# Haegmeyer v. Manhattan Railway Co.

> The Superior Court of New York City · March 3, 1891 · 37 N.Y. St. Rep. 970

URL: https://www.frixlaw.com/law-library/cases/8334409

## Case

- **Full name:** Mina Christiana Haegmeyer, Resp't v. The Manhattan Railway Co., App'lts
- **Court:** The Superior Court of New York City
- **Decided:** March 3, 1891
- **Citations:** 37 N.Y. St. Rep. 970
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Per Curiam.
The judgment should be affirmed, with costs.
*971 INDEX. ABATEMENT AND REVIVOR. A delay of eleven years in making application for revival of a proceeding is sufficient to render it the duty of the court to refuse to permit the revival as a mere matter of discretion. Matter of Palmer (Sup. Ct.), 538. See Pasties, 7; Sale, 2 ABDUCTION. Upon the trial of an indictment for taking, harboring and receiving for the purpose of sexual intercourse a female not the wife of the defendant and under the age of sixteen, it was shown that the female was brought by the defendant from another state. The prosecution showed that the defendant had been intimate with the female in said state. Held, that such evidence was competent as characterizing the relations existing between them and as bearing upon the purpose for which defendant brought the female into this state. People v. Wah Lee Mon (Sup. Ct.), 283. ACCORD AND SATISFACTION. See Services, 1. ACCOUNTING. Where it appeared that the parties were not partners, but had a joint interest in the matter, Held, than an action for an accounting could be maintained. Niebuhr v. Sahreyer (N. T. C. P.), 495. ACCOUNT STATED See Sale, 12. ADJOINING OWNERS. Defendants piled a quantity of sand against plaintiff’s brick wall, which afterwards fell, and no other adequate cause was assigned for such .fall except the presence of the sand. Held, that the use of his premises by defendant in such manner as to injure plaintiff’s property was wrongful and rendered him liable for the resultant damage. Dams et al. v. Evans (Sup. Ct.), 714. ADVERSE POSSESSION. See Railroad. 24 ANIMALS. 1.1 When a person having control of a dog which is in the habit of jumping at horses’ noses while they are traveling, with full knowledge takes kiin with him while traveling on a public street, the risk of injuries resulting from the dog’s habits falls upon the owner. Putnam v. Wigg (Sup. Ct.), 804. Plaintiff called at defendant’s house to collect a bill and was attacked and severely lacerated by four mastiff dogs who were unmuzzled and unsecured. A servant of defendant testified that he would not dare to go in the place though the dogs knew him, and it appeared that one of them had bitten another person in defendant’s presence. Held, that their ferocity and defendant’s knowledge thereof were sufficiently shown to render him liable for not securing or controlling them. Jacoby v. OckerTumsen (Sup. Ct.), 710.
*972 972 APARTMENT HOUSES—APPEAL. APARTMENT HOUSES. According to the original plan of the defendant corporation subscribers to a specified number of shares were entitled to a substantially perpetual lease of an apartment. A certificate for that number of shares was issued to one V., who afterward sold the same to plaintiff. Thereafter the plan was changed and the expense increased, and the stock was also increased, the increased amount being divided among the subscribers without payment. Before the distribution the stockholders passed a resolutiotn providing that the leases should provide for the payment of an annual rent of ten per cent on the stock held by the lessee. Plaintiff obtained possession of the apartment designated by his stock, and rented the same, but although he surrendered his certificate and received a new one for the original shares, and also for his share of the increased stock, he refused to accept any lease. His tenant having vacated, defendant took possession of the apartment. In an action of ejectment, Held; that the plans having been altered and plaintiff having assented to the new arrangement by his acceptance of the stock, could not be heard to say that-he was not bound by the action of the stockholders, and that he could not claim the apartments without contributing to the increased cost of the building. Compton v. The Chelsea (Sup. Ct.), 53. APPEAL. 1. On motion to dismiss an appeal, the court cannot go outside of the record further than to ascertain whether there has been a waiver of the appeal. O'Brien v. Smith (Sup. Ct.), 43. 3. The mere fact that the appellant has brought another action to recover upon the cause of action set up as a counterclaim after the counterclaim had been stricken out for failure to furnish a bill of particulars, does not constitute a waiver of his right to appeal, and his appeal should not be dismissed because of the bringing of such action. Id. 3. A motion for reargument must be founded on papers showing that some question decisive of the case and duly submitted by counsel has been overlooked by the-court, or that the decision is in conflict with the statute or with a controlling decision, to which the attention of the court was not drawn through the neglect or inadvertence of counsel. Fosdick et al. v. Town of Hempstead (Ct. App.), 130. 4. Where an order of the general term granting a new trial, in an action tried before a jury and presenting a conflict of evidence, may have been made upon the facts, although the record does not show that it was, it cannot be reviewed upon appeal to this court. Williams v. H.,L. & W. B. B. Co. (Ct. App.), 143. 5. In such a case, even if it conclusively appears that the decision of the general term was based on questions of law only, the order is not appeal-able to this court, unless it also appears that the court passed upon the facts favorably to the appellant. Id. 6. The statement in appellant’s notice of appeal that “ The board of claims erred in receiving evidence against the objection and exception of .the claimant,” sufficiently pointed out the error on which they intended to rely, as the record did not show that any other evidence than this pointed out was admitted against their objection, and the counsel for the state was clearly apprised bv this specification that these rulings would be challenged on appeal. McDonald v. State (Ct. App.), 348. 7. Where in an action against a single defendant the plaintiff succeeded at the trial term upon one branch of a case and the judgment in that respect is affirmed here and said plaintiff failed at the trial upon another branch, the judgment in which respect is reversed here, the plaintiff must stipulate that the whole judgment he affirmed; if he do not, the whole judgment must be reversed. Elwell v. Fdbre (N. Y. C. P.), 354. 8. Where a case on appeal has no certificate that it contains all the evidence the court is confined to determining whether the facts found support the judgment. Hinds et al. v. Kellogg (N. Y. C. P.), 356.
*973 APPEAL—ASSIGNMENT FOB CBEDITOBS. 973 9. Where this court reverses the judgment oí the court below and grants a new trial, in either an equitable or legal action, “with costs to abide the event,” all the costs of the action up to that time are intended. Franey v. Smith et al. (Ct. App.), 480. 10. Where an appeal from the city court of New York to the common pleas involves no new question of law, and the decision of the latter court is only an application of well settled principles, leave to appeal to the court of appeals should not be granted. Glaflin et al. v. Flack (N. Y. C. P.), 506. 11. Where a motion to compel plaintiff to enter final judgment and to stay the collection of costs of appeal until such entry, is granted as to the stay, but denied as to the judgment, the plaintiff, by allowing the portion of the order in her favor to stand, does not waive her right to appeal from the portion directing a stay. McIntyre v. German Savings Bk. (Sup. Ct.), 645. 12. In an action on a promissory note, brought by the payees against the endorser, where the evidence was conflicting as to whether defendant endorsed to enable the maker to obtain credit with plaintiffs, the court charged that if plaintiffs took the note in reliance on his endorsement he was liable, and that if the jury believed plaintiff’s testimony plaintiffs were entitled to a verdict. Held, that the case, for this error, required a reversal, and that leave to appeal to the court of appeals should, theref ore-be denied. Wyakoff et al. v. Wilson (N. Y. C. P.), 751. 13. An appeal will not lie to the general term of the supreme court from an order granted ex parte. Such order can be reviewed in the first instance only by a motion, on notice, to vacate or modify it, and the order granting or denying such motion is appealable. Matter of Bunn (Sup. Ct.), 802. 14. In an action upon certain promissory notes defendant interposed two counterclaims, one for $82.42 for per centages on manufacture of parts of machines, the other for $1,471.17 for violation by plaintiffs of their agreement not to manufacture certain machines from defendant’s patterns, except for him. Held, that even if plaintiffs made another machine, not ordered by him, what he lost thereby was merely the profit, about $323.33, and there being no interest to add to unliquidated damages, his claim would not amount to $500, and he could not upon this appeal claim that his demand was larger than that stated in the pleading. Blake & Johnson v. Krom (Ct. App ), 873. 15. A judgment will not be disturbed by the appellate court where the evidence was conflicting, and no errors appear to have been made in the admission or exclusion of evidence. Hart v. Wilder et al. (N. Y. Supr. Ct.), 895. See Attachment, 5; Case; Costs, 1, 2; Default, 1; Foreclosure, 2; Municipal Corporations, 4; Pkeading, 15. ARREST. An order of arrest may be vacated where the facts on which it depends are disproved by affidavit, although the cause of action and the cause of arrest are identical. Hayes v. Beard (Sup. Ct.), 535. See Undertaking. ASSESSMENTS. See Municipal Corporations, 2-4, 8,10, 12-14,16,18-20, 27. ASSIGNMENT. See Contract, 8; Evidence, 2. ASSIGNMENT FOR CREDITORS. 1. Payment by the assignee to a creditor of the assignor of the amount of the debt due him pursuant, to the directions in the assignment before any lien is obtained upon the fund, is effectual to vest title in such creditor to the money so paid, allhough the assignment is in an action subsequently
*974 974 ASSIGNMENT FOR CREDITORS—ATTACHMENT. commenced adjudged fraudulent and void as against the creditors of the assignor. Knower et al. v. Central Nat. Bk. (Ot. App.), 89. 2. The fact that defendant and other preferred creditors obtained confession, of judgment by assignor, and directed the sheriff to seize and hold the assigned property upon the executions, does not necessarily raise an inference that defendant acted with any purpose other than to secure the payment of its debt. Id. 8. The mere fact of knowledge on the part of a creditor of the intent of his debtor to defraud his creditors by the disposition of his property to pay or in payment of the debt due from him to the former, does not prejudice the right of the creditor to seek and obtain payment. Id. 4. In view of the conflict of decisions on the question and the fact that none are cited from the court of appeals, this court will not go so far as to hold that mortgages or transfers made immediately prior to an assignment for creditors are necessarily illegal without regard to the intent of the assignor. Otis v. Bertholf et al. (Sup. Ot.), 172. 5. In an action brought by an assignee for creditors, a judgment in a former action brought by the defendants to set aside the assignment, sustaining it, is admissible in - favor of the plaintiff. Byett v. Hyman et al. (N. Y. C. P.), 251. 6. The court at special term has power to make an order directing an assignee for creditors to take up and file the referee’s report upon his accounting. JEJtna Nat. Bk. v. Shotwell (N. Y. O. P.), 258. 7. If the assignee makes payment of the claims of creditors without first having ascertained the precise amount of the estate to which creditors would be entitled, such payments are wholly voluntary and at his risk, and lack of funds will not discharge him from the performance of the duty to pay the necessary expenses of his accounting. Id. 8. An insolvent firm had an assignment for benefit of creditors prepared and at the same time confessed judgment in favor of certain creditors. After it had been ascertained that levies had been made under the judgments the assignment was delivered, upon their part, to the assignee. Held, that the judgments and assignment must be taken to be a part of a-single scheme, the effect of which was to prefer the creditors with confessed judgments, and that as such preferences amounted to more than the one-third of the assets which, by chap. 503, Laws of 1887, may be devoted to that purpose, the judgments, in common with the assignment, must be declared void. First Nat. Bk. of Jersey City v. Bard et al. (Sup. Ct.), 275. 9. The fact that an assignment for the benefit of creditors contains preferences of just debts secured by chattel mortgages which are referred to therein does not render such assignment fraudulent, although such chattel mortgages were void as to other creditors by reason of non-filing within the statutory time. Kitchen v. Lowery et al. (Ct. App.), 327. See Attachment, 8 ASSOCIATIONS. 1. A member of an association, such as a trade union, cannot maintain an action in equity to set aside fines imposed upon him until he has exhausted his remedy in the society. Burns v. Bricklayers’ Ben. & Prot. Union (City Ct. B’klyn), 615. 2. The by-laws of the society provided that any member in arrears for fines or dues over six months was prohibited from working. Plaintiff-was-fined and such fines were not paid during that period of time. Held, that if the fines were valid, his working card was properly taken away from him. Id. See Taxes, 2 ATTACHMENT. 1. Indemnitors upon a bond given to the attaching officer, to hold him. harmless against the consequences of a wrongful seizure and removal, are
*975 ATTACHMENT—BAIL. 975 liable as trespassers for the full value of the property taken, jointly and severally, and cannot claim that because of a subsequent levy on the same property by others who shared in the proceeds, each should be held liable only to the extent of his profit in the wrong committed. Dyett v. Hyman , et al. (N. Y. C. P.), 351. 3. An affidavit for an attachment stated an indebtedness on contract over and above all counterclaims known to the plaintiffs; that defendant was a resident of the state, and stated positively that he had left the county suddenly and clandestinely; that he employed help to assist him in the removal' of his household goods to a railroad station to be shipped to Boston, and the help were then actively employed in packing the goods. Held, in the absence of counter affidavits, sufficient to uphold an attachment. Patterson et al. v. Delaney (Sup. Ct.), 585. 3. Unless there is a clear preponderance of evidence against it, the conclusion of the special term on the question of residence will not be disturbed by the general term, although as an original question it might have come to a different conclusion on the affidavits. Prentiss v. Butler (Sup. Ct.), 605. 4. Facts insufficient to show non-residence. Id. 5. The fact that the Code provides that on an application for an attachment the plaintiff “must show by affidavit to the satisfaction of the judge” that the jurisdictional facts exist does not make the granting of the attachment discretionary and thus not reviewable on appeal, Bteele et al. v. Raphael et al. (Sup. Ct.), 633. 6. Where the non-residence of the defendants is positively stated in the affidavit, it is immaterial that their actual places of residence are stated on information and belief and that the grounds of belief and sources of information are not given. Id. 7. On a motion to vacate an attachment granted in an action for goods sold on credit, there can be no presumption indulged that such credit has not expired, but such fact, if it exists, must be affirmatively shown. Id. ■8. An assignment for the benefit of creditors which makes excessive preferences under Laws 1887, chap. 503, is valid and gives no ground for an attachment against the assigning debtor’s propertv. Rose v. Renton (City Ct. N. Y.), 683. . See Evidence, 1; Pastees, 1, 3; Shebiffs, 1, 3. ATTORNEY-GENERAL. See Will, 11. ATTORNEYS. While the court has power to allow a non-resident to sue as a poor person, such leave should not be granted except in a reasonably clear case, and the attorney making the application should not be assigned as counsel except in exceptional cases, and then only where it appears that the person seeking the leave knows that the counsel assigned is bound to act without compensation, and the counsel certifies that he will so act. Ha/rris v. Mutual Ins. Oo. (Sup. Ct.), 599. BAIL. 1. An undertaking given upon an arrest is sufficient which recites the arrest of the principal and his imprisonment for a crime named and is conditioned that he will appear at the court of sessions and answer said charge. People v. Brown (Sup. Ct.), 178. 3. In an action upon such undertaking the legality of the proceedings preliminary to the arrest is not relevant or material if the arrest was under color of process. Id. 3. It is no defense to such action that the district attorney told the principal’s counsel that he could go away and that he would send for him when he wanted him. Id.
*976 976 BANKRUPTCY—BANKS. BANKRUPTCY. 1. A stipulation made while bankruptcy proceedings were pending, relieving the defendants from liability to arrest, is to be construed according to the import of its language in view of the circumstances under which it was made, and evidence to prove the understanding or intention of the stipulation is not admissible. Schroeder et al. v. Urey et al. (Sup. Ct.), 945. 8. In an action for goods sold, brought subsequent to the discharge of the vendees in bankruptcy, on the ground of fraud in procuring the sale, an oral statement by their counsel in the bankruptcy proceedings as to their financial condition may be proved by a person who was present by repeating from his notes what was said at the time, no objection being made to proof of such statement by the defendant, who was not present at such time. Id. 3. In an action for the price of goods on the ground of fraudulent representations, brought after a discharge in bankruptcy of the defendants, notes given for the purchase price, which were presented to the register in bankruptcy in proving the debt, and which are'barred by the statute of limitations, need not be surrendered. Id. 4. Where a purchase of goods by means of fraudulent representations, by a member of a firm, is made for the benefit of the firm, and the goods are received and disposed of by it, all 1he members of the firm are civilly liable for the fraud, although they did not know of it or participate therein, and therefore a discharge in bankruptcy of the firm does not operate to relieve either of its members from liability for the debt so contracted. Id. BANKS. 1. A clerk of the plaintiffs, a law firm, in charge of their loan department, by fraudulent representations induced them to give him checks drawn on the defendant bank, payable to names given by him, and which proved to be mostly fictitious, and then forged endorsements on such checks and procured payment thereof from defendant, either directly or through another bank, without inquiry by defendant as to the genuineness of the endorsements. This went on for four years, during which time plaintiffs’ bank book was written up thirteen times, some of these forged checks being returned each time and examined by their cashier. Held, that there was nothing done or omitted by the plaintiffs in the general conduct and management of their business, or in the employment and confidence reposed in said clerk, that estopped them, in an action upon defendant’s implied promise to pay the money deposited by them, from alleging that the checks were paid without their authority, and such payment by defendant was no defense to said action. Shipman et al. v. Bank of the State of New Yot'k (Ot. App.), 376. 2. The provision of the statute that checks payable to the order of persons, having no existence are in legal effect payable to bearer, applies only to paper put into circulation by the maker with knowledge that the name of the payee does not represent a real person. Id. 3. Ten of the eleven checks made payable to real persons were made good by the clerk to the payees. Held, that this could not be set up by defendant as a partial equitable defense, and the refusal by the referee to find that plaintiffs are not entitled to any sum on account of or by reason of the payment by defendant of the same, was not error. Id. 4. A bank receiving commercial paper for collection, in the absence of a special agreement, is liable for a loss occasioned by the default of its correspondents or other agents selected by it to effect the collection. St. Nicholas Bk. v. State Nat. Bk. (Ct. App.), 829. 5. Plaintiff, in New York, sent to defendant, in Tennessee, a draft on a bank in Texas for collection. Defendant forwarded the same to its agents in Texas, by whom it was collected and the proceeds remitted by a sight draft on "New York, the usual mode of remittance. Before the sight draft could be presented both drawer and drawee had failed. Held, that defendant was liable for the loss. Id.
*977 BANKS—BILLS, NOTES AND CHECKS. 977 6. The contract could not he treated as a Tennessee contract, or subject in any way to the law of that state. Id. 7. Respondents sent their bookkeeper to the bank with a letter inquiring as to its solvency, with directions to deposit a certain sum on receiving a favorable answer. The money was deposited, and the bank failed two hours thereafter. Held, that a summary order directing the receiver of the bank to repay that sum was improperly granted, as there was no proof that it ever reached his hands; that as it went into the general fund, it may have been paid out during the time the bank continued business. Hatter of North River Bh. (Sup. Ct.), 931. 8. Preferences of this kind should not be established by a summary proceeding, but the party should be remitted to his action. Id. See Bills, etc., 1. BAR. Where a plaintiff has by separate assignments, made at different times, acquired title to claims for instalments due under a contract, he is not bound to include all the claims in one action. It is only where the class of proof is the same as to all the causes Of action existing that the rule that a recovery for one instalment under a contract is a bar to all that were due at the time of the commencement of the action applies. Miller v. Union Switch & Signal (Jo. (Sup. Ct.), 110. See Lease, 5. BILLS, NOTES AND CHECKS. 1. In order to absolve an agent, who is simply an agent for collection, he must actually part with the money; he must pay over the proceeds to his principal. It is not sufficient to credit the same in account. United States Nat. Bh. v. National Parh Bh. (Sup. Ct.), 35. 2. The drawee of a check or bill is held to a knowledge of the signature of his correspondent, but not for a want of knowledge of the genuineness of the body of the instrument, as between himself and other persons having equal means of discovering the fact of an alteration. Id. 3. The fact that a genuine signature of the drawer had been touched up a little with a brush or quill, butnotessentialy altered, does not constitute a forgery. Id. 4. In an action to recover on defendant’s check it appeared that he gave it to one B. solely for the latter’s accommodation; that on May 28 at Washington, D. C., B. endorsed the check to S. E. M. doing business as M. & Co., and was to receive in return a draft; S. E. M. at once endorsed the check to M., D. & Co. of New York, for account of M. & Co., and subsequently forwarded it to M., D. & Co. It was credited to M. & Co., but, upon payment being refused as hereafter stated, it was charged back. The firm of M., D. & Co. had ceased to exist, but plaintiff had taken an assignment of the interest of S. E. M. and another partner in said firm and had continued to honor drafts upon M., D. & Co. On May 29 S. E. M. delivered to B. a draft on M., D. & Co., which was good then but was worthless on June 2d when presented, M. & Co. having failed May 31st, and payment of the check having thereupon been stopped. Held, that it did not appear that the draft, although upon a non-existent firm, would not have been paid if presented in time, and that a verdict for defendant was erroneous. JDichman et al. v. Robeson (Sup. Ct.), 215. 6. A firm having applied to one S. for a loan, he agreed to procure the money if it would procure the endorsements of this plaintiff and defendant. Defendant endorsed first and plaintiff afterwards, and S. procured the discount of the note by a bank and turned over to the firm the identical bills received from the bank. The firm then gave its note to S. for twenty-five dollars, as compensation for his services. Held, that the ■ note endorsed by these parties was not tainted with usury. Van Patten v. Ulrich (Sup. Ct.), 348. K Y. State Rep., Yol. XXXVII. 123
*978 978 BILLS, NOTES AND CHECKS. 6. Said firm had given S. collateral security to indemnify him against liability, and when plaintiff was compelled to pay the note, S. turned over to him such security. Held, that plaintiff was subrogated to the rights of S., and, being sufficiently secured, could not maintain an action for contribution against defendant. Id. 7. Plaintiff deposited moneys with defendant and received certificates therefor. Subsequently he demanded payment but could not produce the certificates. Upon the trial of an action for the deposit it appeared that said certificates were in possession of the administrator of another person; that they were payable to plaintiff’s order, were not endorsed by him, but that the third person in her lifetime had claimed title to them. Held, that as the certificates were negotiable by delivery and without endorsement, plaintiff must have possession in order to recover; and this, because the defendant is entitled to be insured against liability to pay the certificates a second time. Read v. Marine Bank of Buffalo (Sup. Ct.), 424. 8. The action was brought upon a note claimed to have been given to the mother of the parties to induce her not to claim dower, but to take the provision made for her by her husband’s will, and plaintiff testified that ' defendant so informed her after she had taken a transfer of it. Defendant gave evidence to show that it was given to the mother in lieu of support, in contemplation of her leaving his house, and that she changed her mind and remained. The court charged that plaintiff was entitled to recover if defei dant produced no defense, and that if the jury found that the note was given under the circumstances sworn to by defendant he would be entitled to a verdict; and refused to charge that if it was given to induce the mother not to claim her thirds that was a good consideration and the note was valid and defendant liable, and also that if defendant told plaintiff the note was so given it was valid and plaintiff was entitled to a verdict. Held, no error. Fairfield v. Feagles (Sup. Ct.), 554. 9. In actions upon promissory notes given by defendant to one B., the answer alleged that the notes were given for goods to be manufactured by B. to correspond to sample; that the goods delivered did not do so, and counterclaimed damages for breach of the warranty. Evidence was introduced to show that the notes were transferred to plaintiffs after maturity for past due indebtedness, and evidence offered to sustain the defense was excluded. The court refused to allow defendant to go to the jury on the question whether plaintiffs were Iona fide holders, as to the consideration for the notes and the damages set up in the answer, and directed judgments for plaintiffs. Held, no error. Prince v. Never Rip Jersey Co. (City Ct. Ñ. Y.), 677. 10. A creditor in receiving from a debtor a check of a stranger endorsed by such debtor is under an obligation to present the same not later than the next day, and where he holds it for nine days the debtor is discharged from liability as endorser of the check irrespective of any question of loss or injury. Carroll v. Sweet (Ct. App.), 868. 11. In an action upon the original indebtedness it was shown that plaintiff at the request of the maker of the check held it for nine days, during which time the maker had the means of payment at command and would have provided for or paid the check if payment had been insisted upon, and that plaintiff presented it for payment after the maker had become insolvent. Held, that it was for the jury to find whether plaintiff’s conduct had imposed a pecuniary injury upon defendant, and that to the extent of that injury the debt to plaintiff had been paid. Id. 12. In an action upon a promissory note, brought by an endorsee thereof, where the defense is that it was procured from the maker by fraudulent representations, it is not error to exclude a question put to the payee as a witness whether he had any of the notes against defendant except the one in suit, as such question is immaterial and does not tend to show that the note in suit was procured by false representations. Mendelson v. Sheffield (ÍT. Y. Supr. Ct.), 879. 13. Where the only evidence that the note was procured hy fraud is the testimony of the defendant himself, the plaintiff is not bound to prove that he had no notice or knowledge of the fraud, but it is a question for
*979 BILLS, NOTES Al I) CHECKS—BUSINESS NAMES. 979 the jury as to how much or what credence should be given to the defendant’s testimony. Id. See Appeal, 12; Banks, 1-6; Judgment, 2; Principal and Agent. BILL OF PARTICULARS. The complaint alleged that defendants, who had certain property of plaintiffs for sale, by false representations and concealments induced plaintiffs to make a contract of sale to the wife of one of the defendants for a price much less than could be obtained for it; that defendants circulated rumors intended to keep away purchasers and failed to bring plaintiffs in contact with persons to buy it, and that they had received offers which they concealed from plaintiffs. Held, that defendants were entitled to a bill of particulars of the names of the persons from whom it was expected to prove the receipt of such offers and among whom the rumors were circulated. Williams et al. v. Folsom et al. (Sup. Ct.), 635. See Veterans, 3. BILL OF SALE. See Trust, 3. BOARD OF CLAIMS. See Appeal, 6. BROKERS. 1. Evidence that a real estate broker, employed by defendant to sell certain premises, brought them to the attention of the purchasers and brought them and defendant together, makes a prima facie case for the jury in an action for commissions, lurner v. Putnam (City Ct. B’klyn), 395. 2. Where a broker has presented a purchaser satisfactory to defendant and a contract of sale is entered into, his commissions are earned and he cannot be deprived of them by the fact that the contract afterwards failed because of the attempted imposition of other terms. Hattenbach v. Gtundersheimer (N. T. C. P.), 509. 3. Plaintiff was employed by defendant to sell a house and negotiated with one D., who was not willing to pay the price. Defendant refused to take less but did not terminate the contract with plaintiff, and subsequently himself sold to D. at a less price. Thereafter he requested plaintiff to accept a certain sum for his services, which plaintiff agreed to do. Held, that the parties stood in the same position as if defendant had told plaintiff to sell to D. at the price he took himself, and that plaintiff was entitled to recover the amount named. Hailey v. Young. (Sup. (Ct.), 903. BROOKLYN. See Municiral Corporations, 11, 15; Statutes, 1. BUFFALO. See Municipal Corporations, 16. BURGLARY. 1. _ A fruit stand, erected on a street against a building was about five feet in height and in length, and had a window and door. Upon the trial of an indictment for breaking and entering this structure, Held, that it was a “ booth ” within the meaning of § 504, Penal Code. People v. Hagan (Sup. Ct.), 660. 2. Where an indictment charged the property taken as of one Musso, and this person stak'd upon the trial that his name was Musachio, Held, that the variance might under Code Grim. Pro., § 293, be amended and could be disregarded under §§ 684, 542 of the same Code. Id. BUSINESS NAMES. See Partnership, 5.
*980 980 CARRIERS—CHATTEL MORTGAGE. CARRIERS. 1. If goods, belonging to another person, be placed in the trunk of a passenger on a railroad, although such company accepts the trunk for transportation as baggage in the usual-manner, if its servants or agents have no notice of the presence of such merchandise, no liability will arise on the part of the carrier to the owner of the merchandise in case of its loss or destruction. Gurney v. Grand Trunk B. Go. (Sup. Ct.), 155. 3. A carrier of passengers contracts not only for his own skill and care in the conduct of the business, but for the skill and care of all those who have made or furnished any of the instrumentalities or appliances by means of which the business is conducted. Birmingham v. Bochester Gity & B. B. B. Go. (Sup. Ct.), 317. 3. Plaintiff, while a passenger on one of defendant’s cars, was injured by the fall of a quantity of pig-iron from an iron trough used to balance a lift bridge constructed and owned by the state, and forming part of the highway traversed by defendant’s road. Held, that by its use of the bridge defendant made it a part of the superstructure of its road, and was as much responsible for its safe condition as for that of any portion of its track. Id. 4. Where a common carrier agreed with plaintiff, lessee of a pier, to pay rent per diem while the pier was occupied by freight and the carrier turned the freight over to the consignee who accepted it, and the freight thereafter remained upon the pier, in an action by the lessee against the carrier for rent, Held, that the fact that the consignee had taken possession of the freight did not excuse the carrier from payment of the stipulated rent. Elwett v. Tabre (N. Y. C. P.), 354. 5. Cotton was shipped from Texas to New York over several connecting railroads, which, with the defendant, entered into a common bill of lading. This provided that the carriers should not be liable for loss by fire upon any property while in deposit or places of transshipment or at depots or landings at all points of delivery. While the cotton was on defendant’s wharf in New York it burned. Held, that plaintiff, one of the connecting lines, could not recover its charges and the charges of other connecting lines advanced by plaintiff. That if the cotton had been loaded on the defendant's steamship when the fire occurred, defendant might have been under an implied liability to pay the charges. N. T., L. E. & W. B. B. Go. v. National Steamship Go. (Sup. Ct.), 731. See Municipal Cobpobations, 34. CASE. Where the appeal is taken on the ground that the rights of the appellant were infringed by the reading by the opposing counsel of authorities to the jury in his summing up, the case need not contain all the authorities so read. The insertion of one or two is sufficient to raise the question of law involved, and more would be surplusage and should of necessity be excluded. Kingsland v. Mayor (Sup. Ct.), 943. CERTIORARI. See Municipal Cobpobations, 19; National Guabd, 1, 5. CHATTEL MORTGAGE. 1. Although chattel mortgages may be void as to creditors for the reason that they were not filed at the time their credits were given, yet if creditors neglect to avail themselves of the means provided by the statute to secure the payment of their claims until the mortgagor has transferred his interest to an assignee for creditors, they thereby lose the advantage which they otherwise might have gained. Kitchen v. Lowery et al. (Ct. App.), 337. 3. A chattel mortgage given to secure payment of a note and as continuing security for notes thereafter due to or endorsed by the mortgagee covers a note subsequently given to or endorsed by him, and the fact that other
*981 CHATTEL MORTGAGE—CODE CIVIL PROCEDURE. 981 security was also taken for the note does not, of itself, exclude it from the benefit of the security first given. Burritt v. Shefftr (Sup. Ct.), 591. 8. The mortgagors in a chattel mortgage covenanted that if required to do so they would execute a similar mortgage upon all merchandise purchased to replenish the stock. Held, that such a covenant did not make the mortgage void upon its face. Hineks et al. v. Field et al. (Sup. Ct.), 724 4. Where persons gave their debtor a chattel mortgage, but thereafter continued to deal with the property as their own, paying the debtor nothing, and it appeared that a sale of the business was contemplated by all parties, and that there was no understanding, contemporaneous with the giving of the mortgage, that the mortgagors should continue to deal with the property as before, Held, that the mortgage was not void. Id. 5. Where a tenant has given a mortgage on his household furniture to secure the rent, and afterwards removes from the premises, abandoning 'the furniture, which the landlord takes possession of and stores, Held, that in the absence of proof of a conversion, this does not operate as a satisfaction of the mortgage debt. Lathers v. Hunt (N. Y. O. P.), 748. CHILDREN. See Habeas Corpus, 2. CIVIL DAMAGE ACT. 1. An owner of a building who entrusts its renting to another without restriction is chargeable with the knowledge of his agent, and where the premises are used for the sale of liquor will be held to have permitted such use and to be liable under the civil damage act. Hall v. Germain (Sup. Ct.), 320. 2. Evidence to the effect that at the time of the execution of the lease it was understood that the lessee was not to sell liquor on the premises is immaterial in an action under the civil damage act, where it is undisputed that the agent had knowledge that the lessee and his successor did in fact carry on such business on the premises for years while paying him the rent therefor. Id. 3. In such action the jury has a right to consult the annuity tables in determining the probable duration of the joint lives of plaintiff and her husband. Id. CIVIL SERVICE. 1. An employe of the Croton Aqueduct commissioners alleged that he was an honorably discharged soldier, that the commissioners were about to abolish the grade of employes to which he belonged and to establish another grade, that in the selection of candidates for the new grade the civil service law had been violated and that he had not been allowed to enter a competition held to decide upon appointees to the new grade. Held, not a proper case for mandamus; the office of which writ is not to redress an anticipated wrong but to remedy one which has been suffered. Matter of Brown v. Buane et al. (Sup. Ct.), 691. 2. This court will not take judicial notice of the proceedings of the board of Croton Aqueduct Commissioners. Id. See New York City, 4. CODE CIVIL PROCEDURE. 1. Section 90 of the Code, prohibiting the court from appointing a clerk of the court as referee is unconstitutional. Even if it were not, it wall be inferred, in support of the action of the court, that the parties consented to such appointment as authorized by said section. Standfast v. Grotty (City Ct. N. Y.), 672. 2. Section 724. The court has no power under § 724 of the Code to vacate a report of a referee and direct the taking of new testimony by him. That section has no application to motions for new trial on the ground of newly discovered evidence, but is confined to cases of mistake, inad-
*982 982 CODE CIVIL PROCEDURE—CONSTITUTIONAL LAW. vertence, surprise or neglect. Holmes et al. v. Evans et al. (N. Y. Supr. Ct.), 368. 3. Section 839. Testimony given by a witness upon re-examination as to personal transactions with a decedent, is not objectionable under § 839 of the Code, where he has been questioned by the counsel for the administrator on cross-examination as to the same subjects. Blankman v. McQueen (Sup. Ct.), 601. 4. Section 1033, Code Civ. Pro., provides that a referee in his report “ must direct the judgment to be entered thereupon.” This requirement is satisfied if from the whole or a part of the report the particular form and the terms of the judgment to which the successful party is entitled can be ascertained. Hinds et al. v. Kellogg (N. Y. C. P.), 356. 5. Where the conclusions of law in a referee’s report clearly and unmistakably settle the form and amount of the judgment to be entered, this is a sufficient compliance with § 1033 of the Code, requiring a direction of the judgment to be entered. Devlin v. Mayor et al. (N. Y. C. P.), 508. 6. Section 1843_. A. claim of a physician for professional services rendered to a testatrix is one arising upon contract within the meaning of § 1843 of the Code. Adams v. Hilliard et al. (Sup. Ct.), 314. 7. Section 3353. Where the plaintiff in foreclosure has received his money and assigned the bond and mortgage under an order of the court directing him to do so if required by a subsequent mortgagee, this constitutes a settlement within the meaning of § 3353 of the Code. Olivers v. Damon et al. (Sup. Ct.), 904. See Evidence, 13. COLLATERAL INHERITANCE TAX. See Taxes, 3-7 CONSIGNOR AND CONSIGNEE. 1. The mere fact that a commission merchant, who is under no obligation to insure, takes out a policy on merchandise belonging to himself or held by him in trust or on commission, without the knowledge of his consignor, gives the latter no right, in case of loss, to the moneys received from the insurance company, nor renders the consignee liable as for money had and received. Qutman v, Rogers (N. Y. C. P.), 364. 3. The fact that the consignor’s goods were included in the proofs of loss does not entitle him to any part of the insurance moneys, where it appears that the amount received was insufficient to cover the value of the consignee’s own property. Id. CONSPIRACY. See Criminal Law, 1, 3. CONSTITUTIONAL LAW. 1. Chapter 161, Laws 1889, relates to but one subject and that is expressed in the title of the act, which is sufficiently broad to answer the requirements of the constitution. Van Brunt et al. v. Town of FlaCbush et al. (Sup. Ct.), 175. 3. The act in relation to the depositing of carrion, offal, dredgings, etc., in the North and East rivers and the bay of New York, operates upon a subject in which the whole people are interested and is a general and not a local act. Ferguson v. Boss et al. (Ct. App.), 836. 3. Although the deposit may have been mnde within territorial limits of New Jersey, it is within the prohibition of said act, as the compact between New York and New Jersey vests exclusive jurisdiction over the waters of the Hudson, to low water mark, in the former state. Id. See Municipal Corporations, 35; National Guard, 3, 3, 6, 7; Reference, 7.
*983 CONTEMPT—CONTRACT. 983 CONTEMPT. One T. was directed to pay the costs of this action as being beneficially interested therein, and such direction was affirmed on appeal. Having refused to pay he was adjudged in contempt and fined the amount of such costs. Held, that proof of such refusal was sufficient to show damage to defendant, and the fact that the payment was directed' to be made to her attorney did not alter the question. Tucker v. Oilman (Sup. Ct.), 958. See Executors, etc., 7, 8. CONTRACT. 1. It is a necessary requisite to the making of a contract by correspondence that the parties should understand that they are so contracting, and that, according to their understanding, there is nothing further tobe done to fix the terms of the contract. Orodke Smelling & Bef. Go. v. Towle et al (Sup. Ct.), 45. 2. Where defendants agreed by letter to take a lease on the general terms proposed by plaintiff, but by the subsequent correspondence it appeared that additional provisions were required on both sides which had not been agreed to, Held, that the minds of the parties had not met, and that no contract had been made. Id. 3. Equitable interference cannot be sought on the ground that a contract was procured by duress or that it was illegal and contrary to public policy, as these facts would constitute a perfect defense to an action at law on the contract. Terry v. Hoi'ne et al. (Sup. Ct.), 58. 4. A requirement in a contract of performance “as soon as possible,” means with greater celerity than within a reasonable time. Sentenne v. Kelly (Sup. Ct.), 162. 5. Where the original agreement was plain and the writing which was intended to evidence it failed to do so, the rules as to mistake and mutual mistake have no application, but the agreement actually made prevails. Linton v. Unexcelled Mre Works Go. (Sup. Ct.), 173. 6. Plaintiff was employed by defendant at a specified salary, and in addition thereto the net earnings on thirty shares of stock, which were to be delivered to him when the earnings reached their par value. Thereafter a paper was drawn to evidence the agreement, in which the word “dividends ” was used in place of “ net earnings,” but it was understood that the paper was to change nothing. The dividends were less than the net earnings. Held, that the original agreement must prevail; and that plaintiff was entitled to stock on the basis of the net earnings. Id. 7. Defendant agreed to give plaintiff one-half the commissions actually received by him from custom brought him by plaintiff. Owing to a reduction in commission rates made by the Chicago Board of Trade, a city with which defendant dealt, he notified plaintiff that he could not pay him commissions on business in the future. Held, that defendant had a right to terminate such a contract after the lapse of a reasonable time and for a good motive ; that his action must be in good faith and not simply to avoid payment of commissions. Oilbert v. Quinlan (Sup. Ct.), 290. 8. A building contractor gave to plaintiff an order on defendant for a sum of money due to him on his contract. The order was presented to defendant, who was a German and unable to read or understand English, and he was informed simply that it was an order and he should sign it to secure the moneys therein mentioned to plaintiff. He was not informed as to its amount or the fund it was drawn against. Held, that this was not such notice to defendant of an assignment of moneys due or to grow due on his building contract as bound him to withhold payment from the contractor, or, in default of so doing, to pay so much of his debt a second time. Grouch v. Muller (Sup. Ct.), 325. 9 The defendant agreed in writing with the plaintiff to send every steamer of his “line” to plaintiff’s pier. He owned the steamer “Iberia,” and its captain and crew were under his control, although for the voyage in question the steamer was under a contract of affreightment to another
*984 984 CONTRACT. person. The name of the line did not appear in the contract, but it was not shown that defendant had more than one line. Held, that under the contract defendant was bound to send the steamer to plaintiff's pier, and that for his failure to do so plaintiff could recover. JSlwell v. JPti6re(N.Y. O. P.), 353. 10. At a timewhen defendant sent steamers to the pier repairs were being made upon it which contracted the space, and, as alleged, caused defendant extra expense in piling the freight higher. For this defendant made a counterclaim. In reply to this, plaintiff was allowed to show, in mitigation of damages, that, in this state, of affairs, he had offered defendant the use of another pier. Held,, that this evidence was proper and might be shown under a general denial of the counterclaim. Id. 11. Plaintiffs agreed by parol to manufacture for defendants certain circulars to be delivered as soon as possible. They were designed exclusively for use in defendants’ business. Held, that although their value exceeded fifty dollars, and no part of the price was paid, the contract was not within the statute of frauds. Hinds et al. v. Kellogg (N. Y. O. P.), 356. 13. A contract to deliver “ as soon as possible” requires delivery within a •reasonable time, and this latter means so much time as is necessary, under the circumstances, to do conveniently what the contract requires shall be done. Id. 13. In an action to recover for work done under a building contract the plaintiff testified that the work was completed and that he applied to the architect for a certificate; that he found no fault with the work, but referred to some damage by water, and advised that defendant be seen about it and said that defendant was a crank, and that he did not like to give .a certificate until defendant was satisfied. Held, that on this testimony it was proper to submit to the jury the question whether the certificate was unreasonably withheld. Gibbons et al. v. Russell (City Ct. B’klyn), 403. 14. Where the evidence as to substantial performance of the contract is con- „ flicting, the question is peculiarly one for the jury, and a denial of motions to dismiss and for direction of a verdict is proper. Id. 15. A question put to defendant as to whether he made any work or attempted to have anything done that was not a remedying of the defects, specified by him, is improper, as calling for a conclusion. Id. 16. Where plaintiff, a builder, sought to recover upon a contract to erect a building and the defendant alleged a failure to perform which was slight compared with the amount of the whole contract and the alleged change was attributed by plaintiff to directions from the architect, Held, that it was error to non-suit; that it was for the jury to say whether the omission was. wilful and whether the contract had been substantially performed. Hopper v. Gutting et al. (N. Y. C. P.), 504. 17. Where parties settle disputed claims by striking a balance which defendant promises to pay when able, an action to recover such balance is not an action upon an account stated and settled, but one brought upon the promise, and in order to recover plaintiffs must prove some change for the better in defendant’s circumstances at a period subsequent to the time when the promise was given. Work et al. v. Beach (Sup. Ct.), 547. 18. Proof that defendant was in receipt of a judicial salary is not sufficient to show such ability, where it also appears that he received the same when the contract was made and that he saves nothing out of it. Id. 19. Where one of defendant’s letters claimed to evidence the agreement stated that he would write a loiter stating his obligation to pay when able “in accordance with our agreement on Saturday last,” evidence tending to prove what the entire agreement was is admissible, as the letter evidently did not contain the entire contract. Id. 30. In such an action evidence as to whether defendant could not have saved sufficient from his salary to pay a portion of the claim, and why he did not do so, is inadmissible. Id. 31. One Gr. having contracted for the purchase of lands on which to erect flats, plaintiff and other adjoining owners, in order to prevent sueh
*985 CONTRACT. 985 erection, purchased his contract at an advance and in consideration of such advance G. orally agreed not to erect any flats in their immediate neighborhood. Held, that this was a personal agreement between such owners and G. and did not impose any covenant or equity upon any lands which he should thereafter buy which could be enforced against a subsequent grantee from him, even though such grantee had notice of the agreement. Lewis v. Gollner et al. (City Ot. B’klyn), 613. 22. In an action for breach of a contract to furnish a heater for plaintiff's house the question is as to the fitness and capacity of the one rejected by him as insufficient, and evidence to show that similar heaters had proved amply sufficient to heat buildings as large as his is inadmissible. Matter of J. F. Pease Furnace Co. (Sup. Ot.), 634. 23. Where the contract to furnish such heater was made in New York city, and the heater was to be used in that vicinity, the plaintiff should not be required to take his witnesses to a place 300 miles distant to secure redress for a breach of the contract. Id. 24. On the foreclosure of a purchase money mortgage the defendant counterclaimed damages sustained by a breach of the vendor of an agreement to remove certain railroad tracks which were upon the premises, by reason of which he claimed to have lost a sale of the property to one B. The court refused to find that defendant had entered into a contract with B. for the sale, the contract not having been entered into in good faith but for the purpose of proof of damages. Defendant testified to a deterioration in value, but was contradicted by his affidavits made at other times. Held, that defendant was only entitled to nominal damages for the breach of the • agreement. Horton v. Childs et al. (Sup. Ot.). 637. 25. Defendants endorsed a note of plaintiff given to raise money to pay an assessment on certain stock, which note they were afterward compelled to pay. At the time of such endorsement plaintiff executed an agreement by which she sold said stock to defendants, the agreement reciting the endorsement of the note and providing that if she did not pay the note at maturity, and defendants did so, they should own the stock absolutely. In an action to redeem the stock, there was no proof of deception or mistake except evidence of a previous conversation between plaintiff’s agent and one of the defendants that they would receive the stock as collateral security, and it appeared that the agreement was read to plaintiff before she signed it. Held, that plaintiff was bound by the contract, and that it constituted a sale and not a pledge of the stock. Morganstern v. Davis et al. (Sup. Ot.), 819. 26. Although the endorsers did not agree to pay the note, yet as they did, in fact, do so, a good consideration was furnished for the agreement. Id. 27. A contract between the parties hereto provided that plaintiff should be the general manager of defendant, and assign to it the exclusive right to use all his inventions; that the contract should continue for a period of ten years, subject to termination by either party by one year’s notice in writing after the second year, or by the death or inability of plaintiff. By the 8 th clause it was provided that, on the termination of the agreement, said company (by reason of the expenditures that shall have been made during the continuance of this agreement) shall have a license (not exclusive) to use all the inventions that may have been used by it, on payment of $6,500 a year, payable quarterly. In an action for an instalment of the sum last mentioned, Held, that a discharge of the plaintiff did not terminate the agreement within the meaning of the 8th clause, and that plaintiff was not entitled to recover. Johnson v. Union Switch & ¡signal Co. (N. Y. Supr. Ot.), 876. 28. In such case, if defendant thereafter used the inventions, plaintiff would be entitled to the value of that use. Id. 29. A judgment against the defendant for a quarterly payment recovered by an assignee of the plaintiff is not admissible as a final adjudication as to the liability of defendant under the 8th clause, as the parties are not the same, and plaintiff is not estopped by the former judgment. Id. X". Y. State Rep., Yol. XXXYII. 324
*986 986 CONTRACT—CORPORATIONS. 80. A promise made by the president of the defendant on such discharge that, the royalty would be paid is not binding on the defendant in the absence of proof that he was authorized to make it or to put a construction, on the contract. Id. 31. After negotiations by letter and telegram, plaintiff, by telegram, accepted an offer of sale of ice, and ordered a shipment, saying he would see defendant the following Monday. Defendant ordered a cargo and requested a certified check therefor. Upon'meeting to execute a contract for such sale, plaintiff disputed some of its terms, and defendant after endeavoring to explain them, remarked that as he did not understand it, they would call the trade off, to which plaintiff assented, but two-hours later served a notice demanding delivery of the ice. Held, that the minds of the parties never met as to the terms of the sale, and therefore there was no contract. Fraser v. Small (Sup. Ct.), 900. See Bab, 1; Discovert; Evidence, 4; Infants, 3; Municipal Corporations, 8; Promise, 1-3; Sale, 14; Vendor and Purchaser. CONVERSION. 1. An order was issued by the board of supervisors to pay a claim of plaintiff for injuries to her horse, the name of her husband being erroneously included as a claimant. It was given to defendant as supervisor of such town to deliver to plaintiff. Instead of doing so he turned it over to a constable, who held an execution in his favor against plaintiff’s husband, with directions to levy thereunder on half of the order. Held, that as officer of the town defendant was charged with the performance of the duty of delivering the order to the claimants within a reasonable time, and that when he turned it over to the constable he was guilty of a conversion, irrespective of any previous demand Clark v. Miller (Sup. Ct.), 345. * 2. Adam Axt being indebted for borrowed money and wages to plaintiffs, who were his sons and son-in-law, gave them a bill of sale of his business and machinery, which was filed in the clerk’s office, and they thereafter continued the business, employing Adam Axt at stipulated wages. In an action against the sheriff for conversion in levying upon and selling the machinery as the property of Adam Axt, the foregoing facts were shown, and Adam Axt disclaimed any intent to defraud creditors in making the transfer. Held, that a judgment in favor of plaintiffs was warranted by the evidence. Ant et dl. v. Shankey (Sup. Ct.), 897. Sec Evidence, 2; Pleading, 13. CORPORATIONS. 1. The directors of an insolvent corporation have no right to secure equality of distribution for all its creditors by means other than those-pointed out by the various statutes regulating their duties and powers and which, apart from the object sought to be obtained, would clearly be irregular and a fraud upo%the law. National Broadway Bk. v. Wesselt Metal Co. et at. (Sup. Ct.), 102. 2. Plaintiff having commenced an action against the corporation to which it had no defense, its directors agreed with one of their number to confess judgment to him for a portion of a Iona fide claim which he held against the company. The judgment was entered, the attorney for the company drawing the papers, and said attorney handed the execution to the sheriff with a direction to return it forthwith, which was done and sequestration proceedings commenced which resulted in the appointment of a receiver, who sold the assets to said judgment creditor for an inadequate sum. In an action to set aside the appointment of the receiver, Held, that unlawful means were used to effect a forbidden end; that plaintiff was in a legal sense hindered, delayed and defrauded, and that a dismissal of the complaint was erroneous. Id. ■ 3. Promoters of a company are liable for work done or material furnished for such company on their order, in case such company is never actually incorporated, either on the ground that as agents they were acting with out an existing principal or that they had made themselves personally liable. Hub Publishing Co. v. Bichardson (Sup. Ct.), 541.
*987 CORPORATIONS—CRIMINAL LAW. 987 4. Where the appointment of a receiver of an insolvent corporation is regularly made on due notice, such appointment vests him with all the right and authority of his office, although his appointment as temporary receiver was illegally made. Matter of Stonebridge (Sup. Ct.), 617. 5. Proof that early in the year the president of the corporation had made statements and reports showing that it had more property than was required to pay its debts, and had as late as June made similar statements; that in September executions against it were returned unsatisfied; that the receiver obtained only the books of the concern, from which it appeared that large transfers of property had been made prior to the obtaining of such judgments, and that the president was active in making such transfers, is sufficient to sustain a warrant for the examination of said president. Id. 6. The fact that the receiver availed himself of the assistance of the counsel for the creditor at whose suit he was appointed furnishes no legal reason for denying the warrant, or setting it aside after it has been issued, as it was a mere irregularity. Id. See Contract, 30; Manufacturing Companies; Promise, 4; Railroad, 27; Receiver; Taxes, 13; Will, 5. COSTS. 1. This court has no jurisdiction to review the discretion of the court below in granting an extra allowance where no rule of law is violated or in refusing it, unless such refusal was based on a want of authority. Shiels et al. v. Wortmann et al. (Ct. App.), 134. 2. Where the general term has decided that a party is entitled to an extra allowance, to be settled by the special term, and on the subsequent appeal from the order of the special term the general term concludes that no extra allowance should be made, its decision is not subject to review in this court. Id. 3. An action to recover injuries caused to a servant by the defective condition of the machine on which he was working is not one for an “assault and battery” within the meaning of § 3228, subd. 3 of the Code, and the plaintiff is not entitled to costs on a recovery of less than $50. Rieger v. Fahy’s Watch Case Co. (City Ct. B’klyn), 400. 4. Where an order denying a motion for a new trial is affirmed on appeal, the respondent is entitled, as a matter of course, to the costs of the appeal, and, if the' same are not paid within the time specified in § 779 of the Code, may collect the same by execution. McIntyre v. German Sar’gs Bk. (Sup. Ct.), 545. 5. In an action brought by an executor or administrator under § 1902 of the Code, for causing the death of his testator or intestate by negligence, the plaintiff is not limited as to costs by the amount of his recovery, but upon recovering is entitled to full costs. Gorton v. ET. 8. & Brazil 8. 8. Co. et al. (Sup. Ct.), 556. 6. Where the complaint in an action to oust defendants as usurpers in office demands that each shall pay the fine provided for by § 1956 of the Code, the aggregate amount of such fines furnishes a basis for an extra allowance. People em rel. Winans et al. v. Adams et al. (Sup. Ct.), 603. See Contempt; Ejectment, 4; Foreclosure, 4, 5; Parties, 4; Railroad, 21; Stay, 1; Will, 7, 28. COVENANT See Contract, 21; Injunction, 2. CRIMINAL LAW. 1. If the guilt of one of several defendants, who are jointly indicted for a felony, is sought to be established by evidence showing or tending to show a conspiracy between him and the other defendants for the commission of the felonious act, evidence as to acts or statements of the others must be confined to such as were made or done at times when the proofs in the
*988 988 CRIMINAL LAW—DEED. case permit of a belief that a conspiracy existed and when therefore the acts or statements might have been in furtherance of the common design. People v. Kief (Ot. App.), 477. 2. Whatever may have been said or done by the several persons accused of conspiring to commit the crime before the time when according to the evidence the conspiracy was formed or subseque't to the time when the conspiracy terminated, by the accomplishment of the common purpose or by abandonment, is inadmissible as evidence against the others. Id. 2. It is immaterial upon the trial of a party charged with a felony whether one jointly indicted with him for the offense has been acquitted or not. Id. 4. It is sufficient to constitute one a principal in a felony that he was present while the other principal committed the crime, and that as soon as the latter declared that he had possession of the object of the crime that both fled and hid together in a closet. People v. McElroy et al. (Sup. Ot.), 650. 5. Where no exceptions to the charge were taken by the defendant upon the trial of an indictment for grand larceny, Held, that the court would not reverse the conviction because the trial judge said to the jury that he did not see that the direct evidence of one of the People’s witnesses had been shaken upon cross-examination, and further that unless that witness had committed perjury it seemed to the court that there should be very little hesitation upon the part of the jury in coming to the conclusion that the crime of larceny had been committed. People v. Fleming (Sup. Ct.), 655. See .Abduction; Burglary; Disorderly Persons; Rape. DAMAGES. The defendant sold to the plaintiff’s son forty-seven acres of land for $1,645, the son giving back his own mortgage for $1,000 and a mortgage belonging to plaintiff on other premises for $645; and thereupon the son. gave plaintiff a mortgage upon the premises in question for $645. The defendant represented the premises as free of incumbrances; in fact it was apart of a farm of 207 acres subject to a recorded mortgage of $4,000; but defendant had sold 160 acres of it to another person who thereupon agreed to pay the $4,000 mortgage to the extent of $3,850. Defendant showed that the 160 acres were worth more than $4,000 but it had not since been sold nor the mortgage foreclosed. It did not appear that the purchaser of the 160 acres was not responsible. Held, in an action for the depreciation of the $645 mortgage to her, that plaintiff's recovery should ■ have been limited to $150, the difference between $4,000 and $3,850. Bradley v. Ga/rter (Sup. Ct.), 416. See Ejectment, 3; Lease, 12, 13; Negligence, 7, 15; New York City, 1; Search Warrant, 1. DEBTOR AND CREDITOR. ' See Joint Enterprise. DEED. 1. During the life-time of plaintiff’s mother she conveyed certain real estate to defendant Richardt; and this action was brought to set aside the deed, as without consideration and as procured by fraud, both of which were found as facts by the jury. R. had sold the property to innocent third parties, and received the money. Plaintiff’s complaint also asked “ for such further or different judgment or relief as may be just.” Held, that as defendant had conveyed the property away to a purchaser in good faith, and received the money, a court of equity had the power to compel him to pay this money and its accumulations to plaintiff in place of the land, and that to this end a personal judgment was proper. Valentine v. Richardt et al. (Ct. App.), 12. 2. Plaintiff and her husband by separate deeds conveyed lands owned by them and took back a mortgage to themselves jointly for the purchase money. On foreclosure thereof the property was bid in for plaintiff, but
*989 DEED—DISORDERLY PERSONS. 989 the deed was given to her husband alone, who retained it unrecorded for four years, and represented to plaintiff that the deed was taken in her name. Plaintiff did not discover the omission of her name until after her husband’s death, in 1888. In an action to reform the deed, Held, that the facts would justify a finding of fraud and that the statute of limitations was not a bar to the action. Hunworth v. Dunworth (Sup. Ct.), 905. See Will, 21. DEFAULT. 1. An order setting aside a default taken on failure of plaintiff to appear is discretionary and not appealable. Traitt&wr v. Levingston (N. Y. Supr. Ct.), 868. 2. On motion to open a default it is discretionary with the court to refuse to decide the question as to the effect of a failure to reply to a counterclaim and refer it for determination to the ordinary proceedings in the action. Id. 3. Where it is claimed that the failure of plaintiff’s attorney was due to an arrangement with the other side, which arrangement was denied, but the preponderance of evidence as to its existence is in favor of plaintiff, the court has a right to consider this in settling terms. Id. DEPOSITIONS. 1. The provision of § 872, subd. 5, of the Code, that such subdivision shall not apply to a case where the person to be examined is a party to the action, does not apply to and is not prohibitive of the taking of the deposition of a party at his own instance. McVity v. Stanton (N. Y. C. P.), 752. 2. Proof that a party is employed as a traveling salesman, and that his business requires him to be out of the state for many months at a time, and that he is about to leave the state for that purpose, is sufficient to authorize an order to take his testimony de bene esse, under § 870, at his own instance. Id. 3. The right to use the deposition of a deceased witness, taken under an agreement that it might be so used, arising out of the condition of the case when on the calendar for trial, is not lost by a failure to file it. Schroeder et al. v. Frey et at. (Sup. Ct.), 945. DISCOVERY. Plaintiff entered into a written contract to excavate rock on defendant’s grounds according to a certain profile and survey at a certain price per cubic foot, but the contract was not drawn in defendant’s name, nor did it provide that plaintiff should do all the excavating called for by the profile and survey. In an action for breach of the contract in stopping the work before all the rock shown in such profile and survey was removed, Held, that plaintiff did not show that he had a cause of action against the defendant and was not entitled to an inspection of the profile and survey to enable him to frame his complaint. Mar rone v. New York Jockey Club (Sup. Ct.), 936. DISMISSAL OF COMPLAINT See Trial, 7. DISORDERLY PERSONS. 1. Where a defendant is adjudged a disorderly person and directed to give a bond for his wife’s support or be imprisoned, and he fails to give the bond and appeals, giving an undertaking thereon and is discharged pending the appeal, the first conviction is not a bar to a second proceeding of the same character and to the issuance of a warrant therein, and these proceedings could be repeated until he consents to support his wife, or gives an undertaking for her support or until he is actually in prison under some conviction. People ex ret. Lichtenstein v. Hodgson (Ct. App.), 132. 2. Where a husband is proceeded against under the statute the justice has jurisdiction to try every question involved in the complaint, including
*990 990 DISORDERLY PERSONS—EJECTMENT. that of ascertaining whether the defendant is the husband of the complainant. Id. DISTRICT COURTS. It is too late to ask for an amendment of a district court return after the appellate court has intimated or announced its decision on the questions presented by the return as filed. . Warren v. Campbell et al. (N. Y. 0. P.), 762. DIVORCE. 1. In an action for a divorce a vinculo, evidence of the relations existing between the defendant and the alleged pa/rticeps criminis not in immediate connection with the specific act charged are competent on the question of adulterous inclination. Smith v. Smith (N. Y. C. P.), 267. 2. Evidence sufficient to support a finding of the commission of adultery. Id. See Tenancy by Entirety. . DOWER. 1. Where a wife absents herself from her husband for five successive years without being known by him to be living within that time, and he contracts a second marriage, which is annulled in an action between them, because the first wife is living, such second wife is not entitled to dower in the real estate owned by him at the date of the entry of judgment of nullification. Price v. Price et al. (Ct. App.), 146. 2. Sections 8 of 1 R. S., 740, and §48 of 2 R.S., 146, denying the wife’s right to dower when divorced for her adultery, do not relate to the rights of persons whose marriages are annulled, but only to those of persons divorced for adultery. Id. 3. Where a widow assigned her dower and right of dower and died without taking any proceedings in any form to recover dower, Held, that neither her assignee, nor the personal representatives of such assignee, could maintain an action either to enforce a lien therefor or to admeasure the same or to recover a sum in gross in lieu thereof. Howell v. Newma/n et al. (Sup. Ct.), 296. DURESS. See Contract, 3. EASEMENTS. 1. In an action for trespass by defendants upon easements appurtenant to the premises of plaintiffs, it appeared that the premises were conveyed after the construction of defendants’ railroad to plaintiffs’ grantor, “in the condition in which the same now are,” and the court also found that defendants’ railroad was constructed, maintained and operated under some estate, license or authority derived from plaintiffs’ predecessor in the title. Held,, that such finding amounted to an abandonment by the owner of the easement; and that such abandonment having been acted upon by the defendants, it became as to them an irrevocable license. Hoch et al. v. Manhattan B. Co. et al. (Sup. Ct.), 200. 2. By an instrument under seal plaintiffs’ predecessor in title, for the consideration of one dollar, let. granted and demised to the predecessor _ of defendants, one Johnson, the right to take and use water from his spring-sufficient to run his cheese factory, “ to have the use of said water so long as the same shall be used for the purpose of running a cheese factory,” provided that he should keep the pipes in repair and the surface level. Held, that in view of the purpose for which the grant was given, it was not personal to Johnson, but enured to the benefit of the cheese factory while it continued to be used as such. Whitney et al. v. Richardson et al. (Sup. Ct.), 308. See Railroad, 30. EJECTMENT. 1. Where the plaintiff’s title appears by the record to have been regularly derived from the original owner there attaches to it a right of posses-
*991 EJECTMENT—EMINENT DOMAIN. 991 sion; and this secures to the holder of the title constructive possession and the right to recover against one without title, without showing actual possession. Clason v. 'Baldwin (Sup. Ct.), 213. 2. Where in an action of ejectment the plaintiff failed to make tenants, who were the actual occupants of the premises, parties as required by_ § 1512, Code Civil Procedure, and the complaint did not disclose this omission, the remedy of the defendant is to set up the non-joinder by answer; otherwise the objection is waived. Id. 3. Where in such an action the. plaintiff wishes to recover damages for the withholding of the possession he must lay a foundation for the claim by specifically alleging it in the complaint; if he do not he cannot recover damages. Id. 4. On granting a new trial in ejectment under § 1525 of the Code, the court imposed as a condition the payment of all costs, including an extra allowance granted by the former judgment. Held, that the requirement of the payment of the amount of the extra allowance was proper, although it was not taxed and was directed in the findings of the court “ in addition to the costs.” An extra allowance is an item of costs just as much as the trial or term fee. Wing v. Be La Bionda (City Ct. B'klyn), 404. 5. Where a plaintiff in an ejectment action obtains judgment before the court without a jury upon findings of fact, but on appeal the judgment is reversed by the general term and a new trial ordered, and the plaintiff then appeals from this order to this court, stipulating that in case the order is affirmed judgment absolute should be rendered against him, he waives his right under the statute to have a new.trial, as a matter of course, upon paying all costs and damages awarded ainst him by the judgment. Bobes'is v. Baumgarten (Ct. App.), 482. 6. A grant from the state of lands under water will support an action of ejectment for such lands. The grant is presumptively regular and creates a presumption that the patentee was the owner of the upland. B. G. Blakslee Mfg. Co. v. B. Q. Blakslee’s Sons’ Iron Works (Sup. Ct.), 707. 7. A mere riparian owner, as such, has no estate in the lands under water, but simply a right to apply to the state for and obtain a grant as owner of the upland, and when he sells the upland the right ceases, notwithstanding an attempted reservation thereof in his deed. Id, See Injunction, 1, 3. ELECTION. 1. The writing in the body of the certificate, expressing the result of the count by the inspectors at the close of the polls, and publicly announced by them, and certified under their official certificates to be correct, must prevail over any contrary result that can be obtained from the writing on the ballots attached thereto, and the board of county canvassers is bound by the statement in the body of such certificate. People ex rel. Noyes v. Boa/rd of Canvassers (Ct. App.), 778. 2. The board of canvassers may return a statement to the inspectors for the purpose of attaching the sample ballots and noting thereon the number of each kind voted, so far as that could be done, but not for a recount to vary or contradict the result expressed in the body of the certificate. Id. ELECTION OF REMEDIES. See Sale, 1. EMINENT DOMAIN. 1. Where no erroneous methods of procedure are disclosed by the record and no erroneous principle shown to have been adopted by the commissioners in making their award, the appraisal will be affirmed. Matter of Buffalo & Geneva B. Co. (Sup. Ct.), 343. 2. Under chap. 606, Laws of 1875, and acts amendatory thereof, a railroad corporation was authorized to take lands in the city of New York neces-
*992 992 EMINENT DOMAIN—EVIDENCE. sary to its purposes. By chap. 522, Laws of 1884, the act relative to pub lie parks and parade grounds, the same lands were taken by the city foi these purposes. The railroad company had done nothing in the way oi availing itself of the privileges granted by the act of 1875. Held, that by chap. 522, Laws 1884, the land was devoted to the public use, and that ah' rights of the railroad company were lost. Suburban Rapid Ti'ansit Go. v Mayor et al. (Sup. Ct.), 642. 3. An award for property taken for public parks was made to the estah. of Ann Bolton; as an item therein damages were included for the forcee removal of certain machinery. After'confirmation the same parties whe alleged before the commissioners that the machinery belonged to Ann Bolton, presented claims for a share of the award upon the ground that they were part owners of the machinery, under a lease soon to terminate. Held, that they were guilty of bad faith, and that a court of equity would not assist them. Matter of Dept, of Public Paries (Sup. Ct.), 688. 4. Where a riparian owner has been compensated for land under water taken by a railroad crossing a bay or indentation in front of his property, he is not entitled to have a draw-bridge erected in the road to permit the passage of vessels to his property, unless the bay was capable of and accustomed to be generally navigated. Kerr v. West Shore R. R. Go. (Ct. App.), 913. 5. That a vessel of light draft might at certain stages of the tide get nearer the shore than it could when the crossing was erected does not make it, in a general sense, a navigable part of the river. Id. 6. The restoration of a private road leading to the docks upon a river is not a duty imposed upon a railroad company, and its loss or destruction must be deemed compensated by the award made by the commissioners in the condemnation proceedings. Id. 6. Where the owner of property taken failed for over two months after confirmation of the award to deliver satisfaction pieces of mortgages and a deed of the land, and then received the amount of the award under protest, Held, that she could not thereafter maintain an action for the interest on the award. Derlin v. Mayor (Sup. Ct.), 951. 8. The owner was not entitled to the award until the incumbrances were discharged, and hence the city was not in default, and the owner was not entitled to interest. Id. See Executors, etc., 20; New York City, 1, 2. ESTOPPEL. See Apartment Houses; Banks, 1; Foreclosure, 1; Guardians, Municipal Corporations, 23; Sale, 12. EVIDENCE. 1. Declarations of an attachment debtor or his agent, made after levy, which tend to establish facts authorizing the vendor of the goods in question to rescind the sale, are not admissible against the sherifO in an action to replevin such goods. Wise et al. v. Grant et al. (Sup. Ct.), 39. 2. In an action brought to recover the value of a stock of goods taken from plaintiff by a writ of attachment against the debtor who had previously sold them to plaintiff in payment of his indebtedness to him, defendant was allowed to show by one of the plaintiffs in the attachment suit that the debtor on the evening previous to his sale to plaintiff in this action had made statements to the witness and others that_ he was perfectly solvent, had sufficient on his books to pay all his creditors, was pot short in his accounts as village treasurer, etc. Held, incompetent, as being the mere declarations of an assignor of a chose inaction, forming no part of the res gestee and not competent to prejudice the title of his assignee. Kloennery v. Van Tassell (Ct. App,.), 228. 3. The exception to the rule prohibiting the admission of parol evidence to vary a written contract which allows such evidence where the original contract was verbal and entire and a part only reduced to writing, has reference to an instrument on the face of which there is nothing to show that
*993 EVIDENCE. 993 it was intended to contain the entire contract, and has no reference to one which on its face does indicate such intention and design. Moores v. Glover (City Ct. B’klyn), 396. 4. William and Joseph Duke formed a partnership orally in 1860 and subsequently became possessed of large interests in land, lumber and oil rights in different states. In 1881 they entered into a written agreement to settle the accounts between them. This recited that each held property as an individual which in fact belonged to the firm, and each agreed to deed such property to the other on demand and generally to adjust their affairs. In 1884 they entered into a further agreement, whose object was to vest ■one with all the personal property of the firm and bind him to pay its debts in this state. Joseph Duke died, and in an action for an accounting it was held by a referee that the demands between the parties were settled by these agreements and that parol evidence was inadmissible. Held, error. Neither instrument stated the indebtedness of one partner to the other nor how each would stand after an accounting, and therefore parol evidence was admissible whether an agreement as to this question was made before, at the time of, or after the execution of the written instruments. Applebee et al. v. Duke et al. (Sup. Ct.), 446. 5. A judge of a probate" court of another state appointed by order certain persons commissioners with power to receive, examine and adjust all claims against one J., deceased, and they were therein directed to make a report of their proceedings to the court. Nothing appeared to show that any decree or order was made or any action taken by the court upon their report subsequently filed. Held, that a copy of such a paper, duly attested, was not, within § 952, Code Civ. Pro., “ a copy of a record or other judicial proceeding of a court ” of another state, and was no evidence of J.’s indebtedness in support of an action to set aside a conveyance by him as in fraud of creditors. Johnson v. Johnson et al. (Sup. Ct.). 524. 6. Testimony given by a witness upon re-examination as to personal transactions with a decedent is not objectionable under § 829 of the Code, where he has been questioned by the counsel for the administrator on cross-examination as to the same subjects. Blankman v. McQueen (Sup. Ct.), 601. 7. Testimony of physicians concerning the rendition of services of a claimant as a nurse to their patient is not objectionable under § 834 of the Code. Knowledge of such fact is not information at all entering into ‘ their professional conduct as the physicians of the intestate. Pandjiris v. MeQueen (Sup. Ct.), 602. "8. The joinder of two or more claims against a decedent’s estate in the same reference does not deprive either of its individuality, ór make either of the claimants a party to the proceeding of the other. Id. 9. Testimony of a witness that a person was intoxicated is unobjectionable where his opinion is limited to what he saw. People ex rd. Kelly v. McLean et al. (Sup. Ct.), 628. 10. Where a book or document is produced on notice and the party giving the notice inspects it, it becomes evidence in the case, and it may be used as such, if material. Smith v. Bents (Sup. Ct.)', 695. 11. The fact that accounts relate only to transactions in money do not make books containing such accounts inadmissible where the other proof, customary in such cases, is made. Id 12. An administrator, the son, and also sole creditor of an intestate, brought an action, under chapter 314, Laws of 1858, to set aside a deed made by the intestate to certain of his children, upon the ground that it was without consideration and fraudulent as to creditors. Upon the trial one of the grantees testified in her own behalf as to the transaction with the intestate and his physical condition at the time. Held, that the testimony, although contrary to the letter of § 829, Code Civil Procedure, was within its spirit admissible. That the action, although by an administrator, was in fact for the benefit of creditors and brought to attack the intestate’s acts and the evidence in question supported those acts and hence the wit-K Y. State Rep., Yol. XXXYII. 125
*994 994 EVIDENCE—EXECUTORS AND ADMINISTRATORS. ness could not be. said to have testified “against ” the interest of the intestate’s estate, but did testify against a creditor who derived no title or interest through or under the intestate. Miller v. Davis et al. (Sup. Ct.), 854. See Assignment for Creditors, 5; Bankruptcy, 1, 2; Civil Service, 2; Contract, 10; Justice’s Court, 2; Negligence, 17; Railroad, 1;. State, 1, 2; Tenants in Common, 2; Trial, 1. EXCISE. 1. _ The county clerk of New York is the clerk of the city within the meaning of the excise law of 1857, with whom the bonds taken by the commissioners must be filed, and he is entitled to receive the fee prescribed by § 3804 of the Code upon the filing of each bond.' People ex rel. Meahim. et al. v. Giegerich (Sup. Ct.), 565 . EXECUTION. See Sheriffs, 1, 2. EXECUTORS AND ADMINISTRATORS. 1. The jurisdiction conferred upon a surrogate’s court does not include-power to annul or set aside a release made between parties interested in an estate and the executors on the ground of fraud. In order to obtain such relief resort must be had to a court . possessing general equity powers, and jurisdiction. Sanders v. Soutt'er et al. (Ct. App.), 1. 2. Plaintiff’s complaint alleged the death of defendants’ testator, qualification of the executors, misconduct on their part, that they had allowed a large part of the assets to be used by a firm in which one was a partner, and which failed; that one of the heirs died, leaving his share.to his wife and children; that his executor had been discharged without securing his share in the first mentioned estate, and that he connived at the use of said assets by the firm; that the widow of said heir assigned all her interest in said share to one C., by whom it was conveyed to plaintiff; that the widow was appointed administratrix of her husband, and brought proceedings to compel defendants to account, who produced a general release from-her,, and an approval of -her accounts and the proceeding was dismissed, and', that such settlement and release were collusive and fraudulent. Held,. that "the complaint was sufficient .for the purposes of an action to set. aside the release and settlement between the plaintiff’s assignor and the.executors. Id. 3. A will, in order to admit of double commissions, must clearly and' definitely indicate an intention of the testator to end the executor’s duty at some point of time, and require him thereupon to constitute and set up one or more several trusts to be held and managed as such for the interest of the beneficiary. Matter of McAlpine et al. (Ct. App.), 6. 4. Where the bulk of the estate comes to the executors already invested and in the form of securities which have not been turned into money, no law justifies the allowance of one-half commissions upon their estimated value in advance of their conversion into money or its equivalent. Id. 5. The proper time for such allowance will be when the securities have been turned into money for the purpose of payment, or have been accepted by the legatees as cash without being converted. Id. 6. In a proceeding to compel payment of a legacy, the administrator’s-answer denied the incorporation of petitioner, but did not set forth facts to show the claim to be doubtful, or deny its validity absolutely or upon information and belief. Held, insufficient to oust the surrogate of jurisdiction to order payment. Matter of Congregational Ch. of Cutchogue (Sup. Ct.), 179. 7. Before an executor or administrator can be adjudged guilty of contempt in failing to pay over monev as directed by the surrogate, it must be shown that a demand for payment was made, or his absence or concealment or some other reason why a demand would be impossible or difficult. Matter of Ockershausen (Sup. Ct.), 180.
*995 EXECUTORS AND ADMINISTRATORS. 995 8. Where the debt is not fiduciary in its origin and does not rest in tort, inability to pay the sum demanded is an answer to a motion to punish for contempt in not paying. Id. 9. Where an application was made, under chap. 257, Laws of 1886, amend" ing § 65, part 2, chap. 1, title 2, art. 2, B. S., for leave to mortgage property held in trust, and it appeared that the moneys realized were to be employed for the uses of the general estate of the testator, in payment of taxes to become due,, and an annuity to the widow, alleged to be charged upon the testator’s real estate, Held, that no ground was shown to justify the application. Matter of GlarTce (Sup. Ct.), 428. 10. The “ estate ” to benefit which such an application will be granted, under the above statute, is not the general estate of the testator, but the particular estate which is held by the trustee under the provisions of the trust. Id. 11. Gertrude Burmester renounced her right to administration on the estate of D. O., but was subsequently appointed administratrix after an appointment of the public administrator. Thereafter a will was found and probated, and letters thereunder were granted to plaintiff, who brings this action against defendant’s surety upon Gertrude Burmester’s bond to obtain money in the latter’s hands. Held, that as her petition stated that there was no person prior entitled to be cited, in the absence of any proof of fraud or collusion, her appointment could not be questioned collaterally, and.the order of the surrogate appointing plaintiff was not void, or without jurisdiction, because of the previous appointment of the public administrator, and her sureties were liable so long as her appointment remained unrevoked. Power v. Spademan (Ct. App.), 474. 12. However Gertrude Burmester originally received the money, she held, it as administratrix the moment her letters were issued, and since she became liable to deliver the money to the executor, upon his appointment, and the revocation of her own letters, the decree of the surrogate was within his jurisdiction, and bound her as well as her sureties. Id. 13. The right of creditors or next of kin of a decedent to require the executor or administrator to account is barred by the statute after thé expiration of six years from the time when the accounting might be ordered according to § 2724 of the Code. The surety on the bond of an administrator (at least before being charged) has no greater rights or longer time to compel an accounting than other creditors. Matter of Perry (Sur. Ct.), 576. 14. The plea of the statute of limitations may be interposed at any time befóte the evidence is in, and is not waived by the voluntary filing of an account. Id. 15. Where an executor, pursuant to an order of a surrogate, made under sub. 4, § 2723, Code Civil Procedure, files an intermediate account, which is not contested, the surrogate has no power to appoint, of his own motion, a referee to-examine such account. Matter of DeRussy (Sup. Ct.,, 646. 16. The object of an intermediate account is to show the condition of the estate, and the case is not within § 2546, Code Civil Procedure, providing for a reference to examine an account rendered. Id. 17. Where a trust fund is to be provided by the conversion of one species of property into another, and the time of such conversion is left indefinite, intere t will not be chargeable until the sale has been made and the fund realized, provided, ordinarily, that the delay does not exceed one year from the issue of letters testamentary. Poster v. Wetmore (Sup. Ct.), 667. 18. Where both a specific trust fund and legacies are to be provided for and paid out of the proceeds of land directed to be sold for such purpose, the fact that the sale was postponed beyond one year in order to realize better prices for the benefit of the legatees would not be a legal excuse for delay in setting apart such trust fund. Id. 19. The will directed the deposit of the fund with a certain trust company. The proceeds of the sale were deposited with another trust company pending a suit which was commenced for the construction of the will, partly
*996 996 EXECUTORS AND ADMINISTRÉ—FALSE REPRESENT AIONS. for the benefit of and at the request of the cestui que trust, to procure some disposition of the trust fund by which more interest would be realized from it than would be received if deposited according to the will. After the termination of the suit, which resulted in a refusal of the request, the fund was paid over to the trust company named in the will. Held, that during the pendency of the suit the executor was not chargeable with any greater amount of interest than was actually received upon the fund during its temporary deposit. Id. 20. Where executors, who had no title to real estate but had managed and controlled the same with the consent of the real owners, employed counsel and incurred expenses in establishing, before commissioners, the value of real property of their testatrix about to be taken for public parks, Held, that, as agents of the owners, they were entitled to be repaid such expenditures from the award made to their estate by the commissioners. Matter of Bep’t of Public Parks (Sup. Ct.), 688. 21. Where an executor or administrator pays th assets to the next of kin in advance of the final settlement, and there are costs incurred in an action in which the executor failed to recover, the statute of limitations is no defense to a proceeding to compel him to account, brought by the party in whose favor the costs were awarded. Matter of Mills (Sup. Ct.), 7i6. 22. Where executors continue the business of their testator under an authorization contained in the will, an indebtedness for goods sold in such business is d*gtio them in their representative capacity, and an action may be-maintained therefor by them or their successor. Varnum v. Taulor (Sup. Ct.), 796. 23. Under chap. 406, Laws 1889, where the present value of the real estate set apart for the widow, together with her dower right therein and the $150 of personal property did not amount to $1,000, it was the duty of the executors to set apart for her other personal property sufficient to make up said sum. Baggett v. Baggett (Sup. Ct.), 810. 24. A claim arising upon a judgment recovered against the testator or intestate is not barred by the statute of limitations upon a refusal to refer, so as to deprive the creditor of the right to compel the executor to account. Matter of Lyman (Sup. Ct.), 928. 25. Where a married woman dies, her husband is entitled to preference in administration, and where he dies leaving any of the assets unadministered the same pass to his personal representative, and the latter is entitled to letters of administration on the estate of the wife. Under no construction of the statute can the public administrator become entitled to letters in such a case. Matter of Strutzkober (Sup. Ct.), 939. 26. The mere fact that a decree made upon a prior accounting has been reversed on appeal, the judgment on which had not been entered, is no answer to an application for a final accounting based upon a petition showing that the petitioner is a legatee and that there is a sum of money in the executor’s hands which should be distributed. Matter of Beeves (Sup. Ct.), 959. See Costs, 5; Evidence, 8; Negligence, 21; Panties, 7; Will, 21. FALSE BEPBESENTATIONS. 1. In an action to recover damages sustained by false representations inducing the purchase of stock of a corporation, it is not essential for plaintiff’s recovery that he testify that he relied solely upon the representations. Such reliance may be inferred from all the circumstances of the transaction. Hatch v. Spooner et al. (Sup. Ct.), 151. 2. In such an action fraud must be established by evidence necessarily leading to that conclusion. Id. 3. Where it appears that the defendants did not necessarily know the financial condition of the company; that their familiarity may have been only with the manufacturing branch of the business, and that the representations were necessarily matters of opinion, a verdict in favor of plaintiff cannot be sustained. Id.
*997 FALSE REPRESENTATIONS—FORECLOSURE. 997 4. In an action to rescind a purchase of stock and to recover the sum paid thereon upon the ground that it was induced by false representations, there was evidence that defendant had falsely represented that the company’s business was prosperous, that he had no stock to sell, but would obtain some for plaintiff from another person, and that in fact the stock sold to plaintiff was defendant's stock. Held, that there was evidence from which the jury might find fraud, and that a dismissal of the complaint was error. Miller v. Curtiss (N. Y. Supr. Ct.), 884. See Bill of Particulars, L PERRIES. See Negligence, 2, 3 FIXTURES. Defendants conveyed to their daughter certain premises on which was a portion of a barn, which was not attached to the realty but built upon stones sunk in the ground and which could be removed without injury to the soil. At the time of the conveyance the daughter told defendants that the barn was theirs, and they continued to occupy it, and subsequent grantees of the daughter, including the plaintiff, were notified that the barn belonged to defendants. In an action for removing said barn, Held, that the barn by its nature and mode of construction was capable of being treated as personal property and of being reimpressed with that character by agreement, and that defendants had a right to remove the same. Leonard v. Clough et al. (Sup. Ct.), 814. FL1TBUSH AVENUE. See Municipal Corporations, 6, 25, 26 FORECLOSURE. 1. The plaintiff had a mortgage on certain lo‘s upon which a prior mortgage existed. The latter was foreclosed and plaintiff, although not made a party, was aware of the foreclosure. Thereupon a stipulation was entered into under which all the lots were sold under the first mortgage, although a sale of all was not necessary to satisfy it. Certain of the purchasers objected to the title and nothing has ever been done to compel them to complete their purchases. In an action by plaintiff to foreclose his mortgage, Held, that he was not estopped from so doing by the stipulation, nor bound before foreclosing to attempt to compel said purchasers to take title. Jarvis v. Cha/pin (Sup. Ct.), 198. 2. An order denying motion to open a resale on foreclosure and allow the purchaser on the first sale to complete his purchase is a discretionary one, and when made by the county court is not appealable to the supreme court-. Judson v. O’ Connell et al. (Sup. Ct.), 581. 3. The referee on a sale in foreclosure correctly stated the amount due on an incumbrance upon the premises, but the purchaser ascertaining that the incumbrance apparently was for a greater sum, refused to complete, and the premises were on the same day sold for a less sum, and the purchasers on the resale completed the purchase and received the deed and the report was subsequently confirmed. Held, that it appearing that there were numerous bidders at the resale, and there being no irregularity claimed, a denial of a motion to open the latter sale and allow the first purchaser to complete was properly denied. Id. 4. Where a judgment entered against a mortgagor contains nothing to show that the judgment creditors are partners, extrinsic proof would be necessary to render personal service on one binding upon the others, and hence the plaintiff in an action to foreclose the mortgage has a right, upon a refusal of an appearance for the absent judgment creditors, to serve them by publication, and the expense thereof is properly allowable in his bill of costs. • Chevers v. Damon et al. (Sup. Ct.), 904. 5. Where the plaintiff in foreclosure has received his money and assigned the bond and mortgage under an order of the court directing him to do
*998 998 ' FORECLOSURE—GUARANTY. so if required by a subsequent mortgagee, this constitutes a settlement within the meaning of § 3252 of the Code. Id. See Partnership, 11. FORMER ADJUDICATION. . 1. A judgment founded upon an admission in the pleadings establishes the fact admitted, if necessary to the judgment, as conclusively as though the fact had been found from the evidence. Miller v. Union Switch <B Signal Oo. (Sup. Ct.), 110. 2. Any fact once found and embodied in a judgment must be regarded as final and conclusive between the parties thereto and their privies whenever and wherever the question subsequently arises. Moore et al. v. Mew York El. E. E. Oo. et al. (Ct. App.), 777. ' See Contract, 29. FRAUD. See Bankruptcy; Bills, etc., 13; Damages; Deed- False Representations 2; Sale, 4. FRAUDULENT CONVEYANCE. 1. Where there is a common plan for the commission of a fraud between several persons and in pursuance of such common plan certain of such persons take deeds in severalty, all the parties to the plan are proper parties to an action to set aside such deeds. Watts v. Wilcox et al. (Sup. Ct.), 194. 2. The complaint, in an action tó set aside a conveyance of bills receivable by A. to P. as fraudulent, alleged that A. was insolvent; that he had transferred his property and confessed judgments; that by sales under such judgments all his property had been sold at a sacrifice, and that upon the above transfer by A. to P. the latter had made a profit which he had shared with A. The complaint was dismissed. Meld, error. That assuming that the bills purchased by P. from A. was the purchase of a valid debt, there still remained a question of fraud which should have been submitted to the jury. Cohen et al. v. Plonsky et al. (Sup. Ct.), 738. 3. A merchant in failing circumstances made a bill of sale of all his stock, fixtures and book accounts to his father, taking from him notes running from two months to three years from date, and immediately left the state. Two months thereafter the father made an assignment for the benefit of creditors, including such notes, the property assigned being little more than that covered by the bill of sale. The son testified that his father was to take the goods and pay the debts in the order they came due, and that after the debts were paid, the balance of the notes was to be paid to him. Held, that as the effect of the arrangement was to delay creditors in the collection of their debts it was in fraud of their rights and therefore void. Warner v. lake (Sup. Ct.), 799. See Assignment for Creditors, 1-3; Evidence, 5,12 GUARANTY. 1. One K., son-in-law of defendant’s testator, had been dealing with plaintiffs who did business under the firm name of George E. Beakes. Upon security being demanded, the deceased went with K. to see one of the plaintiffs, and executed a guaranty whereby the became responsible to “George E. Beakes, Esq.,” for all milk sold to K. Meld, that, as there was evidence sufficient, though slight, to show that defendant’s testator at the time he executed the guaranty knew that plaintiffs were doing business under the firm name of George E. Beakes, and intended that the guaranty should be for the benefit of the firm, it became a continuing guaranty, and the supplying of the milk was an abundant consideration to uphold it. Beakes et al. v. DaOanha (Ct. App.), 14. 2. The guaranty required notice to he sent to the guarantor monthly, if ■ payment for the previous month’s goods had not been made. Meld, that notice by mail was such as all the parties contemplated and intended at the time the guaranty was executed. Id.
*999 GUARDIANS—HIGHWAYS. 999 GUARDIANS. 1. Calvin B. Camp was in 1868 appointed general guardian of his four children to receive an award made to them for lands of their deceased mother taken by the city, and received such award, and receipted therefor as guardian, but no inventory was filed. In a proceeding, in 1888, to compel him to account, he claimed a life interest in the fund as tenant by the curtesy. Held, that he was entitled to such interest; that the fact that he signed the receipt given to the city authorities as guardian did not estop him from showing the truth as to his personal interest in the fund. Matter of Camp (Ct. App.), 767. '2. Where land in which one has an estate as tenant by the curtesy is sold, the moneys obtained for the purchase represent the land, and the tenant by the curtesy is in any event entitled to interest thereon for his life. Id. 8. When appellant as guardian received the fund, for the forthcoming of which he gave security, he took it subject to his individual right to the use of the same for his own life. Id. ■4. There is no power in the surrogate to compute the value of the life estate, and deduct the gross sum arrived at from the original fund, and direct the guardian to pay over the balance. Id. •5. Although the guardian may cease to be such upon the ward coming of age, yet so long as the property remains in his possession as guardian, and unaccounted for, he must remain liable to account. Id. 6. The fact that the guardian had lost the fund paid to him, and was insolvent, gave the surrogate no power to decree the payment of the fund to the ward. The surrogate has no general jurisdiction over a guardian as a trustee. Id. HABEAS CORPUS. 1. _ When a traverse is interposed to a return to a writ of habeas corpus the issue is made up and no further pleading is required. Mattes' of Simon (Sup. Ct.), 48. .2. On habeas corpus to inquire into the detention of a child upon conviction as a vagrant, it is error for the court to treat the allegations of the traverse as true and discharge the child without receiving evidence as to the issues raised thereby, although the traverse is not demurred to. Id. HIGHWAYS. 1. The impairment of a highway for public use may be no less such by an obstruction placed in it than by a physical disturbance or injury to the bed of the roadway, and in either case the roadway is “ defective,” within the meaning of chap. 700, Laws 1881. Whitney v. Town of Ticondercqa (Ct. App.), 135. .2. Plaintiff, by his complaint, alleged in substance that the highway commissioner carelessly placed and left a road scraper in the highway, thus causing the injury, which occurred after dark, plaintiff not knowing that it was there, and defendant answered that it belonged to the town in which it was placed, and that defendant’s commissioner used due diligence in placing and leaving it so as to prevent accident, etc. The only evidence to show that the commissioner left it where it was at the time of the injury,_ or caused it to be placed there, or knowing it was at that place permitted it to remain there, was that after it had been removed he pointed out to a witness the place where it was at the time of the injury. Held, that from the_ pleadings and this evidence, the conclusion was warranted that the requisite care was not observed for the safety of public travel in leaving the scraper at that place in the highway. Id. 3. The bringing of an appeal from the order of commissioners laying out a highway does not suspend the running of the statute of limitations contained in § 2125, Code Civ. Pro,, requiring that a writ of cerliora/ri to review_ such determination be brought within four months after it becomes binding on the relator or the person whom he represents. People ex rel. Cook et al. v. Hildreth et al. (Ct. App.), 393.
*1000 1000 HIGHWAYS— INFANTS. i. There is nothing to prevent a relator from taking both an appeal front an order of the commissioners and suing out a certiorari at the same time, and pursuing both remedies concurrently. Id. 5. While plaintiff was driving along a narrow road in the defendant town, which adjoined a ravine,- the horse stumbled on some small rolling stones, and the carriage with its occupan-ts was precipitated over the bank and injured. In an action for such injuries, plaintiff’s evidence tended to show that theroadwas not guarded at that point; that he exercised caution and care in driving, and that the horse was manageable. Defendant’s evidence showed that plaintiff was acquainted with the road, and that the horse was difficult to manage. Held, that the questions of negligence and contributory negligence were properly submitted to the jury. Beid V. Toionof Bipley (Sup. Ut.), 590. 6. Where it appears that a proposed road will run through orchards, house enclosures and a schoolthat it .will benefit very few -persons and very slightly; that the cost will be heavy, and the road it will displace is sufficient for the public use, consent to its opening should not be granted. Matter of Four-Corner Boad (Sup. Ct.), 711. 7. Occupation of a portion of a street by an adjoining owner prior to acceptance of the dedication of such street by the municipal authorities is-not a revocation of the previous dedication, where such owner’s deed recognizes the street itself, and his lands are bounded by it. Bathgaber. v. Village of Tonawanda (Sup. Ct.), 807. See Municipal Corporations, 21-24; Negligence, 1, 23 HUSBAND AND WIFE. See Executors, etc., 25; Insurance (life), 2; Tenancy by Entirety. INDEMNITY. J3ee Attachment, 1 INDIANS. 1. The state of New York had the power and right under the constitution to make treaties with the Indian tribes within the state for the purchase of their lands, to which it held the pre-emption right, and a purchase made of the Seneca tribe August 31, 1826, having been duly made ■ under its authority in pursuance of the compact with Massachusetts of' 1786, in the presence and with the approval of commissioners both of Massachusetts and of the United States, was valid, and the purchasers, on the execution of the deed, followed by the voluntary surrender and abandonment by the Indian occupants of the land granted, acquired a lawful and valid title in fee simple absolute, and-a treaty between the-United States and the Senecas was not necessary to give validity to the transaction. Seneca Nation of Indians v-. Christy (Ct. App.), 64. 2. Such transaction was valid and not in contravention of the provisions-of the Federal constitution or of the Indian intercourse act of 1802, and vested in the purchasers a good title in fee simple absolute to the lands, granted, free from any claim of the Seneca Nation. Id. 3. The right of plaintiff to. sue being given by chap. 150, Laws 1845, the-statute of limitations is a bar to the action. Id.' INFANTS. . 1. The statute authorizing a sale of infants’ real estate cannot be resorted to for the purpose of divesting the infant of the title, or curing a defect therein. Weinstoch v. Lerrison et al. (Sup. Ct.), 561. 2. Where such proceedings are resorted to for the sole purpose of placing' the title in the father of the infant they are absolutely void, although no fraud was intended and the infant has received the fair value of its interest in the property. Id. 3. In an action to avoid a contract made by an infant and to recover payments made thereon, the defendant cannot recover by way of counter-
*1001 INFANTS—INSURANCE (MARINE). 1001 claim damages for breach of the contract on the theory that plaintiff concealed the fact of his infancy or his right to avoid the contract. Radley v. Kenedy (City Ct. B’klyn), 612. See Surrogates. INJUNCTION. 1. In an action to compel the determination of adverse claims to real estate, of which plaintiff is in possession claiming to own the fee, an injunction pendente lite, under §§ 603 and 604 of the Code, will be granted against defendants who have brought ejectment suits against plaintiff affecting such land, restraining all proceedings in any of the suits last named until the final determination of the action. Guthlert v. Ohauvet et al. (Sup. Ct.), 564. 2. Plaintiff applied for an injunction to restrain the erection of a building by defendant on her premises consisting of four stories, with bath rooms and water closets on each floor, on the ground that it was a type of a tenement house and a violation of an agreement that only private houses should be erected on the lots of the parties thereto. Defendant, in oppo- . sition to the motion, showed by the affidavits of herself, the architect and others that the building was intended for a private residence and would be occupied by herself and her family as such. Held, that an injunction was properly denied. Grenell v. Stillwell (Sup. Ct.), 929. 3. In an action^ to determine claims to real estate under §§ 1638, 1639 of the Code, an injunction pendente lite may properly be granted to restrain the prosecution of ejectment suits brought against the plaintiff. OutKbert v. Ohauvet et al. (Sup. Ct.), 941. 4. _ Where several suits have been begun by the same party, there is no inconsistency in staying all of such actions but one and allowing that one to proceed. This is the proper practice where a multiplicity of suits are sought to be prevented. Id. See Partnership, 6, 7; Watercourses. INSOLVENCY. See Banks, 7, 8. INSURANCE (EIRE). See Consignor and Consignee. INSURANCE (LIFE). 1. Where a policy of insurance expressly provides that the premiums shall be paid on a certain day, and in default thereof the policy shall become void, such provision is not affected by statements and representations in a pamphlet issued by the company to the effect that “ 30 days grace would be allowed in payment of premiums,” and such representations will not relieve from a default in payment, although the delay was induced thereby. Fowler v. Metropolitan Life Ins. Co. (Sup. Ct.), 622. 2. Where a wife, who is the beneficiary in a policy on her husband’s life, dies before him, and he does not surrender the policy, it will be presumed that he intended that her personal representatives should take and the policy is payable to them and not to his legal representatives. Waldheim, v. John Hancock Ins. Oo. (City Ct. N. Y.), 685. INSURANCE (MARINE). 1. A clause in a cargo policy providing that freight and advances insured under this policy are subject to the terms and conditions of freight policy attached hereto, does not imply that insurance of advances are not subject to the terms of the cargo policy. Phenix Ins. Go. v. Parsons (N. Y. Supr. Ct.), 874. 2. On payment of a marine policy to defendant’s firm, to cover advances made for the owners of a vessel, said firm assigned to the company its K Y. State Rep., Yol. XXXYIT. 126
*1002 1002 INSURANCE (marine)—JUDGMENT. claim against the owners to the extent of $1,500, the amount of the insurance, which in fact comprised its commissions on charter and expenses of insurance. In an action to recover the sum paid after failure to recover of the owners, Held, that there was an implied warranty that the claims assigned amounted to $1,500, and that defendant could not object to said commissions and expenses being included in the recovery against him. Id. 3. In such action the costs of the action against the owners may be recovered, although defendant was not notified of the action, but counsel fees are not recoverable. Id. See Pleading, 11. INTEREST. See Eminent Domain, 7, 8; Executors, etc., 17-19; Parties, 5; Railroad, 22. INTERPLEADER. Plaintiff was employed by defendant Benedict to obtain some property of an estate in which he was interested, and was successful, the executor, _ on his accounting, being directed to pay a certain sum to Benedict^ who had drawn a draft on the executor in favor of a bank, which draft had been accepted by the executor but not paid when this action was brought by plaintiff, who claimed a lien on the fund for his services. Held, that an order interpleading the bankers in place of the executor was properly granted. Jarvis v. Benedict et al. (Sup. Ct.), JOINT DEBTORS. See Pleading, 14. JOINT ENTERPRISE. If two or more persons own and are dealing in merchandise on joint account, although the name of only ohe of their number openly appears, and all sales and business transactions are conducted solely by him, the claims of his individual creditors will attach only to so much of said merchandise or its proceeds as constitutes his share of the venture or joint enterprise. Drexel et al. v. Pease et al. (Sup. Ct.), 166. JUDGMENT. 1. The court should not, where a complaint is dismissed solely because of failure of proof, give absolute judgment in favor of the defendant. Terry v. Horne et al. (Sup. Ct.), 58. 2. In an action brought upon a Pennsylvania judgment entered upon a judgment note which was signed with a cross, where the defendant denies the execution of the note, the witness to the signature is dead and there is no direct evidence of its execution, a verdict in favor of the defendant will not be disturbed. Hall v. Littleton (Sup. Ct.), 174. 3. Section 1022, Code .Civ. Pro., provides that a referee in his report “must direct the judgment to be entered thereupon.” This requirement is satisfied if, from the whole or a part of the report, the particular form and the terms of the judgment to which the successful party is entitled can be ascertained. Hinds et al. v. Kellogg (N. Y. O. P.), 856. 4. Where the conclusions of law in a referee’s report clearly and unmistakably settle the form and amount of the judgment to be entered, this is a sufficient compliance with § 1022 of the Code, requiring a direction of the judgment to be entered. Devlin v. Mayor et al. (N. Y. C. P.), 508. 5. Where an action is brought in equity to set aside a judgment duly obtained against the plaintiff in a court of law after a trial, in which he had an opportunity to present any defense he might have, such plaintiff must show with reasonable certainty that, without any fault of his own, by fraud, accident or the wrongful act of the other party, he was deprived of such defense; that diligence upon his part would not have made him acquainted with the facts out of which such defense arose, and that for this t
*1003 JUDGMENT—LANDLORD AND TENANT. 1003 reason he did not set up such facts and defense in the action at law. Merrifield v. Bell (Sup. Ct.), 743. See Assignment nor Creditors 2, 8; Deed; Executors, etc., 24; Parties, 1. JURISDICTION. 1. The refusal of the court to entertain jurisdiction of an action between non-residents for a tort committed out of the state does not depend on the motion of the parties necessarily, but the court may refuse to do so upon its own motion. Winchester v. Browne (Sup. Ct.), 542. 2. Where the plaintiff was a resident at the time of the commencement of the action, and it has been litigated on the assumption that the court would entertain jurisdiction, and has reached a point where a speedy trial can be had, a refusal to dismiss

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8334409. Public record. Not legal advice.