448 of the Code of Civil Procedure to express the idea of very numerous persons. There are two classes named, where one may sue for all. One is, where many persons have a common interest and another where the parties are so numerous that it is impracticable to bring them all before the court. While the word "many" as here used, contemplates more than one, it does not necessarily very numerous Arsons, while the word "many " as ordinarily used is synonymous in meaning with " numerous.'' As used in this section, in connec- tion with the words "common or general interest of the persons," it means a limited number. It is the character of the interest which controls rather than the number of persons. The third class men- tioned " very numerous," one is allowed to sue for all, as a matter of convenience in the administra- tion of justice by the court. (Id.) 4. Actions against administrators, as well as actions against assignees for the benefit of creditors, brought to set aside an assignment, are ex- ceptions to the rule that all parties having an equitable interest named by the decree, are neces- sary parties thereto. (Id.) 5. On a demurrer to a complaint the test of the unity of interest intended by the 448th section, is that the joint connection with or relation to the subject-matter, which by the established practice of the common law courts will preclude a separate action. (Id.) 6. The provisions of the constitu- tion and by-laws of a benevolent society providing for the payment of sick or death benefits are in the nature of a contract, and the plaintiff must allege and prove a breach of said provisions before he can maintain an action. The question whether the action should be brought against the subordinate or grand lodge, con- sidered. (Eberle agt. Kauffeld, ante, 488.) 7. Where a will presents upon its face questions of complication, uncertainty and difficulty, an ex- ecutor may institute and maintain an action for the purpose of ob- taining a judicial construction thereof, and for direction to him as to the manner in which he should discharge his duties in ex- ecuting the will as such executor. (Bigart agt. Jones, ante, 491.) 8. Corporation action by a stock- holder against the corporation and directors, to restrain waste of its property when a demand upon the corporation to bring the action need not be made. (See Currier agt. N. Y., W. S. and B. R. Co., 35 Hun, 355.) 9. Statute of limitation when an HOWARD'S PRACTICE REPORTS. 537 Digest. action will be treated as one to recover damages for personal in- jury resulting from negligence-- Code of Civil Procedure, section 383, subdivision 5. (See Webber agt. llerkimer and Mohawk Street B. R. Co., 35 Hun, 44.) 10. Against a non-resident when a defendant answering generally does not subject himself to the jurisdiction of the court. (See Hamburger agt. Baker, 35 Hun, 455.) 11. This action was brought by the plaintiff upon a promissory note made by the defendant to the order of and indorsed by one Terhune. The plaintiff was in- corporated by a special act of the legislature of New Jersey. In 1877, on the petition of a stock- holder and creditor, a receiver of its property was appointed, under a statute of that state which de- clares that when any corporation shall be dissolved the chancellor may appoint a receiver to take charge of the estate and effects of the corporation, and collect its debts and property due and be- longing to it, with power to pros- ecute and defend, in the name of the corporation or otherwise, all such suits as may be necessary and proper for that purpose : Held, that the complaint was properly dismissed upon the ground that the action was not prosecuted by the receiver, the real party in interest, as required by section 449 of the Code of Civil Procedure. (Merchants' Loan and 'trust Co. agt. Glair, 36 Hun, 362.) 12. That the New Jersey statute, authorizing the receiver to bring an action in the name of the cor- poration, had no extra-territorial force. (Id.) 13. Right of an assignee of a foreign judgment to sue thereon in this state when a stay granted in a foreign country is operative here. II 08 (See Nazro agt. McCalmont Oil Go., 36 Hun, 296.) 14. For money had and received when it lies against a town for money collected on an invalid assessment. (See Day agt. Town of New Lots, 36 llun, 263.) ADDITIONAL ALLOWANCE. 1. In an action by a vendor to fore- close a land contract, in which the plaintiff recovers, he is not entitled to the additional allowance pro- vided by section 3, J 52 of the Code of Civil Procedure. (Burkluirt agt. Babcock, ante, 512.) AFFIDAVIT. 1. It is not necessary to state in the affidavit to obtain order for exami- nation of a judgment debtor, in proceedings supplementary to ex- ecution, that the city court of New York is a court of record, that no previous application for an order to examine judgment debtor has been made in the action or that the judgment was rendered upon the judgment debtor's appearance or personal service of the summons upon him (Sayer agt. MacDonald, ante, 119.) See ATTACHMENT. Doctor agt. Schnepp, ante, 52 AMENDMENT , The court may on the trial allow the pleadings to be amended by striking out the words "and sou" in the title of the action and in- serting in place thereof the name of the son. (Banner man agt. Quackenbush et al , ante, 293.) 2. The defendants were sued as ex- ecutors, and the complaint alleged and the answer admitted that they held the securities in their repre- 538 HOWARD'S PRACTICE REPORTS. Digest. sentative capacity. After the trial the complaint was amended, upon the plaintiff's motion, so as to make the action one against the defendants individually, and a judgment against them as indi- viduals was entered: Held, that the court erred in allowing the amendment to be made. (Van Cott agt.Preiitice, 35 Hun, 317.) 3. Execution against the person irregularities in the recital when amendable stipulation not to sue for false arrest power of the courts to compel a party to make it Code of Civil Procedure, sees. 723, 1372, 1489. (See Walter agt. Isaacs, 36 Hun, 233.) 4. Service of summons by publica- tion when the order directing it may be subsequently amended. (See Coffin agt. Lester, 3(5 Hun, 347.) 5. It is within the power and discre- tion of a referee, on trial of an ac tion, to allow an amendment of the complaint, which does not af- fect the issue upon determination of which plaintiff's right to relief depends, or which does not bring in a new cause of action ; and his decision thereon is not reviewable here. (Price agt. Brown, 98 N. T., 388.) ANSWER. 1. A denial in an answer "on in- formation and belief of all the allegations in the complaint con- tained not hereinbefore admitted or denied and not containing the allegation that the defendant had not sufficient knowledge or infor- mation to form a belief as to the other statements in the complaint, and for that reason he denied them, does not put in issue a material allegation of the complaint, and all such allegations will be taken as admitted. (Schroeder agt. Wanzor, ante, 13.) APPEAL. 1. A stay of proceedings should not be vacated pending appeal when such an appeal presents reasona- ble questions for review. (Matter of Case agt. Campbell, ante, 85.) 2. The court of appeals will enter- tain a motion to dismiss an appeal for which there is no foundation, without waiting until the case is reached in its regular order on the calendar. (Stouyhton agt. Lewis, ante, 331.) 3. A plaintiff is not precluded from making a motion to dismiss an appeal taken by a defendant, be- cause he (the plaintiff) has noticed the case for argument and placed it upon the calendar. He waives nothing by so doing. It is still optional with him to wait until the case is reached on the calen- dar, or to make his motion to dismiss on the ground that the appeal is unauthorized. (Id.) 4. Where, in an action to foreclose a mortgage, a complaint contain- ing all the requisite allegations has been served upon defendant, who afterwards obtained a stipulatioa from plaintiff's attorney for fur- ther time to answer, agieeing not to put in any answer and not to ask any further extension of time. On the last day defendant served a demurrer which was, on motion, overruled and stricken out, and plaintiff proceeded as if no de- murrer or answer had been inter- posed and obtained bis judgment by default. The defendant ap- pealed to the general term, where it was affirmed, and from the affirmance defendant appeals t this court: Held, that, the demurrer having been overruled, the judgment went by default in the same man- ner as if no demurrer had been served, and no appeal is allowed from a judgment entered by de- fault. The order overruling the demurrer not having been ap- HOWARD'S PRACTICE REPORTS. Digest. pealed from cannot be assailed on an appeal merely from the judg- ment, (fd.) 5. Review of a trial before a judge or referee unless the case shows that it contains all the evidence bearing on a disputed finding of fact, the court will assume that there was evidence sufficient to sustain the finding under the new Code no exception lies to a finding of fact, unless it be wholly unsupported by evidence nor does any exception lie to a refusal to find a fact as requested. (See Porter agt. Smith, 35 Hun, 118.) 6. Additional allowance when the general term will not reverse an order resting in the discretion of the court below the amount involved may be considered in passing upon the application. (See Goading agt. Brown, 35 Hun, 153.) 7. Trial by the court findings of fact and conclusions of law must be made and signed a trial of a contested question of fact by the court cannot be reviewed un- less such a decision be made. (See Benjamin agt. Allen, 35 Hun, 115.) 8. When an order granting or re- fusing a new trial in an equity case is appealable when an error will be disregarded when the judgment will be reversed. (See Bowen agt. Becht, 35 Hun, 434.) 9. Will the correctness of the . adjudication admitting it to pro- bate is only reviewable on appeal. (See Wells agt. Stearns, 35 Hun, 323.) 10. When a new trial may be had in a county court on appeal from a justice's judgment Code Civil Procedure, section 3068. (See Reynolds agt. Swick, 35 Hun, 278.) 11. Not the remedy for an irregular entry of judgment. (See Robinson agt Hall, 35 Hun, 214.) 12. Effect of an order directing that a judgment be marked sus- pended upon appeal. (See Judg- ment. ) 13. Upon the application of the water commissioners of Amster- dam to acquire title to land, an order was made at a special term allowing them to amend their petition. By an indepen- dent provision contained in the order ten dollars costs of the mo- tion were awarded to the respond- ents, landowners, who had re sisted the application, not as a condition to the granting of the motion, but absolutely. The land- owners having accepted the ten dollars costs which were tendered to them, appealed from the order: Held, that under the circum- stances of this case the land- owners did not, by accepting the costs, waive their right to appeal. (Matter of Water Commissioners of Amsterdam, 36 Hun, 534.) 14. The doctrine of waiver only ap- plies in those cases where the appellant has attempted to enforce the order in his favor, or some part thereof connected with or dependent upon such other part as he seeks to avoid by his appeal, or in which he has accepted a benefit having such connection or dependency. (Id.) 15. An order of a county court, denying a motion for a new trial upon the ground of surprise and newly discovered evidence, is ad- dressed to the discretion of that court, and is not reviewable upon appeal by the general term of the supreme court. (Myers agt. Riley, 36 Hun, 20.) 16. The supreme court has no power to review the exercise by the county court of a discretionary power vested in the latter court. (Id.) 17. Where upon an appeal from a judgment, entered upon the ver- dict of a jury, and from an order 540 HOWARD'S PRACTICE REPORTS. Digest. denying a new trial, it does not appear that the case contains all of the evidence, questions of fact or errors of the jury cannot be considered. (Cornish asi Graff, 36 Hun, 160.) 18. When a case is settled and filed, after entry of judgment, the judge, referee or court should make an order directing the case to be annexed to the judgment-roll. (Id.) 19. Examination of a person having property belonging to the estate of a deceased person all the executors or administrators should be parties to the proceeding Code of civil Procedure, section ] 2706 an order denying a mo- tion to dismiss the proceeding is appealable. (See Matter of Slinyer- land, 36 Hun, 575.) 20. Review on appeal of a decision of the special term in proceedings to correct an erroneous assess- ment 18SO, chapter 269 how objections to the reception of evi- dence should be stated errone- ous admission of evidence when the decision will not be reversed therefor. (See People ex rel. Rail- road agt. Keator, 36 Hun, 592.) 21. County court orders resting in its discretion are not reviewable at general term. (See Kugelman agt. Rhodes, 36 Hun, 269.) 22. Right to review on appeal chal- lenges to jurors Code Criminal Procedure, section 455, sub. 2 ; 1873, chapter 427. (See People agt. Willett, 36 Hun, 500.) 23. Where, in pursuance of an order of the supreme court confirming the award of commissioners in proceedings under the general railroad act (chap. 140, Laws of 1850), to condemn lands belonging to the city of New York for rail- road purposes, the railroad com- pany paid over the sum awarded to the city chamberlain, who re- ceipted therefor : Held, that at least in the absence of evidence that the city had used, or iu some way interfered with the money, such payment and receipt did not deprive the city of its right to ap- peal from the order. (In re 2f. T. and H. R. R. Co., 98 N. Y., 12.) 24. It seems that under said act (sec. 18) a landowner does not waive his right to appeal from an order con- firming an award by receiving the sum awarded : the effect of the payment or deposit, as directed by the order of the sum awarded, is to divest the landowner of all in- terest in the land as well as the use thereof during the existence of the railroad corporation, but it does not deprive either party of the right to appeal. (Id.) 25. An order of general term revers ing an order which confirmed an award and directing a new ap- praisal is not reviewable here. (Id.) 26. Whereupon trial exceptions are, without objection, ordered to be heard at first instance at general term, the party succeeding at general term may not object to a review of its decision here, on the ground that the case was not one proper to be so heard. ( Wyckoff agt. DeGraaf, 98 jV. Y., 134.) 27. In an action for partition, O.,the holder of a mortgage on the prem- ises, was made a party defendant; the lien of his mortgage being questioned, he answered, alleging it to be a valid and subsisting lien, and asked that the premises be declared subject thereto, or that it be paid out of the proceeds of sale if a sale is decreed. (). ap- peared and took part in the trial. An interlocutory judgment was rendered, adjudging that the mort- gage was not a valid lien : Held, that as O. had, without objection, thus submitted his rights to the court, and sought to have them enforced, conceding he could not have been compelled thus to liti. HOWARD'S PRACTICE REPORTS. 541 Digest. gate them (as to which quaere), he could not raise the objection on appeal ; and this, although he asked the trial court to find as a conclusion of law that no affirma- tive relief could be given against him in that form of action. (Bar- nard agt. Onderdonk, 98 N. T., 158.) 28. This court, on appeal in criminal actions, may not consider objec- tions to portions of the charge as to which no exceptions were taken on the trial. (People agt. Mills, 98 N. T., 176.) 29. The surrogate refused probate of a will contested on the ground of undue influence; he found all the facts in favor of the proponent, save as to undue influence ; there was no evidence to establish this: Held, that it was proper for the general term, on appeal from the surrogate's decision, to direct judgment admitting the will to probate. (In re Martin, 98 ^V. T., 193.) 30. The reversal of the surrogate's decree in such case is upon a ques- tion of law, and so the provision of the ' 'ode of Civil Procedure (sec. 2588), requiring where the re- versal is upon a question of fact, that a jury trial shall be ordered, does not apply. (fd.) 31. Also fold, that the case required an exercise of the power conferred by the Code (sec. 2589), to impose costs upon the unsuccessful party. (Id.) 32. The validity of an undertaking given under the Code of Proced- ure (sec. 348), for the purpose of staying proceedings on appeal to the general term of the supreme court, depends upon its efficacy in securing to the appellant the stay desired; where the obligee elects to treat it as invalid, and is per- mitted by the court to proceed and collect his judgment in disregard thereof, he cannot afterward main- tain an action and hold the obli- gors liable thereon. (Hemmingway agt. Poucher, 98 N. T., 281.) 3H. It is within the power and dis- cretion of a referee, on trial of an action, to allow an amendment of the complaint, which does not af- fect the issue upon determination of which plaintiff's right to relief depends, or which does not bring in a new cause of action ; and his decision thereon is not reviewable here. (Price agt. Brown, 98 N. T., 388.) 34. Where improper evidence has been received under objection and exception, which subsequently, on motion of the party against whom it was offered, is stricken out, this is to be deemed an abandonment of the exception, and such party may not have the benefit of it on appeal. (Id.) 35. The act of 1881 (chap. 48(5, Laws 0/1881), "to facilitate the giving of bonds required bylaw," does not repeal or affect the provision of the Code of Civil Procedure (sec. 1384), requiring two sureties to an undertaking on an appeal to this court. (Nichols agt. MacLean. 98 J\ r . 7"., 458.) 36. The appellant himself may not sign as surety. (Id.) 37. It is not a ground for dismissal of appeal tht the appellant has failed to notice the case for argu- ment and place it on the calendar; he is bound only to file the return and serve the printed cases; if the respondent wishes to expedite it, he may notice. (Id.) 38. The practice of referring in an answer to parts of the complaint which the pleader intends to admit or deny, as " at " or " between " certain folios, does not conform to the spirit of the provision of the Code of Civil Procedure (xec. 22), which requires pleadings to be made out " in words at length and 542 HOWARD'S PRACTICE REPORTS. Digest. not abbreviated," and serves no useful purpose on appeal where original folios do not appear in the case. (Caulkins agt. Bolton, 98 _/\~. T., 511.) 39. The general term of the court of common pleas of the city of New York, on appeal to it from a judgment of the general term of the city court (late marine court), affirmed the judgment and granted leave to the appellant to appeal to this court from the judgment to be entered on its decision An order of affirmance was entered in the court of common pleas, and there- after, a judgment was entered in the city court, which recited that a remittitur had been sent down from the court of common pleas, and made the judgment of that court the judgment of the city court. The appellant served a notice of appeal " from the judg- ment entered in the office of the clerk of the city court," without referring to the judgment or order of the common pleas: Held, that the appeal was improperly taken; that no appeal lies to this court from a judgment of the city court. (Ansonia B. and C. Co. agt. Con- ner, S8N. T., 574.) 40. The appeal should have been from the determination of the court of common pleas. (Id.) 41. Where a judgment is affirmed in this court without an opinion, and without formally adopting the opinion below, it is not to be un- derstood that the affirmance is upon grounds substantially dif- ferent from those taken below; on the contrary, the inference is the other way, as in case of such a difference the court would deem it proper to state the reason for affirmance. (Higgins agt. Crich- ton, S8N. T., 626.) 42. In an action upon a promissory note the answer was a general de- nial. Plaintiff gave evidence on the trial sufficient to establish prima facie the execution of the note by the alleged maker. De- fendant gave in evidence certain letters written by plaintiff to the maker, and at the close of the case asked the court " to direct a ver- dict for defendant in view of those letters. " The request was denied. Upon appeal defendant sought to sustain his exception to the ruling on the ground that the letters "showed the note to be without consideration:" Held, that de- fendant, to avail himself of this point, should have called the at- tention of the trial court to it, and, having failed to do so, could not raise it on appeal. (Langley agt. Wadsworth, 99 N. F., 61.) 43. So far as the cross-examination of a witness relates to facts in issue, or relevant facts, it may be pur- sued by counsel as matter of right but when the object is to test the accuracy or credibility of the wit- ness, its method and duration are subject to the discretion of the court, and the exercise of this dis- cretion unless it is abused, is not the subject of review. (Id.) 44. Where the decree of a surrogate settling the accounts of an execu- tor is, on appeal to the general term, reversed, so far as it charges the executor with certain items, on the ground that he is not properly chargeable therewith, and the de- , cree is remitted to the surrogate for resettlement in accordance with the decision of the general term, its judgment is final so far as relates to any judicial action, and so is appealable to this court. (Stimson agt. Vroman, 99 N. T., 74) 45. It seems that where the findings of a trial court are apparently in- consistent, it is the duty of the appellate court, if possible, to re- concile them and give effect to the real meaning and intent of the court in making them. (Health Department agt. Purdon, 99 N. T.. 237.) HOWARD'S PRACTICE REPORTS. 543 Digest. 46. Although on appeal from a judg- ment, in an action tried by the court, no exceptions appear to the findings of fact, or error in their determination, but the general term draws a different legal con- clusion therefrom than that of the trial court, this does not authorize it to render a final judgment in accordance with its own conclu- sion. Whenever the character of the issues framed by the pleading is such that, upon a new trial, it will be possible for the respondent to recover, a new trial should be ordered. Having succeeded on the trial, he is not required to procure the appearance of exceptions upon the record, and so the appellate court cannot determine that there were no exceptions or errors. (Thomas agt. JV. T. L: Ins. Co., 99 N. Y., 250.) 47. In proceedings under the general railroad act (sec. 22, chap. 140, Laios of 1850) by an aggrieved land- owner to procure a change of the proposed route of a railroad, an appeal to this court does not lie to review questions of fact passed upon by commissioners after hear- ing testimony and personally in- specting the locus in quo. (In re N. Y., L. E and W. R R Go., 99 N. Y., 888.) 48. As to whether an order in such a proceeding is in any case review- able here, quaere. (Id.) 49. A court having power to, and which appoints a receiver of the assets of an insolvent corporation, may, in aid of that appointment, forbid any after interference, by way of levy and seizure by attach- ment or execution, with the prop- erty in his possession. (Woeris- hoffer agt. N. R Con. Co., 99 N. PT, 398.) 60. The exercise of the right to re- strain such interference being in the discretion of the court, its determination is not reviewable here. (Id ) 51. Where a former judgment be- tween the parties is not pleaded as an estoppel or given in evidence on the tiial, its effect as bearing upon the facts in issue may not be considered on appeal (Hebrew f. S. Assn. agt. Mayor, &c., 99 N. Y., 488.) 52. The judge to whom application is made under the general assign- ment act (chap. 46(5, Laws oflS77) for examination of witnesses be- fore a referee has a discretion in the matter, and unless an abuse of this discretion appears, his deci- sion may not be reviewed on ap- peal. (In re Uolbrook, 99 N. Y., 539.) 53. When an order of general term, reversing a judgment of convic- tion in a criminal action, omits to show that the court exercised its discretion and refused a new trial upon the facts and granted it only for error of law, it is not review- able here. (People agt. Poucher, 99 N. Y., 610.) 54. Where objection as to form of verdict not taken on trial may not be raised on appeal. (See Brigg agt. Hilton, 99 N. Y., 517.) 55. When surety in undertaking on appeal becomes insolvent, respond- ent entitled to a new undertaking. (See Mahon agt. Noon [Mem.], 99 N. Y, 625.) 56. Where party has sufficient remedy at law against a public officer, court not absolutely bound to grant a writ of mandamus, but may. in its discretion, refuse, and this discre- tion not reviewable here. (See People ex rel. agt. Thompson \Metn.~\, 99 N. Y., 641.) APPEARANCE. 1. The defendant corporation in this case, although it had not been served with a copy of the sum- mons and complaint, moved, with- 544 HOWARD'S PRACTICE REPORTS. Digest. ARREST. 1. Where the petitioner was arrested for converting to his own use moneys and securities belonging to the plaintiff, while acting in a fiduciary capacity, and was im prisoned in default of bail, and on his application for a discharge his examination showed that in viola- tion of his trust he had used the money and property for his own benefit: Held, that he was entitled to his discharge, because it did not ap- pear that he had disposed or made over any part of his own property, with a view to the future benefit of himself or his family, or with intent to injure or defraud any of his creditors. (Matter of Caamano, ante, 240.) 2. Proof that one of two partners withdrew a large amount of money from the business of the firm for the reason that it had suffered severe losses, and that the other partner had already trans- ferred a large portion of his prop- erty to his wife without consider- ation, will not support an order of arrest against the partner who withdrew the money, without fur- ther proof that he had either dis- posed of any part of this sum or intended to do so to defraud his out serving any formal notice of appearance, to have the complaint made more definite and certain. Thereupon the plaintiff procured an ex parte order discontinuing the action as to the corporate defendant: Held, that this was proper; that the service of the notice of motion was not equiva- | lent to an appearance. ( Valentine '' agt. Myers' Sanitary Depot, 36 Hun, 201.) 2. Under section 421 of the Code of Civil Procedure, a defendant can only appear by serving a notice of appearance or a copy of a demur- rer or answer. (Id. ) creditors. (Scott and others agt. Reed, ante, 521.) ASSESSMENTS. 1. Although in determining the value of railroad or canal prop- erty, for the purposes of taxation, the cost of creating it may be considered, yet its earning capac- ity should be the more controlling consideration or test. (People ex rel. Pres. , &c. , of D. and H. Canal Co. agt. lloosa and othen, ante, 454.) ASSIGNEE. 1. In a proceeding for removal of an assignee who has misconducted himself, where there are three as- signors, one of whom has left the state, notice to one assignor is properly notice to all ; though the better course would be to give the statutory five days' notice to the two within the state, in the ordinary way and to serve the ab- sent assignor by depositing a notice in the post-office, addressed to him at his last known place of residence giving double the time. (Matter of Cohen & Company, ante, 523.) ASSIGNMENT. 1. A surviving partner has no power without the consent and concur- rence of the representatives of the deceased partners to make an as- signment to a trustee for the bene- " fit of creditors of the firm, and to create preferences umong the cred- itors by such an assignment; and the attempt to do that is such an abuse of the surviving partner's powers as justifies the representa- tives of the deceased partner in applying to a court of equity to take possession of the estate by a receiver. (Nelson agt. Tenney,ante, 272.) 2. Stock purchased on margin by a HOWARD'S PRACTICE REPORTS. 545 Digest. stock-broker for a customer, be- comes the property of the cus- tomer, as between them the rela- tion of pledger and pledgee is created and exists, and upon pay- ment of the amount due the cus- tomer becomes entitled to the pos- session of the stock. (Matter of Smyth, ante, 431.) 3. Nothing passes by a general as- signment except the interest of the assignor, and if any of the as- signed property is freighted with equities the assignee must recog- nize the same. (Id.) 4. Trust funds do not pass to an assignee of an insolvent, and they may be followed into the hands of such assignee for the benefit of the cestui que trust. (Id.) 5. Funds wrongfully appropriated may be followed into any property the wrong-doer may have invested them. (Id.) 6. Rules stated for tracing trust funds. (Id.) 7. If the fund in the hands of an assignee of an insolvent has been increased by reason of an appro- priation by other parties having a lien upon both, of one of two classes of securities, the assignee is liable to the claimant whose property was appropriated to the extent of the increase. General creditors cannot get on an equality with those having superior claims through any action of a prior lienee. (Id.) See CREDITOR'S ACTION. Iselin et al. agt. Henlein et al., ante, 211. ATTACHMENT. 1. An affidavit for an attachment made by H. states as follows: " I am a member of the firm of D. & Co., and one of the plaintiffs above-named, the only plaintiffs VOL. II 69 so above-named being D. and him- self, it is a fair presumption that they constitute the firm. " (Doctor agt. Schnepp, ante, 52.) 2. It is to be presumed that if coun- ter-claims existed in favor of the defendant, that some knowledge of that fact would have been pos- sessed by the plaintiff H. making the affidavit. For the purposes of the statute his knowledge con- stituted that which was known to the plaintiffs, and his allegation is a substantial compliance there- with. (Id.) 3. An affidavit by B. which states that he was the bookkeeper of the plaintiffs and personally ac- quainted with the defendant; that the defendant had in his possession several statements showing a balance due to the plaintiffs for the goods sold and delivered to him, and that he had frequently acknowledged to the affiant his indebtedness to the plaintiffs for the amount claimed, is sufficient to show the existence of a cause of action in favor of the plaintiffs against the defendant. (Id.) 4. An affidavit by B., which states that " a short time ago he (defend- ant) represented himself to be a man of means," clearly indicates that he had arrived at mature years and that he was an adult, and is a sufficient compliance with subdivision 5 of section 3169 of the Code of Civil Procedure. (Id.) 5. The provision of section 709 of the Code of Civil Procedure per- mitting the sheriff to hold prop- erty taken under an attachment after the warrant of attachment has been vacated on the applica- tion of defendant, until his costs and expenses have been paid, and sell it for their payment, is uncon- stitutional, as being in effect to allow him to hold and dispose of the property of one party to pay the debt exclusively of another 546 HOWARD'S PRACTICE REPORTS. Digest. {See Hall agt. United States Reflector Company, 66 How., 51). (Bowe agt. United States Reflector Com- pany and others, ante, 440.) 6 An attachment against the prop- erty of the defendants was granted, upon the application of the plain- tiff, on the ground that the de- fendants had fraudulently dis- posed of their property with in- tent to defraud their creditors. The affidavit upon which it was issued was made by one Snow, the vice-president, and a director of the plaintiff, a national bank. It stated "that the plaintiff, the ilarine National Bank, is, as de- ponent is informed and verily believes, entitled to recover of the defendants * * * the said sum of $7,000, over and above all counter-claims known to the plaintiff or to deponent:" Held, that it was fatally defective in fail- ing to show that the plaintiff was entitled to recover the sum stated therein, over and above all counter- claims known to it, as required by section 686 of the Code of Civil Procedure. (Marine Nat. Bank of N. T. agt, Ward, 35 Hun, 895.) 7. Although such an affidavit may be made by an agent of the plain- tiff where the facts are within his personal knowledge or where the facts upon which his information and belief are based are disclosed by the affidavit, and are such as to show satisfactorily that the plaintiff is entitled to recover the sum named, over and above all counter-claims known to the plain- tiff and the affiant, yet it is not sufficient, where the agent or offi- cer makes such statement upon information and belief, without showing whence and from whom the information was derived, and why the affidavit of his informant was not produced. (Id.) 8. The allegations in this affidavit, all of which were made upon in- formation and belief, were also held to be insufficient to show that the defendants had fraudu- lently disposed of any of their property with intent to defraud their creditors. (Id.) 9. The affidavit which section 636 of the Code of Civil Procedure requires the plaintiff to furnish on applying for an attachment, need not be made by the plaintiff himself but may be made by an agent. (Oribbon agt. Back, 35 Hun, 541.) 10. The fact that the amount claimed is due to the plaintiff, over and above all counter-claims known to him, may be established by an affidavit of the agent, where it appears from his affidavit that the plaintiffs, who reside in Great Britain, had no personal connec- tion with the transaction set forth, and that the agent personally sold and delivered the goods, (id.) 11. The first cause of action set forth in the complaint in this action was to recover damages occasioned by the sale of goods, which was induced by the false and fraudulent representations of the defendant. The second cause of action alleged that the defend- ant purchased the goods when in- solvent, and with the intent to cheat and defraud the plaintiff, and not pay for them. It then alleged that the defendant had converted the goods to his own use to the plaintiff's damage: Held, that the complaint set forth a cause of action for the " wrongful conver- sion of personal property," within the meaning of subdivision 2 of section 635 of the Code of Civil Procedure, and that the action was one in which an attachment might issue. (Oladke agt. Maschke, 35 Hun, 476.) 12. Under an attachment issued in an action brought by one Hall against the defendants, the sheriff seized certain articles of personal property belonging to them, and HOWARD'S PRACTICE REPORTS. 547 Digest. held the same until an order was made setting aside and vacating the attachment, because of the failure of the plaintiff in that ac- tion to increase the security given by him therein. The sheriff, claim- ing to be entitled, under section 709 of the Code of Civil Proced- ure, to retain the property until all his legal costs, charges and ex- penses had been paid, refused to deliver the same to the defend- ants, and brought this action to have a lien thereon to that extent adjudged to exist in his favor, and to have the property sold to sat- isfy the same : Held, that in so far as the said section of the Code attempts to compel a defendant to pay the costs, charges and ex- penses incurred by the sheriff in levying upon his property under an attachment issued in an action brought by a third person in a case in which such attachment has been subsequently vacated and set aside, it is unconstitutional and void, as depriving the 'defendant of his property without due pro- cess of law. (Bowe agt. U. 8. Reflector Co., 36 Hun, 407.) 13. At the time the property was taken it was agreed between the sheriff and the defendant that it should remain in the store in which it then was, and that the sheriff should pay the rent for the store, and that the amount so paid should be treated as expenses in- curred by him in enforcing the attachment: Held, that to the ex- tent of the rent so paid the sheriff was entitled to a lien upon the property. (Id.) 14. The certification of a check drawn upon a bank by the owner of a fund on deposit therein does not, while the check is outstanding in the hands of the drawer, exempt the fund from the lien of an at- tachment against him, levied thereon. (Gibson agt. National ParkBk., 98 N. Y., 87.) 15. The liability of the bank for fail- ure to hold the fund subject to the lien can be defeated only by showing either a payment of the check in good faith to a bona fide holder, or that it, was outstanding in the hands of such a holder. (Id.) 16. Where a debt has been legally attached, in an action against the creditor an active duty is imposed upon the debtor, and he is liable, when by inaction he allows the attached fund to be removed from his possession. (Id.) 17. When, however, a negotiable security, representing the amount of a debt, has been delivered by a debtor to his creditor, it is essential to a recovery of such debt by an attaching creditor, that he obtain possession and return the security to its maker, on or before trial, or show that it was paid in bad faith and is then in the possession of the maker. (Id.) 18. Defendants, in response to a demand by an officer holding an attachment for a certificate of the property and credits of the attach- ment debtors in their hands, de- livered an account current show- ing a balance to the credit of said debtors. In an action by the attachment creditors wherein they sought to recover an amount in excess of the balance so shown: Held, that the only essential part of the account was that showing the balance; that while the items therein might be taken as admis- sions against defendants, they were not estopped thereby, but the same were open for explanation. (Almy agt. Thwber,99N. F.,407.) ATTORNEY AND CLIENT. 1. B. being the attorney and agent of the mortgagee, as such, so long as he had the bond and mort- gage in his possession is author- iaed to receive the interest accru- ing thereon, and the mortgagor is 548 HOWARD'S PRACTICE REPORTS. Digest. safe in paying the same to him. But the possession of these papers alone gives him no authority to receive a part of the principal sum secured by the mortgage before it was due. (Crane agt. Ecans, ante, 310.) 2. A mortgagor who pays interest or principal upon a mortgage to any one other than the mortgagee himself, when the person receiv- ing the moneys has not in his pos- session the obligation, does so at his peril. In order to hold the principal to such payment he must be prepared to prove express authority. (Id.) 3. Persons employed as attorneys and counselors to perform serv- ices for others must be reasonably well informed of the legal princi- ples applicable to and governing the disposition of the business committed to their charge; and when they fail to inform them- selves of statutory provisions or well settled principles of law readily accessible by means of or- dinary care and attention, and in consequence thereof the business committed to them is misman- aged, and the persons employing them are deprived of their legal rights, they will not only forfeit all leaal claim for compensation, but in addition be justly held re- sponsible for any loss or injury sustained by means of such mis- conduct by the person or persons for whom they may be employed. (Carter agt. Tallcott, ante, '652.) 4. An attorney who is employed to defend two actions arising out of the same contract, and sets up the same counter-claim, consisting of an indivisible demand as a de- fense in both actions, and upon the trial of the first action with- draws the counter-claim, except so much thereof as is necessary to extinguish plaintiff's demand, and thereby deprives defendant of the benefits of the remainder of the counter-claim upon the trial of the second action, is not entitled to compensation for the services so rendered. (Id.) 5. An attorney who appeals from an order referring an action in- volving a long account with a view of taking the appeal to the supreme court of the United States, on the ground that the order violated the provisions of the Constitution of the United States requiring jury trials, is not entitled to compensation for the services rendered on such appeal and is liable to indemnify his client against the expenses to which he was subjected in prose- cuting it. (Id.) 6. Upon the hearing of an appli- cation for an order to compel an attorney to pay over to his client money which he had received for the purpose of investment, it ap- peared that the client had, prior to instituting such proceedings, comtcenced an action against the ' attorney in which she had caused him to be arrested, and that the said action was still pending: Held, that the pendency of this ac- tion furnished a sufficient ground for denying the application. (Mat- ter of Mott, 36 Hun, 569.) ATTORNEY'S LIEN. 1. The taxable costs in an action are not subject to set-off. (Turno agt. Parks et al., ante, 35.) 2. An attorney has a lien for his services in a particular case, as a mechanic would upon the product of his labor, and equity inter- venes to save it for him, but this lien would ordinarily be measured by his taxable costs, but might embrace a further fee, and will not always be limited to such costs if a special contract had been made in good faith between the client and his attorney, but, it seems, it must refer to his serv- ices in the particular action. (Id.) HOWARD'S PRACTICE REPORTS. 549 Digest. 3. Where prior to the recovery of the judgment the plaintiff assign- ed to his attorney herein all his interest in the cause of action in payment for services in the suit of Parks agt. Turno, and also for money loaned, and the attorney held this assignment prior to the recovery of judgment, and due notice was given the defendants: Held, that the equity of the at- torney is superior to that of the plaintiff, and no right of set-off exists. (Id.) 4. The lien of an attorney attaches to the cause of action ; but if the client has no cause of action at the time of suit brought, there is nothing to which the lien attaches unless it be the papers in the case. (Kipp agt. Rapp et al., ante, 1(39.) 6. If a judgment be recovered wholly for costs, it belongs to the attorney, who is regarded as the equitable assignee thereof, and he may prosecute in his own name the undertaking given to secure its payment, (Id.) 6. When the plaintiff in an action, after recovering judgment therein, assigned his cause of action, &c. , to one "P.," and the action was thereafter continued in the name of the original plaintiff, and a judgment for costs in his favor recovered in the court of appeals, "which he also assigned to said "P.," and thereafter an action was brought in the name and with the consent of the original plain- tiff by his attorney, who was the attorney of record for the re- spondent on said appeal, to re- cover from the sureties on appeal the amount of said judgment: Held, that the action could not be maintained; that the attorney, being the equitable owner of the judgment, should have brought the action in his own name. (Id.) 7. In such a case, the fact that the attorney obtained an order, after issue joined, permitting him to prosecute the action for the en- forcement of his lien, did not alter the legal status of the parties to the action, or vest in the plain- tiff a cause of action. (Id.) See SUPPLEMENTARY PROCEEDINGS. Moore agt. Taylor and another, ante, 343. BAR. 1. Condonation of adultery by sub- sequent cohabitation with knowl- edge does not bar an after-brought action for divorce predicated on such adultery, where the condona- tion is upon the promise by the guilty party (the husband) that he would in all things thereafter treat his wife kindly and in a proper manner, and would be in all things a good and affectionate husband to her, when such promise has been violated. (Timerson agt. Timer son, ante, 526.) BENEVOLENT SOCIETY. 1. The provisions of the constitu- tion and by-laws of a benBvolent society providing for the payment of sick or death benefits are in the nature of a contract, and the plain- tiff must allege and prove a breach of said provisions before he can maintain an action. The ques- tion whether the action should be brought against the subordinate or grand l-jiljru, considered. (Eberle agt. Kauffeld, ante, 488.) BOOKS AND PAPERS. 1. A person who takes proceedings under the Revised Statutes, to compel the delivery by another to him of the books and papers of an office, should at least show a prima facie title to the office, and this would be properly proved by the official canvass showing claim- ant to have received the greatest 550 HOWARD'S PRACTICE REPORTS. Digest. number of votes. (Matter of Case ; gt. Campbell, ante, 85.) 2 Such proceedings to compel the delivery of books, &c. , are not to be used to try the title to an office; and when the result of an election is declared by the official can- vassers, a county judge has no power, upon such an application, to take evidence and determine the result of an election. (Id.) 3. It is only in a clear case, 01 in one free from reasonable doubt, that the authority conferred upon the court by the Revised Statutes to compel the delivery of books and papers in the possession of one officer to the custody of another will be exercised. The remedy is only given where the case is so clear that the conduct of the party, in refusing to deliver, could be called willful or obstinate, and not in a case in which a person in good faith holds possession of an office supposing himself to be its lawful incumbent, and with that possession the custody of books and papers essential to the proper discharge of its duties. (Bridg- man agf. Hall, ante, 173.) 4. Do the provisions of the Revised Statutes under which this pro- ceeding is instituted apply to the office chamberlain or treasurer of a municipal corporation cre- ated by special charter which each of the parties to this pro- ceeding claim to be entitled to? Quaere'! (Id.) BROKERS AND FACTORS. 1. Where a broker has possession of goods to be sold, and sells them in his own name, he is a factor, and any offset existing against the lat- ter may be sot up to a claim made by the true owner of the property to recover the contract-price, pro- vided the vendee purchased in good faith and without notice of the true facts. (Bannerman agt. Quackenbush et al., ante, 293.) 2. The distinction between brokers and factors and their rights and liabilities, considered. (Id.) 3. Perhaps, in the case put, the true owner might reclaim his goods from the vendee, if the right to do so is exercised within a reasonable time. But the right may be lost by delay or by bringing an action to recover the price. (Id.) CEMETERY LOTS. 1. Where it appeared that a certain lot in Greenwood cemetery was purchased by the husband of the plaintiff as a burial lot for herself, her husband and their family, and that it had been greatly improved, not only at his but at her expense, and their family dead had been placed in the lot as their final rest- ing place: Held, that these facts were suffi- cient to disable the husband from afterwards conveying it away to another person, and thereby de- voting it to a distinct and different purpose. The plaintiff had be- come so far interested in the prop- erty by its improvement, and the interment of her parents as to pre- vent her husband from making a legal or valid sale of it. (Schroeder agt. Wanzor, ante, 13.) 2. The case of Thompson agt. Ilickey (8 Abb. N. C., 159 ; opinion by VAN VORST, J.) cited with approval. (Id.) CITY COURT OF NEW YORK. 1. In examinations in supplementary proceedings in the city court, where it appears that the judg- ment debtor has made a general assignment for the benefit of his creditors, the examination need not be limited to property acquired HOWARD'S PRACTICE REPORTS. 551 Digest. since the assignment. (Schneider et al agt. Altman, ante, 448.) 2. Where a judgment was recov- ered and entered in the city court of New York and execution issued thereon for more than $2,00.', and the excess was remitted and the judgment and execution was amended nunc jyro tune. On mo- tion by a subsequent execution creditor to vacate the judgment and execution for want of juris- diction and other alleged defects and irregularities : Held, that the jurisdiction of this court extends to any action wherein the complaint demands judgment for a sum of money only, whatever may be the amount claimed. The amount claimed does not affect the juris- diction of this court. If jurisdic- tion vests at the commencement of the action, it cannot be ousted by any subsequent act, although entry of judgment for the excess of its jurisdiction may have been an irregularity which the defend- ant might have objected to, a third party cannot. (Roof agt. Meyer, ante, 20.) 3. There being no want of jurisdic- tion, if there are any defects or irregularities in the judgment, or proceedings or execution, they can be taken advantage of only by the defendant. (Id ) CITY MARSHAL. 1. The sureties on the official bond of a city marshal are not liable until after a valid judgment has been recovered against their prin- cipal. (In re Mary Braiser, ante, 154.) CIVIL SERVICE. 1. By section 2 of chapter 410 of the Laws of 188 1, it is the duty of the mayor of each city to pre- scribe such regulations for the admission of persons into the civil service of such city; and to carry out the design and intention of the law it was provided that the mayor shall, from time to time, employ suitable persons to con- duct such inquiries and make ex- aminations; and the power to em- ploy includes the obligation to provide for their compensation. (The People ex rel. Wright agt. Common Council of Buffalo, ante, 61.) 2. Where, under the charter of the city of Buffalo, the mayor made the estimate for what he consid- ered would be the necessary ex- penses of carrying these provi- sions of the laws of the state into execution, and communicated and presented such estimate to the common council : Held, that the common council had no power to wholly reject such estimate. Although it may alter or amend the estimate, it has no authority to arbitrarily reject it. Its duty is to consider it in good faith, with sound judgment and discretion; and if any misap- prehension has intervened in its amount, to correct it and appor- tion it to the probable necessities of the service. (Id.) 3. A writ of mandamus is the ap- propriate remedy by which the common council may be required to consider the estimate and vote the amount thought necessary to carry out the law. (Id.) 4. A citizen and a taxpayer has the power and right to apply for the writ. (Id.) 5. It is only when the application for the writ is made to secure some personal or private redress that the applicant must be shown to be interested in obtaining it before the writ can be directed to issue. Where the act omitted to be performed affects the public interests generally, and all citi- 552 HOWARD'S PRACTICE REPORTS. Digest. zens are equally concerned in se- curing its performance, and that has been enjoined by a law of the state, it is sufficient, to support the application, that the applicant is a citizen and entitled to insist upon the execution of the laws of the state. (Id.) CODE OF CIVIL PROCEDURE. 1. Section 8, sub. 3 Contempt of court when the failure of a defendant to comply with the di- rections of a final judgment, can- not be treated as a contempt Code of Civil Procedure, sees. 1773,1769, 1241, sub. 2 "man- date," meaning of. (See Jacquin agt. Jacquin, 36 Hun, 378.) 2. Section 8, sub. 5 Contempt the refusal of a witness to answer questions may be punished either criminally or civilly Code of Civil Procedure, sec. 8, sub. 5; sec. 14, sub. 5; sec. 2285 length of the confinement form of the commitment. (See People ex rel. Jones agt. Davidson, 35 Hun, 471.) 3. Section 14, sub. 5 Contempt the refusal of a witness to answer questions may be punished either criminally or civilly Code of Civil Procedure, sec. 8, sub. 5; sec. 2285 length of the confine- ment form of the commitment. (See People ex rel. Jones agt. David- son, 35 Hun, 471.) 4. Section 22 The practice of re- ferring in an answer to parts of the complaint which the pleader intends to admit or deny, as " at " or " between " certain folios, does not conform to the spirit of the provision of this section of the Code of Civil Procedure, which requires pleadings to be made out "in words at length and not ab- breviated," and serves no useful purpose on appeal where original folios do not appear in the case. (Caulkins agt. Bolton et ai, 98 N. 7., 511.) 5. Section 66 Where orders were granted for the examination of a judgment debtor on proceedings supplementary to execution, upon affidavits in the usual form made by one of the attorneys who re- covered the judgments for the plaintiff. On motion by the judg- ment debtor to vacate such orders upon the ground that prior to the granting of the orders the title to the judgments had passed to a receiver : Held, that the judgment debtor had the right to make such motion. Held, further, that an attorney must obtain leave of the court before he can institute supple- mentary proceedings upon a judg- ment in favor of his own client after the title to that judgment has passed from the client to the re- ceiver, and especially where the proceedings are instituted by an affidavit that says nothing about the lien of the attorney. (Moore agt. Taylor, ante, 343.) 6. Sections 66, 440 The lien of an attorney attaches to the cause of action; but if the client had no cause of action at the time of suit brought, there is nothing to which the lien attaches unless it be the papers in the case. If a judgment be recovered wholly for costs, it belongs to the attorney, who is regarded as the equitable assignee thereof, and he may prosecute in his own name the undertaking given to secure its payment. (Kipp agt. Rapp et al., ante, 169.) 7. Section 191 In an action not founded upon contract, the sum for which the complaint demands judgment is deemed to be the amount of the matter in contro- versy within the meaning of this section. (Zoeller agt. Riley, 98 N. T., 668.) 8. Section 315 Where a judgment was recovered and entered in the city court of New York and ex- ecution issued thereon for more HOWARD'S PRACTICE REPORTS. 558 Digest. than $2,000, and the excess was remitted and the judgment and execution was amended nunc pro tune. On motion by a subsequent execution creditor to vacate the judgment and execution for want of jurisdiction and other alleged defects and irregularities: Held, that the jurisdiction of this court extends to any action wherein the complaint demands judgment for a sum of money only, whatever may be the amount claimed. The mount claimed does not affect the jurisdiction of this court. If jurisdiction vests at the commencement of the action, it cannot be ousted by any subse- quent act, although entry of judg- ment for the excess of its juris- diction may have been an irregu- larity which the defendant might have objected to, a third party cannot. There being no want of juris- diction, if there are any defects or irregularities in the judgment, or proceedings or execution, they can be taken advantage of only by the defendant. (Roof agt. Meyer, ante, 20.) 9. Sections 376, 381 After a judg- ment of foreclosure and sale, the owner of the equity of redemp- tion executed another mortgage upon the premises as collateral to the judgment. Held, conceding that by stipulations in said mort- gage enforcement of the judgment by sale was stayed for ten years, after the lapse of the ten years, and of twenty years thereafter, the lien of the judgment and of the new mortgage were lost and the enforcement of either was barred ; and this, whether the question was considered under the limitation prescribed by the He- vised Statutes (i, R. S., 293, sec. DO), or the Code of Procedure (sec. 90), or the Code of Civil Proced- ure (Sec. 381.) Also held, that neither the pro- vision of the Revised Statutes (2 R. S., 301, sec. 47), nor that of the 5, Laws of 1875), as amended (chap. 359, Laws of 1876; chap. 153, Laws of 1879), imposing a penalty upon the agent of a for- eign insurance company who effects or procures an insurance against fire upon property within the limits of a city or incorporated village, without having first given a bond to the treasurer of the fire department of the municipality, conditioned for the payment to such treasurer of a percentage on premiums received, the cause of action so given arises in the muni- cipality; it is immaterial where the contract of insurance was actually signed. Under the provision, therefore, of this section of the Code of Civil Procedure requiring that an action to recover a statutory penalty shall be in the county " where the cause of action, or some part thereof, arose," an action to re- cover such a penalty is triable in the county wherein the city or village is located. (Ithaca Fire Department agt. Beecher et al., 99 N. Z.429.) 55. Section 1003 Trial of a specific question by a jury in an equitable action when an order granting or refusing a new trial in, is ap- pealable Code of Civil Proced- ure, sec. 1347, sub. 2 (See Bowen agt. Becht, 35 Hun, 434.) 56. Section 1019 The sixty days in which a referee must make his report do not commence to run until the cause is submitted. Where briefs are to be submit- ted, there is no submission of the cause until the time to hand in the briefs is passed. The referee has power to en- large the time for the submission of briefs. Having his report ready and ten- dering it on payment of his fees, within the sixty days, is sufficient (See to same effect decision by gen- eral term, first department, Little agt. Lynch, 1 How [N. S.], 95). (Aforrison agt. Lawrence, ante, 72.) 57. Section 1166 If a trial pro- ceeds, and a verdict be rendered without a jury being sworn, such a verdict is not irregular and void, when neither party asked that the oath should be administered. That which the law requires to be done for the protection of a party, may be waived, and the failure to object is a waiver. HOWARD'S PRACTICE REPORTS. 561 Digest. Nor can failure to object be ex- cused by alleged ignorance. (Jen- kins agt. City of Hudson, ante, 244.) 58. Sections 1240, 1241, 176;), 1773, 3343 Business partnerships be- tween husband and wife are not authorized. Therefore a husband cannot claim under a business copartner- ship with his wife, the right to a dissolution of the same and the appointment of a receiver. This is adverse to Zimmerman agt. Erhard and Dodge (59 How., 11) ; and Graff et al. agt. Kinney (\ How. [N. S.], 5 ( J) ; see, also, Fairlee agt. Bloomingdale (67 How. , 292). (Jacquin agt. Jacquin, ante, 51.) 59. Section 1241, sub. 2 Contempt of court when the failure of a defendant to comply with the di- rections of a final judgment can- not be treated as a contempt Code of Civil Procedure, sees. 1773, 1769; sec 8, sub. 3 "man- date," meaning of. (See Jacquin agt. Jacquin, 36 Hun, 378.) 60. Section 1256 Lien of a judg- ment effect of opening the judg- ment and allowing it to stand as a security for what may be there- after recovered. (See Holmes agt. Bush, 35 Hun, 637.) 61. Section 1323 Under the pro- vision of this section of the Code of Civil Procedure authorizing an appellate court, on reversal of a final judgment, to " make or com- pel restitution of property or of a right lost by means of the erro- neous judgment," such court can- not restore property taken and sold under another judgment, al- though the effect of the reversal is to decide that the property was taken from the party legally en- titled to it; it may interfere in this summary manner only to restore property or rights lost by the judgment reverbed. (Murray agt. Berdell et al., 98 N. T., 480.) 62. Section 1347, sub. 2 Trial of a specific question by a jury in an equitable action when an order granting or refusing a new trial in, is appealable Code of Civil Procedure, sec. 1003. (See Bowen agt. JBecht, 35 Hun, 434.) 63. Sections 1370, 450 In an action wherein an attachment had been issued, upon the ground that de- fendant, a resident of the state.had departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, the ex- ecution directed the sheriff to col- lect the judgment out of the at- tached personal property, and if that was insufficient, out of the real estate attached : Held, that, so far as the real estate was con- cerned, the execution was void, and a sale under it conveyed no title; that the provision of the Code of Civil Procedure (sec. 1370, sub. 2) prescribing the form of ex- ecution in such case is peremp- tory, and the attached real estate could not be resorted to until the remedy against the debtor's per- sonal property, both attached and unattached, had been exhausted. It seems that where the attach- ment judgment and execution are regular, a bona fide purchaser on sale acquires a good title, although after a conveyance to him the de- fendant is allowed to come in and defend as authorized by the Code (sec. 445) and succeeds in his de- fense. Under a void process, however, no title can be acquired, and a bona fide purchaser, as against the owner of the property, stands in no better position than one pur- chasing with full knowledge of the invalidity. (Place agt. Riley etal, QSJf.'Y., 1.) 64. Section 1 3 '. 2 Execution against the person irregularities in the recital when amendable stipu- lation not to sue for false arrest power of the court to compel a party to make it Code of Civil VOL. II 71 562 HOWARD'S PRACTICE REPORTS. Digest. Procedure, sees. 723, 1489. (See Walter agt. Isaacs, 36 Hun, 233.) 65. Sections 1390, 1391 Exempt property. (See Salsbury agt. Par- sons, 36~Hun, 12.) 66. Section 1893 Deposit of pen- sion in savings bank exempt from execution. (See Stockwell agt. Nat. Bank of Malone, 36 Hun, 583.) 67. Section 1393 What property is exempt, as pay of a soldier. (See Burgett agt. Fanclier, 35 Hun, 647.) 68. Section 1489 Execution against the person irregularities in the recital when amenable stipula- tion not to sue for false arrest power of the court to compel a party to make it Code of Civil Procedure, sees. 723, 1372. (See Walter agt. Isaac*, 36 Hun, 233.) 69. Sections 1667, 1668 Costs when the plaintiff is entitled to them, on the ground that the title to real property is put in issue by the pleadings Code of Civil Procedure, sec 3228, sub. 1. (See Ci-owell agt. Smith, 35 Hun, 182.) 70. Section 1758 Condonation of adultery by subsequent cohabita- tion with knowledge does not bar an after-brought action for divorce predicated on such adultery, where the condonation is upon the promise by the guilty party (the husband) that he would in all things thereafter treat his wife kindly "and in a proper manner, and would be in all things a good and affectionate husband to her, when such promise has been vio- lated. (Timerson agt. Timerson, ante, 526). 71. Section 1769 Contempt of court when the failure of a de- fendant to comply with the di- rections of a final judgment can- DOt be treated as a contempt Code of Civil Procedure, sec. 1773 ; sec. 1241, sub. 2 ; sec. 8, sub. 3 "mandate," meaning of. (See Jacquin agt. Jacquin, 36 Hun, ;!78.) 72. Section 1773 Contempt of court when the failure of a de- fendant to comply with the di- rections of a final judgment can- not be treated as a contempt Code of Civil Procedure, sees. 1773, 1739 ; sec. 1241, sub. 2 ; sec. 8, sub. 3 "mandate," meaning of. (See Jacquin agt. Jacquin, 36 Hun, 378.) 73. Sectionl776 In proceedings by a railroad corporation to acquire title to lands, the petition averred the due incorporation of the petitioner. A counter affidavit denied any knowledge or information sum' cient to form a belief as to the truth of said averment: Held, that considering this simply as an affidavit, it was not a denial of the averment; that treating it as an answer, there was no such denial as put the petitioner to proof of its incorporation, as under this section of the Code of Civil Pro- cedure a corporation plaintiff is not required to prove its corporate existence unless the answer con- tains an affirmative allegation that plaintiff is not a corporation; that therefore, conceding the land- owner might, without a formal denial, disprove the fact, the bur- den was upon it of proving the petitioner was not a corporation. (Master of Petition of N. Y., L. and W. R. Co., 99 N. Y., 12.) 74. Section 1780 When one for- eign corporation can sue another in'this slate. (See Duquesne Club agt. Penn Bank of Pittsburgh, 35 llun, 390.) 75. Section 1780 Foreign corpora- tion right of a non-resident to sue it in this state. (See Adams agt. Penn Bank of Pittsburgh, 35 Hun, 393.) 76. Section 1835 Where the claim, as presented, was for f 4,728. 78, and HOWARD'S PRACTICE REPORTS. 563 Digest. the defendant not only rejected the entire claim of the plaintiff, but set up a counter-claim against him for the sum of $2,624.55, for which sum she asked an affirma- tive judgment against the plain- tiff, with interest, besides costs of the action and the referee ap- pointed to hear and decide the issues, rejected the counter claim entirely and found $021.55 due to the plaintiff from the estate: Held, that the attempt made by the defendant to recover judgment for a large and independent claim against the plaintiff, in which she entirely failed, constituted an unreasonable resistance to the de mand of plaintiff and entitled him to the costs of the action. Held, further, that the attempt by the defendant to recover through the suit brought against her a large counter-claim against the plaintiff, brings her within the cases pro- vided for by section 1835 of the Code of Civil Procedure, in which costs may be awarded to the plaintiff. (Button agt. Newton, ante, 56.) 77. Section 18/1 Judgment cred- itor's action when maintainable after the judgment has ceased to be a lien upon real estate. (See Scoville agt. Shed, 86 Hun, 165.) 78. Section 1871 A judgment creditor's action, whether insti- tuted under the Revised Statutes (2 R. S., 174, sees. 38 et seq.), or the Code of Civil Procedure (sees. 1871 et seq.), can reach only prop- erty belonging to, or things in ac- tion due to the judgment debtor or held in trust for him. The fact that the debtor paid the consider- ation for property conveyed at his instance to another, does not alone authorize a judgment directing the taking of the property to sat- isfy the debt. (Niver agt. Crane etal, 98 N. Y., 40.) 59. Section 1871 Where a trust provides for the payment of the income of the trust fund to the beneficiary, a judgment creditor of such benificiary may maintain an action in equity to reach and appropriate to the payment of his judgment the surplus income be- yond what is necessary for the suitable support and maintenance of the cestui que trust and those dependent upon him. This rule applies as well where* the trust fund from which the in- come is derived is personal prop- erty as where it is real estate. The disposition of the income may not be anticipated by the cestui que trust or incumbered by any contract entered into by him, 'providing for its pledge, transfer, or alienation previous to its accu- mulation. The creditor, by the commence- ment of the action, acquires a lien upon the accrued and unexpended surplus, or that subsequently aris- ing from the fund superior to the claims of general creditors or assignees of the cestui que trust. (Tolles agt. Wood et al, 99 N. Y., 616.) 80. Sections 1902, 1904 The facts that the children of a person killed through the negligence of another are of full age, are living away from the home of the deceased, and are supporting themselves, do not alone establish that they have sustained no such pecuniary dam- ages as will authorize a recovery in an action under the statute (chap. 450, Laws of 1847 ; Code of Civ. Pro., sees. 1902-4) against the wrong-doer. (Lockwood agt. JV. Y., L. E. and W. R E. Co., 98 N. Y., 523.) 81. Section 1902 The cause of action given by the statute (chap. 450, Laws of 1847; Code cf Civil Pro., sec. 1902) to the representa- tives of a decedent, whose death was caused by the negligence of another, abates upon the death of the wrong-doer, and an action can- not be maintained against his representatives (Yertore agt. Wis- wah, 16 How. Pr., 8, overruled; 564 HOWARD'S PRACTICE REPORTS. Digest. Needham agt. G. T. R. R Co. , 38 Vt.. 294, distinguished). The history of the statutory modifications in this state of the rule of the common law as to the survivability of actions given, and the authorities upon the subject collated (Hegerich agt. Keddie, 32 Hun, 141, reversed). (Hegerich agt. 'Keddie, 99 N. T., 258.) 82. Section 194 1 2 Release of one of several joint debtors. (See Marx agt. Jones, 36 Hun, 290.) 83. Sections 2239 to 2265 The court may restrain, by injunction, summary proceedings, if the jus- tice goes beyond his jurisdiction, either in taking cognizance of the proceedings or while he is acting in it, and if it appears that the jus- tice who granted the warrant, the enforcement of which is sought to be restrained, was without juris- diction, the injunction should be continued. A justice has no power in sum- mary proceedings to adjourn the same except for the purpose of enabling a party to procure his necessary witnesses. Where, upon the return of the precept, the tenant filed a verified traverse of the return and moved to dismiss the proceedings, and the justice, after hearing the testi- mony of the parties as to the service of the precept instead of rendering his decision upon the close of the evidence, adjourned the proceedings for the purpose of decision : Held, to operate as a discontinu- ance of the proceedings. A justice, other than the one before the precept is returnable, has no jurisdiction to issue the warrant. (Kiernan agt. Reming, ante, 89.) 84. Section 2285 Contempt the refusal of a witness to answer ques- tions may be punished either crim- inally or civilly Code of Civil Procedure, sec. 8, sub. 5; sec. 14, sub 5 length of the confine- ment form of the commitment. (See People ex rel. Jones agt. David- son, 35 Hun, 471.) 85. Section 2458 It is not neces- sary to state in the affidavit to obtain order for examination of a judgment debtor, in proceedings supplementary to execution, that the city court of New York is a court of record, that no previous application for an order to ex- amine judgment debtor has been made in the action or that the judg- ment was rendered upon the judgment debtor's appearance or personal service of the summons upon him. (Sayer agt. MacDonald, ante, 119.) 86. Section 2460 In examinations in supplementary proceedings in the city court, where it appears that the judgment debtor has made a general assignment for the benefit of his creditors, the examination need not be limited to property acquired since the assignment. (Schneider el al. agt. Alt man, ante, 448.) 87. Sections 2467, 2408 The title to the personal property of a judg- ment debtor, residing in another county than that in which the judgment-roll in the action is filed, is not vested in a receiver in supplementary proceedings until the order appointing him has been filed in the office of the clerk of the county where the judgment- roll is filed, and a copy of the order, certified by that clerk, is filed with the clerk of the county where the judgment debtor resides. And until then the receiver is not entitled to an order requiring the judgment debtor to deliver his personal property to him. (Staats agt. Wemple, ante, 161.) 88. Section 2481, sub. 6 Surrogate power to open decrees inter- mediate accounting by a guardian or trustee no decree can be en- tered by the surrogate. (See Mat' ter of Hawley, 36 Hun, 258.) HOWARD'S PRACTICE REPORTS. 505 Digest. 89. Sections 2516, 2717, 2718 Where a claim against an estate is presented, in proper form and duly verified, to the person and at the place named in the statutory notice to creditors given by execu- tors, and after a reasonable op- portunity to examine into its validity and fairness, the execu- tors do not offer to refer on the ground that they doubt its justice, or do not dispute it, it acquires the character of a liquidated and undisputed debt against the es- tate (Tucker agt. Tucker, 4 Keyes, 136; S. C'., 4 Abb. Gt. of App. Dec., 428: Hoyt agt. Bonnett, 50 N. T., 538, distinguished). Although where application is made by the creditor, by petition to the surrogate to direct payment of such a claim, it is in the power of the executors under the provi- sions of the Code of (Jivil Proced- ure (*ecs. 2717, 2718), to divest the surrogate of jurisdiction and put the claimant to his proof in an- other court; if they fail to do this, it is only necessary for the surrogate to be satisfied by proof, that there is personal property of the estate applicable to the pay- ment or satisfaction of the claim, and which may be applied with- out injuriously affecting the rights of others (Sec. 2718, mb. 2). An oral plea of a general denial in answer to the petition is in- effectual for any purpose It seems that in any case as the jurisdiction of the surrogate to direct payment of a debt is con- fined to undisputed claims, the petitioner is neither required to state the tacts which go to make out his debt, nor if stated, will he be permitted to establish them. The presentation of the petition, and the citation issued thereon {see. 251 1>), bring in the executor, not to plead or respond to the pe- tition, but by a verified written answer to set forth affirmatively facts, if any exist which show " that it is doubtful whether the petitioner's claim is valid and legal," and also " denying its va- lidity or legality absolutely or upon information and. belief." The answer must meet both re- quirements to require a dismissal of the petition. (Lambert agt. Craft, 98 N. T., 342.) 90. Section 2561 Allowance by a surrogate for an additional day occupied on a trial allowable on a trial before a referee not for an adjournment. (See Matter of Clark, 36 Hun, 301.) 91. Section 2570 Costs on appeal from a surrogate's court. (See Walsh agt. Van Allen, 36 Hun, 629 ) 92 Sections 2588, 2589 Where the probate of a will was contest- ed on the ground of undue influ- ence, and it appeared that the testatrix had testamentary capa- city, a present knowledge of the contents of the will, and that its execution was surrounded by all the guards the statute has pre- scribed to prevent fraud and im- position: Held, that the will could only be avoided by proof of influ- ence amounting to force or coer- cion ; and that the burden of proving this was upon the party making the allegation ; also held, the facts that the proponent of the will was a son of the testatrix, that he communicated to the scrivener the provisions to be in- serted in the will, and was him- self a beneficiary, were insuffi- cient. To establish undue influence, there must be evidence that the parent was imposed upon or over- come by the practices of the chile], to the benefit of the latter. The surrogate refused probate ; he found all the facts in favor of the proponent, save as to undue influence; there was no evidence to establish this: Held, that it was proper for the general term, on appeal from the surrogate's decision, to direct judgment ad- mitting the will to probate. The reversal of the surrogate's 566 HOWARD'S PRACTICE REPORTS. Digest. decree in such case is upon a question of law, and so the pro- vision of the Code of Civil Pro- cedure (sec. 2588), requiring, where the reversal is upon a question of fact, that a jury trial shall be or- dered, does not apply. Also held, that the case required an exercise of the power conferred by the Code (sec,. 2589), to impose costs upon the unsuccessful part}'. (Matter of Will of Wtrttn, 98 N. Y., 193 ) 93. Section 2607 Sureties on an executor's bond when an action lies against them before any order or claim against the executor has been made in the surrogate's court. (See Jlaight agt. Brisbin, 36 Hun, 5i9.) 94. Section 2636 Executor or trus- tee right of a surrogate to re- move him for habitual drunken- ness 1873, chap. 79 3 R. S., (7th ed.), 2289. . (See Matter of Cody, 36 Hun, 122.) 95. Section 2643 *)4. Section 3017 The filing of a justice's transcript in the county clerk's oJize. makos the judgment of the justice a judgment of the county court for all purposes. The statute of limitations appli- cable to such a judgment, is the statute applicable to judgments rendered in courts of record. (Spencer agt. Wait, ante, 117.) 105. Section 3068 When a new trial may be had in a county court on appeal from a justice's judgment. (See Reynolds agt. Swick, 35 Hun, 278.) 106. Section 3169 An affidavit by B., which states that " a short time ago he (defendant) represented himself to be a man of means," clearly indicates that he had ar- rived at mature years and that he was an adult, and is a sufficient compliance with subdivision 5 of section 3169 of the Code of Civil Procedure. (Doctor agt. Schnepp, ante, 52.) 107. Section 3228, sub. 1 Costs when the plaintiff is entitled to them, on the ground that the title to real property is put in issue by the pleadings Code of Civil Procedure, sees. 1667/1668. (See Crowell agt. Smith, 35 Hun, 182.) 108. Section 3228, sub. 3 Costs when an action is on contract, and when in tort. (Sue Feeney agt. Brooklyn City R. R. Go., 36 llun, 197.) 109. Section 3234 r Jnder this sec- tion of the Code of Civil Procedure the same rule prevails in ejectment as in replevin. Where in an action of ejectment the complaint contained but one count to recover two separate par- cels of land, separately described in the count, and as to both par- cels the plaintiff's right to recover was put in issue by the answer, the verdict of the jury being in favor of the plaintiff as to one parcel, and in favor of the' defend- ant as to the other, the defendant is entitled to costs as well as the 568 HOWARD'S PRACTICE REPORTS. Digest. plaintiff. (Coon agt. Diefendorf, ante, b89.) 110. Section 3234 Costs when the defendant is not entitled to costs, although he succeeds upon some of the issues costs cannot be taxed for an attachment which has been set aside. (See Barlow agt. Barlow, 35 Hun, 50.) 111. Section 3234 Costs when each party is entitled thereto. (See Ackerman agt. De Lude, 3o Hun, 44.) 1!2. Section 3240 Costs on appeal from a surrogate's court Code of Civil Procedure, sec. 2370. (See Wnlsh agt. Van Allen, 36 Hun. 629.) 113. Section 3247 Under the sec- ond subdivision of this section, it being the same as section 321 of the Code of Procedure, a person becoming in any manner possessed of a cause of action after suit brought thereon is liable for all the costs of the action ' the same as if he were a party," as well those accruing before as after he becnnie so possessed. (Olmstead agt. Keyes, ante, 1 ) 114. Sections 3251, 420, 738 In an action upon contract, where the amount due is capable of compu- tation, and may be easily ascer- tained in that way, and the defendant serves an offer of judg- ment for a specific sum, with in- terest and costs ; and after the offer is made both parties serve notice of trial, after which time the plaintiff accepts the offer, he is only entitled to costs before notice of trial fifteen dollars. No application, to the court was necessary, and but fifteen dollars are recoverable. Where the action is against a receiver, and the plaintiff has to obtain leave to sue the receiver, he is not entitled to costs as upon application to the court. (Doug- la,** agt. Macdurmid, ante, ?* } 1 15. Section 3252 In an action by a vendor to foreclose a land con- tract, in which the plaintiff re- covers, he is not entitled to the additional allowance provided by section 325\; of the Code of Civil Procedure. (Barkhart agt. Bab- cock, ante, 512.) 116 Section 3253 Where, in an action brought by taxpayers to have a contract made by a muni- cipal corporation, by which it agreed to pay a sum specified for the performance of certain work, declared invalid, the plaintiff was defeated and judgment was ren- dered in favor of the contractor with the corporation, adjudging the contract to be valid, and that it had been performed by the con- tractor: Held, that " the value of the subject-matter involved " was for the purposes of computing an extra allowance, the contract price for the work, not simply the profits made thereon. (Mingay et al. agt. Holly Mfg. Co., D'J N. Y., 270.) 117. Sections 3268, 31fiO In an action in the city court of New York, a plaintiff residing without the state, but having an office in the city of New York, where he regularly transacts business in person, cannot be required to give security for costs. Sections H208 and 8160 Code of Civil Procedure construed. ( Wyck- off agt. Devlin, ante, 33-J.) 118. Section 3271 A person who brings an action in the name of the overseer of the poor under chapter 6-'8 of the Laws of 1857, as amended by chapter 820 of the Laws of 1873, to recover penalties for a violation of the excise law cannot be required to file security lor costs under this section of the Code of Civil Procedure. This section does not apply (Sharp agt. Fancher, 29 Hun, lsK, criticised and not folio iced ; Board of Commissioners <>f Excise agt. J/c- Orath, 2T Han, 425, followed). ( Mat- ter of Martin, ante, 26.) HOWARD'S PRACTICE REPORTS. 569 Digest. 119. Sections 3333, :!334, 3240 A proceeding under the general railroad act (sec. 28, chap. 140, Laws of 1850) by one railroad cor- poration to secure a crossing over the track of another railroad is a special proceeding (Code of Civ. Pro., sees. 3333, 3334), and the costs therein are, as a general rule, in the discretion of the court (Sec. 3240; RAPALLO and MILLER, JJ., dissenting}. (Matter of Cortland, &c., Horse R. R. Co., 98 N. Y., 336.) 120. Section 3343 Under subdivi- sion 18 of this section of the Code of Civil Procedure, the location of a federal corporation is deter- mined by the place of its princi- pal office. Its domicile is where its principal office is. (Rosenbaum agt. Union Pacific Railway Co., ante 45.) 121. Sections 3355, 00, 25 II That in view of section 3355 of the Code, sections 90 and 2511 must be construed as if they had simul- taneously become law, and that so construed, "a clerk or other person employed in the surro- gate's office " is competent to act as referee, in a proceeding pend- ing in the surrogate's court, pro- vided he is appointed with the written consent of all the parties appearing. That the stenographer of the surrogate's court is not within the scope of section 90 or of section 2511. (In the estate of Tunis Cooper , deceased, ante ) and in Hall agt. Edmunds (67 How., 202) adhered to; and Miller agt. Miller (32 Hun, 481) held unten- able. (Overheiser agt. Morehouse, ante, 257.) 8. Section 321 Under this section of the Code of Procedure, one taking an assignment or becoming in any manner possessed of a cause of action after suit brought thereon is liable for all the costs of the action ' ' the same as if he were a party," as well those accruing be- fore as after the assignment. Section 3247 of the Code of Civil Procedure took effect September 1 , 1880, and at that date this section of the old Code was repealed, but section 3352 of the Code of Civil Procedure protects all rights law- fully accrued or established pre- vious to the repeal of this section. (Olmstead agt. Keyes, ante, 1.) COLORED SCHOOLS. See NEW YORK (CITY OP). The People ex rel. Ray agt. Daven- port, ante, 17. COMMISSIONS. 1. Full commissions should be al- lowed executors or trustees on receiving and paying out the in- come, notwithstanding the trustee has received full commissions on a former accounting for receiving and investing the principal. (Mat- ter of Goodrich, ante, 291.) COMMISSIONERS. See RAILROADS. Matter of the New Tark, Lcka- wanna and Western Railway Co., ante, 225. COMPLAINT. 1. The complaint in an action to re- cover real estate ought to aver that the plaintiff is the owner or seized in fee, and is entitled to the posses- sion or that defendant wrongfully or unlawfully witholds possession HOWARD'S PRACTICE REPORTS. 571 Digest. from plaintiff. (Alvord agt. Hetsel, ante, 88.) 2. Alleged fraud cannot alter or change the statute. Fraud may relieve a person from an agree- ment, but it cannot extend the statute for bringing an action or making an election. If an action- able fraud has been perpetrated, damages by way of compensation may be awarded, but the court cannot relieve from a statute bar. (Aken agt. Kellogg and others, ante, 136.) 3. Where the complaint alleged fraud, there should also be an averment that the statement made to the plaintiff was for the interest or purpose of influencing her ac- tion, as the fraud is not a state- ment of a fact, but the expression of an opinion. (Id.) 4. The courts of this state have no jurisdiction for trespass to lands without the state. (Dodge agt. Colby, ante, 475.) 5. To maintain slander of title, it must be alleged to have been malicious, (la.) 6. It is no slander to allege owner- ship and that plaintiff has no title. (Id.) 7. Under section 484 of the Code of Civil Procedure, trespass and slander of title cannot be joined in the same complaint. (Id.) CONDITIONAL SALES. 1. Every contract in the nature of a conditional sale agreement must be filed according to the laws of 1884, chapter 315, or it is void as to subsequent purchasers and mortgagees in good faith. (Camp- bell Printing Press Company agt. Oltrogge, ante, 31'.).) 2. The object of the statute is 4o render secret liens upon personal property ineffectual as to innocent purchasers, and the courts will not permit the statute to be evaded. (Id.) 3. In determining whether the con- tract comes within the statute, the whole instrument is to be taken together and the ruling intention of the parties, to be gathered from the whole of it, is what is to be regarded (Id.) CONTEMPT. 1. The court has no power to punish a husband as for a contempt for non-payment of costs and counsel fee, which he was directed to pay by the final judgment in an action for separation. Such costs and counsel fee should be collected by execution. (Jacquin agt. Jacqmn, ante, 206.) 2. Upon the trial of one Short for a criminal assault, the jury rend- ered a verdict of acquittal, which verdict was inconsistent with ihe evidence as recapitulated in the charge of the judge presiding at the trial. During the trial one of the jurors, without the permission or suggestion of the court, went, during a recess, to the premises where the assault was alleged to have been committed, for the purpose of examining them and so acquiring information not fur- nished by the evidence submitted to the jury. The judge had not, upon the adjournment of the court, admonished the jury, as required by section 415 of the Code of Criminal Procedure, that it was their duty not to converse among themselves on any subject connected with the trial, or to form or express any opinion there- on, until the case was finally sub- mitted to them: Held, that al- though the juror was guilty of a misdemeanor under section 73 of the Penal Code, yet he was not guilty of a criminal contempt for which he could be summarily 572 HOWARD'S PRACTICE REPORTS. Disrest. punished by the court. (People ex rel. Munsell agt. Oyer and Ter- miner, 86 Hun, 277.) 3. That the word "mandate," as used in subdivision 3 of section 8 of the Code of Civil Procedure, authorizing the court to punish for a criminal contempt a person guilty of a willful disobedience to " its lawful mandate," means only a written direction or order. (Per DAXIELS, J.) 4. That it includes a verbal direc- tion or order. (Id.) CORNELL UNIVERSITY. 1. The person to be selected for a free scholarship in the Cornell University must be a student from one of the academies or public schools of the county from which he or she is to be selected. (The People ex rel Wright agt. Genung, ante, 824.) 2. The State Normal School, located at Cortland, is not one of the pub- lic schools of Tompkins county within the intent and meaning of the statute, and an attendance at such school does not entitle a person to such scholarship. (Id.) 3. The candidates for such free scholarship should, each year, be selected from scholars in the ac- ademies and public schools during that year, and not from the best scholars who have at any time attended the public schools and academies of the count}'. (Id.) 4. The position that a person is not a scholar of a high school because she was graduated at the close of its last term, and hence ineligi- ble as a candidate, cannot be sus- tained. For the purposes of the act she must be regarded as a scholar of that school, at least until the end of the school year, and until that school shall again commence its sessions. The in- tention of the statute is that she may have all the advantages of that school so long as she is a member of it, and upon her final examination and graduation may then become a candidate for such scholarship. (Id. ) CORPORATIONS. 1. Under section 3343, subdivision 18 of the Code of Civil Procedure, the location of a federal corpora- tion is determined by the place of its principal office. Its domicile is where its principal office is. (Rosenbaum agt Union Pacific Rail- way Company, ante, 45.) 2. Where an act provides that cor- porations consolidated under it shall assume as a condition of the right the payment of the liabilities of the several corporations which are absorbed in the new corpora- tion, each holder of coupons in either of the corporations so ab- sorbed is at liberty to maintain an action directly upon contract against the new corporation, by reason of its having absorbed the one which issued the bonds. (Id.) 3. Actions against trustee to recover corporate debts as a penalty for failure to file annual reports are " penalties," within the meaning of section 837 of the Code of Civil Procedure. In such actions a party defendant is privileged from answering any question concern- ing the facts alleged in the com- plaint and cannot be compelled to answer upon an examination before trial any question which would support the claim of the plaintiffs, either against himself or his co-defendants. (Hughen agt. Woodward, ante, 127.) 4. Corporations attacked by the state for insolvency can, even after a receiver is appointed, use their corporate funds for their own pro- . tection in the litigation if their action is taken in yood faith and IIO WARD'S PRACTICE REPORTS. 573 Digest. with a reasonable hope of success in the controversy. (Matter of the Attorney General agt. Atlantic Mu- tual Life Ins. Co. , ante, 146.) 5. Defendant issued a freight re- ceipt with the name of person served upon it as agent; receipt to be signed for agent not for company ; receipt printed in blank with "Form 21, N. Y.," at head: Held, that the Code does not spe- cify agency, except person served must be managing agent. * * * Every object is attained when the agent served is of sufficient char- acter and rank to make it reason- ably certain thai the defendant will be apprised of service made. The statute is satisfied if he be managing agent to any extent. (Palmer agt. The Pennsylvania Com- pany, ante, 150.) 6. A trustee of a corporation, whose attendance is necessary to make a quorum, cannot act upon a claim in his own favor to bind the cor- poration, and by his presence he thus acts. ( United States Ice and Refrigerator Go. agt. Reed et al., ante, 2~)3 ) 7. Such a transaction could be at once assailed in a court of equity, and would be set aside in a suit brought by the corporation, or in the event of its unwillingness to proceed at the instance of the stockholders interested at the time. (Id.) 8. But such conduct and action on the part of the trustees of a cor- poration may, with knowledge thereof, be acquiesced in and ac- cepted by the corporation and the stockholders, in which event they could not afterwards assail it, especially when such acquiescence has continued for several years, and the stock donated has been actually received by the donee, and has formed the subject of new engagements and liability on his part with others. (Id.) 9. When stockholders neglect to promptly and actively condemn the unauthorized act of the trus- tees, and to seek judicial relief, they will be deemed to have ac- quiesced in it, and an uncon- scionable agreement will not be disturbed when there has been a ratification of it after time has been had for consideration. (Id.) COSTS. 1. Under section 321 of the Code of Procedure, one taking an assign- ment or becoming in any manner possessed of a cause of action after suit brought thereon is liable for all the costs of the action "the same as if he were a party," as well those accruing before as after the assignment. (Olmstead agt. Keyes, ante, 1.) 2. Section 3247 of the Code of Civil Procedure took effect September 1, 1S80, and at that date section 321 of the old Code was repealed, but section 3352 of the Code of Civil Procedure protects all rights law- fully accrued or established pre- vious to the repeal of section 321. (Id.) 3. Where the right to the costs claimed had become fixed and es- tablished by judgment, and the interest of the person, in the cause of action had been acquired prior to the repeal of section 821, his liability for the costs still con- tinues. (Id.) 4. Under the second subdivision of section 3247, it being the same as section 321 of the Code of Procedure, a person becoming in any manner possessed of a cause of action after suit brought thereon is liable for all the costs of the action "the same as if he were a party," as well those accruing before as after he became so pos- sessed. (Id ) 5. The repealing act of 1877 leaves HOWARD'S PRACTICE REPORTS. Digest. section 317 of the Code of Pro- cedure still in force, and conse- quently, as provided thereby in a reference under the Revised Stat- utes of a claim against a dead per- son's estate, the prevailing party is entitled to recover the disburse- ments provided for by that section. (Sutton agt. Newton, ante, 56.) G. Where, by agreement of the par- ties, an action is brought " in lieu of a reference," that is to say, is substituted therefor, and the plain- tiff is the prevailing party, he is entitled to recover the fees of the referee and witnesses and other necessary disbursements to be taxed according to law. (Id.) 7. Where the claim, as presented, was for $4, 738. 78, and the defend- ant, not only rejected the entire claim of the plaintiff, but set up a counter-claim against him for the sum of $2,624.65, for which sum she asked an affirmative judgment against the plaintiff, with interest, besides costs of the action and the referee appointed to hear and decide the issues, rejected the counter-claim entirely and found $621.55 due to the plaintiff from the estate: Held, that the attempt made by the defendant to recover judgment for a large and independent claim against the plaintiff, in which she entirely failed, constituted an unreasonable resistance to the de- mand of plaintiff and entitled him to the costs of the action. Held, further, that the attempt by the defendant to recover through the suit brought against her a large counter-claim against the plaintiff, brings her within the cases pro- vided for by section 1835 of the Code of Civil Procedure, in which costs may be awarded to the plaintiff. (Id.) 8. Where defendants were sued as partners upon a partnership in- debtedness, and one appeared and defended the action, the other de- fendant not being served with process and not appearing, the one appearing served an offer to allow judgment to be taken "against him " for sixty-five dollars and fifty-four cents, with interest and costs. The plaintiff recovered a judgment against the defendants "jointly" for seventy-two dollars and ninety-one cents, but this in- cluded interest, so that the judg- ment, "in amount," is not more favorable than the offer: Held, that a joint judgment could not have been entered upon the offer; and, therefore, the recovery is more favorable, as it is enforce- able against the joint property of both defendants, as well as the property of the defendants served and the plaintiff is entitled to tax and costs. (Bannerman agt. Quackenbush et al. , ante, 82. ) 9. A judgment entered on an inter- locutory order awarding costs is not a valid judgment. Such costs are practically motion costs, and must be collected as such. (In re Mary Brasier, ante, 154.) 1 0. When upon a reference of a claim under the Revised Statutes against a deceased person's estate a report has been made in favor of the claim, costs are not recoverable unless the payment of such claim has been unreasonably neglected or resisted. ( Ocerheiser agt. More- house, ante, 257.) 11. A large reduction of the balance claimed by the bill as presented justifies the resistance. (Id.) 12. Neither is it unreasonable for the executrix, who is a sister of the claimant when such claim is for board furnished to the decedent and his wife, the defendant, dur- ing a period of several years, and the value thereof is one of the ques- tions in dispute, to insist that the amount to be paid shall be estab- lished by a reference. (Id.) 13. Nor is it unreasonable for the residuary legatee under the will of HOWARD'S PRACTICE REPORTS. 575 Digest. the decedent, who is a stranger to the whole transaction, to inquire by means of a reference into the justice and legality of the claim. (18.) 14. Upon such a reference, however, " the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law." (Id.) 15. The clause in section 317 of " The Code of Procedure," which gave them, was not repealed by the adoption of part 2 of "The Code of Civil Procedure; " nor oy chapter 245 of the Laws of ] 880, which professed to repeal "The Code of Procedure " left unre- pealed by chapter 3l8 of the Laws 1877, with the exceptions therein stated. The repealing act of 1880 retained and preserved " the right of a prevailing party to recover " such disbursements, using the ex- act language of said section 317. (Id.) 16. Upon a full consideration of the question, the decisions in Sutton agt. Newton (2 How. \N. S], 56) and in Hall agt. Edmund* ((37 How., 202) adhered to; and Miller agt. Miller (32 Hun, 481) held unten- able. (Id.) 17. When the question to be determ- ined relates to the status of a stat- ute which is involved in a maze of legislation, the same weight can- not be given to a decision of the general term as there would be to one involving a pure legal princi- ple. In such a case, it is the duty of the special term when it sees plainly that statutory provisions have been overlooked to follow its own clear convictions, stating its reasons therefor respectfully, thus leaving to the general term a re- view of the subject. (Id.) 18. In an action upon contract, where the amount due is capable of com- putation, and may be easily ascer- tained in that way, and the defend- ant serves an offer of judgment for a specific sum, with interest and costs; and after the offer is made both parties serve notice of trial, after which time the plaintiff ac- cepts the offer, he is only entitled to costs before notice of trial fifteen dollars. No application to the court was necessary, and but fifteen dollars are recoverable. (Douglass agt. Macdurmid, ante, 289.) 19. Where the action is against a re- ceiver, and the plaintiff has to obtain leave to sue the receiver, he is not entitled to costs as upon ap- plication to the court. (Id.) 20. Under section 3234 of the Code of Civil Procedure the same rule prevails in ejectment as in re- plevin. (Coon agt. Diefendorf, ante, 389.) 21. Where in an action of ejectment the complaint contained but one count to recover two separate par- cels of land, separately described in the count, and as to both par- cels the plaintiff's right to recover was put in issue by the answer, the verdict of the jury being in favor of the plaintiff as to one parcel, and in favor of the defend- ant as to the other, the defendant is entitled to costs as well as the plaintiff. (Id.) 22. The complaint alleged that the defendant, without leave, wrong- fully entered upon the farm and premises of which the plaintiff then was, and still is, the owner and possessor, and then and there, without leave, wrongfully cut and broke down, carried away and destroyed, a large number of trees there standing and growing, to the plaintiff's damage of $100, wherefore he demanded judgment for treble damages. The answer denied each and every allegation of the complaint. The jury found a verdict in favor of the plaintiff for twelve dollars and fiftv cents 576 HOWARD'S PRACTICE REPORTS. Digest. actual damages, and that he was entitled to recover treble damages No certificate showing that the title to real property came in ques- tion upon the trial was given: Held; that as the claim to recover treble damages could, under sec- tions 16(57 and 1668 of the Code of Civil Procedure, only be made by the owner of the laud, and as the plaintiff's right to recover such damages was denied by the an- swer, an issue was raised by the pleadings as to the title to the land and that the plaintiff was entitled to costs. (Crowell agt. Smith, 35 Hun, 182.) 23. Where a complaint, in an action of trespass, alleges an injury to the inheritance, a denial of the allegation of the complaint by the defendant in his answer laises a question as to the title to real property, even though the plain- tiff has alleged in his complaint possession of, as well as title to, the land. (Id.) 24. The complaint set forth two causes of action : the first upon a promise made by the defendant to pay an agreed price for work and labor performed and rendered by the plaintiff prior to March, 1868; the second upon an implied prom- ise to pay for work and labor per- formed and rendered by her after that time and prior to 1880 Upon the trial before a referee she re- covered upon the first, but not upon the second cause of action. The court directed that the de- fendant's costs be taxed and set off against the plaintiff's judgment: Held, that this was error. (Barlow agt. Barlow, 35 llun, 50.) 25. That the defendant was not en- titled to recover costs as the sub- stantial cause of action was the same upon each issue, within the meaning of these terms as used in section 3234 of the Code of Civil Procedure, and because the de- fendant had not "recovered" upon any issue within the mean- ing of the said section. (Id.) 26. Where the plaintiff is entitled to recover the costs of the action, he cannot include therein items for issuing and serving a writ of attachment which was subse- quently set aside as having been improperly granted. (Id.') 27. Where an order granting to the defendants an extra allowance, under section 3253 of the Code of Civil Procedure, is made by the justice before whom the action was tried, and the order recites that it was made " on the plead- ings, evidence, findings and deci- sion of the court, statements and affidavits of counsel and other papers," the court at general term will not reverse the order, in the absence of an abuse of the discre- tionary powers vested in the court below, even though the papers presented on the appeal do not show that the case was a difficult or extraordinary one, as the facts necessary to show that it was of such a character may have been orally presented to the court below. (Qooding agt. Brown, 35 N. Y., 158.) 28. In determining whether or not an additional allowance should be granted under the said section, the amount involved in the action may be considered ; as the fact that a large amount depends upon its decision increases the anxiety and responsibility of the attorney and justifies the employment of eminent counsel. (Id.) 29. After the commencement of this action, brought by the plaintiff to procure a separation from the de- fendant, her husband, on account of his cruel and inhuman treat- ment of her, an agreement was made by whicli she was to return to and live with him as her hus- band, and he was to pay the costs and expenses of her attorney. After the plaintiff had returned to HOWARD'S PRACTICE REPORTS. 577 Di crest. her husband tue husband served a verified answer in the action and refused to pay to the plaintiff's attorney his costs and expenses: Held, that the court had power, upon the application of the plain- tiff, to compel him to pay the costs and expenses of the action as fixed by the court. (Smith agt. Smith, 35 Han, 378.) 30. The plaintiff's testatrix, an un- married woman, of the name of Emma Sandland, deposited with the defendant, a savings bank, a sum of money in the name of Emily Sands. Before bringing this action to recover the amount of the deposit the plaintiff exhib- ited to the bank the pass-book containing the account, proof of his appointment as executor, and an affidavit showing the identity of his testatrix with the depositor, and that the bank book was found among her effects: Held, that the referee in directing a judgment in favor of the plaintiff, properly charged the defendant with the costs of the action. (Davenport agt. Bank for Savings, 36 Hun, 303.) 31. Section 259 of chapter 409 of 1882, placing the costs in certain actions against savings banks, in the discretion of the court, only applies to the particular cases dis- tinctly specified , in the section, viz., to actions by a husband to recover moneys deposited by his wife in her own name, and to actions to recover money deposit- ed when there are claimants to the fund, other than the plaintiffs, who are not parties to the action. (Id.) 32. In this action of replevin, brought to recover certain arti- cles of clothing of the value of $852.38, alleged to have been wrongfully taken and detained by the defendant, the complaint set forth but one cause of action. Upon the trial the plaintiff re- covered a judgment for $180.20, as the assessed value of so much of the clothing as was sold after a certain date, and the defendant, the plaintiffs having obtained pos- session of the clothing in this action, recovered a verdict for $350.20, as the assessed value of so much thereof as had been sold prior to that date, with twenty- five dollars damages: Held, that although the complaint set forth but a single cause of action, yet, as it appeared that the sales were made at different times, and that each sale did in fact constitute a separate cause of action, each party was, under section 3234 of the Code of Civil Procedure, en- titled to costs, and that the clerk erred in refusing to allow costs to the defendant. (Ackerman agt. De Lude, 36 Hun, 44.) 33. The plaintiff, while a passenger upon one of the defendant's cars, was wrongfully assaulted by the conductor and ejected from the cars. In this action brought to recover damages therefor, the jury rendered a verdict in his favor for six cents: Held, that the action was for an assault, and that the plaintiff was entitled, under subdivision 3 of section 3228 of the Code of Civil Pro- cedure, to costs not exceeding the amount of his recovery, and that he could not be charged with the payment of the defendant's costs. (Feeney agt. Brooklyn City R. R. Co., 36 Hun, 197.) 34. Where an action in the supreme court has been tried in the first judicial district, an application for an extra allowance of costs must be made in that district, although the justice before whom the action was tried resides in an- other district. (Bear agt. Ameri- can Rapid Telegraph Co. , 36 Hun, 400.) 35. Allowance by a surrogate for an additional day occupied on a trial allowable on a trial before a referee not for an adjourn- VOL. II 73 578 HOWARD'S PRACTICE REPORTS. Digest. merit Code of Civil Procedure, sec. 2561. (See Matter of Clark, 38 Hun, 301.) 36. Of an action brought by the guardian and the infant cestui que trust for the construction of a will direction for the pay- ment of costs therein. (See Wead agt. Cantwell, 36 Hun, 528.) 37. When a party does not waive his right to appeal from an order, by accepting costs thereby award- ed to him. (See Mutter of Water Commissioners of Amsterdam, 36 Hun, 534.) 88. A proceeding under the General Railroad Act (sec. 28, chap. 140, Laics of 1850) by one railroad cor- poration to secure a crossing over the track of another railroad is a special proceeding (Code of Civ. Pro. , sees. 3333, 3334), and the costs therein are, as a general rule, in the discretion of the court (Sec. 3240; RAPALLO and MILLER, JJ., dissenting). (In re C. and II. H. E. R. Co., 98 JV. T., 336.) 39. Where there is no question as to damages, and the corporation owning the road sought to be crossed opposes the application with a view to prevent the cross- ing, it is within the proper exer- cise of this discretion for the court to impose the costs upon the con- testing company (RAPALLO and MILLER, JJ., dissenting). (Id.) 40. Where, in an action brought by taxpayers to have a contract made by a municipal corporation, by which it agreed to pay a sum specified for the performance of certain work, declared invalid, the plaintiff was defeated and judg- ment was rendered in favor of the contractor with the corporation, adjudging the contract to be valid, and that it had been performed by the contractor: HM, that "the value of the subject-matter in- volved" (Code of Civil Pro., sec. 3253) was, for the purposes of computing an extra allowance, the contract price for the work, not simply the profits made thereon. (Mingay agt. Holly Mfg. Co., 99 N. T., 270.) COUNTER-CLAIM. 1. As a distinction exists between a defense and a counter-claim, when the defense is intended as a counter-claim it should be explicitly stated in the answer, so as to advise the opposite party, and in the absence of such an allegation, especially when the party defines and characterizes his answer as a defense, and it is uncertain whether a counter-claim is intended, such party is not in a position to insist that he has actually set up a counter- claim, and the answer should be construed and considered a defense. (Ward agt. Comegys et al., ante, 429.) , 2. A counter-claim must contain the substance necessary to sustain an action on behalf of the defendant against the plaintiff if the plaintiff had not sued the defendant. (Id.} COURTS. 1. Courts must determine what is a legal and proper expense and charge to be paid by a county treasurer in regard to the holding of such courts. (People ex rel. Cole agt. Board of Supervisors of Greene Co., ante, 483.) 2. There are contingent expenses necessarily incurred in the holding of courts for which no express statute provides, and the board of supervisors of a county must pro- vide a fund, to be placed in the hands of its county treasurer, " to pay such contingent expenses as may become payable from time to time," and a court held in such county must determine what is a proper and lawful charge upon such fund. (Id.) HOWARD'S PRACTICE REPORTS. 579 Digest. 3. Where the relator, in pursuance of an order made by the court, published iu his newspaper the terms of the various courts ap- pointed to be held in Greene county, and the clerk, in pursu- ance of said order, issued a cer- tificate for the amount of the bill for performing the service ordered, Eayable out of the fund provided Dr the contingent expenses of the court: Held, that the order for its pay- ment should be obeyed by the county treasurer, and is enforce- able against him by mandamus. (Id.) 4. It is not the prerogative of a board of supervisors nor of a county treasurer to adjudge an order of the court void and incapable of enforcement. (Id.) 5. Where a bill for publishing the terms of the court (such publication having been done under an order of the court) was presented to the board of supervisors of the county of Greene for audit, and on the rejection of such bill upon the ground that the same was not a legal charge against the county, the relator asked that a mandamus to compel its audit might issue: Held, that although the order made by this court should have been obeyed by the county treas- urer, and obedience thereto is enforceable against him, a man- damus against the board of super- visors will not be granted. (Id.) 6. The provisions of the Code of Civil Procedure relating to pro- ceedings supplementary to execu- tion are not applicable to a case in which the judgment, upon which the execution was issued, was re- covered in the municipal court of the city of Rochester, and the damages included therein are less than twenty-five dollars. (Mason agt. Hackett, 35 Hun, 238.) 7. The supreme court has not power to order the publication, in a newspaper, of the appointment of the terms to be held by that court, or to direct payment of the expense of such publication. (People ex rel. Cole agt. Hill, 36 Hun, 619.) (Reversing S. 0., ante, 483.) CREDITOR'S ACTION. 1. In a judgment creditor's action to set aside as fraudulent a volun- tary assignment made by the judgment debtors, it appeared that the execution was returned by the deputy sheriff unsatisfied on the day on which the action was brought, though the process was not filed by the sheriff until the following day ; that plaintiffs' after having discovered that short- ly before the making of the as signment, and in contemplation thereof, the assignors, who were copartners in trade, had with- drawn to their own use a con- siderable part of the moneys of the firm, signed with other cred- itors an agreement of compromise, reserving the right to withdraw by a certain day ; that two weeks afterwards plaintiffs obtained an attachment against defendants for fraudulent withdrawal by the lat- ter of moneys from their assets; that plaintiffs afterwards sought to remove the assignee, and then proved their claim and delivered their proof to the assignee, annex- ing a statement that they did not waive their rights under the at- tachment or recognize the validity of the assignment, unless it should be held to be binding upon them: Held, first, that the return of ex- ecution was sufficient within the provisions of the Code and the rule in equity with respect to the bring- ing of judgment creditors' actions. Second. That plaintiffs had not by their acts acquiesced in or adopted the assignment so as to be precluded from suing to im- peach it. Third. That the assignment was void; the assignors, while pro- fessing to surrender all their prop- 680 HOWARD'S PRACTICE REPORTS. erty through it, having intention- ally withheld a considerable part of their estate from its operation. (Iselin el al. agt. Henlein et al., ante, 211.) DEED. 1. A livery stable would not be offensive to a neighborhood within the meaning of a covenant not to erect any building for or to carry on upon certain premises certain enumerated trades, cow stables or hog pens, " or any oiher dangerous, noxious, unwholesome or offensive establishment, trade or calling, or business whatsoever.'' The word "cow" before "stables" limited the establishments prohibited of the same class, and the words " other," &c., do not include sta- bles where domestic animals are to be kept. (Flanagan agt. Hoi- lingsworth, ante, 391.) 2. He who conveys the absolute fee of real estate to another cannot retain the right to the purchase- price when subsequently sold. There is a distinction between the occupancy of one's property which must be temporary, unless 'the title of the owner is acquired, and one which is known to be permanent because the right to maintain it exists; and he who parts absolutely with the title to land to another cannot reserve to himself the right to its purchase-money where sub- sequently sold, because such a reservation would be inconsistent with the grant. (Dennison agt. Taylor, ante, 528.) 8. The defendant, who was the owner in fee of a farm of land through which a railroad passed, and also of that part thereof which such railroad occupied and upon which it was constructed, which owner- ship was derived by and through a warranty deed to him from the assignor of the plaintiff, recovered from such railroad or its receiver the sum of $1,000 as a compensa- tion for the fee of the land which the road occupied, and for the de- preciation in value of the entire farm by reason of such title being acquired to the strip occupied by the railroad: Held, that the defendant's right to such damages was perfect through the deed from the plain- tiff's assignor, which the reserva- tion therein contained in favor of the grantor did not and could not reserve to such grantor, because such a reservation would be incon- sistent with and repugnant to the deed and the estate in fee which it conveyed to the defendant; and as the defendant recovered such damages for himself and not for the plaintiff, the latter cannot maintain this action which rests upon the theory that the moneys paid to the defendant therefor were received to and for the use of the plaintiff. (Id.) DEFAULT. See PRACTICE. Negley agt. Tlw Counting Boom, ante, 237. DEFENSE. 1. As a distinction exists between a defense and a counter claim, when the defense is intended as a counter-claim, it should be explic- itly stated in the answer, so as to advise the opposite party, and iu the absence of such an allegation, especially when the party defines and characterizes his answer as a defense, and it is uncertain whether a counter-claim is in- tended, such party is not in a position to insist that he has actu- ally set up a counter-claim, and the answer should be construed and considered a defense. ( Ward agt. Comegys et al., ante, 429.) 2. A counter-claim must contain the substance necessary to sustain an action on behalf of the defendant against the plaintiff if the plaintiff had not sued the defendant. (Id.) HOWARD'S PRACTICE REPORTS. 581 Digest. DENIAL. 1. Where it appeared that a certain lot in Greenwood cemetery was purchased by the husband of the plaintiff as a burial lot for herself, her husband and their family, and that it had been greatly improved, not only at his but at her expense, and their family dead had been placed in the lot as their final rest- ing place : Held, that these facts were suffi- cient to disable the husband from afterwards conveying it away to another person, and thereby devot- ing it to a distinct and different purpose. The plaintiff had be- come so far interested in the property by its improvement and the interment of her parents as to prevent her husband from making a legal or valid sale of it. (Schroe- der agt. Wanzor, ante, 13 ) 2. The case of Thompson agt. Rickey (8 Abb. N. G., 1 59 ; opinion by VAN VOKST, /.) cited with approval,. (Id.) 3. A denial in an answer "on in- formation and belief of all the allegations in the complaint con- tained not hereinbefore admitted or denied and not containing the allegation that the defendant had not sufficient knowledge or infor- mation to form a belief as to the other statements in the complaint, and for that reason he denied them, does not put in issue a material allegation of the complaint, and all such allegations will be taken as admitted. (Id.) DISCOVERY. 1. A county judge having, upon the application of a creditor, made an order requiring insolvent debtors and their general assignee to appear before him and be ex- amined, as provided by section 21 of chapter 466 of 1877, the as- signors and assignee moved to vacate the order, upon the ground that some twenty creditors had commenced actions for the pur- pose of putting their claims in judgment and that the deponent believed that the said creditors intended to bring an action to set aside the assignment, and that this application was made in the interest of the said creditors and not for the benefit of the assigned estate: Held, that the motion to vacate the order was properly denied. (Matter of Wilkinson, 36 Hun, 184.) DIVORCE. 1. The court has no power to punish a husband as for a contempt for non-payment of costs and counsel fee, which he was directed to pay by the final judgment in an action for separation. Such costs and counsel fee should be collected by execution. (Jacquin agt. Jacquin, ante, 206.) 2. Condonation of adultery by sub- sequent cohabitation with knowl- edge does not bar an after-brought action for divorce predicated on such adultery, where the condona- tion is upon the promise by the guilty party (the husband) that he would in all things thereafter treat his wife kindly and in a proper manner, and would be in all things a good and affectionate husband to her, when such promise has been violated. (Timerson agt. Timer- son, ante, 526.) See INSURANCE (LiFE). Goldsmith agt. Union Mutual Life Ins. Co., ante, 32. DOMICILE. 1. Under section 3343, subdivision 18 of the Code of Civil Procedure, the location of a federal corpora- tion is determined by the place of its principal office. Its domicile is where its principal office is : (Rosenbaum agt. Union Pacific Rail- way Co., ante, 45.) 582 HOWARD'S PRACTICE REPORTS. Digest. DOWER. 1. Where provision by a will is made for a woman in lieu of dower, she is required by statute to make an election between the provision and the dower, and she shall be deemed to have elected to take such joint- ure, devise or pecuniary provision, unless within one year after the death of her husband she shall enter on the lands to be assigned to her for her dower, or commence proceedings for the recovery or as- signment thereof. (Aken agt. Kel- logg and others, ante, 136.) 2. Alleged fraud cannot alter or change the statute. Fraud may relieve a person from an agree- ment, but it cannot extend the statute for bringing an action or making an election. If an action- able fraud has been perpetrated, damages by way of compensation may be awarded, but the court cannot relieve from a statute bar. (Id.) 3. Where the complaint alleged fraud, there should also be an aver- ment that the statement made to the plaintiff was for the interest or purpose of influencing her action, as the fraud is not a statement of a fact, but the expression of an opinion. (Id.) 4. Where a wife has received a part of the income of the estate under the will, she is in no condition to repudiate the election which she made without restoring or offering to restore its fruits. (Id.) 5. Where a testator devised one-third of his real property to his widow for life with remainder to his sons, also devising the other two-thirds to the sons: Ileid, that there was thus a total disposition of his realty, and any allowance of dower to the widow in addition to the devise would overturn the plain scheme of the will, and is inconsistent with the disposition made of the rest of the estate. In such case the court infers an intention of the testator that the provision for the wife should be in lieu of dower. (Mason agt. Mason et al, ante, 514.) 6. That the testator has left his widow a life estate in one-third of the premises does not prevent the owners in fee of the two-thirds from partitioning the property and realizing their shares. '1 he rights of the tenant for life may be pro- tected by provision in the decree. (Id.) See WILL. Cole agt. Cole et al., ante, 516. EJECTMENT. See COSTS. Coon agt. IHefendorf, ante, 889. ELECTION LAW. 1. Under the general election laws the return of the results of an elec- tion to be given to or filed with the supervisor of the town or ward in which the election was held, must be the original return and not a mere certified copy. (The People agt. Wise, ante, 92.) 2. Accordingly, where it appeared on the face of an indictment that a copy of a return was given to and filed with the supervisor of a ward, and that it was mutilated by him. no offense is shown under section 94 of the Penal Code, as it was not filed or deposited with him "by authority of law." (Id.) 3. To constitute an offense against a statute for the protection of a document or paper of any kind, it must appear to be the kind of document or paper specified in the statute. (Id.) 4. Under the act relating to the reg- istration of voters in the citv and HOWARD'S PRACTICE REPORTS. 583 Digest. county of New York, it is the duty of the inspectors to register every duly qualified voter who presents himself within the place of regis- tration before the hour of nine o'clock in the evening and de- mands to be sworn, and the true construction of the statute is that the place of registration shall be closed at that hour, but not that the inspectors shall refuse after that hour to register those who have applied within the time pre- scribed by law. (The People ex rel. Cass el al. agt. Hosmer et al., ante, 472.) EVIDENCE. 1. An agreement of purchase and sale reduced to writing, &c., is not at all necessary when an action is brought to recover an agreed price for lands actually sold and conveyed pursuant to an oral agreement, when the considera- tion remains unpaid. (McKenna agt. Bolger, ante, 411.) 2. A party is not precluded from testifying to extraneous facts, which tend to show that one who has testified to such a transac- tion has testified falsely, or that it is improbable that his statement can be true. (Id.) 3. It is not the intention of the Code (sec. 829) to prevent a party to a suit from testifying to any extrin- sic fact that tends to contradict a witness who swears to transac- tions or communications had be- tween such party and a deceased person, even where he cannot di- rectly testify that no such conver- sation or transaction was ever had. (Id.) 4. It was not the intention to pre- vent the contradiction of a living witness, but to prevent a living party to a transaction or commu- nication from testifying to it him- self when death has closed the mouth of the other party. (Id.) 5. So when a living witness swears to a contract made by a defendant with a deceased party at a speci- fied time or place, there is nothing in the Code to prevent the defend- ant from testifying that at the time named he was in Europe or at some distant place, rendering it impossible that the witness speaks the truth. (Id) 6. Where husband and wife board at a hotel the husband is presump- tively liable for the bill, but it is competent for the hotel-keeper to show that the husband was impe- cunious, and that credit was given to the wife so as to justify the de- tention of her property by virtue of the hotel-keeper's lien. (Bir- ney agt. Wheaton, ante, 519.) See INDIAN LEASES. Baker agt. Johns, ante, 464. 7. In this action, brought to recover the value of services rendered by the plaintiff to the defendant's in- testate prior to February 7, 1882, the defense of payment was plead- ed. Upon the trial the defendant produced a receipt executed by the plaintiff by which she ac- knowledged the receipt of fifty dollars from the intestate in full of all demands, of whatsoever nature or kind, " up to date Feb- ruary 11, 1882," and proved that she had delivered it to the de- ceased. The plaintiff was then allowed, against the defendant's objection and exception, to an- swer the following question : " Please state what, if anything, has been done to that receipt since you signed it and delivered it to the intestate ? " She answered, " In full of all demands, of what- soever nature or kind, up to date, February 11, 1882, has been added since. That was added after he took it from my hands ; those were not on when I signed it:" Held, that the evidence was inad- missible as relating to a personal transaction between the witness 584 HOWARD'S PRACTICE REPORTS. Digest. and the deceased. (Boughton agt. Bogardus, '65 Hun, 198.) 8. After the plaintiff had, under the objection and exception of the de- fendant, read various entries from her account book showing pay- ments by the deceased to her to apply in part payment for the services rendered by her, she was asked, and against the defendant's objection and exception, allowed to answer the following ques- tion: "That is all he has ever paid you except ihe fifty dollars you gave him a icceipt for?" Held, that the evidence was inadmis- sible, under section 829 of the Code of Civil Procedure, as it tended to contradict the claim of the defendant that a larger amount had been paid to her by the de- ceased. (Id.) 9 In an action of partition brought by a daughter and a grand- daughter of the deceased owner against his son and widow, the latter interposed no answer, while the son alleged that land had been conveyed by the deceased to the granddaughter's father, as an advancement, and that the same should be set off against the share to be allotted to her. Upon the trial the son sought to prove by the widow who joined in the deed to the deceased son, that it was given without consideration, as an advancement: Held, that it was error to reject the evidence as in- admissible under section 829 of the Code of Civil Procedure. (Moore agt. Oviatt, 35 Hun, 216.) 10 The words "interested in the event," as used in the said section, are to be limited in their applica- tion to the particular issue or question as to which the witness is to be examined. (Id. ) 11. Upon the trial of this action a son of the intestate entitled to share in his estate was called by the plaintiff. After he had stated his age, occupation and residence, the defendant's counsel objected to the competency of the witness to testify under section 829 of the Code of Civil Procedure. The objection was overruled and the witness allowed to testify. Parts of his testimony related to per- sonal transactions and communi- cations with the deceased, and part did not: Held, that the de- fendant's objection was too gen- eral to enable him to raise any question upon appeal. (Riggs agt. American Home Mis. Society, '65 Hun, 656.) 12. He should have renewed his objection when the objectionable testimony was given, or subse- quently moved to have it stricken out. (Id.) 13. Where, in an action to recover damages sustained by the plaintiff by being bitten by a dog belong- ing to the defendant, the facts that the plaintiff was bitten, and that the defendant knew that the dog had previously bitten another person, have been established, witnesses called by the defendant cannot be allowed to testify that when they had seen the dog they had seen nothing malicious in his conduct nor any attempt made by him to bite any one. (Caldwell agt. Snook, 35 Hun, 73.) 14. Deed prior oral agreements are merged in it an agreement affecting the title to land must be in writing. (See De Witt agt. Van Schoyk, 35 Hun, 103.) 15. Trial for murdei in the first de- gree defense of an alibi it is error to charge that it is a suspi- cious defense what evidence may be admitted to sustain the defense. (See People agt. Kelly, 35 Hun, 295.) 16. Examination of a party before trial when not refused because it might tend to show the party to be guilty of a criminal offense Code of Civil Procedure, sec. 870. (See Davies agt. Fish, 35 Hun, 430.) HOWARD'S PRACTICE REPORTS. 585 Digest. 17. Slander privileged communi- cation what is when actual malice must be proved an un- sustained justification is not evi- dence of malice. (See Decker agt. Gaylord, 35 Hun, 584.) 18. When the title of a purchaser will not be affected by declara- tions or admissions made by his grantor, while owning the land as to the right to draw water from a spring upon the land of another. (See Root agt. Wadhams, 35 Hun,l) 19. < 'ommercial custom when ad- missible to show the effect of a particular form of check. (See Sims agt. U. S. Trust Company, 35 Hun, 533.) 20. Appraisals of damages for land taken for a railroad reversed be- cause of the reception of evidence of benefit to adjoining land when the error is not cured by state- ments in the report showing that it was not affected by it. (See Matter of N. Y., W. S. and R R. Co , 35 Hun, 260.) 21. Obstruction of a navigable stream by the defendant the burden of proving the right to obstruct it rests upon the defend- ant. (See Doxsey agt Long Island R. R. Co., 35 Hun, 362.) 22. What facts do not justify the presumption of death. (See Jen- kins agt. Young, 35 Hun, 569.) 23. General exception to evidence when it is unavailing. (See Uertz agt. Singer Mfg. Co., 35 Hun, \ 16.) 24. To show what effect the publi- cation of a libel had upon those who read it. (See Libel, 35 Hun.) 25. In an action to recover the value of personal services, where the complaint alleges that an agreed price was to be paid therefor, and that they were worth that price, and the issue is what was the agreed price, evidence of the VOL. II 74 value of the services is compe- tent, as bearing upon the prob- able truth of the claims of the respective parties. (Cornish agt. Graff, 3U Hun, 160.) 26. Proceedings to review erro- neous assessments 1880, chap. 26!) the earning capacity of real estate is a test of its value review of a decision of the special term on appeal how objections to the reception of evidence should be stated erroneous admission of evidence when the decision will not be reversed therefor. (See People ex rel. Railroad agt. Keator, 36 Hun, 592.) 27. What inadmissible as involving a personal transaction between a party and a deceased person Code of Civil Procedure, sec. 829. (See Oliver agt. Freligh, 36 Hun, 633.) 28. When expert testimony as to the injury caused to the market value of a horse by its having run away is inadmissible how the injury should be proved. (See Van Wagoner agt. New York Ce- ment Co., 36 Hun, 552.) 29. Malpractice by an attorney what constitutes it what evi- dence is admissible to establish it. (See Carter agt. Talcott, 36 Hun, 393.) 30. Representations by a director of a company to induce a pur- chase of its bonds upon what statements the jury may find him to be liable in damages, if such statements are false. (See Drake agt. Grant, 36 Hun, 464.) 31. Action to set aside a fraudulent conveyance the burden of prov- ing fraud rests on the plaintiff. (See Remington Paper Co. agt. 0' Dougherty, 36 Hun, 79. "> 32. Bond of indemnity to a sheriff what is evidence of the exer- cise by the sheriff of his judg- 586 HOWARD'S PRACTICE REPORTS. Digest. ment in making a levy. (See O'Donohue agt. Simmons, 36 Hun, 331.) 33. Sale of an interest in a partner- ship business what is included in it evidence of prior agreements is not admissible to contradict a written one nor can the subse- quent conduct of the parties be shown. (See Albright agt. Voor- hies, 36 Hun, 437.) 34. Power of the legislature to make tax deeds conclusive evi- dence of the regularity of the proceedings. (See Chamberlain agt. laylor, 36 Hun, 24.) 35. Obstructions' to light, air and access to land, by an elevated railroad measure of damages opinion of a real estate broker as to such damages. (See Hine agt. if. Y. Elevated R, R. Co., 36 Hun, 293.) 36. Negligence burden of proof in an action against a common carrier when it may be inferred from the accident itself. (See Murphy agt. Coney Island and B. R. R. Co., SGHun, 199.) 37. Civil damage act action by a father for an injury to his son what proof .of an injury to the father's means of support must be given. (See Stevens agt. Ctieney, 36 Hun, 1.) 38. Testimony of a witness as to the genuineness of a signature right of a party to cross-examine him as to the difference between the signature in question and a genuine signature 1880, chap. 36. (See Winnie agt. Tousley, 36 Hun, 190.) EXCEPTIONS. 1. At the close of the testimony in this case the counsel for the de- fendant submitted to the court an unnecessary and unreasonable number of requests to charge. The court not having embodied all these requests in its charge, the counsel for the defendant said: "I desire to call your honor's at- tention to certain propositions embodied in the written requests to charge which I have sub- mitted " the court here said: " I decline to charge further than I have already," to which the de- fendant excepted : Held, that the exception was well taken ; that the counsel was entitled to distin- guish and point out the specific propositions he desired to have charged. (De Boxt agt. Albert Palmer Co., 35 Hun, 386.) 2. Whereupon trial exceptions are, without objection, ordered to be heard at first instance at General Term, the party succeeding at General Term may not object to a review of its decision here, on the ground that the case was not one proper to be so heard. ( Wyckoff" agt. De Graaf, 98 N. Y., 134.) 3. This court, on appeal in criminal actions, may not consider objec- tions to portions of the charge as to which no exceptions were taken on the trial. (People agt. Mills, 98 N. Y., 176.) 4. Upon trial before a court or ref- eree an exception to a general finding of law, holding that one party is entitled to recover against the other, raises the question as to whether, upon all the facts found, the successful party was entitled to judgment. (Heinmingway agt. Poacher, 98 N. Y., 281.) 5. Where improper evidence has been received under objection and exception, which subsequently, on motion of the party against whom it was offered, is stricken out, this is to be deemed an abandonment of the exception, and such party mav not have the benefit of it on appeal. (Price agt. Brown, 98 N. Y., 388.) 6. Although, on appeal from a HOWARD'S PRACTICE REPORTS. 587 Digest. judgment, in an action tried by the court, no exceptions appear to the findings of fact, or error in their determination, but the general term draws a different legal con- clusion therefrom than that of the trial court, this does not authorize it to render a final judgment in accordance with its own conclu- sion. Whenever the character of the issues framed by the pleading is such that, upon a new trial, it will be possible for the respondent to recover, a new trial should be ordered. Having succeeded on the trial, he is not required to procure the appearance of excep- tions upon the record, and so the appellate court cannot determine that there were no exceptions or errors. (Thomas agt. N. T. L. Ins. Co., 99 N. T., 250.) EXECUTION. 1. This action was brought against the sureties upon an undertaking given to indemnify the sheriff when making a levy under an execution upon property alleged to belong to the judgment debtor named therein. The undertaking was conditioned that if the obligors should well and truly save, keep and bear harmless and indemnify the said William C. Conner, and all persons aiding and assisting him in the premises from all harm, let, trouble, dam- age, liability, costs, counsel fees, expenses, suits, actions, judg- ments, &c. , that should arise or be brought against him for or by reason of the levy, or of any sale made thereunder of any property which he should judge belonged to the judgment debtor, then the obligation to be void, else to re- main in full force and virtue. After the property had been seized a judgment for the value thereof was recovered by the true owner against the sheriff : Held, that as the defendants had entered into an absolute agreement to protect the sheriff against any judgment that might be recovered, they were concluded by the judgment which had been recovered against him. although they had no notice of the action. (Conner agt. Reeves, 35 Hun, 507.) 2. That it was not necessary for the sheriff to show that he had paid the judgment which had been so recovered. (Id.) 3. That in the absence of any charge of collusion or fraud, the effect of the judgment so recovered was not impaired by reason of the fact that it was entered by con- sent given in open court. (Id.) 4. An execution having been issued upon a judgment recovered against a defendant, the sheriff, shortly before the expiration of the sixty days within which it was to be re- turned, commenced to advertise for sale certain real property alleged to belong to the defendant. After the expiration of the sixty days, and prior to the day of sale, the sheriff made a return in which he stated that he had collected nothing under the execution, and had not found any personal prop- erty out of which the execution could be made, but that he had levied upon certain real estate and advertised the same for sale. Upon this return the plaintiff pro- cured, an order for the examina- tion of the defendant in proceed- ings supplemetary to execution: Held, that the return was not such as to justify the granting of the order. (Marx agt. Spaulding, 35 Hun, 478.) 5. That the question as to whether or not the sheriff should not have made the return in the form re- quired by law, should not be de- cided upon affidavits presented upon the application for the order. (Id.) 6. This action was brought to re- cover damages for the conversion of certain wheat which had been 588 HOWARD'S PRACTICE REPORTS. Digest. sold under an execution issued upon a judgment recovered by the defendant against the plaintiff. The wheat was raised upon a farm occupied by the plaintiff, and which had been devised by his father to his son Abram, to be held in trust for and during the natural life of the plaintiff, for his benefit or that of his family. The will provided that if the said Abram and another son. Guy, should think it would be for the best good of the plaintiff or his family, they might allow the plaintiff to occupy the farm with- out rent, but the term was not to be for more than a year at a time. The trustee and Guy were authorized to lease the farm to other persons, or to sell and invest the proceeds, and appro- priate the interest or income of the estate to and for the benefit of the said William or his family: Held, that even if the trust were assumed to be valid, yet, as the wheat was in part the product of the plaintiff's own skill and labor, it could not be held entitled to the exemption accorded to the trust estate. (Snlsbury agt Par- ions, 36 Hun, 12.) 7. That if the trust were invalid, the wheat was not exempt from execution, under section 13^0 of the Code of Civil Procedure, as necessary " flour and vegetables, actually provided for family use," as "wheat" is not "flour" with in the meaning of that section. (Id.) 8. That it was not exempt under the $2oO clause of section 1391 of the Code of C'ivil Procedure, as that related only to necessary household furniture, working tools and teams, professional instru- ments, furniture and library. (Id.) Q. It seem* that the trust was in- valid, and that the title to the farm was vested in the plaintiff. (Id.) 10. Where an execution issued against the person of a judgment debtor is defective, in that it fails to specify by name the county to which an execution against property has been issued and re- turned unsatisfied, the defect may be cured by an amendment to the execution, to be ordered by the court under section 7'74, J. H. paid full amount to attorneys of plaintiff, who then withdrew the execu- tion. The payment was not to extinguish the judgment, but it was to be kept in life and to be as- signed to wife of said J. H. On January 24, 1883, such assignment was made to C. S. H. , wife of J. H. The judgment-roll was filed in clerk's office of Orange county. A transcript was riled in office of clerk of Ulster county Inly 11, 1883, and judgment thereon en- tered in such county, the residence of J. C. , and on same day execu- tion issued to sheriff of such county, which was returned un- satisfied to Orange county clerk's office July 18, 1883. The execu- tion was subscribed "A N. C., Atty. for Pltff.," and stated in body thereof the assignment to C. S. H.ou January 24, 1883. The direction to sheriff was to collect execution and judgment out of property of defendant J. C. II. Such execution did not issue at request of plaintiff in the judg- ment, nor was any leave to issue obtained or granted by order of this court. Several orders for ex- amination of J. C. H. in supple- mental proceedings have been ob- tained by assignee of judgment and are pending before county judge of Ulster county. On re- turn day of first order J. C. II. appeared and claimed that he had paid the judgment in full to J. H., producing receipt, dated De- cember 11, 1880, purporting to ba signed and executed by said J. II. J. C. moved at special term to vacate the order for examination, and to set aside the execution and return upon the ground that the judgment had been paid to .). and was extinguished by said receipt. Such motion being resisted by J. H. and wife it was referred to a referee, who found that J. II. did not make nor execute such re- ceipt, and that no payment had been made to J. H. or his wife. The report was confirmed by spe- cial term and motion to set aside execution and return with supple- mental proceedings based thereon was denied, and $179.02 costs, &c., upon such motion was di- rected to be paid by said J. C. H. to J. H. On appeal to general term the order of special term was affirmed, with ten dollars costs. The order of general term was granted upon default of J. C., who by order of special term was permitted to move at gen- eral term to open such default on payment of ten dollars costs. Of such order J. has not availed him- self. The costs of the previous motions of special and general term, have not been paid, (ihe National Bank of Port Jervis agt. Hansee, ante, 200.) . On motion by J. C. H. to set aside the execution and return and the various orders in supplemental proceedings, upon the grounds 612 HOWARD'S PRACTICE REPORTS. Digest. that leave of the court to issue such execution was not obtained, and that the payment by .1. to the attorneys of the plaintiff ex- tinguished the judgment, and he avers that when he made the pre- vious motion he was not aware of the existence of the grounds upon which he now moves: Held, first, that the prior motion is a bar upon the principle of res adju- dicata. It is a bar not because the points now made were made, but because they might and should have been made. The moving party, had he used ordinary dili- gence, could have ascertained the facts upon which he now moves, and this want of diligence would defeat a motion for leave to re- new. Second. The costs imposed upon the first motion made in this mat- ter by the party now moving re- maining unpaid, the court is powerless to entertain the present motion, as by the non-payment of such costs all proceedings on the part of the party required to pay them are stayed. Third. As the orders of the spe- cial term and general term ad- judging the judgment unpaid are unreversed the motion has no equity to sustain it. Fourth. The pa3 r ment of J. H. to the attorneys of the plaintiff did not extinguish the judgment. J. H. was the surety and .). C. II. the principal debtor. Payment by the former did not extinguish the debt, and he could have taken an assignment to himself and enforced it for his own benefit. (Id.) 8. Where a judgment by default is opened on condition that the lien of the judgment shall stand as se- curity, the plaintiff, if he finally succeeds, must enter a new judg- ment by filing a fresh roll con- taining all the papers in the case, the same as if no former roll had been filed. The order opening the default in legal effect modifies the judgment by depriving it of its ordinary character as a res adjudi- cata, but leaves it in full force as a lien or collateral security. If the plaintiff fails in the action the security is returned by canceling the collateral judgment, which loses its legal vitality and effect when the action fails. But if the plaintiff succeeds the security judgment is not impaired, but may be enforced, if necessary, by the plaintiff in aid of the final judg- ment. (Negley agt. The, Counting Room Company, ante, 237.) 4. In case of appeal the trial or final judgment is the one to be ap- pealed from, and no reference need be made to the security judg- ment. (Id.) 5. The court of appeals will enter- tain a motion to dismiss an appeal for which there is no foundation, without waiting until the case is reached in its regular order on the calendar. (Stourjhton agt. Lewis, ante, 331.) 6. A plaintiff is not precluded from making a motion to dismiss an ap- peal taken by a defendant, be- cause he (the plaintiff) has noticed the case for argument and placed it upon the calendar. He waives nothing by so doing. It is still optional with him to wait until the case is reached on the calendar, or to make his motion to dismiss on the ground that the appeal is un- authorized. (Id.) 7. Where, in an action to foreclose a mortgage, a complaint contain- ing all the requisite allegations has been served upon defendant, who afterwards obtained a stipu- lation from plaintiff's attorney for further time to answer, agree- ing not to put in any answer and not to ask any further extension of time. On the last day defend- ant served a demurrer which was, on motion, overruled and stricken out, and plaintiff proceeded as if no demurrer or answer had been interposed and obtained his judg- HOWARD'S PRACTICE REPORTS. 613 Digest. ment by default. The defendant appealed to the general term, where it was affirmed, and from the affirmance defendant appeals to this court: Held, that, the demurrer having been overruled, the judgment went by default in the same man- ner as if no demurrer had been served, and no appeal is allowed from a judgment entered by de- fault. The order overruling the demurrer not having been appeal- ed from cannot be assailed on an appeal merely from the judgment. (Id.) 8. In a proceeding for removal of an assignee who has miscon- ducted himself, where there are three assignors, one of whom has left the state, notice to one assign- or is properly notice to all ; though the better course would be to give the statutory five clays' notice to the two within the state, in the ordinary way and to serve the ab- sent assignor by depositing a no- tice- in the post-office, addressed to him at his last known place of residence giving double the time. (Matter of Cohen & Co., ante, 523.) See ACTION. Farnam 396. agt. Barnum, ante, 9. Trial of a specific question by a jury in an equitable action when an order granting or refusing a new trial in, is appealable Code of Civil Procedure, sec. 1347, sub. 2; sec. 1003. (See Boicen agt. Becht, 35 Hun, 434.) 10. In justices' court when the plaintiff cannot recover without proving his claim 1881, chap. 414 Code of Civil Procedure, sec. 2891. (See Oulman agt. Schmidt, 35 Hun. 345.) 11. Agreement that an attorney shall share in the recovery right of the attorney to proceed after a settlement between the parties without first obtaining leave of the court. (See Forstman agt. Shulting, 35 Hun, 504.) 12. Referee's report when set aside because of bias and prejudice upon the part of the referee what will excuse delay in making the motion. (See Burrows agt. Dick- inson, 35 Hun, 492.) 13. A motion for a new trial, after the entry of an interlocutory judg- ment, may be made at general term without taking any appeal from the judgment. (See Moore agt. Oviatt, 35 Hun, 210.) 14. A final judgment cannot bo entered until all the issues are disposed of the remedy of a party aggrieved by the irregular entry of a judgment is by motion at special term and not by appeal. (See Robinson agt. Hall, 35 Hun, 214.) 15. Libel where there is no am- biguity, the construction of it is for the court. (See Kingsbury agt. Bradstreet Co, 35 Hun, 212.) 16. Receivers of a corporation in what district, the application for the appointment must be made 1883, chap. 378 to what receivers it applies. (See U. 8. Trust Co. agt. N. T., W. S. and B. R Co., 35 Hun, 341.) 17 Judicial sale defective service upon an infant when a judg- ment entered upon it may be made binding upon the infant by a subsequent judgment when a purchaser will be compelled to accept a doubtful title. (See Hied agt. Barrett, 35 Hun, 366.) 18. Costs power of the court to compel the payment of, on the settlement of an action for a sepa- ration. (See Smith agt. Smith, 35 Hun, 378.) 19. When one foreign corporation can sue another in this state Code of Civil Procedure, see. 614 HOWARD'S PRACTICE REPORTS. Digest. 1780. (See Diiquesne Club agt. Penn Bank of Pittsburg, 35 Hun, 390.) 20. Foreign corporation right of a non-resident to sue it in this state Code of Civil Procedure, sec. 1780. (See Adams agt. Penn Bank of Pittsburg, 35 Hun, 393.) 21. No new note of issue need be filed after a supplemental com- plaint has been served an order of the court should be reduced to writing. (See Lovatt agt. Watson, 35 Hun, 553.) 22. Constitution right of one ac- cused of crime to be confronted with witnesses meaning of the requirement United States Con- stitution, art. 6. and art. 14, sec. 1 bill of rights, sec. 14 Code of Criminal Procedure, sec. 8, sub. 3. (See People agt. Williams, 35 Hun, 516 ) 23. Power of the court to enter a judgment in conformity with the equitable rights of defendants as between each other. (See John- son agt. Stone, 35 Hun, 380.) 24. Service of summons by publica- tion when the order directing it may be subsequently amended service of a summons upon an ab- sent resident in an action of fore- closure Code of Civil Proced- ure, sec. 438, sub. 5 right of the court to resettle findings after judgment. (See Coffin agt. Lesstei; 36 Hun. 347.) 25. Service of summons by publica- tion what facts show that person- al service of the summons cannot be made. (See G/iase agt. Lawson, 36 Hun, 221.) 20. Service of a summons on a de- fondant outside of the territorial jurisdiction of the court effect of a judgment entered thereon in another state when binding if the defendant appears U. S. Const., art. 4, sec. 1. (See Jones agt. Jones, 36 Hun, 414.) 27. Surrogate power to open de- crees Code of Civil Procedure, sec. 2481, sub. 6 intermediate accounting by a guardian or trus- tee no decree can be entered by the surrogate. (See Matter of Haw- ley, 36 Hun, 258.) 28. Decree of surrogate on final ac- counting when it will not be open to correct an error. (See Matter of Deyo, 36 Hun, 512.) 29. When a court of equity will set aside a decree entered in a surro- gate's court. (See Douglass agt. Low, 36 Hun, 497.) 30. Proceedings to review erroneous assessments 1880, chap. 2(59 the earning capacity of real estate is a test of its value review of a decision of the special term on appeal how objections to the reception of evidence should be stated erroneous admission of evidence when the decision will not be reversed therefor. (See People ex rel. Railroad agt. Keator, 36 Hun, 592.) 31. Motion to make a complaint more definite and to state causes of action separately within what time it must be made Code of Civil Procedure, sec. 546 General Rule No. '22 when the right to make such a motion is waived, by procuring an exten- sion of the time to answer or de- mur. (See Brooks agt. Hancltett, 36 Hun, 70.) 32. Appearance how it must be made Code of Civil Procedure, sec. 421. (See Valentine agt. . Myers' Sanitary Depot, 36 Hun, 201 ) 38. Judgment creditor's action when maintainable after the judg- ment has ceased to be a lien upon real estate Code of Civil Pro- cedure, sec. 1871. (See Scoville agt. Sfied, 36 Hun, 165.) HOWARD'S PRACTICE REPORTS. 616 Digest. 34. Supplementary proceedings may be instituted before the recorder of the city of Oswego 1837, chap 96, sec. 4. (See Ross agt. Wigg, 36 flan, 107.) 35. Additional allowance where a motion therefor must be made. (See Bear agt. Am. Rapid Tele- graph Co., 36 Hun, 400.) 36. Order for the examination of a corporate party before trial a defaulting defendant may be ex- amined Code of Civil Proced- ure, sec. 873. (See N. T., L. E. and W. R. R. Co. agt. Carhart, 36 Hun, 288.) 37. Examination of a person having property belonging to the estate of a deceased person all the ex- ecutors or administrators should be parties to the proceeding Code of Civil Procedure, sec 2701) an order denying a motion to dismiss the proceeding is ap- pealable. (See Mutter of Slinger- land, 3(5 Hun, 575.) 38. Action for the judicial construc- tion of a will when it should not be brought by a legatee, de- visee or cestui que tru&t when the guardian of an infant should not join as a plaintiff in such ac- tion costs of an action brought by the guardian and the infant cestui que iru*t direction for their payment. (See Wead agt. Canlwell, 36 Jlun, 528.) 39. Action against a lodge of free and accepted masons how brought. (See Cohn agt. Borst, 36 Hun. 563.1 40. What evidence is inadmissible under a general denial facts authorizing the defendants to at- tack the plaintiff's title as fraudu- lent, must be pleaded. (See Klin- ger agt. Bondy, 36 Hun, 601.) 41. Application for an order requir- ing an attorney to pay over money to his client not granted during the pendericy of an action by the client to recover the same money. (See Matter of Mott, 36 Hun, 569.) 42. Justices' court amount in volved when an action does not involve the accounts of the parties, within section 28i>3 of the Code of Civil Procedure. (See Brisbane agt. Bank of Batavia, 36 Uun, 17.) 43. Leave to file a supplemental complaint when granted revi- vor of action. (See De Lisle agt. Hunt, 315 Hun, 620.) 44. Examination of delinquent tax- payers what facts must be stated in the affidavit 18iii, chap. Biil, sec. 1, as amended by chap. 640 of 1881. (See Matter of Conklin, SGHun, 588) 45. Former adjudication when a bar when a joint demurrer to a defense good as against two of three plaintiffs will not be sus- tained. (See Meagley agt. City of Binghamton, 36 Hun, 171.) 46. Mechanics' liens in New York city both chapter 379 of 1875, and chapter 486 of 1880 are in force there. (See Cockerill agt. Loonam, 36 Hun, 353.) 47. An action must be brought by the real party in interest Code of Civil Procedure, sec. 449 in en- forcing claims in this state a for- eign creditor must follow the lex- fori. (See Merchants' Loan and Tru.it Go. agt. Glair, 36 Hun, 362.) 48. Commissioners to appraise lands to be taken fora railroad appeal from their report insolvency of railroad demand for payment of the award, necessary when the report will be set aside because a son of one of the commissioners 13 taken into the employ of the com- pany before the hearing. ($ee N. T., W. 8. and B. R. Co. agt. Toionaend, 36 Hun, 6::0 ) 49. Execution the death of the 616 HOWARD'S PRACTICE REPORTS. Digest. plaintiff after its issue does not suspend its operation errors in the form of a constable's bond when the sureties cannot avail themselves of them as, a defense when the justice may adjourn a cause on consent of the attorneys for the parties, (&ee Jones agt. Newman, 36 Run, 634.) 50. When errors of fact are not re- viewable on appeal when the case should be ordered to be an- nexed to the judgment-roll right of the court to further instruct the jury in the absence of counsel evidence of actual value admis- sible as bearing on the probable truth of conflicting claims as to an agreed price. (See Cornish agt. Graff, 36 Nun, 160.) 51. Costs when a party does not waive his right to appeal from an order, by accepting costs thereby awarded to him. (See Matter of Water Commissioners of Amster- dam, 36 Hun, 534.) 52. Sureties on an executor's bond when an action lies against them before any. order or claim against the executor has been made in the surrogate's court Code of Civil Procedure, sec. 2607. (See Haight agt. Brisbin, 36 Hun, 57, 371. (See People agt. Car- penter, 36 Hun, 315.) 54. Jurors in a criminal action when not disqualified by reason of having formed an opinion Code of Criminal Procedure, sec. 376 right to renew on appeal challenges to jurors Code of Criminal Procedure, sec. 455, sub 2 ; 1873, chap. 427 the burden of proof rests upon the people a reasonable doubt as to any ele- ment of the crime entitles the prisoner to an acquittal. (See Peo- ple agt. WUlett, 36 Hun, 500.) PROCESS. 1. An order for the service of a summons by publication, in an action to foreclose a mort- gage, was made upon the affi- davit of one Wood, who stated that he learned from one Tibbs, at Wappinger's Falls, Dutchess county, that two of the defend- ants resided in Philadelphia, Pennsylvania, and three others at Danbury, Connecticut, the said Tibbs being a brother-in-law of one of the said detendants. Tke plaintiff's attorney also made an affidavit, stating that he was in- formed and believed that the said defendants were non-residents of this state, but resided at the places above-mentioned ; and further stated " the sources of deponent's information is the affidavit an- nexed hereto made by George Wood, who was employed by de- ponent to ascertain the residences of said parties; that said defend- ants cannot, after due diligence, be found witnin this state, and that deponent is informed and be- lieves that said defendants are now at the places above stated :" Held, that the affidavits sufficient- ly showed tnat the plaintiff had been and would be unable, with due diligence, to make personal service of the summons on these defendants, and conferred juris- diction upon the justice to make the order. (Chase agt. Lawson, 36 Hun, 231.) 2. Where an order directing the ser- vice of a summons by publica- tion, although in fact made by a justice at chambers, has a caption as though made at a special term, the court has power to subse- quently amend the order by strik- ing out the caption. (Coffin agt. Lesster, 36 Hun, 347.) 3. In an action to foreclose a mort HOWARD'S PRACTICE REPORTS. 617 Digest. gage an order for the service of the summons upon a resident defend- ant, who is absent from the state, might, in March, 1878, have been made under subdivision 5 of sec- tion 438 of the Code of Civil Pro- cedure, without showing, before such an order could be made, the facts required to be shown by sub- divisions 2, 3 or 4 of the said sec- tion. (Id.) 4. The authority to so serve the summons upon a resident in such an action does not violate the provisions of the constitution. (Id.) 5. In an action to foreclose a mort- gage an order directing the sum- mons to be served by publication on certain of the defendants was made upon an affidavit of one of the plaintiff's attorneys, which stated, among other things, that since the commencement of the action he had made, and caused to be made, inquiries as to the residences of the defendants; that three of them, whose names he gave, were each non-residents of the state of New York, and that each of them resided at Bai- ley-bag, county Monaghan, Ire- land; that he was informed and believed that the summons could not, after due diligence, be served on said defendants, or either of them, and that it was necessary to serve the summons on them by due publication thereof. (Wun- nenberg agt. Gearty, 3<> llun, 243.) 6. The affidavit of one Burke was also presented, which stated that he had been directed to serve the summons on all the defendants; that he had served a number of them, but had been unable, with due diligence, to serve those named in the affidavit of the plaintiff's at- torney, and that the said defend- ants were non-residents of the state of New > ork and resided in Ireland: If eld, that the fact that the plaintiff had been and would be unable, with due diligence, to make personal service of the sum- mons upon those defendants, was sufficiently established to author- ize the granting of an order di- recting its service by publication. (Id.) 7. Service of a summons on a de- fendant outside of the territorial jurisdiction of the court effect of a judgment entered thereon in another stale when binding if the defendant appears United States Constitution, art -4, sec. I. (See Jones agt. Jones, 30 Hun, 414.) PUBLIC ADMINISTRATOR. 1. It is by sections 2706-2714 of the Code of Civil Procedure, and not by section 222 of chapter 410 of the laws of 1882, that the proced- ure is now regulated by which the public administrator can cause inquiry to be instituted into the alleged withholding or conceal- ment of property belonging to an intestate's estate, whereof such public administrator is in charge by virtue of letters issued to him by the surrogate. (In the Estate of Ellis II. Elias, deceased, ante, 158.) RAILROADS. 1. Where commissioners were ap- pointed under chapter 252 of the Laws of 1884. by the general term of the supreme court on the ap- plication of a railroad company to determine on the use of certain streets, and they reported against the application and in favor of the property owners : Held,, that as the report was ad- verse to the company there was no necessity for its confirmation by the court. (Matter of the Nas- sau, Cable Co., ante, 124.) 2. It is made a condition precedent to a right to construct such rail- road for the company to either obtain the consent of the property owners or a favorable report of VOL. II 78 618 HOWARD'S PRACTICE REPORTS Digest. the commissioners, confirmed by the court. There is no occasion for action by the court, except to confirm a favorable report or to refuse confirmation. (Id.) 3. The court has power to determ- ine whether the commissioners have performed their duties under the statute, and should it appear that they had refused to hear the parties or take any evidence, or the report was such as to plainly show fraud or irregularity, the re- port may be sent back. But an erroneous ruling in excluding testimony, or, in admitting imma- terial, or even incompetent or hearsay evidence is not sufficient to warrant sending a case back for future hearing. (Id.) 4. A railroad company, being de- sirous of acquiring for railroad purposes certain land owned by B., entered into a written agree- ment with B. by which she agreed, upon the payment of the full pur- chase-price, to convey to said com- pany the premises. \\ ith a view of ascertaining the value of said premises and the compensation which should be paid therefor the railroad company agreed to insti- tute proceedings under the general i railroad laws for the condemna- tion of lands for railroad pur- j poses; and it was further provided in said agreement that in said j proceedings H. D. and < '. should be appointed commissioners to ascertain and determine the com- pensation to be paid, and the de- cision of a majority of them should I be binding upon both parties, it being also agreed that said com- missioners should be governed in estimating the said valuation by the rules of law applicable to pro- ceedings under said statute (ex- cept as they may be modified by tins agreement), and that all the rights of appeal given by law shall be reserved to either party. An order was obtained by the railroad company at special term appointing said persons commis- sioners. They entered upon their duties, and after viewing the premises and hearing proofs made a report. The railroad company not being satisfied with the report and award refused to move for confirmation, and the owner moved and obtained an order at special term confirming the report and appraisal. On appeal by the railroad company the appraisal and report were set aside by the general term on the ground of the admission by the commis- sioners of improper evidence. The hearing again came on before the commissioners, who, notwith- standing the objection of the rail- road company, received the same objectionable evidence, the receipt of which on the first hearing was the cause of the reversal of their report, and two of the commis- sioners, " D." and "C." publicly stated that they did not consider themselves bound by the supreme court decision. After the hearing had proceeded so far that the owner had introduced her evi- dence, the railroad company not having introduced its evidence, moved to vacate the order ap- pointing the commissioners: Held, firxt, that commissioners "D." and "C." have been guilty of misconduct, such as is cause for their removal. Second. That the court on this motion has power to remove them. Third. That this is a proper case to exercise such power not- withstanding the contract existing between the parties. (Mutter of the New York, Lackawanna and Western Railway Co., ante, 225) . Where, upon an application to the general term for the appoint- ment of commissioners to determ- ine whether a proposed railroad should be constructed through certain streets in New York city, it appears that such railroad can- not legally be built by reason of the refusal of other railroad com- panies already lawfully occupying HOWARD'S PRACTICE REPORTS. 619 Digest. the streets with their tracks to consent to its construction, such application should be denied (DAVis, P. J. , dissenting). (Matter of the 'ihirty -fourth Street Railroad Co., ante, 369.) 6. Although in determining the value of railroad or canal prop- erty, for the purposes of taxation, the cost of creating it may be considered, yet its earning ca- pacity should be the more con- trolling consideration or test. (People ex rel. Pres , etc. , D. and H. Canal Co. agt. Roosa and others, ante, 454.) 7. The assessors in estimating the value of railroad or canal property, within a town, are not to be gov- erned solely by its cost, but rather, though not exclusively, by its productiveness for railroad or canal purposes. (People ex rel. Pres., etc., D. and II. Canal Co. agt. Keator, ante, 479.) 8. The taxable value of the part of a canal which lies within a town in which the tax is laid, is to be ascertained by valuing, as a part of a whole a continuous way to carry freight from one point to another, and the profits of its use for that purpose (See ante, 454). (Id.) RECEIVER. 1. Corporations attacked by the state for insolvency can, even after a receiver is appointed, use their corporate iunds for their own protection in the litigation if their action is taken in good faith and with a reasonable hope of success in the controversy. (Mat- ter of the Attorney General agt. Atlantic Mutual Life Ins. Co., ante, 146.) See ASSIGNMENT. Nelson agt. lenney, ante, 272. 2. In an action brought by a re- ceiver, appointed in supplement- ary proceedings, to set aside a fraudulent a conveyance of real estate, executed by the judgment debtor, so as to subject the prop- erty to levy and sale on execution, where the receiver simply proves his appointment, without showing the proceedings necessary to vest in him title to the real estate, he is not entitled to recover the rents and profits. (Wright agt. Nos- trand, 98 X. F.,639.) 3. A court having power to, and which appoints a receiver of the assets of an insolvent corporation, may, in aid of that appointment, forbid any after interference, by way of levy and seizure by attach ment or execution, with the prop- erty in his possession. (Woeris- hoffer agt, N. R. Con. Co., 99 N. T., 398.) REFEREE. 1. The sixty days in which a referee must make his report do not com- mence to run until the cause is submitted. (Morrison agt. Law- rence, ante, 72.) 2. Where briefs are to be submitted there is no submission of the cause until the time to baud in the briefs is passed. (Id.) 3. The referee has power to enlarge the time for the submission of briefs. (Id.) 4. Having his report ready and ten- dering it on payment of his fees, within the sixty days, is sufficient. (See to same effect decision by general term, first department. Little agt. Lynch, 1 How. [N. S.], 95). (Id.) 5. In an action for divorce on the ground of alleged cruelty, brought by a wife against her husband, even where the wife prevails, the defendant, the husband, will be compelled to take up the report and pay I he referee's fees. (Karfy agt. Early, ante, 239.) HOWARD'S PRACTICE REPORTS Disrest. 6. While courts should be careful to see that no improper relations exist between a referee and one of the parties to an action, and that nothing occurs during the progress of the trial which shall in any- wise tend to produce a favorable impression in behalf of one of the parties to the reference, yet such scrutiny should not be carried to the extreme length of holding that because a referee sustains friendly relations to the kin of one of the parties, relations so close as to lead to his employment as his legal adviser, and the legal adviser of his estate, that such relations would bias his judgment in the action in which he had been appointed referee. (Durant agt. O'Brien, ante, 313.) 7. When the referee had heard the proofs, and made his report rinding in favor of the plaintiff, and from the judgment perfected upon such report defendant had appealed to the general term, which general term had affirmed the judgment, and the defendant had appealed to the court of appeals, and while such appeal was still pending de- fendant made a motion to set aside the report of the referee upon the ground that such referee was biased in favor of the plaintiff: Held, that the motion resting solely and only upon the ground that the referee was the friend and legal adviser of the nephew of the plaintiff such fact of itself would not warrant the inference of bias and partiality, and especially Y*hen it appeared that this was known to the counsel of the party moving before the trial of the act- ion was commenced. (Id.) REFERENCE. 1. In a proceeding for the revocation of probate all necessary parties, including the infant son of the decedent, were duly served with citation. (In the Estate of Tunis Cooper, demised, ante, 38.) 2. No application was made for the appointment of a special guardian for such infant and none was ap- pointed, but all the parties who appeared, consented to the entry of an order directing the stenog- rapher of the surrogate's court to take testimony as a referee. The trial proceeded before such ref- eree, and, at its conclusion the evidence was submitted to the sur- rogate, who decided that the probate should be revoked. The entry of a decree upon that deci- sion being opposed by the respond- ents, and it being contended that the order of reference was without authority and that all proceedings subsequent thereto were void: Held, that the order of reference and the proceedings thereunder should not be vacated upon the motion of any party who had consented to its entry and to the submission of its results to the surrogate for his determination. Held, also, that a special guard- ian should be appointed to repre- sent the infant, and to ascertain and report whether it would be for the best interests of the infant that the proceedings should stand as theretofore conducted, and a decree be entered accordingly, or that the trial should be commenced de now. (Id.) 3. That in view of section 3355 of the Code, sections 90 and 25 11 must be construed as if they had simultaneously become law, and that so construed, "a clerk or other person employed in the surrogate's office" is compe- tent to act as referee, in a proceed- ing pending in the surrogate's court, provided he is appointed with the written consent of all the parties appearing. (Id.) 4. That the stenographer of the sur rogate's court is not within the scope of section 90 or of section 2511. (Id.) See COSTS. HOWARD'S PRACTICE REPORTS. 621 Digest. 5. This was an application to set aside the report of a referee upon the ground that he had become biased or improperly influenced against the defendant before the final decision of the action. It appeared that the referee, from time to time as the trial proceeded, imoortuned the defendant to aid him in securing an appointment to an office from the governor, and believed that the defendant could by earnestly exerting him- self secure it for him ; that these importunities continued to be ad- dressed or suggested after the submission of the case and until near the time of its decision; and there was reasonable cause to be- lieve that the prejudice was oc- casioned by the failure of the de- fendant to answer the last letter from the referee, which was writ- ten shortly before the case was decided: Held, that the report should be set aside. (Burrows agt. Dickinson, 85 Hun 49vJ.) 6. The report was made on May 11, 1880. The motion to set aside the report was made in Febru- ary, 1884. It was shown by the affidavits that the defendant had intended to appeal from the judg- ment, and was therefore com- pelled to have a case made and settled by the referee; that both the defendant and his counsel deemed it injudicious and danger- ous to institute proceedings to set aside the report until the case had been settled, and that this applica- tion was made as soon as it could be after such settlement had been made: Held, that these facts fur- nished a sufficient excuse for the delay. (Id.) 7. It is within the power and dis- cretion of a referee, on trial of an action, to allow an amendment of the complaint, which does not af- fect the issue upon determination of which plaintiff's ri,ht to relief depends, or which does not bring in a new cause of action; and his decision thereon is not reviewable here. (Price agt. Brown, 98 N. Y. , 388.) 8. Where, upon trial before a referee, questions as to the admis- sibility of evidence objected to are without dissent reserved, and the referee is not thereafter asked to pass upon them, and no exceptions are taken, and no application made to strike out the testimony, no question is presented of which an appellate court can take notice. (In re Yates, 99 N. Y., 94.) 9. To prevent the termination of a reference by notice, as prescribed by the Code of Civil Procedure (sec. 1019), the report must be act- ually delivered to the attorney of one of the parties, or filed with the clerk " within sixty days from the time the cause was finally sub- mitted." (Li'tle agt. Lynch, 99 N. Y., 112.) 10. An offer by a referee to deliver his report to the successful party, on payment of his fees, within the time limited, is not equivalent to a delivery. (Id.) 11. Under the provision of the gen- eral assignment act (sec. 'Jl, chap. 466, Laics of 1877), authorizing the county judge, on petition of a party interested, to order the ex- amination of witnesses and the production of books and papers before him or a referee, the ex- amination only can be committed to a referee, who is to take and file the testimony ; the judge has no au- thority to direct the referee to report his opinion on the evidence, or to examine such witnesses or compel the production of such books and papers as the petitioner may require; the judge himself must in his order name the wit- nesses and the books and papers. The propriety of any examination sought is to be determined by the judge and may not be delegated to a referee. (In re Holbrook, 99- y. Y., 5:59.) 622 HOWARD'S PRACTICE REPORTS. Digest. REMOVAL OP CAUSE. 1. Where the petition for removal of a cause from the state court to the United States court is made by a plaintiff who claims that he is a resident of New Jersey and that the defendant is a resident of New York, before or at the time of filing such petition, the peti- tioner must make and file in the state court an affidavit that he has reason to believe, and does believe, that from prejudice or local in- fluence, he will not be able to obtain justice in such state court. (Thatcher et al. agt. Rankin, ante, 459.) 2. Where a petitioner fails to comply with this requirement he cannot accomplish the removal of the action. (Id.) 3. Where the petition and bond have been "accepted, allowed and ap- proved " by a justice of the state court, such acceptance, allowance and approval imply that said jus- tice was satisfied, and decided that the amount in dispute did exceed the sum of $">00; and if such deci- sion can be reviewed at all in the state court, the application, if made to a judge other than the one who made such decision, must be on notice of motion to set aside such acceptance, allowance and approval as having been improvi- dently made. (Id.) REPLEVIN. 1. Where a sheriff has attached goods under process against one To- ledo, and the plaintiff claims title through the same person, it is en- tirely irrelevant who owns the goods if Toledo does not (Sieden- bach agt. Biley, ante, 143.) 2. A denial of plaintiff's title alone is not a good defense. (Id.) 3. If the bill of sale to plaintiff was boiuifide. and was followed by pos- session, plaintiff is entitled to recover. (Id.) 4. The-;e are questions for the jury. (Id.) 5. A failure to give po session only raises a presumption of fraud which may be rebutted by proof that the transaction was fair. (Id.) 6. No need of a demand if the complaint averred an unlawful detention. (Id.) 1. To entitle a party to maintain a replevin he must have had title to the property or the possession of it, or at least the right of posses- sion. (Pakas agt. Racy, ante, 277.) 8. Where the plaintiff's claim to the right of possession is founded upon an agreement alleged to have been made with the defendant, who is an infant, such alleged agreement being that if the horse, &c. , was awarded to her she "would give it to the plaintiff: Held, that such agreement, if it had been made, was voidable, and the horse having been awarded to be delivered to her, the plaintiff, under such an agreement, had no right to the possession of it. (Id.) ft. In the replevin suit the verdict of the jury should fix the value of the property at the time of the trial, as required by the statute. This omission cannot be supplied by the court by inserting in the judg- ment a sum of rroney as the value of the property. (Id.) REPLY. 1. A plaintiff is not entitled to serve a reply to an answer where it is ap- parent that the whole object and scope of the defense to which it is sought to reply is to show that some party other than the plaintiff should have brought the action. The remedy, in such case, would seem to be a motion to strike out. HOWARD'S PRACTICE REPORTS. 023 Digest. (Ward agt. Comegys et al,, ante, 429.) SECURITY FOR COSTS 1. A person who brings an action in the name of the overseer of the poor under chapter 028 of the Laws of 1857, as amended by chapter 8->0 of the Laws of 1 875, to recover penalties for a violation of the excise law cannot be re- quired to file security for costs under section 3271 of the Code of Civil Procedure. (Matter of Mar- tin, ante, 26.) 2. Section \W!l does not apply (Sharp agt. Puncher, 29 Hun, 193, criticised and not followed; Board of Commis- sioners of Excise agt. McGrath, 27 Hun, 425, followed). (Id.) 3. A deposit as security for costs must be regarded, for all the pur- poses of the action, as the property of the person making the deposit. But where the action results favor- ably to the plaintiff, and the litiga- tion is terminated, the deposit is not liable to seizure on other judg- ments if the money, in fact, be- longs to other persons who made the deposit subject only to the contingency stated. (Frazer agt. Ward, ante, 47.; 4. In an action in the city court of New York, a plaintiff residing without the state, but having an oflice in the city of New York, where he regularly transacts busi- ness in person, cannot be required to give security for costs. ( Wyckoff agt. Devlin, ante, 33.) 5. Sections 3268 and 3160, Code of Civil Procedure, construed. (Id.) SET-OFF. 1. The taxable costs in an action are not subject to set-off. (Turno agt. Parks et al., ante, 35.) 2. An attorney has a lien for his services in a particular case, as a mechanic would upon the product of his labor, and equity intervenes to save it for him, but this lien would ordinarily be measured by his taxable costs, but might em- brace a further fee, and will not always be limited to such costs if a special contract had been made in good faith between the client and his attorney, but, it seems, it must refer to his services in the particular action. (Id.) 3. Where prior to the recovery of the judgment the plaintiff assigned to his attorney herein all his in- terest in the cause of action in payment for services in the suit of Parks agt. Turno, and also for money loaned, and the attorney held this assignment prior to the recovery of judgment, and due notice was given the defendants Held, that the equity of the attorney is superior to that of the plaintiff, and no right of set-off exists. (Id ) 4. Lease a holding over oper- ates to renew it with all its terms and covenants when damages for breach of a lessor's covenant may be set up in an action by him for rent. (See Elwood agt. Forkell, 35 Hun, 202.) 5. Sale by an agent without dis- closing his principal right of the vendee to treat the agent as prin- cipal how far he may set off against the purchase-price claims against the agent subsequently purchased. (See Nichols agt. Mar- tin, 35 Hun, 168.) SHERIFF. 1. The act (chapter 279, Law* 0/1884), is not sufficient to authorize the board of estimate and apportion- ment to fix the fees, percentages and allowances of the present sheriff, during his term of otlice, at the rates set forth in their reso- 621 HOWARD'S PRACTICE REPORTS. Digest. lution of December 29, 1884. for services thereafter to be rendered. (Davidson agt. The Mayor, &c.,of New York, ante, 182.) 2. The act construed as not author" izing any interference with the fees of the then incumbent of the sheriff's office, but the fixing of compensation authorized deemed to apply to his successors in office. (Id) S. The provision of section 709 of the i ode of Civil Proceedure per- mitting the sheriff to hold prop- erty taken under an attachment after the warrant of attachment has been vacated on the applica- tion of defendant, until his costs and expenses have been paid, and sell it for their payment, is uncon- stitutional, as being in effect to allow him to hold and dispose of the property of one party to pay the debt exclusively of another (See Hall agt. United States Reflector Company, ''() How., 51). (Boweagt. The United States Reflector Com- pany and others, ante, 440.) 4. In an action upon a bond of in- demnity to the sheriff, it was error to refuse to charge the jury that if neither the sheriff nor any of his deputies judged the property taken under the execution in refer- ence to which the indemnity ap- plied was owned by the judgment debtor, then the defendant was en- titled to averdict. (O'Donohue et al. agt. /Simmons, ante, 4(51.) 5. Although an execution is regular on its face, if it be, in fact, unau- thorized and void the sheriff may refuse to execute it; and proof of its invalidity establishes a good defense to an action against him for such refusal. (Reid agt. Steg- man, 99 N. Y., (546.) SLANDER OF TITLE. 1. The courts of this state have no jurisdiction for trespass to lands without the state. (Dodge agt. Colby, ante, 475.) 2. To maintain slander of title, it must be alleged to have been malicious. (Id.) 3. It is no slander to allege owner- ship and that plaintiff has no title. (Id.) 4. Under section 484 of the Code of Civil Procedure, trespass and slander of title cannot be joined in the same complaint. (Id.) SPECIAL PROCEEDINGS. 1. When the material allegations in the moving affidavit or verified petition in a special proceeding are not denied by some counter affida- vit, they stand sufficiently proved for the purposes of the ultimate order. (In re N. Y., L. & W. R. R. Co., 99 N. Y., 12.) 2. In proceedings by a railroad corporation to acquire title to lands, the petition averred the due incorporation of the petitioner. A counter affidavit denied any knowledge or information suffi- cient to form a belief as to the truth of said averment : Held, that considering this simply as an affi- davit, it was not a denial of the averment; that treating it as an answer there was no such denial as put the petitioner to proof of its incorporation, as under the Code of Civil Procedure (sec. 1776) a corporation plaintiff is not re- quired to prove its corporate ex- istence unless the answer contains an affirmative allegation that plain- tiff is not a corporation ; that, there- fore, conceding the land-owner might, without a former denial, disprove the fact, the burden was upon it of proving the petitioner was not a corporation. (Id.) SPECIFIC PERFORMANCE. 1. A purchaser cannot justify his refusal to perform his contract by a mere factious objection to the HOWARD'S PRACTICE REPORTS. G25 Digest. title tendered him, nor is it sum cient for him when the jurisdic- tion of an equity court is invoked to compel him to perform his con- tract merely to raise a doubt as to the vendor's title. (Johnson and another agt. Duncan, ante, 366.) 2. Before he can successfully resist performance of his contract on the ground of defect of title, there must be at least a reasonable doubt as to the vendor's title, such as affects its value, and would inter- fere with its sale to a reasonable purchaser, and thus render the land unmarketable. (Id.) 3. Inexcusable laches and delays will debar a party from the relief which, they being absent, he might have by the judgment for specific performance. (Id.) 4. Time, though not ordinarily of the essence of the contract, may become so, if by its effluxion a change of value or other material change of circumstances has been produced, but if the delay of the defendants is unreasonable and inexcusable, it is enough to relieve the unwilling party from the con- tract. (Id.) 5. It seems, that a party to a contract for the purchase of land has no equitable lien for the amount paid on the execution of the contract where he has lost the right to enforce such contract by his own laches. (Id.) STATUTE OF LIMITATIONS. 1. Before the adoption of the Code of Civil Procedure, the statute of limitations of a foreign state con- stituted no defense to an action brought here, but section 390 of the Code of Civil Procedure has changed the rule to some extent. (Howe agt. Welch, ante, f)07.) 2. In this case the cause of action does not come within the excep- VOL. II 79 t tions of section 390, for the reasons: First. The cause of ac- tion did not originally accrue in favor of a resident of this state, but in favor of a resident of the state of Ohio. Second. Because before the expiration of the period of limitation the person in whose favor the cause of action origin- ally accrued did not become a resi- dent of the state of New York as he lived and died in Ohio; and because, Third. The cause of ac- tion was not assigned before the expiration of the time so limited to a resident of this state. (Id.) 3. Where it is sought to revive a debt barred by the statute of limi- tations by a new promise to pay " when able " the burden is on the plaintiff to prove ability to pay. Failure to establish the condi- tions upon which the new prom- ise was made is a failure to revive a debt barred by the statute of limitations. (Id.) See JUDGMENT. Spencer agt. Wait, ante, 117. STOCK. 1. Stock purchased on margin by a stock-broker for a customer, be- comes the property of the cus- tomer, as between them the re- lation of pledger and pledgee is created and exists, and upon pay- ment of the amount due the cus- tomer becomes entitled to the possession of the stock. (Matter of Smytli, ante, 431.) STOCK EXCHANGE. , Under the rules of the New York Stock Exchange, when a member assigns, all securities held by other members of the exchange for indebtedness to them of the member failing, may be sold at once and without notice, and all members have a lien upon the 626 HOWARD'S PRACTICE REPORTS. Digest. seat in said exchange of any member indebted to them for the amount of the indebtedness. (Mat- ter of Smyth, ante, 431 .) 2. S., of Albany, N. Y., a stock- broker and member of the New York Exchange, assigned His New York correspondents were H. B. & Co. He bought all stock and bonds for his customers through them. They held bonds belonging to the customers of S., and also stock bought on margin. H. B. & Co. knew no one in their transactions but S. II. B. & Co., immediately after the failure of S. , sold the stock and bonds of the customers of S. and applied the proceeds on their claim against S.. and the assignee afterwards selling the seat, paid H. B. & Co., the balance due them, retaining the remainder thereof: Held, that the owners of the stock and bonds so sold, had a claim superior to the general creditors of S , and were entitled to have their sev eral interests allowed out of the moneys in the hands of the as- signee, arising from the sale of the seat in said exchange. (Id.) STREET IMPROVEMENTS. 1. When a law for repaying a street has been duly passed, proposals to do the work invited, bids received, and by resolution of the contract- ing board of a city the contract let to the lowest bidder, the proposer has a right to have the proper con- tract written out in accordance with liis bid so accepted, and the board has no right to rescind the resolution awarding the contract. A mandamus will issue to compel the execution of the proper con- tract by the city. (People ex rel. Iloder agt. Board of Contract, &c., of the City of Albany, ante, 423.) 2. Lot owners may petition a com- mon council for a street improve- ment by attorney, and this al- although the phrase "or their duly authorized attorneys,'' is omitted in the section under which petition is made, although the phrase is to be found in the preceding section. The want of power of the attorney to sign is not presumed, but must be proved by those who attack the petition. (Id.) 3. Under chapter '252 of the Laws of 1885, the governor of the state may sign any petition required by law to be made for the improvement of streets in cities whenever the land owned by the state fronts on the street to be improved. Ijt is immaterial that the state does not appear on the tax-rolls of the city. (Id.) 4. The legislature has power to make the certificate of the city surveyor and engineer of a city conclusive evidence that the required num- ber of feet are duly represented on a petition for a. street improve- ment. (Id.) SUMMARY PROCEEDINGS. 1. The court may restrain, by in- junction, summary proceedings. if the justice goes beyond his ju- risdiction, either in taking cogni- zance of the proceedings or while he is acting in it, and it it appears that the justice who granted the warrant, the enforcement of which is sought to be restrained, was without jurisdiction, the in- junction should be continued. (Kiernan agt. Iteming, ante, 89.) 2. A justice has no power in sum- mary proceedings to adjourn the same except for the purpose of enabling a party to procure his necessary witnesses. (Id.) 3. Where, upon the return of the precept, the tenant filed a verified traverse of the return and moved to dismiss the proceedings, and the justice, after hearing the tes- timony of the parties as to the HOWARD'S PRACTICE REPORTS. 627 Digest. service of the precept instead of rendering his decision upon the close of the evidence, adjourned the proceedings for the purpose of decision : Held, to operate as a discontinu- ance of the proceedings. (Id.) 4. A justice, other than the one be- fore the precept is returnable, has no jurisdiction to issue the war- rant. (Id.) 5. In examinations in supplement- ary proceedings in the city court, where it appears that the judg- ment debtor has made a general assignment for the benefit of his creditors, the examination need not be limited to property ac- quired since the assignment. (Schneider et al. agt. Altman, ante, 448.) SUMMONS. 1. "Where there was furnished to the judge who made the order for the service of a sximmons by pub- lication a verified complaint show- ing a sufficient cause of action against the defendants to be served, and positive proof by affi- davit that they resided in Ireland, and that the attorneys for the plaintiff delivered copies of the summonses to B. with directions to serve them; proof by the affi- davit of one of the attorneys for plaintiff that he was informed and believes that the summons could not, after due diligence, be served on the defendants, supplemented by the affidavit of B., who was charged with the duty of making the service; that he had served the summons on a number of the defendants, but that he had been unable, with due diligence, to make personal service on the three defendants named, and he also proved their non-residence: Held, that the statutory require- ments of the Code of Civil Pro- cedure have been complied with, and that the affidavits are suffi- cient. ( Wunnenberg agt. Gerarty, ante, 131.) 2. The statutes do not require ex- tieme diligence or extraordinary exertion. They only require proper and suitable diligence, such as the circumstances of the case require. (Id.) 3. Where, in an action of foreclos- ure, unknown owners are made defendants, as authorized by the Code of Civil Procedure (sees. 438, 451), and are described in the summons, the addition of the words "if any," does not invali- date the process. (Abbott agt. Curran, 98 N. Y., 665.) SUPPLEMENTARY PROCEED- INGS. 1. It is not necessary to state in the affidavit to obtain order for ex- amination of a judgment debtor, in proceedings supplementary to execution, that the city court of New * ork is a court of record, that no previous application for an order to examine judgment debtor has been made in the action or that the judgment was ren- dered upon the judgment debtor's appearance or personal service of the summons upon him. (Sayer agt. McDonald, ante, 119.) 2. The title to the personal property of a judgment debtor, residing iu another county than that in which the judgment-roll in the action is filed, is not vested in a receiver in supplementary proceedings until the order appointing him has been filed in the office of the clerk of the county where the judgment- roll is filed, and a copy of the order, certified by that clerk, is filed with the clerk of the county where the judgment debtor re- sides. (Stoats agt. Wemple, anU, 161.) 3. And until then the receiver is not 628 HOWARD'S PRACTICE REPORTS. Digest. entitled to an order requiring the judgment debtor to deliver his personal property to him. (Id.) 4. Where orders were granted for the examination of a judgment debtor on proceedings supple- mentary to execution, upon affida- vits in fhe usual form made by one of the attorneys who recovered the judgments for the plaintiff. On motion by the judgment debtor to vacate such orders upon the ground that prior to the grant- ing of the orders the title to the judgments had passed to a re- ceiver: Held, that the judgment debtor had the right to make such motion. Held, further, that an attorney must obtain leave of the court be- fcre he can institute supplement- ary proceedings upon a judgment in favor of his own client after the title to that judgment has passed from the client to the re- ceiver, and especially where the proceedings are instituted by an affidavit that says nothing about the lien of the attorney. (Moore agt. Taylor and another, ante, 843.) 5. An order in supplementary pro- ceedings directed the judgment debtor to deliver to the sheriff a sum of money, which had been paid to him as wages after the institution of the supplementary proceedings. The defendant was a resident of Pennsylvania, and it appeared that the money was in that state : Held, that the order was erroneous; that the court had no power to compel the debtor to go out of this state to obtain the money and bring it here. (Bu- chanan agt. Hunt. 98 3 T . T., 560.) 6. It seems the most the court had power to do was to require the debtor to transfer his title to the money to a receiver. (Id.) 7. In an action brought by a re- ceiver, appointed in supplement- ary proceedings, to set aside as fraudulent a conveyance of real estate, executed by the judgment debtor, so as to subject the prop- erty to levy and sale on execution, where the receiver simply proves his appointment, without showing the proceedings necessary to vest in Mm title to the real estate, he is not entitled to recover the rent* and profits. (Wright agt. Ifbs- trand, 98 N. Y., 669.) SURETIES. 1. The sureties on the official bond of a city marshal are not liable until after a valid judgment has been recovered against their prin- cipal. (In re Mary Brasier, ante, 154.) ' 2. In an action upon a bond of in- demnity to the sheriff, it was error to refuse to charge the jury that if neither the sheriff nor any of his deputies judged the prop- erty taken under the execution in reference to which the indemnity applied was owned by the judg- ment debtor, then the defendant was entitled to a verdict. (O'Uono- hue agt Simmons, ante, 461.) SURROGATES. 1. The provisions contained in sec- tion 13 of article <> of the constitu- tion, to the effect that " no person shall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be seventy years of age," does not apply to persons holding the office of surrogate. (The People ex reL Lent agt. Carr, ante, 501.) SURROGATE'S COURT. 1. Where a claim against an estate is presented, in proper form and duly verified, to the person and at the place named in the statutory notice to creditors given by ex- HOWARD'S PRACTICE REPORTS. 629 ecutors, and after a reasonable opportunity to examine into its validity and fairness, the execu- tors do not offer to refer on the ground that they doubt its justice, or do not dispute it, it acquires the character of a liquidated and undisputed debt against the es- tate. (Lambert agt. Craft, 98 N. F.,343.) 2. Although where application is made by the creditor, by petition to the surrogate to direct payment of such a claim, it is in the power of the executors under the pro- visions of the Code of Civil Pro- cedure (sees. 2717, 2718) to divest the surrogate. of jurisdiction and put the claimant to his proof in another court ; if they fail to do this, it is only necessary for the euirogate to be satisfied by proof, that there is personal property of the estate applicable to the pay- ment or satisfaction of the claim, and which may be applied without injuriously affecting the rights of others (sec 2718, sub. 2). (Id.) 3. An oral plea of a general denial in answer to the petition is in- effectual for any purpose. (Id.) 4. It seems that in any case as the jurisdiction of the surrogate to di- rect payment of a debt is confined to undisputed claims, the peti- tioner is neither required to state the facts which go to make out his debt, nor if stated, will he be permitted to establish them. The presentation of the petition, and the citation issued thereon (sec. So Hi), brings in the executor, not to plead or respond to the petition, but by a verified written answer to set forth affirmative facts, if any exist which show " that it is doubtful whether the petitioner's claim is valid and legal," and also ' denying its validity or legality absolutely or upon information and belief." The answer must meet both requirements to require a dismissal of the petition. (Id.) 5. A. surrogate, on settlement of the accounts of an executor or administrator, who has made ad- vances -for the support and main- tenance of a minor entitled to a share in the estate, has jurisdic- tion to determine, upon equitable principles, a claim for such ad- vances ; and an allowance is proper where the expenditure for which reimbursement is so sought is such as would have been au- thorized by the court had applica- tion been made in advance. (Hy land agt. Baxter, 98 N. Y , 610.) 6. Where, therefore, in an action by an administrator to have ad- vances made by him for the sup- port of the testator's minor chil- dren, applied in deduction of the sums adjudged against him on settlement of his accounts by the surrogate on account of the dis- tributive shares of said minors, it appeared that in the account pre- sented by the administrator before the surrogate the advances were set out and a credit claimed for the amount thereof, but the claim was disallowed : Held, that the decision of the surrogate thereon was res adjudicata ; and so, con- clusive upon the parties in this action. (Id.) TAXES AND ASSESSMENTS. 1. The assessors, in estimating the value of railroad or canal property within a town, are not to be gov- erned solely by its cost, but rather, though not' exclusively, by its pro- ductiveness for railroad or canal purposes. (People, ex rel., Presi- dent, &c., of D & II. Canal Co. agt. Keator, ante, 471). ) 2. The taxable value of the part of a canal which lies within a town in which the tax is laid, is to be ascertained by valuing, as a part of a whole a continuous way to carry freight from one point to another, and the profits i.f iis use 630 HOWARD'S PRACTICE REPORTS. Digest. for that purpose (See ante, 454). (Id.) TRADE-MARK.* 1. A person who has been a hired workman of another, a mere em- ploye for a time, afterwards en- gaging in the same business of his former employer and occupying a store in the same city, has no right to use the name of such former employer upon his cards, signs, &c , by saying " late with," &c., and such use will be re- strained by injunction. (Van Wyck agt. Horowitz, ante, 279.) TRIAL. 1. Subdivision 2 of section 1347 of the Code of Civil Procedure pro- vides that appeals may be taken to the general term of the supreme court from an order granting or refusing a new trial, " except "that where specific questions of fact, arising upon the issues in an action triable by the court, have been tried by a jury, pursuant to an order for that purpose as pre- scribed in section 971 of this act. an appeal cannot be taken from an order granting or refusing a new trial upon the merits : " Held, that the prohibition against appealing from an order '' upon the merits " was intended to limit and restrict the consideration of the effect of the evidence to the jury *nd to the court before which an application to set aside the verdict and for a new trial, might be made under the provisions of section 1003 of the said Code. (Bowen agt. Becht, 35 Hun, 434 ) 2. That it was not designed to ex- tend beyond a review of the effect of the evidence bearing upon the issue tried. (Id.) 8. That the exception was not in- tended to prevent the review, by appeal, of rulings made by the justice presiding at the trial before the jury, by which proper evi- dence was rejected, or improper evidence received, or unsound rules applied to the consideration of the evidence in the submission of the case to the jury. (Id.) 4. That where such erroneous rul- ings have been made, and the verdict in part influenced by them has been made the basis of the final recovery, a new trial should be ordered, despite the provisions of section 1003 of the said Code, declaring that "an error in the admission or exclusion of evi- dence, or in an}- other ru'.ing or direction of the judge upon the trial, may, in the discretion of the court which reviews it, be disre- garded if that court is of opinion That substantial justice does not require that a new trial should be granted." (Id.) 5. Where such erroneous rulings have been made by the justice presiding at the trial before the jury of the specific questions re- ferred to them, and it appears from the decision of the justice before whom the issues in the action were tried at special term, and from the judgment entered thereon, that the findings of the jury upon the questions submitted to them were considered by him in arriving at his decision, the judgment will be reversed. (Id.) 6. To the complaint in this action, which contained five separate causes of action, the defendant demurred, upon the grounds that there was an improper joinder of causes of action, that the second cause of action therein stated did not state facts sufficient to consti- tute a cause of action, and that the third cause of action did not state facts sufficient to constitute a cause of action Upon the hear- ing of the issues raised by the de- murrer it was decided that the second cause of action as set HOWARD'S PRACTICE REPORTS. 631 Digest. forth in the complaint did not state facts sufficient to constitute a cause of action. The defendant thereupon ente'ed a judgment dismissing the complaint as to the second cause of action and for costs. Upon an appeal taken by the plaintiff from this judgment: Held, that as the issues of law raised by the first and third f rounds of demurrer bad not been ecided, no final judgment could be entered. (Robinson agt. Hall, 35 Hun, 214.) 7. That .the remedy of the plaintiff was not by appeal, but by a motion at special term to have the judgment so irregularly entered vacated and the remain- ing issues properly disposed of. (Id.) 8. That the appeal should be dis- missed. (Id.) 9. The rule which is to be applied where a contradiction exists be- tween the findings of fact and conclusions of law appearing in the decision, signed by the judge or referee, and the findings made upon special requests therefore submitted by either of the parties, considered, and the old rule that in such cases the special findings is to control, criticised and doubted. (Sisson agt. Cumminqx, 35 Hun, -22.) 10. The proper manner of preparing the findings of fact and conclu- sions of law which are to be signed by the judge or referee and filed as his decision, stated. (Id.) 11. Referee's report when set aside because of bias and prejudice upon the part of the referee what will excuse delay in making the motion (See Burrows agt. Dickinson, 35 Hun, 492.) 12. By the court findings of fact and conclusions of law must be made and signed a trial of a contested question of fact by the court cannot be reviewed unless such a decision be made. (See Benjamin agt. Allen, 35 Hun, 115.) 13. Trial for murder in the first de- gree when the question of pre- meditation and deliberation must be left to the jury errors in the charge when not cured by a subsequent modification tnereui' defense of an alibi it is error to charge that it is a suspicious de- fense what evidence may be ad- mitted to sustain the defense. (See People agt. Kelly, 35 Hun, 295.) TRUST. 1. The courts recognize a difference between the intent of a testator to create a legal direction on his devisee and the intent solely to create a moral obligation; the latter does not create a trust. (Bowker and others agt. Wells and otliers, ante, 150.) 2. While a secret trust to apply devised property to an illegal pur- pose will render the devisee a trustee for the heirs-at-law or next of kin, the trust must be estab- lished in such a manner that if legal it would be binding upon the trustee. (Id.) 3. D. by her will gave the bulk of her estate to four persons, or such of them as might survive her and be of sound mind, absolutely, aa joint tenants and not as tenants in common (expressing a wish a*l- though stating that it was not to be taken as a legal direction), the estate so bequeathed and devised should be applied by these four gentlemen as they might deem wise to the promotion in the United States of sound political knowledge. In an action to con- strue the will: [[eld, that the language of tlio will, if directed toward a purpose capable of legal enforcement, would not have created a trust, and as there is no promise shown 632 HOWARD'S PRACTICE REPORTS. Digest. de hors the will to apply the de- vised property to such purpose, the devise is valid and the devisees take the property absolutely as their own (0'IIara agt. Dudley, 95 aV. T. , 403, distinguished}. (Id.) See WILL. Ward agt. Ward and otters, ante 345. TRUSTEES. See CORPORATION*. United States Ice and Refrigera- tor Co., agt. Reed et al., ante 253. VERIFICATION. 1. A verification of a pleading made by the secretary of a domestic corporation in the usual form, as required by the Code, when a pleading is verified by the party, is a sufficient verification. (Amer- ican Insulator Co. agt. Bankers' and Merchants' Telegraph Co., ante, 120.) 2. It is only agents or attorneys that are required, when verifying pleadings, to set forth the grounds of their belief as to all matters not stated upon their knowledge, and the reason why the verifica tion is not made by the party. A corporation cannot take an oath, and the statute points out the way in which it must verify a pleading. Such verification is the verification of the corpora- tion and a verification by the party. (Id.) WILL. 1. The primary fund for payment of legacies is personal estate and realty, cannot be charged with the burden unless by express direction or clear intent drawn from the will, aided by outside circum- stances, if any there be. (Reyher agt. Reyher and others, ante, 74.) 2. The will of R. , after directing the payment of his debts, directed his executors to pay to his father, mother, brother and sister, certain sums of money, and then directed that all the rest, residue and re- mainder of his estate, both real and personal, be equally divided between his daughter and widow, who was appointed executrix, giving ber full power to sell and convert all the estate into money. The personal property was insuf- ficient to pay the legacies in full: Held, that the legacies were chargeable upon the real estate. (Id.) 3. It is the duty of the court to as- certain from the will itself the intention of the testator, and if the provisions of the will are legal, to give effect to them according to the intention of the testator. Invalid provisions, as a matter of course, must fail. (Lee agt. Lee, ante, 70.) 4. By the will one half of the residu- ary estate was given to trustees, who were directed to receive the income thereof during the life- time of the testator's son, H. VV. L., and to pay the same to him so long as he should live. But upon his death, leaving a wife him sur- viving, one-quarter of the income was to be paid to her so long as she should remain unmarried. On liis death, without leaving a widow, the whole of such share set apart tor his benefit, or if he should leave a widow, three-quar- ters of such share was given abso- lutely and in fee to his children. But should his son leave " a widow," then at her death or re- marriage the one-quarter of his share was disposed of in like man- ner as the rest of the share. H. W. L was married at the time of his father's death, and he, as well as his then wife, are still living: Held, that it would be prema- ture, at this time, to pronounce this portion of the will invalid, for effect may be given to the tes- HOWARD'S PRACTICE REPORTS. 633 Digest. tator's actual disposition of this one-quarter interest, in the event that H. W. L. should leave no widow at his death. (Id.) 5. But as to the one-quarter interest of the one-half of the residuary estate continued in the trustees for the benefit of the widow of his son S. A. L., in the event that he should die leaving a widow, the case is different S. A. L died after the testator's death, leaving a widow and several chil- dren. These facts present the alternative condition, upon which the trust was to continue after the death of the testator's son, and upon which the gift to the chil- dren was 7uade, und such trust is void, and as to this one-quarter of the one-half of the residuary estate, the testator in law died intestate (( 'iting Schetler agt. Smith, 41 N. Y., 328). (Id.) 6. Where the will contained a gift of $2,000, upon the death of the tes- tator's wife, to his grandchildren ''in being" at that time, such of them, however, as were under the age of twenty-three years to be paid their shares on arriving at that age : Held, that grandchildren born after the testator's death, but dur- ing the lifetime of the widow, take a share of this gift. Grand- children born after the death of the widow do not participate in this legacy. The statute disposes of the shares of the grandchildren who died intestate during the life- time of the widow. Held, also, that the grandchild H. F. L , although born after the death of his father S. A. L , is embraced within the terms of the gift to his children "then in be- ing," and within the provisions of the statute, and the policy of the law should share equally with the brothers and sisters in the share set to his father. (Id ) 7. The after-added provisions of the will, near its close, bv which it is sought to continue the trust over the shares of minors in the re- siduary estate, is void in so far as the I'-i.OOO held for the life of Eliza Howe is concerned. That portion of the residuary estate has already been subjected to a trust for two lives. (Id.) 8. The gift to the testator's grand- children was made in absolute terms at the time they were limited to take effect, and the latter-added invalid trust may be dropped, and the principal sum should be paid to the persons entitled thereto, when entitled, as though such lat- ter trust had not been attempted to be made. (Id.) 9. A paper purporting to be the will of a resident of New Jersey who died in that state leaving personal property in the county of Mew York, was propounded in that county for probate. Such paper was not subscribed by its maker, but her name appeared in her own handwriting in its opening sen- tence, which began: " If I, Cecilia L Booth, should die," &c. (In ike Exlate of Cecilia L. Booth, de- ceased, ante, 110.) 10. The instrument from first to last was written by the decedent while two persons were in attendance at her request for the purpose of attesting it. They duly subscribed their names as witnesses, and she acknowledged in their joint pres- ence that the paper so authenti- cated was her will, at the same time displaying it so that they saw her name as written upon its face: Held, fti'xt, that the sufficiency of the execution of the disputed paper should be tested by the law of New Jersey, and not by that of New York. Second. That the instrument was duly executed within the New Jersey statute of 18">l, which re- quired that a will should be " signed by the testator,'' and that such signature should be made by him, or the making thereof ac- VOT, IT 80 684 HOWARD'S PRACTICE REPORTS. Digest. knowledged l>y him in the presence of two witnesses. (Id.) 11 During the pendency of proceed- ings for the probate of an alleged will, the contestant, who was one of the next of kin of the decedent and was named in the disputed paper as a legatee, applied for an order directing the payment of a sum of money to be charged against her legacy or her distrib- utive share accordingly as the disputed paper might thereafter be granted or refused probate. Such paper contained a provision declaring that any legatee or dev- isee wlio should contest its validity should forfeit thereby the bequest or devise in his favor. (In the Estate of Frederick 6 rote, deceased, ante, 140.) 12. The respondents having filed an answer setting forth the foregoing facts and alleging that because of them the legality and validity of the petitioner's claim was doubt ful. Held, that under section 2718 of the Code of Civil Procedure the application must be dismissed. (fd.) 13. No express gift to executors is necessary in order to vest them with a trust estate. A trust will be implied when, upon a consid- eration of the whole will, that clearly appears to have been tes- tator's intention, or when the duties imposed are active and ren- der the legal title in the executors convenient and reasonably neces- sary, although not essential to ac- complish the purposes of the will, and when such implication would not defeat, but would sustain, the dispositions of the will. ( Ward agt. Ward and otters, ante, '645. ) 14. Testator gave the use and in- come of all his estate to his widow, and after her death to his two sons, share and share alike, remainder to their heirs, and clothed his executors with such powers and duties as clearly showed that he contemplated their retaining pos- session of the estate, and the bene- ficiaries receiving the income from them: Held, the estate vested in the executors in trust for the life of the widow, and after her death for the lives of the two sons re- spectively. Also, field, there is no illegal sus- pension of the power of aliena- ti;.,i (Id.) 15 A gift of income " subject to the necessary expenses " of living and the education of two sons : Held, to create a charge upon the income in the recipient's hands which she was bound to satisfy. (Id.) 16. A desire that "such sums from time to time as may be necessary and deemed advisable to be paid to" persons named "that they * * * may not want for the necessaries of life: " Held, to create charges upon the income of the estate which the widow is bound to satisfy, and which the court will enforce in the event of her failure to do so in good faith. Further, held, the court will not pronounce in advance the legal consequences of an event which has not happened and may never occur. (Id.) 17. Where a will provided as fol- lows: "First. After all my lawful debts are paid and discharged, I give and bequeath to C. M., who is now living with me, his heirs and assigns, all that house, lot, tract and parcel of land where I now reside in the town of Almont, Al- leghany county, N. Y., containing about forty acres of land." Im- mediately following this there are sixteen " items " by which the tes- tator bequeaths to twenty-two per- sons specific sums of money; each clause of the bequest commences: "I give and devise." The eigh- HOWARD'S PRACTICE REPORTS. G3S Digest. teenth clause reads: " T give and devise all the rest, residue and remainder of my real estate and of my personal estate, goods and chattels of every kind whatsoever, if any there shall be after paying my debts and the legacies herein- after named to the several lega- tees hereinbefore named, to be divided between them share and share alike." In a codicil to the will the testator slightly changed some of the bequests and at the end of which was this clause: " I have by my last will referred to above, willed that any remainder or residue of my estate real or personal which may remain after paying debts and legacies, be dis- tributed among the several lega- tees share and share alike. Now, therefore, I do by this my writing, which I hereby declare to be a codicil to my said will and to be taken as a part thereof, order and declare that my will is, that such distribution be made, not share and share alike, to the legatees, but pro rata or in proportion to the several legacies excepting E. L. and H. B F. who are not to share in such distribution." C. M. is the only devisee, and the real prop- erty above mentioned is the only real property devised. The testa- tor died leaving a small parcel of land undisposed of in any way other than by such residuary clause in the will and codicil: Held, that the devisee C. M. is not entitled to any portion of the residuary estate, and it should be distributed to the legatees named in the will, in the proportion therein named. (Matter of Kan\ ante, 405.) 18. Strictly speaking, real estate given by will is devised, and per- sonal estate is bequeathed. The one receiving real estate is termed a devisee, and the one taking per- sonal property a legatee. One act of giving is a devise, the other a bequest. The person receiving a devise or a bequest is a beneficiary. (Id.) 19. A testator is always presumed to use the words in which he ex- presses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he appears to have used them will be the sense in which they are to be con- strued. (Id.) 20. The ordinary as well as technical meaning of the word "legacy" is a gift of property by will other than real estate ; this is its strict and primary sense and the one generally accepted. This is the meaning thai will be attached to the word by the court, unless it clearly appear from the will itself that the testator has used the word in a different sense. (Id.) 21. Where a will presents upon its face questions of complication, uncertainty and difficulty, au executor may institute and main- tain an action for the purpose of obtaining a judicial construction thereof, and for direction to him as to the manner in which he should discharge his duties in ex- ecuting the will as such executor. (Bigart agt. Jones, ante, 491.) 22. It is the policy of the law, in regard to the construction of wills, to give effect to every pai t thereof, to the end that every beneficiary shall receive the bounty of the tes- tator, according to his intention, as fairly gathered from the entire instrument. (Id. ) 23. Where the testator by his will bequeathed, after the payment of debts and funeral charges, all of his personal and real estate, except a lot which Elizabeth Akin was to occupy, to his wife, to be used and enjoyed by her during her natural life, or until she should marry. Upon the marriage or death of his widow his daughter Cecilia became entitled to the use and enjoyment during her nnturai 36 HOWARD'S PRACTICE REPORTS. Digest. life of the estate, real and per- sonal: Held, that Cecilia did not take a fee under the will, but that her estate should be regarded merely as a life estate. It follows that at the death of Cecilia, if she had left lawful issue her surviving, such issue would have been en- titled absolutely to the estate, real and personal. As Cecilia died without leaving such issue the estate, real and personal vested in thd persons designated in the sixth clause of the will, subject to the payment of the bequest specified in the will. (Id.) 24. It seems to have been the pur- pose and intention of the testator to consolidate into one fund the real and personal estate at the death or marriage of his widow, and to bequeath or devise the same accordingly, subject to the satis- faction of the burdens which he imposed upon his estate for the benefit of the persons designated therein, to whom he gave certain sums by way of legacy. (Id.) 25. Where a will has been so drawn as to allow blank spaces m the body thereof of such a nature as to allow the insertion of disposi- tions without interlineations, and Where jthe testatrix does not subscribe her name in the pres- ence of both witnesses, and does not acknowledge her signature to the witnesses, although she in- forms the witnesses that it is her will she wishes them to witness: Held, that there was no sufficient signing of the will by the de- ceased in the presence of the wit- nesses, nor a sulBeient acknowl- edgment to them that she had done so to satisfy the requirement of the statute, and that the paper was not entitled to be admitted to probate. (In ttie Matter of Catha- rine S/uiffer, dec&ixed, ante, 494.) 26. Where there is no direct ex- pression of intention that the pro- vision contained in the will shall be in lieu of dower, the question always is whether the will con- tains any provision inconsistent with the assertion of a right to command a third of the land to be set out by metes and bounds for dower. The intention of the testator need not be declared in express words, it may be implied if the claim of dower would be plainly inconsistent with the will. (Cole agt. Cole et al., ante, 51(i.) 27. Where the will gave all the tes- tator's real and personal estate to plaintiff (widow) as executrix and John M. Corliss and William Carley as executors in trust for uses and purposes therein stated, among which are the following: " First. To receive and collect the income thereof, and to pay the same for my debts, and the incum- brances upon my estate, after the payment of such sums as may be necessary for the support and ed- ucation of my family and children, in which matters I desire my ex- ecutrix and executors to be lib- eral. Second. To purchase in their own names as such executrix and executors a homestead for my wife and family if I shall not do so in my lifetime, and in such homestead all my children shall be entitled to a home while they re- main unmarried." The testator in his lifetime purchased the homestead and owned it at the time of his death: Held, that the intention of the testator is reasonably clear that the widow should take all of her interest in that homestead under the will. She is given an interest equal to that of each. child. The devise must contemplate a home- stead discharged of dower, other wise the object of the testator as expressed might be defeated by assumption of dower right, and possible sale of the homestead under such claim. (Id.) 28. The testator directed that in case of the remarriage of his wife all of his estate shall be divided HOWARD'S PRACTICE REPORTS. 637 Digest. equally among his four children, and be paid to them respectively as they arrive at full age : Held, that if one-third of the real estate were to be set apart to the widow as dower, a division of all of the estate among such children could not take place until the widow's death notwithstand- ing a remarriage by her. Thus a provision of the will would be defeated. (Id.) See DOWER. Mason agt. Mason et al. , ante, 514. See TRUST. Bowker and others agt. Wells and others, ante, 150. WITNESS. 1. Actions against trustee to recover corporate debts as a penalty for failure to file annual reports are "penalties," within the meaning of section 837 of the Code of Civil Procedure. In such actions a party defendant is privileged from answering any question concern- ing the facts alleged in the com- plaint and cannot be compelled to answer upon an examination be- fore trial any question which would support the claim of the plaintiffs, either against himself or his co-defendants. (Hughen agt. Woodward, ante, 127.) 2. By section 834 of the Code of Civil Procedure, a physician is prohibited from disclosing any in- formation which he acquired in attending a patient in a profes- sional capacity, and which was necessary to enable him to act in that capacity, and the seal of the law placed upon such disclosures can be removed only by the ex- press waiver of the patient him- self. (Westover agt. The ^Etna Ins. Co., ante, 184.) 8. Whenever the evidence comes within the purview of the statute it is absolutely prohibited and may be objected to by any one, unless it be waived by the person for whose benefit the statute was enacted. (Id.) 4. An executor or administrator does not represent a deceased per- son for the purpose of making such a waiver. lie represents him simply in reference to right of property and not in referenco to those rights which pertain to the person and character of the testator (Reversing S. G., ante, 163). (Id.) 5. This action was brought by the receiver of an insolvent firm of brokers against one of the part- ners, and against the general as- signee of the said partner and the general assignee of the firm, to enforce an equitable lien upon the assets in the hands of the assignee of the defendant partner, for money wrongfully withdrawn from the firm by his assignor. The plaintiff procured an order for the examination, before trial, of the defendant partner, upon an affidavit alleging that the part- . ner withdrew money from the firm as profits, when he knew that no profits had been realized and that the firm was insolvent, and that he withdrew the said funds with the intent to hinder, delay and defraud the creditors thereof: Held, that it was error to set aside the order, upon the ground that the examination would tend to establish the com mission of some criminal offense by the witness. (Daeies agt. Fish, 3o Hun, 430.) 6. That the wrongful withdrawal of the moneys from the firm did not constitute a criminal offense under the laws of this State. (Id.) 7. That on his examination he would have the protection afforded to witnesses examined in open court, and could shield himself from in- jury under the rules applicable in such cases. (Id.) 38 HOWARD'S PRACTICE REPORTS. Digest. 8. Right of one accused of crime to be confronted with witnesses meaning of the requirement U. S. Constitution, art. 6 and art. 14, sec. 1 bill of rights, sec. 14 Code of Criminal Procedure, sec. 8, sub. 3. (See People agt. Williams, 35 Hun, 510.) 9. Contempt the refusal of a wit- ness to answer questions may be punished either criminally or civilly Code of Civil Procedure, sec. 8, sub 5; sec. 14, sub. 5; sec. 2285 length of the confinement form of the commitment. (&e, People ex rel. Jones agt. Datidavn, 35 Hun, 471.) 10. Evidence meaning of the words " interested in the event " in sec- tion 829 of the Code of Civil Procedure. (See Moore agt. Ociatt, 35 Hun, 216.) 11. Opinions of witnesses as to the peaceable disposition of a dog by whom the plaintiff has been bitten. (See Caldwell agt. Snook, 35 Hun, 73.) 12. The provision of the Code of Civil Procedure (tec. 841)), pro- hibiting a party to an action from testifying in his own behalf against an executor, etc., of a de- ceased person "concerning a per- sonal transaction or communica- tion between the witness and the deceased person," does not neces- sarily, and under all circum- stances, exclude the evidence of a party so testifying, when it tends only to negative or affirm the ex- istence of such a transaction or communication. (Lewis agt. Mer- ritt, 98 N. Y. , 206.) 13. Where the party representing the deceased person has as a wit- ness in his own behalf given ma- terial evidence, the adverse party, although precluded from directly proving the existence of such a transaction or communication, may testify as to extraneous facts tending to controvert such evi- dence, although those facts may incidentally tend to establish the inference that such a transaction or communication has or has not taken place. (Id.) INDEX A. ABATEMENT. PAGE. Cause of action to recover penal- ties under the general manu- facturing law does not abate on death of sole plaintiff 451 ABDUCTION. What constitutes the crime of. . 105 ACTION. "When one or more parties may sue or defend for the whole . . 396 Against benevolent society for benefits, what must be proved, 488 When may be maintained by an executor for construction of will 491 ADDITIONAL ALLOWANCE. Plaintiff not entitled to in action by a vendor to foreclose a land contract in which he recovers, 512 ADJOURNMENT. Power of justice in summary proceedings to adjourn the same . . 89 ADMINISTRATORS. Who entitled to receive letters of administration with will annexed. . . 194 AMENDMENT. PAOS. Of pleadings when and to what extent allowed 203 Acceptation of offer of judg- ment may be amended by supplying affidavit of attorney that he was authorized to accept it 360 ANSWER. Form of denial in which does not put in issue material alle- gations in complaint 13 What is a sufficient verification by corporation 120 When reply to answer not al- lowed 438 APPEAL. When stay of proceedings pend- ing appeal should not be va- cated 85 When motion to dismiss appeal to court of appeals may be made where case is on the calendar .... 33 1 ARREST. When party arrested for con- verting money received in a fiduciary capacity entitled to his discharge under the in- solvent law 340 Sufficiency of proof to support order of. ... .531 040 HOWARD'S PRACTICE REPORTS. Index. ASSESSMENTS. PAGE. How the value of railroad or canal property is to be determ- ined 454 ASSIGNEE. Where there are three assignees, what is proper notice in pro- ceedings for removal of 523 ASSIGNMENT. Acts of assignor which are fraudulent and render the assignment void 211 What passes by general assign- ment 431 Surviving partner no power without consent and concur- rence of the representative of deceased partner to make assignment for benefit of cred- itors of the firm with prefer- ences when court of equity will take possession of estate and appoint receiver 272 ATTACHMENT. Sufficiency of affidavit 52 ATTORNEY AND CLIENT. Authority of attorney to receive interest or part of principal sum on bond and mortgage of client 310 Responsibility of attorney the degree of skill and dili- gence required to be observed by an attorney and counselor to entitle him to enforce pay- ment for his services.. . . 352 ATTORNEY'S LIEN. PAQK. To what extent will be enforced, 35 How enforced when action on undertaking on appeal can- not be brought by attorney in his client's name 169 Mode of enforcing it 343 B. BENEVOLENT SOCIETY. What must be alleged and proven in action against be- nevolent society for benefits, 488 BOND AND MORTGAGE. Authority of attorney to receive interest or part of principal sum on bond and mortgage of client 310 BOOKS AND PAPERS. When application (under the provisions of the Revised Statutes) by an officer of a municipal corporation to com- pel the delivery of books and papers should be denied 178 BROKERS AND FACTORS. Distinction between their rights and liabilities Who are fact- ors. . . 293 BURDEN OF PROOF. The burden is on plaintiff to prove ability to pay, where it is sought to revive a debt barred by the statute of limi- HOWARD'S PRACTICE REPORTS. 641 Index. tations by a new promise to pay " when able " 507 c. CEMETERY LOTS. When inalienable 13 CHILDREN. Custody of minors rights of parents to dispose of 438 CITY COURT OF NEW YORK. Its jurisdiction 20 CITY MARSHAL. Liability of sureties not liable for judgment for costs on interlocutory order 154 CODE OF CIVIL PROCEDURE. Sections 66, 44!) attorney's lien, how enforced when action on undertaking on appeal can- not be brought by attorney in his client's name 109 Section 66 mode of enforcing attorney's lien 343 Sections 90, 25 1 1 stenographer of surrogate's court not within the scope of these sections, so as to prohibit him from acting as referee 38 Section 317 not repealed by the adoption of part 2 of the Code of Civil Procedure 257 Section 321 under this section, who liable for costs, in case of transfer of interest, &c., of cause of action 1 VOL. II 81 PAGE. Section 390 when statute of limitations of a foreign state, a defense to an action brought here 507 Section 432 sufficiency of serv- ice of process upon a foreign corporation 150 Sections 438, 439 what is a suf- ficient service by publication of a summons under these sec- tions , 131 Section 448 when one or more parties may sue or defend for the whole 390 Section 451 when and to what extent amendment of plead- ings allowed 293 Section 48-1 under this section trespass and slander of title cannot be joined in the same complaint 475 Section 550 sufficiency of proof to support order of arrest under subdivision 2 of this section 521 Sections 52"), 526 what is a sufficient verification of answer by corporation 120 Sections 630, o!69 sufficiency of affidavit to obtain attach- ment 52 Section 709 declared uncon- stitutional 440 Sections 721, 1016, 1166 effect upon the verdict when the entire jury is unsworn and no objection made 244 Section 738 what costs to be allowed when oiler of judg- ment for a specific sum, with interest and costs is made and after the offer both parties serve notice of trial after which the oiler is accepted.. . 289 042 HOWARD'S PRACTICE REPORTS. Index. Sections 738, 1278, 1932 offer of judgment by one of several partners effect of, as to costs, 82 Section 740 acceptance of offer of judgment may be amended by supplying affida- vit of attorney that he was authorized to accept it 360 Section 779 what are motion costs within the meaning of this section 154 Section 779 when non-pay- ment of costs stays all pro- ceedings 200 Section 829 it is not the inten- tion of this section to prevent a party to a suit from testify- ing to any extrinsic fact that tends to contradict a witness who swears to transactions or communications had between such party and a deceased person 411 Section 834 when physicians not allowed to testify per- sonal representatives cannot waive prohibition of statute.. 184 Section 834 physicians not to disclose professional informa- tion right of executors to waive provisions of statute.. . 163 Section 837 when defendant in action against trustee of corporation to recover corpo- rate debts as a penalty for failure to tile annual reports is excused from testifying 127 Section 1019 what is a suffi- cient compliance with the pro- visions of this section as to delivery of report when the sixty days begin to run 72 Section 1211 when husband not punished as for contempt for non-payment of costs awarded in action for separa- tion 206 PAGK. Sections 1835, 1836, 3246 in action against executor or ad- ministrator, when prevailing party entitled to costs and dis- bursements 56 Section 1871 what is a suffi- cient return within this sec- tion, with respect to judgment creditors' actions 211 Sections 2239, 2265 power of justice in summary proceed- ings as to adjournments 89 Section 2460 examinations in supplementary proceedings in the city court, when judg- ment debtor has made a general assignment, need not be limited to property ac- quired since the assignment.. 448 Sections 2467, 2468 when under these sections the order appointing a receiver, must be filed before the receiver obtained title 161 Sections 2472, 2817, 2832, 2858 limitation of the surrogates' authority to remove testa- mentary guardian 307 Section 2485 sufficiency of affidavit to obtain order for the examination of judgment debtor in supplementary pro- ceedings 119 Section 2643 who entitled to receive letters of administra- tion with will annexed under this section when strangers may be appointed co-adminis- trators 194 Sections 2600, 2814 when sur- rogate will not permit execu- tor and trustee to resign his trust 323 Sections 2700, 2714 procedure of public administrator, to cause inquiry to be instituted as the alleged withholding or HOWARD'S PRACTICE REPORTS. 643 Index. concealment of property be- longing to an intestate's estate is regulated by these sections, 158 Section 2718 when proceed- ings for the probate of a will should be dismissed in accord- ance with this section 140 Section 3017 effect of filing transcript of justice's judg- ment in county clerk's office . 117 Section 3284 costs in actions of ejectment how and to whom allowed 389 Section 3247 under the second subdivision of this section, who liable for costs in case of transfer, &c.> of causes of action 1 Section 3252 plaintiff not en- titled to additional allowance provided by this section 512 Sections 3268, 31GO when non- resident having place of busi- ness in city not required to give security for costs 333 Section 3271 this section does not apply to a person who prosecutes to recover penal- ties in the name of the over- seers of the poor for violation of the excise act, and he can- not be required to give secu- rity for costs 2G Section 3343 domicile of fed- eral corporation, by what determined 4c COMMISSIONS. What to be allowed to execu- tors, administrators and trus- tees.. 291 COMMISSIONERS. Appointed to appraise lands for railroad purposes, when guilty PAOB. of miscondxict power of court to remove on motion proper case for the exercise of such power 225 To determine as to street rail- roads in New York when application for their appoint- ment should be denied.. . 3G9 COMPLAINT. Necessary averments in action to recover real estate 88 Allegation of fraud, when not a statement of a fact, but the expression of an opinion what other averments nec- essary 130 Trespass and slander of title can- not be joined 475 CONDITIONAL SALES Contract of, must be filed effect of not filing 319 CONSTITUTIONAL LAW. The provisions contained in section 13 of article (> of tlie Constitution, limiting the age of a judge or justice to seventy years, does not apply to surro- gates 501 CONVEYANCE. He who conveys the absolute, fee of real estate to another cannot retain the right to the purchase-price when subse- quently sold CORNELL UNIVERSITY. Who entitled to free scholar- ship under chapter 1151, Laws of 1872 324 644 HOWARD'S PRACTICE REPORTS. Index. CORPORATIONS. PAGE. When holders of coupons of consolidated'corporations may maintain action upon contract against new corporations by reason of its having absorbed the one which issued the bonds 35 Domicile of federal corporations by what determined 45 What is a sufficient verification of answer by 120 Actions against trustee to re- cover corporate debts as pen- alty for failure to file annual reports are strictly penal, parly defendant excused from testifying as a witness 127 When and how far corporations attacked by the state for insol- vency, may use their corpor- ate funds after the appoint- ment of a receiver 146 When deemed to have acqui- esced in illegal acts of their trustees . 253 COSTS. Who liable for, in case of trans- fer, &c., of cause of action. . . 1 When in action against execu- tors and administrators, pre- vailing party entitled to costs and disbursements 56 Taxation of offer of judgment by one of several partners ... 82 When non-payment of, stays all proceedings 200 Upon the reference of a claim against a decedent when recoverable disbursements recoverable 257 What amount to be allowed on offer of judgment for a spe- cific amount with interest and costs which is accepted when both parties have served no- tice of trial. . 289 Non-resident having place of business in city, not required to give security for costs in action in city court 333 In actions of ejectment. 389 COUNTER-CLAIM. Distinction between defense and counter-claim 428 COURTS. Power of court to order publica- tion of terms duty of county treasurer as to payment for. . 483 CREDITOR'S ACTION. What is a sufficient return of ex- ecution within section 1871 of the Code of Civil Procedure, with respect to judgment cred- itor's actions. . 211 D. DEED. Construction of covenant against nuisances 391 One who parts absolutely with the title to land to another, cannot reserve to himself the right to its purchase-money when subsequently sold 528 DEFENSE Distinction between defense and counter-claim 428 HOWARD'S PRACTICE REPORTS. 645 Index. DIVORCE. PAGE. In action for separation, when husband not punished as for contempt for non-payment of costs awarded in. 206 When condonation of adultery by subsequent cohabitation with knowledge, not a bar to an after-brought action for divorce for such adultery. . . . 526 DOWER. When will provides for wife in lieu of dower, action must be taken within one year al- leged fraud cannot alter or change statute 136 When provision for wife should be held to be in lieu of dower, 514 When provisions of will must be regarded as intended in lieu of dower 516 E. ELECTION LAW Registration of voters duties of board of registration 472 ESTOPPEL. What does not amount to acqui- escence in or adoption of an assignment so as to preclude a party from suing to impeach it 211 EVIDENCE. Admissibility of evidence in action upon oral contract to convey land 411 When a copy of a formal record of the proceedings of the FAQS councilors of the Seneca Nation of Indians certified to by the clerk are competent evidence... 464 EXECUTION. Against the person when dis- charge will be denied 285 EXECUTORS. Costs upon a reference of a claim against a decedent when recoverable disburse- ments recoverable 257 What commissions to be allowed, 291 When may maintain action for construction of will 491 EXECUTORS AND ADMINIS- TRATORS. When in actions against the pre- vailing party entitled to costs and disbursements 56 EXECUTOR OR TRUSTEE. When surrogate will not permit him to resign his trust 323 F. FEES. Of sheriff chapter 279, Laws of 1^84, should be construed to apply to future appoint- ments a'ml not to persons in ofticeat thetimeof its passage, 182 Of referees in divorce suits, who OQQ to pay MV 646 HOWARD'S PRACTICE REPORTS. Index. FELLOW SERVANT. PAGE. Pilot and deck hand, not fellow servant.. 22 FOREIGN CORPORATION. Sufficiency of service of process upon 15G a. GIFT. Of income effect of 345 GUARDIAN. Limitation of the surrogate's authority to remove 307 H. HUSBAND AND WIFE. Effect of divorce of wife for adultery upon policy of life insurance taken out for her benefit by her husband 32 Business partnership between them not authorized 51 Liability of husband for wife's debts 252 1. IMPRISONED DEBTOR. When entitled to his discharge, 240 INDIANS. Leases on Seneca reservation who entitled to removal of lease under act of congress.. 464 INDICTMENT. PACE. Must show on its face a criminal offense 92 Repugnancy a fatal objection to an indictment. . , 92 INJUNCTION. When summary proceedings may be restrained by ...... 89 When will be granted to prevent a party from using another's name upon his cards, &c., by saying, " late with," &c 279 Action will lie and injunction will be granted to prevent in- terference with the person to whom custody of children have been given . . . 438 INNKEEPER'S LIEN. When the separate personal effects of a married woman may be detained by virtue of innkeeper's lien 519 INSURANCE (LIFE). Effect of divorce of wife for adultery, upon a policy taken out for her benefit by her husband. . , 32 J. JUDGMENT DEBTOR. When discharge from imprison- ment will be denied mean- ing of "just and fair" as used in statute. . . 285 JUDGMENT. On opening default when judg- ment allowed to stand as se- curity effect of the lieu. . . . 237 HOWARD'S PRACTICE REPORTS. 647 Index. Offer and acceptance of, by whom subscribed accept- ance of offer may be amended by supplying affidavit of attorney that he was author- ized to accept it 360 JURISDICTION. Supreme court cannot obtain jurisdiction to make an order in an action pending in a justice's court by a mere notice of motion 26 Of city court of New York 20 Of surrogate of New York over will of resident of New Jersey, leaving personal property in New York county 110 Courts of this state no jurisdic- tion for trespass to lands without the state 475 JURY. Irregularities of, for which new trial will not be granted 105 Effect upon a verdict when the entire jury is unsworn and no objection made 244 Questions for. JUSTICES' COURT. Party to an action in, cannot make a motion in the supreme court to control the procedure in such action 26 Effect of filing transcript of jus- tice's judgment in county clerk's office 117 L. LACHES. PAGE. When will debar a party from relief, which, they being ab- sent, he might have in action for specific performance 866 LEASE. Of land on Indian reservation who entitled to renewal under act of congress.. , . 464 LEGACIES. When real estate of the testator chargeable with the payment of. . .' LEGACY. Meaning of the word 405 M. MANDAMUS. When citizens and taxpayers may apply for a writ of, to ( compel common council to perform a certain duty (51 When will issue to compel exe- cution of contract for street improvements 423 AVhen will not be granted against the board of supervis- ors of a county 483 MARRIED WOMEN. When their separate peisonal effects may be detained by virtue of innkeeper's lien 519 648 HOWARD'S PRACTICE REPORTS. Index. MORTGAGE. PAGE. Owner of a junior mortgage not permitted to single out one of several parcels covered by his and an older mortgage and redeem that one parcel 10 MUNICIPAL CORPORATION. No right to construct sewers and discharge them upon the premises of an individual remedy therefor 42 Duty as to civil service. 81 Their duties power to indem- nify officers 336 MUTUAL BENEFIT ASSOCIA- TION. When member does not forfeit his claim for benefit by failure to pay assessment or failure to serve proofs of death 220 NEGLIGENCE. When vessel liable for excess of speed and for not having a lookout 22 When tug liable for collision although its light is hid by a tow 22 What amounts to contributory negligence in a child eight years old 30 NEGLIGENCE. Questions of fact for jury when injured party guilty of contributory negligence 416 NEW YORK (CITY OF). PAQB. Teachers in colored schools how to be removed 17 Common council no power to pass ordinance which in effect gives a person the right to maintain an incumbrance for any period less than ten days, 149 NON-RESIDENT. Having place of business in city not required to give security for costs in action in city court. . . . .333 o. OFFICE AND OFFICER. Proceedings by officer to compel the delivery of bocks not to be used to try title to office 85 When application (under the provisions of the Revised Stat- utes) by an officer of a muni- cipal corporation to compel the delivery of books and papers should be denied 173 OFF-SET. As between brokers and factors, 293 PARTIES. Who to be made parties where a part of premises covered by a prior mortgage are sought to be redeemed by a junior mortgagee 10 When one or more parties may sue or defend for the whole. . 396 HOWARD'S PRACTICE REPORTS. 649 Index. PARTNERSHIP. PAGE. Between husband and wife not authorized 51* Surviving partner no power without consent and concur- rence of the representative of deceased partner to make an assignment for benefit of cred- itors of the firm without pref- erences 272 PENAL CODE. Section 94 when offense not shown under this section 92 Section 282 what constitutes the crime of abduction under this section 105 Section 649 what cases covered by this section 92 PLEADINGS. When and to what extent amend- ment to be allowed 293 PLEDGOR AND PLEDGEE. When relation exists between stockbroker and customer ... 431 PRACTICE. As to motions and orders ..... , 200 On opening defaults when the judgment is allowed to stand as security effect of the lieu, 237 In proceedings for removal of assignee ................... 523 When motion to dismiss appeal to court of appeals may be made where case is on the calendar .................... 331 PARTITION. FAGS. That the testator has left his widow a life estate in one-third of the premises, does not pre- vent the owners in fee of the two-thirds from partitioning the property and realizing their shares 514 PUBLIC ADMINISTRATOR. Procedure by public administra- tor to cause inquiry to be in- stituted ;KS to the alleged with- holding and concealment of property belonging to an intes tate's estate 158 R. RAILROADS. No necessity for supreme court to confirm an adverse decision of commissioners appointed under chapter 252 of Laws of 1884, to determine as to whether a street railroad ought to be, constructed and operated, 124 When commissioners to appraise lands for railroad purposes, guilty of rnisconduct power of court to remove on motion proper case for the exercise of such power 225 Negligence questions of fact for jury when injured party guilty of contributory neg- ligence 416 How the value of its property is to be determined for the purpose of assessment 454 Evidence of value for the pur- pose of taxation 479 RECEIVER. When and how far corporations attacked by the state for VOL. II 82 050 HOWARD'S PRACTICE REPORTS. Index. insolvency may use their cor- porate funds after the appoint- ment of .a receiver 146 REFE-REE. When clerk or other person employed in the surrogate's office competent to act as referee 38 Rights of what is a sufficient compliance with the provi- sions of secjion 1019 as to delivery of report when the sixty days begin to run power of referee .to enlarge time for submission of briefs, 72 Fees in divorce suits, who to pay 239 When report will not be set aside on the ground that referee was biased relations from, which bias will not be inferred, 313 REFERENCE. When order of reference in surrogate's court and proceed- ings-thereunder should not be vacated upon motion of a party who had consented thereto. . 38 REMOVAL OF CAUSES. To United States courts causes for removal steps to be taken, 459 REPLEVIN. The issues capable of being tried in such an action 143 When it cannot be maintained erroneous verdict not cured by judgment verdict of jury should fix value of property. . 277 REPLY. PAGE. Who not allowed to answer. . . . 428 RES ADJUDICATA. When prior motion a bar upon the principle of res adjudicata, 203 s. SCHOOLS. Teachers in colored schools in New York city how to be removed 17 SECURITY FOR COSTS. t. Person suing in name of the overseer of poor for a viola- tion of excise law cannot be required to give security for costs ." 2G Money deposted in lieu of an undertaking, as security for costs, not liable to seizure on other judgments 47 SET-OFF. Taxable costs not subject to effect of prior assignment of judgment 35 SHERIFF. Fees of chapter 279, Laws of 1884, should be construed to apply to future appointments and not to persons in office at the time of its passage 182 Liability of sureties on bond of indemnity to 461 HOWARD'S PRACTICE REPORTS. 651 Index. SHERIFF'S FEES. PAGE. Section 709 of the Code of Civil Procedure permitting the sheriff to hold property at- tached after warrant lias been vacated on application of de- fendant until his costs, &c : , have been paid, 'declared un- constitutional 440 SPECIAL GUARDIAN. Who should not be appointed . . 250 SPECIFIC PERFORMANCE. When may or may not be resisted 366 STOCK EXCHANGE. When relation of pledger and pledgee exists between stock- broker and customer 431 STATUTE OF LIMITATIONS. Of a foreign state, when a de- fense to an action brought here.. 507 STREET RAILROADS. When application for the ap- pointment of commissioners should be denied 369 STREET IMPROVEMENTS. When mandamus will issue to compel execution of contract for when governor of state may sign petition lot owners may petition by attorney 423 SUMMARY PROCEEDING. PAGE. When may be restrained from injunction 89 SUMMONS. What is a sufficient service by publication under the Code of i ivil Procedure, sections 438, 430 131 SUPPLEMENTARY PROCEED- INGS. Sufficiency of affidavit to obtain order for examination of judg- ment debtor 119 When title to personal property vests in receiver appointed in such proceedings 161 When orders for, will be va- cated when attorney must obtain leave of the court be- fore he can institute 343 Where it appears that judgment debtor has made a general as- signment, examinations not- limited to property acquired since 448 SURETIES. On marshal's official bond, when liable 151 Liability of. on bond of indem- nity to the sheriff 461 SURROGATE. Jurisdiction of surrogate of New York over will of resident of New Jersey, leaving personal property in New York county, 1 Limitation of his authority to remove testamentary guardian, 307 652 HOWARD'S PRACTICE REPORTS. Index. TAGE. When will not permit an execu- tor or trustee to resign his trust. 3X3 The limitation of seventy years of age, does not apply to sur- rogates 501 T. TAXATION. Of railroads or canals evi- dence of value 470 TITLE. In action for specific perform- ance of contract as to real estate objections to title which are insufficient 36(5 What must be alleged to main- tain slander of title 475 TRADE-MARK. The right of a party to use another's name upon his cards, &c., by saying "late with," &c 279 TRUST. Where not raised on face of will moral obligation does riot create a trust 150 What necessary to vest in executors a trust estate when trust will be implied. .. 345 TRUST FUNDS. Do not pass to an assignee rules for tracing them 43] w. WILL. PAGE. Construction of when real estate of the testator charge- able with payment of legacies, 74 Of resident of New Jersey leaving property in New York county sufficiency of execution to be tested by laws of New Jersey what is a sufficient execution 110 When opposing probate of a will not a forfeiture of a legacy 140 Construction of when trust not raised on face of will. . . . 150 Construction of what neces- sary to vest in executors a trust estate when trust will be implied when no illegal suspension of the power of alienation effect of gift of income 345 Rules as to construction of w r ho entitled to distributive shares of the estate 405 Construction of 491 Insufficient signing and witness- ing 494 Construction of .. ... 516 WITNESS. When defendant in action against trustee of corporation to recover corporate debts as a penalty for failure to file annual report excused from testifying 127 AUG IH925