5057 
 
 Cornell University Law Library 
 
 The Moak Coirection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, ,893 
 
 IN HEnORY OF 
 
 JUDQE DOUGLASS BOARDMAN 
 
 FinaT oan op the school 
 
 By his wife and Daughter 
 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
 jASfe... 
 

Cornell University 
 Library 
 
 The original of tiiis book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017679949 
 
A 
 
 * 
 
 DIGEST 
 
 NEW YORK DECISIONS, 
 
 JULY, 1878, TO JANUARY, 1881 
 
 COMPRISING 
 
 ALL THE CASES 
 
 REPORTED OFFICIALLY OR OTHER"WISE DURING THAT PERIOD. 
 
 TOGETHER WITH 
 
 A TABLE OF CASES AFFIRMED, REVERSED, OVERRULED, 
 AND OTHERWISE CRITICISED 
 
 COVERING THE SAME PERIOD. 
 
 ■VOXjTJI^E II. 
 
 NEW YORK REFERENCE DIGEST. 
 
 STEWART ^APALJE 
 
 S^ 
 
 OF THE NEW YORK BAR. 
 
 JERSEY CITY: 
 Frederick D. Linn & Company, Law Publishers. 
 
 1881. 
 
^S7lf. 
 
 Entered according to Act of Congress, in the year one thousand eight hundred and 
 
 eighty-one, by 
 
 STEWAET EAPALJE, 
 
 in the Office of the Librarian of Congress, at Washington. 
 
PREFACE. 
 
 This work begins where the previous volume closed, and the general classifi- 
 cation made use of in the first volume has been closely followed. The difference 
 between the systems employed ia the two books is, that ia the first, condensation 
 and brevity were the object, in order to present all the cases then decided, in 
 one volume ; in this, fullness and complete statement of the points involved, are 
 intended, owing to the freshness of the cases, with many of which the members 
 of the bar, as yet, are slightly acquainted. 
 
 This volume is the result of more thatt£fteen months' painstaking, imremitting 
 labor. It is the work of one ^ip^ ariH on^^kn, and it is believed that practical 
 tests vnll prove it to be exhaustive anfl tr«stwo|thy. ^ 
 
 The opinions have been read and many additional points drafted from them 
 and, so far as the General and Special Term decisions are concerned, nearly aU 
 the syllabi have been re-written, with a view to condensation and improvement. 
 
 The constant endeavor has been to present in its proper place every point decided 
 in each case, whether deemed important or trivial, the reader, not the editor, being 
 the proper person to judge of the value and soundness of the principles laid down. 
 Dicta are indicated either by the use of the phrase "It seems," at the beginning of a 
 paragraph, or the word " That" at the beginning and " see" [the case cited] aMhe 
 end. Every citation has been verified, and all possible means have been taken 
 to secure accuracy, while no part of the, work has been done in hade — that most 
 prolific of all causes of imperfections in books of this character. 
 
 The Table of Cases Criticised is intended to present every criticism of any 
 
 previous case (as well as affirmances and reversals), which the opinions digested in 
 
 the volume contain, and, it is believed, that intention has been fuUy and completely 
 
 carried out. Many of the criticisms, especially those which merely " distinguish " 
 
 cases cited by counsel, are, doubtless, of Kttle importance or value, but of that, as 
 
 said above, the reader is the better judge. 
 
 STEWART EAPALJE. 
 
 New Toek, February, 1881. 
 
REPORTS EMBRACED. 
 
 Abbott's New Cases Vols. 4-8* inclusive. 
 
 Daly's Reports " 7& 8 
 
 HowAiuJ's Peaotice Reports " 55-59* " 
 
 Hun's Reports " 13-21* " 
 
 New York Reports " 69-79* " 
 
 Redmeld's Surrogate Reports Vol. 3. 
 
 Superior Court Reports Vols. 43-45 
 
 Total, 36 volumes. 
 
 *The cases contained in the 8th Abbott, 59th Howard, 21st Hun and 79th New York, are included so far aa 
 respects the titles not stereotyped "when those volumes were respectively issued. Some few cases in each of 
 them, however, could not be included, and remain over to appear in the next supplementary volume. — Ed.] 
 
NEW YORK 
 
 Reference Digest 
 
 A 
 
 ABANDONMENT. 
 
 Divorce, 24, 25 ; Husband and Wife, 16- 
 24 ; Insurance, 139-142. 
 
 ABATEMENT AND REVIVAL. 
 
 I. Grounds of Abatement; and how 
 
 Pleaded. 
 II. Eevival. Continuance. 
 
 I. Grounds op Abatement ; and how 
 Pleaded. 
 
 1. Death of a party plaintiff. The 
 death of one of several co-partners, who are the 
 petitioners in proceedings by mandamm, after 
 return to an alternative writ, does not abate the 
 writ. — Ot. of App., June, 1877. People, ex rel. 
 Witherbee, v. Supervisors of Essex Co., 70 N. 
 Y. 228, 237. 
 
 2. — of party defendant. The provision 
 of Code Civ. Pro. 758, providing that the estate 
 of one jointly liable with others shall not be 
 discharged by his death, does not affect con- 
 tracts entered into before its passage. The 
 provision is not merely remedial, as it imposes, 
 in some cases, an obligation where none existed 
 before. "Where, therefore, after action brought 
 against two sureties upon a joint undertaking 
 given upon appeal prior to the passage of such 
 code, one of the defendants died — Held, that his 
 liability ceased upon his death ; and that a 
 motion to revive the action against his execu- 
 tors, and to substitute them as defendants, made 
 after such code went into effect, was properly 
 denied. — Gi. of App., June, 1879. Eandall v. 
 Sackett, 77 N. Y. 480 ; and see also Scholey v. 
 Halsey, 72 N. Y. 578, 583. 
 
 3. Another action pending between 
 same parties. As to abatement of an action 
 for rent, by pleading judgment in another action 
 for a later installment of rent, see Jex v. 
 Jacob, 7 Abb. N. Cas. 452. 
 
 4. Another action pending in the State of 
 Missouri is not a bar to an action commenced 
 in this state. — Swpreme Ct., (1st Dept. Sp. T.,) 
 
 May, 1879. Hadden v. St. Louis, &c., B. R. 
 Co., 57 How. Pr. 390. 
 
 5. Plaintiff omitted to state the proper name 
 of one of the defendants in the summons and 
 complaint served, and an order was made di- 
 recting the summons to be amended in that 
 respect, and allowing plaintiff to serve an 
 amended complaint and a copy of the amended 
 summons, upon payment of ten dollars costs. 
 Plaintiff failed to pay the costs, or serve the 
 amended summons and complaint, within the 
 time specified in the order. A subsequent 
 action was brought against the same defendants 
 for the same cause of action. Held, that the 
 former action was not pending at the time of 
 the commencement of the second one, so as to 
 constitute a bar. — Supreme Ct., [ith Dept.,) Jan., 
 1880. Owens v. Loomis, i9 Hun 606. 
 
 6. Expiration of corporate charter. 
 Upon the expiration of the term of the exist- 
 ence of a corporation as limited by its charter, 
 it becomes extinct, no formal decree of dissolu- 
 tion is necessary', and a judgment thereafter 
 rendered against it in an action then pending 
 is void, unless the action be continued by order 
 of the court as provided by Laws 1832, ch. 295, 
 to prevent the abatement of actions by or 
 against corporations. — Ct. of App., April, 1878. 
 Sturges V. Vanderbilt, 73 N. Y. 384, 390 ; modi- 
 fying 11 Hun. 136. 
 
 1. The provision of the statute of New Jer- 
 sey, (Laws N. J., April 15th, 1846, ? 29,) consti- 
 tuting the directors and managers of 'a corpo- 
 ration trustees thereof upon its dissolution, 
 does not continue its existence as cestui que 
 trust, and render it capable of defending in its 
 corporate name where the corporation has ex- 
 pired by the termination of the period for 
 which it was created. lb. 
 
 8. Necessity of a plea or answer. 
 A mistake in a summons in the name of a cor- 
 poration defendant is waived by not pleading 
 it in abatement. — Ct. of App., Oct., 1878. Whit- 
 tlesey V. Frantz, 74 N. Y. 456. 
 
 9. Form and requisites of answer. 
 An answer setting up the defence of another 
 action pending, must affirmatively show that 
 the first suit was pending when the second was 
 commenced. — Supreme Ct., (Isi Dept. Sp. T.,) 
 
ABATEMENT AND REVIVAL, II. 
 
 y, 1879. Haddeu v. St. Louis, &c., E. E. 
 Co., 57 How. Pr. 390. 
 
 lO. Proof of matter in abatement. 
 A plea of a former suit pending can only be 
 supported by showing, as matter of fact, that a 
 former suit was pending when the second action 
 was commenced. Such a plea cannot be sup- 
 ported by proof of an unsatisfied judgment 
 against the plaintifi" in a prior unsuccessful 
 action upon the claim which is the subject of 
 
 the second action. — Ot. of App., April, 1879. 
 
 "■ ' " S. Y. 164 ; affirming 
 
 13 Hun 33. 
 
 Porter v. Kingsbury, 77 
 
 11. It appeared that a former action had 
 been brought, the complaint in which omitted 
 to allege that notice of judgment had been 
 served as required by Code of Pro., ? 348 ; 
 the complaint was demurred to and demurrer 
 sustained because of this omission ; and before 
 the commencement of the second action the 
 former suit had proceeded to final judgment on 
 the demurrer, which judgment remained unsat- 
 isfied. Notice of judgment was served after the 
 commencement of the first and prior to the 
 second action. 
 
 Held, 1. That the plea was not sustained, 
 and that the former judgment was not a bar. 
 
 2. That an appeal brought in the first action, 
 after the commencement of the second, had no 
 retroactive effect, so as to sustain the plea. lb. 
 
 n. Eevtval. Continttance. 
 
 12. Interpreting the statute. Code of 
 Civ. Pro., § 757, as amended by Laws 1879, 
 ch. 542, providing that " in case of the death 
 of a sole plaintiff or a sole defendant, if the 
 cause of action survives or continues, the court 
 must, upon a motion, allow or compel the 
 action to be continued by or against his repre- 
 sentatives or successors in interest," only ap- 
 plies where there is a sole, plaintiff or defend- 
 ant. — Supreme Gt., {1st Dept.,) Jan., 1880. Colt 
 V. Campbell, 20 Hun 50. 
 
 13. "WTiat causes of action survive. 
 The liability of a stockholder in a manufac- 
 turing company for its debts, on the ground 
 that the capital stock has not been paid in, sur- 
 vives his death, and may be enforced against 
 his estate. — Supreme Ot., ( 1st Dept.,) Dec., 1878. 
 Chase v. Lord, 16 Hun 369. 
 
 14. An action by a husband against a carrier 
 of passengers, to recover for the loss of services 
 of the wife, and for expenses paid in conse- 
 quence of injuries to her person resulting from 
 defendant's negligence while she was a passen- 
 ger, does not abate upon the death of the plain- 
 tiff, but may be revived in the name of his 
 personal representatives ; it is within the pro- 
 vision of 2 Eev. Stat. 447, ? 1, preserving from 
 abatement actions " for wrongs done to the 
 property, rights or interests of another," and is 
 not included in the exception in the provision 
 following, {§ 2) of " actions on the case for inju- 
 ries to the person of the plaintiff." — Ct. of App., 
 Nov., 1878. Cregin v. Brooklyn Crosstown B. 
 E. Co., 75 N. Y. 192; affirming 56 How. Pr. 
 32. See also 56 How. Pr. 465. 
 
 15. What do not survive. An action 
 against a physician for damages occasioned by 
 improper surgical treatment of plaintiff, does 
 not survive against the personal representatives 
 of the defendant.— &/preme Ot. (Sp. T.) Best 
 V. Vedder, 58 How. Pr. 187. 
 
 16. An action to recover damages for fraud 
 on part of defendant, in inducing plaintiff to 
 marry and cohabit with him by false and fraud- 
 ulent representations that his first wife was 
 dead, and that he was competent to marry, does 
 not survive ; and upon the death of defendant, 
 cannot be revived against his personal repre- 
 sentatives. The action is for injury to the 
 person of plaintiff, and its character^ is not 
 changed by an allegation in the complaint that 
 defendant " promised, "undertook, covenanted, 
 and warranted that he had the right and was 
 in all respects competent to marry." Nor is 
 its aspect changed by allegations that defendant 
 was a man of wealth, and that he instituted an 
 action against plaintiff and procured a judg- 
 ment annulling their marriage upon the ground 
 that his former wife was living ; the judgment 
 being the act of the law, no legal wrong was 
 done to plaintiff in procuring it. — Ot. of App., 
 Nov., 1878. Price v. Price, 75 N. Y. 244; 
 affirming 11 Hun 299. 
 
 17. Continuance in case of death 
 of party plaintiff. Where plaintiff dies 
 pending an action brought to restrain an 
 interference with an easement reserved by 
 plaintiff in a deed to defendant, and for dam- 
 ages occasioned thereby, his personal repre- 
 sentatives may revive and continue the action 
 for the. purpose of recovering the damages, 
 though they take no interest in the real estate, 
 and are not entitled to the injunction. — Supreme 
 a., (3d Dept.,) April, 1880. Matthews v. Dela- 
 ware and Hudson Canal Co., 20 Hun 427. 
 
 18. On a motion to Substitute an assignee of 
 plaintiff, as a party, after plaintiff's death, his 
 personal representatives must be notified. — 
 Com. Pleas, Nov., 1879. McLaughlin v. Mayor, 
 &c., of New York, 58 How. Pr. 105 ; S. C, 8 
 Daly 474. 
 
 19. — of party defendant, sued in Ma- 
 rine Court. When the defendant dies pend- 
 ing an action in the New York Marine Court, 
 an order directing the action to be revived and 
 continued against his executors, is improper, 
 as Code of Civ. Pro., J 316, expressly provides 
 that the Marine Court shall not have jurisdic- 
 tion of an action against an executor or admin- 
 istrator, in his representative capacity.* — Su- 
 preme Ct., (1st Dept.,)' July, 1879. People, ex r///i 
 rel. Egan, v. Marine Court, 18 Hun 333. — 5f /ft"" ^' 
 
 20. Continuance of suits against 
 corporations. The mode of continuing an 
 action against a foreign corporation, after its 
 dissolution, is a matter of practice governed by 
 the laws of this state. — Ct. of App., April, 1878. 
 Sturges V. Vanderbilt, 73 N. Y. 384. 
 
 21. Time for applying to revive. No 
 mere lapse of time will absolutely defeat an 
 application by supplemental complaint for the 
 continuance of an action against a sheriff, for 
 conversion of property wrongfully seized in 
 execution, in the name of the representative of 
 a deceased party. As to whether the same rule 
 applies in equity cases, qucere. Ot. of App., 
 Feb., 1878. Evans v. Cleveland, 72 N. Y". 486 ; 
 S. P. Johnson v. Elwood, 15 Hun 14. 
 
 For decisions upon the abatement of a Legacy, 
 see Legacy, 28 ; of a Nuisance, see Nuisance, 
 9 ; of a Tax, see Taxes, V. ; as to Pleat in 
 Abatement, see also Pleading, 26. 
 
 'Tlie court has now such power, the section hav- 
 ing been- amended in that respect. Laws, 1879 ch. 
 
ABORTIO N— ACCOUNTING. 
 
 ABORTION. 
 
 CBmiNAi, Law, 5. 
 
 ABSENT AND ABSCONDING DEBTORS. 
 
 Attachment. 
 
 ACADEMIES. 
 
 Schools. 
 
 ACCESSORIES AND ACCOMPLICES. 
 
 Ceiminai, LA.W, 3, 4 ; Witnesses, 47, 48, 
 52, 80. 
 
 ACCORD AND SATISFACTION, 
 
 Debtor and Ceeditoe, III. 
 
 ACCOUNTING. 
 
 1. Between partners or part-owners. 
 Where one of the associates in a joint enter- 
 prise is a non-resident, he is not a necessary 
 party_ to an action brought by another of the 
 associates, for an accounting and for contribu- 
 tion for losses and expenditures paid by him. — 
 Ct. of App., April, 1879. Angell v. Lawton, 76 
 N. Y. 540 ; S. G, 14 Hun 70. 
 
 2. In an action for an accounting between 
 partners, either party is entitled, at any stage 
 of the action, to an order requiring the produc- 
 tion of all the partnership books, papers and 
 accounts relating thereto, and their deposit 
 with the clert, to be inspected and copied. — 
 Supreme Ct., {ith Dept.,) AprU, 1879. Stebbins 
 V. Harmon, 17 Hun 445. 
 
 3. The parties engaged in a joint adventure 
 in the purchase and sale of railroad stock under 
 an agreement by which defendant was to fur- 
 nish the funds, and to bear the loss, if the ope- 
 rations should result in loss ; the net profits, if 
 any, to be divided in certain proportions. No 
 provision was made fixing a limit of time for 
 the continuance of the operations, or for closing 
 them and settling the accounts. Hdd, that 
 the arrangement was terminable at any time, at 
 the will of either of the parties, and that either 
 could maintain an equitable action against the 
 other for an accounting or for the adjustment 
 of losses sustained by the misconduct of the 
 other, without regard to the question whether 
 or not they, were to be regarded as partners. 
 inter sese.—Ot. of App., April, 1877. Marston v. 
 Gould, 69 N. Y. 220. 
 
 4. By arrangement, the brokers through 
 whom the joint operations were conducted 
 kept the account thereof under the letter " M." 
 By direction of defendant this account was 
 ■closed, and the stock on hand purchased under 
 the agreement was transferred to his individual 
 account. It did not appear that the certificates 
 of the stock were disturbed. In January, 1872, 
 there was a sudden rise on the market, when 
 plaintiff made a formal call upon defendant to 
 sell the stock, and account to plaintiff for his 
 portion of the profits, and upon his failure to 
 
 comply, brought this action. Upon the trial 
 defendant offered to prove that he sold all of 
 the stock held on "M" account before Janu- 
 ary 9th, 1872. This was excluded solely because 
 not connected with an offer to prove that the 
 sale was made avowedly on joint account. 
 Held, error; tliat if defendant had authority to 
 sell, it was not necessary to make known at the 
 time of the sale tliat it was made on joint ac- 
 count, and if he made the sale in good faith, in 
 the ordinary way, plaintiff was bound. /5. 
 
 5. —guardian and. ward. As to the 
 proper form of interposing objections on an ac- 
 counting by a guardian before the surrogate; 
 when general and when specific objections are 
 proper ; and as to the contestant's right to ex- 
 amine the accounting party in order to enable 
 him to frame his objections, see Matter of 
 .Hall, 7 Abb. N. Cas. 149. 
 
 6. — master and servant. The fact that 
 in an action to recover for services an account- 
 ing is necessary to ascertain the amount of c»n!i- 
 pensa.tion, does not require the action to be one 
 in equity ; the accounting is proper in an action 
 at law.— C*. of App., May, 1878. Smith v. Bo- 
 dine, 74 N. Y. 30. 
 
 7. By assignee for creditors. In pro- 
 ceedings under Laws 1860, ch. 348, J 4, in re- 
 lation to assignments for the benefit of credit- 
 ors, which gives to the county judge power, 
 upon the petition of any creditor, to compel an 
 assignee to account — 
 
 Held, 1. That a petition duly verified, aver- 
 ring the petitioner to be a creditor, was sufficient 
 to give the county judge jurisdiction, and that, 
 although the truth of this allegation was denied 
 by the assignee in his answering affidavit, this 
 did not oust the judge of jurisdiction, or com- 
 pel the petitioner to establish, by a suit or pro- 
 ceeding aliunde, the validity of his claim. 
 
 2. That it was not necessary for the petitioner 
 to profess in his petition that he moved in be- 
 half of the other creditors. 
 
 3. That the fact that the assignee did not give 
 the bond required, did not shield him from a 
 liability to show what had become of the prop- 
 erty which went into his hands, where the alle- 
 gation was that he had converted it to his own 
 use.— Ci. of App., Nov., 1878. Matter of Far- 
 num, 75 N. Y. 187 ; affirming S. C, 14 Hun, 159. 
 
 8. The petition averred that the assignment 
 was made and filed, and inferentially, that it 
 was delivered ; also that the a-ssignee entered 
 upon the execution of the trusts, took possession 
 of the trust estate, and sold and disposed of a 
 large amount thereof. The affidavit of the as- 
 signee admitted the execution of the assign- 
 ment, and alleged substantially that he did not 
 accept the trust, but took the property by ap- 
 pointment of the creditors. Held, that this 
 averment did not oust the judge of jurisdiction, 
 but simply raised an issue for his determina- 
 tion, lb. 
 
 9. — personal representative. An ac- 
 counting before the surrogate is absolutely 
 void as to those of the heirs and next of kin 
 who are not notified thereof. — Supreme Cl., CM 
 Dept.,) Dee., 1879. Hood v. Hood, 19 Hun 300. 
 
 10. Where articles are specifically bequeathed 
 and there is no evidence of what has been done 
 with them, the presumption is, in the final 
 accounting of the executor, that they have been 
 handed ijver to the legatees. — N. i. Surr. Ct, 
 July, 1877. Matter of Pollock, 3 Eedf. 100. 
 
ACCOUNTING— ACTION. 
 
 11. The fact that the executor has errone- 
 ously charged moneys to himself, will not estop 
 him from showing, the error, on his accounting. 
 Ih. 
 
 12. Upon an accounting before the auditor 
 anyone who has a right to appear, and who has 
 objected, may be represented by counsel, who 
 may examine the executor in respect to the 
 account.— JV^. Y. Sun: Ct., Oct., 1877. Matter 
 of Eich. 3 Bedf. 177. 
 
 13. Procedure in action for an ac- 
 counting'. In a proceeding under an inter- 
 locutory judgment on a referee's report, direct- 
 ing an accounting by defendant, plaintiff has a 
 right to the formal bringing in by defendant of 
 the account in the form of debit and credit and 
 duly verified, and to his examination on inter- 
 rogatories. — Superior Ct., (N. Y.,) Sp. T., Oct., 
 1879. Hathaway v. Eussell, 45 Superior 538." 
 
 As to accounting by Personal representatives, 
 partners, tiiistees, guardians, &c., see also ExECir- 
 TORS AND Administbators ; Guardian and 
 Ward; Partnership; Tkitsts. 
 
 ACCOUNTS.' 
 
 1. Accounts rendered. When a party 
 is not precluded by an account rendered, but 
 not assented to, from showing a larger amount 
 due, see Stryker v. Cassidy, 76 N. Y. 50. 
 
 2. Accounts stated. To make an ac- 
 count a stated one, there must be a mutual 
 agreement, a meeting of the minds between the 
 parties, as to the allowance or disallowance of 
 their respective claims ; and there must also be 
 proof of assent to the account as rendered, and 
 to the balance appearing to be due. — Superior 
 a, (N. Y.,) Jan., 1879. Volkening v. De 
 Graaf, 44 Superior 424; S. P., Harvey v. West- 
 side Elevated E. E. Co., 13 Hun 392. 
 
 3. As to what facts are sufficient to show the 
 rendering of an account stated, see Wiley v. 
 Brigham, 16 Hun 106 ; Carpenter v. Nickerson, 
 7 Daly 424 ; Harley v. Eleventh Ward Bank, 
 Id. 476, affirmed 76 N. Y. 618. 
 
 4. Opening and correcting accounts. 
 An account stated can only be opened where 
 the party objecting shows clearly that he has 
 been misled by fraud, mistake or manifest error. 
 —Ot. of App., March, 1879. Harley v. Eleventh 
 Ward Bank, 76 N. Y. 618; affirming 7 Daly 
 476 ; S. P. Welsh v. German Amer. Bank, 73 
 N. Y. 424. 
 
 ACCUMULATION. 
 
 Devise; Legacies; Wills. 
 
 ACKNOWLEDGMENT. 
 
 Of Deeds, see Deeds, 6, 7 ; of Mortgages, see 
 MoETGAaES ; by Married Women, see Husband 
 AND Wife. 
 
 _ Of Debt, to remove bar of statute of limita- 
 tions, see Limitations op Actions, V. 
 
 ACQUITTAL. 
 
 Effect of Former axquiUal, see Judgment, 47. 
 
 When an acquittal is Proper, see Trial, VIIL 
 
 ACTION. 
 
 1. "When an action will lie. Where 
 parties, in pursuance of a conspiracy or com- 
 bination for that purpose, fraudulently make use 
 of legal proceedings to injure another, an action 
 lies against them at the suit of the person 
 injured, to recover the damages sustained. — Ct. 
 of App., Feb., 1879. Verplanck v. Van Buren, 7& 
 N. Y. 247, 259. 
 
 2. If, from the text of an agreement, and the 
 language of the parties either in the body of the 
 instrument, or in the recitals or references, there 
 is manifested a clear intention that the parties 
 shall do certain acts, courts will infer a covenant 
 in the case of a sealed instrument, or a promise 
 if the instrument is unsealed, for non-perform- 
 ance of which an action will lie. — Ct. of App.,. 
 May, 1878. Booth v. Cleveland Mill Co., 74 N. 
 Y.15. _ _ 
 
 3. An action is the appropriate remedy by a 
 judgment creditor, to set aside a prior judgment 
 on ground of fraud. — Ct. of App., Feb., 1879. 
 Beards v. Wheeler, 76 N. Y. 218. 
 
 4. Legal and equitable actions. The 
 rights of the parties to a legal action must be 
 determined as they existed at the commence- 
 ment -of the action. Although an equitable 
 defence is allowed, it does not, when interposed, 
 change the character of the action, nor author- 
 ize transactions subsequent to its commencement 
 to be shown to affect those rights. — Ct. of App,, 
 Nov., 1877. Wisner v. Ocumpaugh, 71 N. Y. 
 113, 117. 
 
 5.' "What causes of action may ba 
 joined. Several causes of action all arising 
 upon contract, may be joined in the same com- 
 plaint.— &tpreme Ct., ( 1st Depi. 8p. T.,) Feb., 1880. 
 De Witt V. McDonald, 58 How. Pr. 411. 
 
 Provided all the parties are affected by each 
 cause of action. — Supreme Ct. (4(A Dept^ Jan.^ 
 1880. Nichols v. Drew, 19 Hun 490. 
 
 6. A cause of action arising from duress and 
 restraint exercised by defendant over plaintiff'* 
 ancestor in inducing him to execute a will, may 
 be joined with a cause of action arising from 
 false representations made to plaintiff, by reason 
 of which plaintiff waived all objections to the 
 probate of the will. — Supreme Ct., {2d Dept.,) 
 Feb., 1878. Hay v. Hay, 13 Hun 315. 
 
 7. What parties and causes of action may 
 properly be joined in an equitable action for an 
 accounting by the fraudulent organizers of a 
 corporation, see Getty v. Devlin, 70 N. Y. 504. 
 
 8. "What may not be joined. A cause 
 of action against the trustee of an insolvent 
 savings bank, to recover damages occasioned by 
 unauthorized and illegal investments made by 
 him, and a cause of action upon a bond given 
 by him to assist in making up a deficiency in 
 the assets of the bank, cannot be joined. — Supreme 
 Ct., (1st Depi.,) May, 1879. French v. Salter, IT 
 Hun 546. 
 
 9. A cause of action founded on breach of 
 contract on sale of land, cannot be joined with 
 one for conversion of personal property; nor 
 cati the latter cause of action be joined with a 
 claim for an accounting between principal and 
 agent as to dealings in money. — Supreme Ct. 
 
ACTION. 
 
 <lse Dept. Sp. T.) McDonald v. Kountze, 58 
 How. Pr. 152. 
 
 10. The provision of the code (Old Code, § 
 167,) authorizing the joinder of causes of action, 
 legal and equitable, prohibits, by implication, 
 the union of a cause of action . for the enforce- 
 ment of a lien, with one for the collection of a 
 ^ebt, except in the case of a mortgage secured 
 by bond or other obligation of the mortgagor or 
 a third person. — Ct. of App-, Jan., 1879. Bur- 
 roughs V. Tostevan, 75 N. Y. 567. 
 
 U. Splitting or severance. The holder 
 •of several past-due promissory notes, against the 
 «ame parties, may bring separate actions upon 
 «ach ; and a recovery in one, and satisfaction 
 ■of the judgment, is not a bar to the other actions. 
 The fact that the notes were given upon settle- 
 ment of one and the same demand does not 
 make each a part of the original demand, so as 
 to compel the bringing of a single action upon 
 :all of the notes. — Gt. of App., May, 1879. Nathans 
 ». Hope, 77 N. Y. 420. 
 
 12. In an action by the payee of a joint and 
 •several note against the makers, the original 
 plaintiflFdied and the action was revived by his 
 administrator. Defendants, one of whom had 
 signed the note for the accommodation of the 
 ■other, moved to sever the action in order to 
 severally testify in each other's favor, and thus 
 -establish the defences set up in the answer. 
 Sdd, that as they could be witnesses for each 
 other to the same extent in the joint action that 
 ihey could in two separate actions, there was no 
 reason for granting the application, and that 
 an order of severance should not be granted. — 
 Supreme Ct., (i.th Dept.,) Oct., 1879. Hill o. 
 Alvord, 19 Hun 77. 
 
 13. Effect of defendant's offer to allow judg- 
 ment to be taken against him for one of several 
 <!laims, on plaintiff's right to sever his causes 
 of action, see Bradbury v. Winterbottom, 13 
 Hun 536. 
 
 14. "Wliat actions are founded on 
 •contract. Tlie complaint, in an action by an 
 ■executor set forth his official character, averred 
 that defendant had obtained various sums of 
 money from the testator, amounting to $8305.67 ; 
 -that no part thereof had been paid, that such 
 sums had been procured through false and 
 fraudulent representations of defendant, and 
 •demanded judgment for $8305.67, with interest. 
 Held, that the allegation as to the fraudulent 
 representations was improper; that the action 
 was upon contract, and should be so treated. — • 
 Supreme Ct. (2d Dept.,) Dec., 1878. Harris v. 
 Todd, 16 Hun 248. 
 
 15. "What actions are' founded in 
 tort. An action by a husband against a ear- 
 lier of passengers, to recover for the loss of 
 ■services of the wife, and for expenses paid in 
 consequence of injuries to her person resulting 
 ■from the defendani's negligence while she was a 
 passenger, is an action grounded in tort. — Ct. of 
 App., Nov., 1878. Cregin v. Brooklyn Crosstown 
 E. E. Co., 75 N. Y. 192. 
 
 16.- For an application of the rule that where 
 the complaint is so framed as to show only a 
 cause of action in tort, a recovery cannot be 
 had upon contract, see People v. Denison, 19 
 Hun 137. 
 
 17. Election bet-ween different forms 
 or causes of action. When plaititiff may 
 ■elect between action for conversion of a promis- 
 
 sory note made by him, or an equitable action 
 to restrain a transfer and to compel defendant 
 to surrender it, pointed out. — Ct.of App., April, 
 
 1878. Thayer tj.Manley, 73 N. _Y. 305. 
 
 18. When party has an election between an 
 action for conversion or for money had and 
 received. — Ct, of App,, April, 1878. Oomstook v, 
 Hier, 73 N. Y. 269. 
 
 19. Thafan action for equitable relief cannot 
 be changed into one of ejectment, see Bockes v. 
 Lansing, 74 N. Y. 437. 
 
 20. Election once made, final: When 
 a party has elected to sue upon a written con- 
 tract as it is, and has been defeated, he is bound 
 by that election, and cannot thereafter bring an 
 action to reform the contract. — Ct. of App., June, 
 
 1879. Steinbach v, Eelief Fire Ins. Co., 77 N. 
 Y. 498 ; affirming 12 Hun 640. 
 
 21. Where, after certain goods had gone into 
 the possession of defendant, the owner accepted 
 a confession of judgment for the whole value 
 thereof, and after the facts now alleged to show 
 conversion of the property were known to him, 
 he issued an execution for its enforcement, and 
 collected a part thereof. Seld, that by accept- 
 ing the judgment and taking out and enforcing 
 his execution, he must be deemed to have made 
 his election to treat the goods as the property 
 of tlie defendant under a sale by himself, and he 
 cannot afterwards change his ground to that of 
 wrongful taking and conversion. — Ct. of App, 
 May, 1880. Field v. Bland, 59 How. Pr. 85. 
 
 22. Appearance, generally. To con- 
 stitute such an appearance in the action as will 
 entitle the defendant's attorney to notice of pro- 
 ceedings taken therein, where no answer or 
 demurrer has been served, a formal notice of 
 appearance is e-ssential, under Code of Civ. Pro. 
 l\ 421, 422. The signature of a notice of motion 
 as attorney for the defendant will not entitle 
 the attorney to notice of matters disconnected 
 with the motion itself. — Supreme Ct., (Sp. T.,) 
 Nov., 1879.^ Douglass v. Haberstro, 58 How. 
 Pr. 276. 
 
 23. Tlie mere presence of a defendant in the 
 court-room does not authorize the magistrate to 
 proceed and render a judgment against him, 
 without notifying him that an action is pending 
 against him, and he must fully understand the 
 nature of the proceedings. — Supreme Ct., (4tk 
 Dept.,) Jan., 1878. Merkee v. City of Eochester, 
 13 Hun 157. 
 
 24. — by corporation. A corporation, 
 like a natural person, may appear voluntarily by 
 attorney ; and such appearance gives jurisdic- 
 tion to the same extent as if there was actual 
 service of process. — Ct. of App., May, 1879, 
 Attorney-General v. Guardian Mut. Life Ins, 
 Co., 77 N. Y. 272. 
 
 25. The general appearance and answer of a 
 defendant corporation will be deemed an .admis- 
 sion of its corporate existence; and it ought not 
 afterwards, when no special issue is presented, 
 insi.-it that plaintiff must, produce anil prove its 
 charter ; at all events, in such case it is enough 
 to show user or corporate acts to make a prima 
 facie case of the entity and identity of such cor- 
 poration. — Supreme Ct., {Ut Dept.,) July, 1880. 
 Derrenbacker v. Lehigh Valley E. E. Co., 59 
 How. Pr. 283. 
 
 26. When appearance waives objec- 
 tion to jurisdiction. In an action in the 
 County Court, the objection that the court has 
 
ACTION— ADVANCEMENT ' 
 
 not juriadiction over the person of the defend- 
 ant must be raised at the first opportunity. It 
 is waived by appearance and pleading to the 
 merits.— Sapreme Ct., {iih Dept.,) Oct., 1878. 
 Drake v. Miller, 15 Hun 356. S. P., Diossy v. 
 West, -8 Daly 298. 
 
 27. Upon the first Jiearing of a motion to 
 compel a foreign corporation to pay the costs of 
 a suit in which it had been unsuccessful, the 
 company a'ppeared generally by attorney, and 
 consented to a reference lo take testimony with- 
 out taking the objection that the court had no 
 jurisdiction over it. Held, that the objection 
 could not be taken thereafter. — Ct. of App., 
 March, 1877. Ward v. Koy, 69 N. Y. 96, 100. 
 
 28. As to the sufficiency of an appearance to 
 give jurisdiction, see White v. Bogart, 73 N. Y. 
 256. 
 
 29. When it does not. A defendant in 
 a civil action, by putting in a general appear- 
 ance, followed by an answer setting up a want 
 of jurisdiction, in the court, of the action, does 
 not waive this defence. Therefore, a general 
 appearance by a defendant in an action in the 
 City Court of Brooklyn, does not preclude him 
 from taking the objection by answer, upon trial, 
 that none of tlie elements of locality exist, 
 one of which is necessary to give that court 
 
 jurisdiction.— C<. of App., Oct., 1878. Whee- 
 iook V. Lee, 74 N. Y. 495; S. C, 5 Abb. N. 
 Cas. 72. 
 
 30. Where no other ground of jurisdiction 
 exists, save service of summons within the city, 
 this is a jurisdictional fact, and its omission is 
 not cured by an appearance, as the objection is, 
 not that (he court has not jurisdiction of the 
 person, but that it has not jurisdiction of the 
 action. lb. 
 
 31. Whether, if the court had jurisdiction 
 of the action on some of the other grounds, as 
 that the cause of action arose within the city, 
 the general rule would apply, that a general 
 appearance cures any defect in tlte service of 
 process, or a total absence of any service, 
 see lb. 
 
 32. When appearance ciires -want 
 of process. A voluntary appearance waives 
 want of process to bring a defendant into court ; 
 but such appearance must be with knowledge 
 that there is an action pending and with a full 
 intention to appear therein. — Supreme Ct., (ith 
 Dept.,) Jan., 1878. Merkee v. City of Koches- 
 ter, 13 Hun 157. 
 
 33. Special appearance. A non-resi- 
 dent defendant in an attachment case, served by 
 publication, cannot appear specially for the 
 purpose of contesting his indebtedness as well 
 as objecting to the jurisdiction of the court 
 over and above the value of the property 
 attached. — Supreme Ct., {1st Dept. Sp. T.) Swift 
 V. Tross, 55 How. Pr. 255. 
 
 34. Consolidation of actions. The 
 granting or refusing of an order to consolidate 
 IS discretionary, and such an order will be with- 
 held unless the application is made before the 
 cases are called for trial. — Com. Pleas, May, 
 1877. Eleventh Ward Savings Bank v. Hay, 
 55 How. Pr. 43S ; S. C, 8 Daly 328. 
 
 35. Two or more foreclosure suits cannot be 
 consolidated. — Supreme Ct., (ls( Dept. Sp. T.,) 
 Sept., 1878. Bech v. Buggies, 6 Abb. N. Cas. 
 69 ; followed, Kipp v. Delamater, 58 How. Pr. 183. 
 
 To the contrary, see Eleventh Ward Savings 
 Bank v. Hay, 55 How. Pr. 438 ; S. C, 8 Daly 328. 
 
 For rules of Evidence, Pleading and Practice^ 
 in actions generally, see those titles, and the 
 titles of the various causes of action. 
 
 For decisions particularly applicable to any 
 distinct form or cause of action, see its title j 
 also the titles of the domestic and legal rela- 
 tions. 
 
 As to Special Proceedings, see that title, and 
 the references there given. 
 
 ADMINISTRATORS. 
 
 EXECTJTOBS AND AdMINISTBATOBS. 
 
 ADMISSIONS. 
 
 When admissible, and their Mffect as emdence^ 
 see Evidence, 115-125. Effect of, in Pleading^ 
 see Pleading, 47-49. When raise equitable 
 Estoppel, see Estoppel, IV. 
 
 Of Agent, to bind principal, see Insueance^ 
 VI. ; Pbincipai and Agent, 51-53. 
 
 ADOPTION. 
 
 Parent and Child, 6, 7. 
 
 ADULTERATION. 
 
 As to the offence of selling Adidterated Millie 
 see Ceiminal Law, 6, 7. 
 
 ADULTERY. 
 
 As ground for Divorce, see Divobcb, IL 
 
 ADVANCEMENT. 
 
 1. Interpreting the statute. The pro- 
 visions, 2) Kev. Stat., U 75-77,) relative to- 
 advancements, apply only in cases of intestacy, 
 or in will cases, where there is property unbe- 
 queathed. They do not apply to advancements 
 to residuary legatees. — N. Y. Surr. Ct., Marehy 
 1877. Hays v. Hibbard, 3 Kedf. 28. 
 
 2. What will be deemed an advance- 
 ment, and on -what evidence. A. mere- 
 entry in one of his books is not sufficient to 
 show that the testator has made an advance- 
 ment to one of his children, unless the fact of 
 such advancement is established by other evi- 
 dence.— Supreme Ct., {\st. Dept.,) July, 1879. 
 Marsh v. Brown, 18 Hun 319. 
 
 3. Evidence held insufficient to show that 
 a conveyance from father to sons was intendeti 
 as an aidvancement. Weatherwax v. Woodin, 
 20 Hun 518. 
 
 4. Necessity of direction to charge,, 
 in vrill. A will directed the executor to sell 
 all testator's real and personal estate, and divide- 
 the proceeds equally among his ten children, 
 naming them. The testator had advanced 
 various sums of money to several of his child- 
 ren, taking from them papers acknowledging^ 
 the receipt thereof " as a part of my apportion- 
 
AD V AJS CEMENT— AJD VE USE POSSESSION. 
 
 ment of his estate." " to be deducted out of the 
 estate of the said," etc. Held, that as the will 
 did not direct these advances to be charged 
 against the several children, they were not to 
 be considered in dividing the estate. — Supreme 
 Cl., (3d. Bept.,) May, 1879. Camp v. Camp 18 
 Hun 217. 
 
 ADVERSE POSSESSION. 
 
 I. General Pbinciples. 
 II. Under the Statute op Limitations. 
 
 I. General Pbinciples. 
 
 1. Who may acquire title, and 
 against -wlioni. The grantee in fee of a 
 tenant for life is not precluded from claiming in 
 hostility to those in reversion or remainder, 
 after the expiration of the life tenancy. — Ot. of 
 App.,. Nov., 1877. Christie v. Gage, 71 N. Y. 
 189, 193. 
 
 2. A deed not sufficient to convey a valid 
 title is sufficient to lay the foundation of an ad- 
 verse possession. And under such a deed, the 
 grantee may have a constructive possession 
 which will enable him to maintain ejectment or 
 trespass against a stranger to the true title. — Ot. 
 of App., Bee, 1877. Miller v. Long Island B. 
 E. Co., 71 N. Y. 380, 384. 
 
 3. Who may not hold adversely. 
 Whoever enters upon land under an agreement 
 to purchase does not hold adversely to the 
 vendor until his agreement is fully performed, 
 so that he is entitled to a conveyance. — Gt. of 
 App., May, 1878. Matter of Department of 
 Parks, 73 N. Y. 560, 566. 
 
 4. Defendant went into possession of certain 
 lauds in 1838, under an oral arrangement with 
 his father, and occupied on the west up to a 
 fence. In 1841, his father conveyed to him by 
 deed, describing the premises conveyed by metes 
 and bounds, which it was claimed did not givQ 
 title up to the fence. No part of the purchase 
 money was paid until the delivery of the deed. 
 In 1858, defendant, as executor of his father, 
 contracted to sell to plaintiff's testator, R., lands 
 bounded on the east by defendant's land. It 
 was stated in the contract that the line fence 
 between the two parcels of land did not stand 
 on the line. In 1859, defendant conveyed, pur- 
 suant to the contract, by deed containing cov- 
 enants of warranty of title by him, both as ex- 
 ecutor and individually. Held, that defendant 
 could not claim, by adverse possession, the land, 
 if any, between his true west line and the fence ; 
 that he could not hold adversely prior to obtain- 
 ing his deed in 1841, and, if his possession was 
 adverse after that time, the adverse possession 
 terminated upon his conveyance to B., and he 
 could not claim thereafter to hold in hostility 
 to his deed.— Oi. of App., June, 1877. Bohin- 
 sonu Kime, 70 K"Y. 147, 152. 
 
 5. Necessity of claim of title. To 
 render a deed void because of possession in 
 another, under claim of title adverse to the 
 grantor, the possession must be under a claim 
 of some specific title, and not a general assertion 
 of ownership.— Oi(. of App., Jan., 1878. Hegen- 
 botham v. Stoddard, 72 N. Y. 94 ; May, 1878. 
 
 Matter of Department of Parks, 73 N. Y. 560, 
 567. 
 
 6. What adverse possession will de- 
 feat a deed. Where a tenant for life has 
 executed a conveyance purporting to be a grant 
 of the fee, and the gi-antee is in possession, 
 claiming a fee under the grant, after the death 
 of his grantor, this is a possession under claim 
 of title adverse to that of the reversioner or 
 remainder-man, within the meaning of the 
 champerty act (1 Eev. Stat., 739, ^ 147,) and a con- 
 veyance by the latter is void under said act. — 
 Ct. of App., Nov., 1877. Christie v. Gage, 71 
 N. Y. m. 
 
 7. The fact that a religious corporation organ- 
 ized under the act of 1813, (Eev. Laws 1813, 
 ch. 60,) makes a conveyance in pursuance of an 
 order of the court obtained on its application, 
 does not make the transaction a judicial sale, 
 and so take it out of the operation of the cham- 
 perty act. lb, 
 
 8. What -will not. The champerty act 
 (1 Eev. Stat. 739, ? 147,) does not apply Ui 
 cases of disputed boundary lines. Allen r. 
 Welch, 18 Hun 226. 
 
 II. Under the Statxtte op Limitations. 
 
 0. The claim, or color of title. To 
 constitute an adverse possession, an entry under 
 color or claim of title is sufficient, although it 
 turns out afterwards that the title was in another. 
 It is not necessary that there should be a right- 
 ful title, and only a color or claim of title is 
 required, and if the entry is under even a color 
 of title, the possession will be adverse, however 
 groundless the title. — Ct. of App., Sept., 1877. 
 Towle V. Eemsen, 70 N. Y. 303, 316. 
 
 10. The necessary occupation or 
 possession. A grantee, whose lands are by 
 his deed bounded by a definite line, cannot be 
 said to claim under that instrument lands out- 
 side of that line; and, although such lands 
 have been constructively possessed by him for 
 more than twenty years, he claiming them to 
 be within the line, this is not a possession under 
 claim of title founded on " a written instrument 
 as being a conveyance of the premises in 
 question" within the meaning of Code of Pro , 
 g 82. To constitute adverse possession, there- 
 fore, of lands not included in a conveyance, the, 
 possession must be actual, as required by j 85. 
 —Ct. of App., Sept., 1878. Pope v. Hanmer, 74 
 N. Y. 240. 
 
 11. Fencing. Where one has entered into 
 possession of and occupied certain premises 
 under a deed, and enclosed the same with a sub- 
 stantial fence, he may claim title by adverse 
 possession to the whole of the premises so in- 
 closed, notwithstanding a portion thereof is not 
 included in the description in the deed. — Su- 
 preme Ct., {ith Dept.,) June, 1879. Swettenham 
 V. heavy, 18 Hun 284. 
 
 12. Where, in an action of trespass, it ap- 
 peared that the legal title to the loov.s in quo was 
 in plaintiff; that it was wood-land, fenced on 
 two sides, one of the other sides being an un- 
 fenced highway, and the fourth indicated only 
 by marked trees — Held, that defendant could 
 not claim such an occupancy as constituted ad- 
 verse possession within the meaning of Code of 
 Pro., I 85.— Ot. of App., Sept., 1878. Pope v. 
 Hanmer, 74 N. Y. 240; affirming 8 Hun 265. 
 
8 ADVERSE POSSESSION— ALTERATION OF INSTRUMENTS. 
 
 13. Wliat lapse of time will confer 
 title. A public easement in a highway is not 
 extinguished by twenty years' adverse possess- 
 ion.— (7<. of App., Jan., 1879. St. Vincent Or- 
 phan Asylum v. City of Troy, 76 N. Y. 108. 
 
 AFFIDAVITS. 
 
 For decisions as to the form and sufficiency 
 of the affidavits used on motions and in applica- 
 tions for the various provisional remedies, see 
 Motions AND Okdebs; also Arrest; Attach- 
 ment; Certiorari; Contempt; Depositions; 
 DiscoTEBY ; Execution, V. ; Injunction ; 
 Landlord and Tenant, IV. ; New Trial ; 
 Pbociss ; Trial, II., III. 
 
 As to their admissibility in evidence, see 
 Evidence, IV. 
 
 AGENCY. 
 
 Principal and Agent. 
 
 AGREEMENTS. 
 
 Contracts. 
 
 ALBANY. 
 
 For cases interpreting the city Charter, or 
 otherwise I/imited in their application to the 
 municipality, of Albany, see Municipal Cor- 
 porations, i02-104. 
 
 ALIENS. 
 
 1. Devises to aliens. Testator devised 
 certain real estate to his sister and her husband, 
 for their joint lives and ihe life of the survivor, 
 with remainder to the children of the sister, 
 all of whom were aliens at the time of testator's 
 death, and had not filed the deposition required 
 by law, to enable them to hold real estate so 
 devised, but one of them filed ihe deposition 
 required by Laws 1845, ch. 115, and all were 
 naturalized prior to the death of iheir mother. 
 
 Held, 1. That upon the death of the testator, 
 the sister and her husband took an estate for 
 life in the property. 
 
 2. That the sister's children being incompetent 
 to take, the estate in remainder vested in the 
 citizen heirs of the testator, subject to be 
 defeated by the filing by the devisees of the 
 deposition provided for in Laws 1845, ch. 115, 
 
 ?1- 
 
 3. That, upon the filing of such deposition by 
 them, the estate of the heirs would divest, and 
 would vest in the devisees named in the will. 
 
 4. That the omission of two of the devisees 
 to file the deposition was cured by Laws 1875, 
 ch. 38, conferring upon heirs and devisees, being 
 of the blood of the devisor, whether citiiens or 
 aliens, capacity to take and hold the real estate 
 owned and held by the dtevisor at the time of 
 his decease — except as against the slate only; 
 
 the act of 1875 being retroactive in its operation. 
 Supreme Ot., {2d Dept.,) Feb., 1878. Hall v. Hall, 
 13 Hun 306. 
 
 2. Inheriting by aliens is governed by 
 the law in force at the time of the death of the 
 ancestor. Only those who at that time are 
 entitled, under the then existing law, are capable 
 of taking by descent. The disqualification does 
 not rest on lack of inheritable blood, but on a 
 lack of right to inherit, for the reason that the 
 alien is not a citizen or subject of the govern- 
 ment where the land lies. — bwperiar Ct., [N. Y.,} 
 Sp. T., Feb., 1879. Eenner v. MuUer, 44 Superior 
 535; S. C, 57How. Pr. 229. 
 
 3. In regard to alienage as affecting taking by 
 descent from a native-born or naturalized citizen 
 dying between April 15th, 1857, and April 27th, 
 1874, alienage of claimant does not prevent the 
 following persons from taking by reason thereof : 
 1. Resident children born in foreign countries 
 of persons then aliens, but who afterwards are 
 duly naturalized ; such children being under 
 the age of twenty-one years at the time of the 
 naturalization of their parents. 2. Children of 
 certain citizens, though born out of the limits 
 and jurisdiction, of the United States. 3. The 
 foreign-born widow and children of aliens dying 
 during the inlerval between their application 
 and actual naturalization, upon their taking the 
 oaths prescribed by law. 4. A free, white alien 
 woman who, prior to such death, shall have 
 lawfully intermarried with a citizen. This, 
 whether her husband be a native-born or natu- 
 ralized citizen. If naturalized, the fact that he 
 was naturalized after the marriage does not alter 
 the case. This, though the woman at the time 
 of marriage was not twenty-one years of age, 
 provided she was over twelve. This, though the 
 woman had never been within the United States. 
 76. 
 
 4. The fact that the claimant is obliged to 
 trace descent through a deceased alien ancestor, 
 will not preclude him from inheriting. Alienage 
 of such ancestor does not enable one to take by 
 descent as his representative, as if he were 
 deceased. Ancestor, with respect to this subject, 
 includes both lineal and collateral ancestors. lb. 
 
 As to Naturalization and rights of Citizenship, 
 see Citizens. 
 
 ALIMONY 
 
 DivoECEj rv. 
 
 ALTERATION OF INSTRUMENTS. 
 
 1. Of promissory note— need not be 
 pleaded. Defendant, in an action on a prom- 
 issory note, may prove in defence that the note 
 has been fraudulently altered since its execution, 
 under a general denial. — Com. Pleas, April, 1877. 
 Schwarz v. Op pold, 7 Daly 121. 
 
 2. Of married -vcoman's note. Where 
 a married woman executes a promissory note in 
 the ordinary form, and perfect in its terms, the 
 fact, that in order to make it binding upon her, 
 the addition of other terms not suggested by the 
 paper itself is required, i. c, an expression of 
 an intent to charge her separate estate, does not 
 justify the payee in making such an addition after 
 delivery of the note and without her knowledge 
 
ALTERATION OF INSTRUMENTS— AMENDMENT. 
 
 ■ 9 
 
 and consent ; and if so made it is a material 
 alteration which vitiates the instrument. An 
 authority, however, given by the maker to the. 
 payee, to add anything to the note, which 
 counsel when consulted may suggest to be need- 
 ful to make the note " right, legal and proper," 
 is sufficient to authorize such an addition as will 
 make the note legal and binding upon her, and 
 it is not material that she is not advised of the 
 precise terms of the addition. — Cl. of App. May, 
 1877. Taddiken v. Cantrell, 69 N. Y. 597. 
 
 3. What is a material alteration. 
 F. gave a note signed by H., as surety, by which, 
 two years from date, he promised to pay " $2000 
 with interest semi-annually at seven per cent, in 
 gold or its equivalent." After maturity the 
 note was altered by the direction and consent of 
 the payee and F., but without the knowledge or 
 consent of H., by striking out the words " in 
 gpld or its equivalent." Held, that the note, as 
 originally drawn, required a payment in stand- 
 ard gold or its equivalent; that the erasure of 
 these words was a material alteration, and that 
 H. was thereby discharged. — Supreme Ct., (3d 
 Dept,) Jan., 1879. Church v. Howard, 17 
 Hun 5. 
 
 As to Filling blanks in bills of exchange or 
 promissory notes, see those titles. 
 
 As to the alteration of Papers in suits, by 
 amendment, see Amendment. 
 
 AMBIGUITIES. 
 
 Parol emdence to explain, see Evidence, II. 
 
 AMENDMENT. 
 
 [Embraces amendments in Actions and Swiis, only. 
 For amendments in Special proceedings, see tlie titles 
 of the several special proceedings ; and for amend- 
 ments on Appeal or Error^ see those titles, respec- 
 tively. ] 
 
 I. The Eight to Am^ind; And Power to 
 
 Allow Amendments. 
 n. Obtaining and Making Amendments; 
 
 iND their ErFECT. 
 
 I. The Right to Amend; and Power to 
 Allow Amendments. 
 
 1. Po'wer of tlie court to allow 
 amendments. Under Code of Pro., § 173, 
 the only limit to the power of amending the 
 pleadings in an action on trial is, that it shall 
 not bring in a new cause of action. — Ct. of App., 
 Jime, 1877. Ereeder v. Sayre, 70 N. Y. 180, 190. 
 
 2. Amendments in respect to par- 
 ties. When an action was brought against the 
 members of a board of education of a union 
 free school district jointly as trustees, for negli- 
 gence. — Held, that the complaint could not be 
 amended by striking out the names of the defend- 
 ants, and inserting that of the corporation, nor 
 could it. be amended by striking out all the 
 defendants' names save one, and his designa- 
 tion as trustee. — Ct., of App., Nov., 1878. Bas- 
 «ett V. Fish, 75 N. Y. 303, 315. 
 
 3. In an action to recover for legal services 
 rendered to the defendant as administratrix of 
 her husband's estate, the summons and com- 
 plaint described her as administratrix, and 
 
 asked judgment against her as such. Before 
 the trial plaintiff moved to amend the sum- 
 mons and complaint by striking out the words 
 "as administratrix." Held, that the motion 
 should have been granted. — Supreme Ct., (2d 
 Depi,) Dee:, 1878. Tighe v. Pope, 16 Hun 180. 
 
 4. As to the power of the court under Code 
 of Civ. Pro , ^ 723, to allow the summons, com- 
 plaint and lis pendens in a foreclosure suit to be 
 amended after service, by adding the name of 
 an additional defendant, see Bailey v. Lee, 14 
 Hun 524. 
 
 5. Amending the summons. Failure 
 to insert the post-office address of plaintiff's 
 attorney, in the summons, is not a jurisdictional 
 defect, under Code of Civ. Pro., § 417, but the 
 omission is curable by amendment. — Supreme 
 Ct., {Sp. T.,) June, 1879. Wiggins v. Eiohmond, 
 58.How.Pr. 376. 
 
 But compare Osborn v. McClosky, 55 Id. 345. 
 
 6. On a trial in a District Court in New 
 York city, the summons may be amended so as 
 to make the action one in plaintiff's own right 
 instead of "as" assignee. — Com. Pleas, Feb., 
 1880. Martin v. Johnson, 8 Daly 541. 
 
 7. Amending the complaint,— as of 
 course. Plaintiff may amend his complaint, 
 as of course, without costs, before time to answer 
 expires, even though defendant has moved to 
 strike out irrelevant allegations, and to compel 
 plaintiff to separately state and number the 
 counts of the complaint. Code of Civ. Pro., 
 § bii.— Supreme Ct., {Sp. T.,) June, 1879. 
 Welch V. Preston, 58 How. Pr._ 52. 
 
 8. Where, in an action against several defend- 
 ants, the one first served demurs, and the de- 
 murrer is noticed for argument, and more than 
 two months thereafter another defendant is 
 served, the plaintiff cannot amend his com- 
 plaint, as of course, as against the demurring 
 defendant, within twenty days after serving the 
 last complaint. — Stipreme Ct., (1st JDept. Sp. T.,) 
 Oct., 1878. George v. Grant, 56 How. Pr. 244. 
 
 9. — at the trial. On the trial of an action 
 to recover money alleged to have been received 
 in a fiduciary capacity, the complaint may be 
 amended, on consent of defendant's attorney, so as 
 to allege a cause of action arising on breach 
 of contract. — Com. Pleas, (Circ.,) Jan., 1877. 
 Obregon v. De Mier, 58 How. Pr. 301. 
 
 10. The court may allow an admission in tlie 
 complaint to be stricken out at the trial, even 
 thougli defendant accepted such admission in 
 his answer, and used it as one of the facts upon 
 which he based a counter-claim. — Com. Pleas, 
 July, 1879. Cohway v. Mayor, &c., of New 
 York, 8 Daly 306. 
 
 11. — after judgment. As to the power 
 of the court, under Code of Civ. Pro., § 723, to 
 allow a complaint in replevin to be amended 
 after judgment, by adding a demand for the 
 return of the property taken, see Jagger ji. Cun- 
 ningham, 8 Daly 511. 
 
 12. Am.ending the answer. Under 
 Code of Civ. Pro., § 366, subd. 5, authorizing the 
 County Court to allow either party to amend his 
 pleadings upon such terms as shall be just, in 
 cases where a new trial may be had in that 
 court, the court cannot amend an answer, inter- 
 posed in the Justice's Court, consisting of a 
 general denial, by inserting tiierein new and 
 affirmative defences, such as payment, set-off or 
 counter-claim. — Supreme Ct., (3d Dept.,) May, 
 1878. Eeno v. Millspaugh, 14 Hun 229. 
 
.10 
 
 AMENDMENT— ANOTHER ACTION. 
 
 13. — at the trial. The statute of limita- 
 tions constitutes a distinct new defence which 
 cannot be first set up during a trial before a 
 referee. — Supreme Ct., (ls( Dept.,) May, 1879. 
 Eiley v. Corwin, 17 Hun 597. 
 
 14. Amending' offer to allo"w judg- 
 ment. Defendant's attorney served an offer to 
 allow judgment, signed by him, but it was not 
 accompanied by an affidavit showing his 
 authority to make it, as required by Code of 
 Civ. Pro., § 740. Plaintiff served a notice de- 
 clining to accept the offex-, but giving no reason. 
 On the trial the plaintiff recovered less than the 
 amount named in the offer. Thereafter defend- 
 ant's attorney moved to amend the offer by an- 
 nexing thereto his affidavit showing his 
 authority to make it. Held, that the motion 
 was properly denied. — Supreme Gt., {1st Dept.,) 
 May, 1879. Biggs v. Waydell, 17 Hun 
 615. 
 
 15. Amending the judgment. Where," 
 on a reference of an action in equity, the referee 
 has made a report passing on the question of 
 costs, and the costs have bfien taxed and a judg- 
 ment entered in accordance with the report, the 
 Special Term cannot strike sucli costs there- 
 from upon motion. The remedy of the party 
 aggrieved is by an appeal from the judgment. 
 —Supreme Ct., {4lh Dept.,) June, 1878. Wood- 
 ford V. Bucklin, 14 Hun 444. 
 
 Otherwise in actions at law. The court may 
 in such actions, amend the judgment by increas- 
 ing, decreasing or striking out the amount of 
 costs included therein. lb. 
 
 16. When the remedy to correct error in judg- 
 ment is by motion to amend, instead of by ap- 
 peal, see Beers v. Shannon, 73 N. Y. 292. 
 
 1*7. Am.ending undertaking-. As to 
 the power of the court to allow defects in an 
 undertaking on arrest, to be amended, see Ir- 
 win V. Judd, 20 Hun 562. 
 
 n. OBTAINISra AND MAKING AMENDMENTS, 
 AND THEIR EFFECT. 
 
 18. Amendment on payment of 
 costs. The phrase "on payment of the costs 
 of the action to the present time" in an order 
 allowing Jhe amendment of a' pleading, means 
 such costs as would go to the party against whom 
 the amendment is allowed, in case there had 
 been a termination, favorable to him, at the 
 date of the order granting leave to amend. Such 
 costs must be taxed, and if improper items are 
 allowed the remedy is by appeal from the tax- 
 ation. — Superior O.., 2fov., 1878. Havemeyer 
 V. Havemeyer, 44 Superior 170. 
 
 19. Effect of amending. Amending a 
 complaint in an action ibr price of goods sold, 
 by striking out. certain allegations as to fraud- 
 ulent representations made by the purchaser — 
 Held, not to change the cause of action. — iSu- 
 preme Ct., {1st Dept.,) May, 1879. Hitchcock v. 
 Baere, 17 Hun 604. 
 
 For further decisions as to Amended and Sup- 
 plemental pleadings, see Pleading, Vllf. 
 
 As to amendments in Justieei^ Courts, see Jus- 
 tice OF THE Peace, 15. 
 
 As to bringing in New parlies by amendment, 
 see Paeties, 8, 9. 
 
 For the power of a Refe/ree to allow amend- 
 ments, see Eefeebnce, 16-18. 
 
 ANIMALS. 
 
 1. Liability of owner for injuries by 
 them. One keeping a vicious dog, with knowl- 
 edge of its propensities, is liable for injuries 
 caused by it. Negligence, in the ordinary sense 
 of the word, is not an element of the cause of 
 action, nor is contributory negligence a defence. 
 —Ct. of App., ApHl, 1878. Lynch v. McNally, 
 73 N. Y. 347 ; affirming 7 Daly 126. 
 
 2. Ordinary familiarities with a dog running 
 loose, offered by one having no knowledge of 
 its vicious propensities, do not constitute negli- 
 gence in any sense, and will not relieve the 
 owner from liability. lb. 
 
 3. The gravamen of tlie action is the keeping 
 of the animal, with knowledge of its propen- 
 sities ; and as to the latter, proof that the ani- 
 mal is of a savage and ferocious nature is equiva- 
 lent to express notice. — Ct. of App., April, 1878. 
 MuUer d. McKesson, 73 N. Y. 195 ; affirming 10 
 Hun 44. 
 
 4. The owner is bound to keep the animal 
 secure at his peril, and if it does mischief, neg- 
 ligence is presumed. This presumption cannot 
 be rebutted by proof of care on the part of the 
 owner in keeping or restraining it, and he is 
 absolutely liable, unless relieved by proof of 
 some act or omission on the part of the person 
 injured. lb. 
 
 5. The rule, therefore, of non-liability of a 
 master to a servant, for injuries occasioned by 
 the negligence of a co-servant, cannot be invoked 
 to shield the owner of such an animal from 
 liability for injuries to a servant, where a fellow 
 servant was negligent in not properly fastening 
 the animal, or in not giving notice of its being 
 loose. lb. 200. 
 
 6. The owner will not be relieved from lia- 
 bility by slight negligence or want of ordinary 
 care on the part of the person injured ; to con- 
 stitute a defence, acts must be proved, with 
 notice of the character of the animal, which 
 would establish that the injured person volun- 
 tarily brought the injury upon himself. lb. 
 
 7. Driving off trespassing animals. 
 As to the right of a land owner to drive oflT 
 trespassing cattle, and to set dogs on them for 
 that purpose, see Supreme Ct.,- {Sd Dept.,) Jan., 
 1878. Smith v. W-aldorf, 13 Hun 127. 
 
 For decisions under the laws relating to 
 Cruelty to animals, see CeiminaIi Law, 8-11. 
 
 As to the liability of a railroad company for 
 KUling stock on the track, see Bailboad Com- 
 panies. 82-84. 
 
 ANNUAL REPORT. 
 
 For decisions as to the duty of Trustees of 
 manufacturing companies to file annual reports, 
 and their Individual liability for failure to do so, 
 see Manufacturing Companies. 22-38. 
 
 ANOTHER ACTION. 
 
 As ground of Abatementj see Abatement^ 
 3-5. 
 
ANSWER— APPEAL, I. 
 
 11 
 
 ANSWER. 
 
 In Abatement, see Abatbmbjjt, 8, 9. 
 In Sar, see Pleading ; and the titles of the 
 various causes of action. 
 
 APPEAL 
 
 IBmbraces, for the most part, appeals in actions 
 only. For appeals in special proceedings, the titles 
 of the several special proceedings should also be con- 
 sulted. For the general course of proceedings to 
 obtain a review in cri/mi/nal cases, see OBaTxosABi ; 
 ESKOB ; also the titles of particular offences.] ' 
 
 L Geneeal Pbinciples. 
 
 1. When an appeal mill lie. 
 
 2. Nature and exercise of appellate juris- 
 
 dietion 
 
 3. I*rocedure on appeal. 
 
 IL Appeal to the General Teem. 
 
 1. When an appeal wUl lie. ' 
 
 2. Procedure. 
 
 ni. Appeal to the Cottkt op Appeals. 
 
 1. When an appeal wUl lie. 
 
 2. Procedure. 
 
 IV. Appeals from Mabine and Distbiot 
 Coubts to Coubt or Common Pleas, 
 IN New Yoek City. 
 
 1. Fi-om Marine Court. 
 
 2. From District Courts. 
 
 V. Appeals fbom County Cottbt to Su- 
 PBEME Coubt. 
 
 VI. Appeals fbom Suebooates' Coubts. 
 
 VII. Enpoecement op Appeal Bonds. 
 
 I. Geneeal Pbinciples. 
 1. When an appeal will lie. 
 
 1. "WTiat judgments are final and ap- 
 pealable. In an action brought to set aside 
 a conveyance of real estate, claimed in fee by 
 plaintiff, and also by the wife of defendant, she 
 being a party defendant, after a reference it was 
 agreed, in writing, that all matters in dispute 
 should be submitted to the referee as arbitrator, 
 and that judgment should be entered on his 
 award. Judgment having been so entered, de- 
 fendants appealed. Plaintiff moved to dismiss 
 the appeal. Held, that the submission being 
 void, because made by a married woman, and 
 because the subject of it was a claim in fee to 
 real estate, the judgment was appealable. — 
 Supreme Ct., (2d Dept.,) Dec, 1878. Keep v. 
 Keep, 16 Hun 141. 
 
 2. Judgment entered after overruling of de- 
 murrer, and entry of order for damages and writ 
 of inquiry, wlien not Jnal judgment for purpose 
 
 of appeal, see Cameron v. Equitable Life Ass, 
 Soc, 45 Superior 628. 
 
 3. Wliat orders are appealable. 
 Where the court below refuses to hear and de- 
 nies an application for process in contempt in 
 case of violation of an injunction, on tlie ground 
 of a want of power, and not in the exercise of 
 a judicial discretion, the decision is appealable. 
 —a. of App., Dec., 1877. Sixth Ave. E. K 
 Co. 0. Gilbert Elevated E. E. Co., 71 N. Y, 
 430. 
 
 4. An order striking out an answer as frivo- 
 lous, is appealable. — Supreme Ct., [Ath Dept.,) 
 Jan., 1878. Webster v. Bainbridge, 13 Hun 
 180. 
 
 5. A party who objects to a reference must 
 appeal from the order of reference ; he cannot,, 
 on appeal from the judgment rendered on 
 the referee's report, claim that the latter had 
 not jui'isdiction. — Supreme Ct., {ith Dept.,) Jan.,. 
 1879. Elliott V. Lewis, 16 Hun 581. 
 
 6. What are not. Under the new code, 
 no appeal lies from an order sustaining or over- 
 ruling a demurrer. The only remedy is by ap- 
 peal from the judgment, whether final or inter- 
 locutory, entered upon the decision of the de- 
 murrer ; and no appeal lies until such judgment- 
 is entered. — Supreme Ct., {ith Dept.,) Oct., 1878. 
 Miller v. Sheldon, 15 Hun 220. 
 
 T. Alis pendens in an action, in which an attach- 
 ment has been issued, which describes the prop- 
 erty attached, simply, as " all the real property 
 of the defendant Brown, or in which she may 
 have an interest, situate in Chenango county,"' 
 is a nullity, and an order denying a motion to 
 vacate it does not affect a substantial right and 
 is not appealable.— (Supreme Ct., {1st Dept.,) May,. 
 1879. Jaffray i). Brown, 17 Hun 575. 
 
 8. An order reducing charge for disburse- 
 ments, when- not appealable, see Corbet v. De- 
 Comeau, 45 Superior 587. 
 
 9. Appeal from part of an order. Na 
 appeal lies from that part of an order allowing 
 a pleading to be amended which imposes con- 
 ditions ; the whole order should be appealed 
 from. — Swperim- Ct., Nov., 1878. Havemeyer 
 V. Havemeyer, 44 Supeiuor 170. 
 
 10. Matters -within the discretion or 
 the court belo-w. It is in the discretion of 
 the court whether to grant or refuse an applica- 
 tion for leave to discontinue an action on pay- 
 ment of costs. — Ct. of App., Dec, 1878. Carle- 
 ton V. Darcy, 75 N. Y. 375. 
 
 11. Plaintiff recovered judgment in an action- 
 of ejectment and was put in possession of the- 
 premises ; defendant paid the costs and took a 
 new trial under the statute ; thereupon plaintiff^ 
 still retaining possession, moved for leave to 
 discontinue on payment of costs. Held, that la 
 denying the motion the court below did not 
 exceed its discretion. lb. 
 
 12. When an order refusing to change the- 
 place of trial in an action against a sheriff is- 
 discretionary and so not reviewable, see Abra- 
 hams V. Bensen, 76 N. Y. 629. 
 
 13. The following matters and orders are- 
 held to be discretionary with tlie court of first 
 instance, and so not appealable except in cases 
 of abuse of discretion ; 
 
 The extent of a cross-examination upon a 
 collateral issue, as to the credibility of the wit- 
 ness. King D. New York Central, &c., E. E^ 
 Co., 72 N. Y. 607. 
 
 The question as to the sufficiency of proof of 
 
12 
 
 APPEAL, I. 
 
 loss, and of unavailing search, to authorize the 
 admission of parol evidence of the contents of 
 •a written instrument. McCuUough v. Hoffman, 
 73 N. Y. 615. 
 
 A motion to vacate a judgment, because of 
 reversal of former judgment, upon which an 
 ■estoppel was based. Smith v. Frankfield, 77 
 N. Y. 414. 
 
 An order setting aside an ex parte order vaca- 
 ting a levy under an attachment. Ellis v. Kice, 
 "77 N. Y. 610. 
 
 An order directing the settlement of issues. 
 .Seymour v. McKinstry, 13 Hun 284. 
 
 An order of the trial judge, setting aside a 
 verdict as against the weight of evidence, Ban- 
 non V. McGrane, 45 Superior 517. 
 
 5. Nature and exenxise of appellate jurisdiction. 
 
 14. Who may appeal. One who has ap- 
 plied for and enjoyed an extension of time 
 "within which to comply with a peremptory man- 
 ■damus, cannot thereafter appeal from the order 
 ■directing its issue. — Supreme Ct., (4<A Oept.,) 
 
 Oct., 1878. People v. Eoohester, &c., E. E. 
 ■Co., 15 Hun 188. 
 
 15. Ho'W the right may be waived or 
 lost. A plaintiff has no right to prevent an 
 .appeal, unless the appellant party, in a formal 
 .and effective way, surrenders to the plaintiff his 
 right to appeal. If there is any good reason to 
 •question the validity of an appeal, it should be 
 done by motion in the action in which the ap- 
 peal is taken. — Superior Ot., March, 1879. 
 Kilmer v. Bradley, 45 Superior 585. 
 
 16. The facts that the interests of another 
 defendant will be promoted by the appeal, and 
 that such other defendant is aiding in its pros- 
 •ecution, will not justify an injunction, whatever 
 may be the status of such other defendant, as to 
 -an appeal in his own behalf. 76. 
 
 IV. Non-payment of motion costs as directed 
 in an order on the motion, does not stay proceed- 
 ings of party seeking to obtain a review of the 
 ■order on appeal. — Supreme Ct., {1st Dept.,) Jan., 
 1878. Anonymous, 4 Abb. N. Gas. 11. 
 
 18. Limitirig time. Notice of entry 
 -of judgm.ent. A notice of the entry of judg- 
 ment, which is not endorsed or subscribed both 
 ■with the name of the attorney and his oflSce 
 .address or place of business, as required by the 
 general rules of practice (Eiile 2), is irregular 
 and ineffectual to limit the time for appealing. 
 A party undertaking to limit the time for ap- 
 pealing is held to strict practice. — Ct of App., 
 March, 1879. Kelly v. Sheehan, 76 N. Y. 325. 
 And see Chase v. Bibbins, 71 N. Y. 592. 
 
 19. Second appeals. On application for 
 •confirmation of the report of a referee, two 
 -claims presented by one M. to the referee, and 
 allowed by him, were disallowed by the Special 
 Term. M. appealed from so much of the order 
 as disallowed one of the claims. After the 
 decision of that appeal, he brought this appeal 
 from the portion of the order disallowing the 
 -other claim. Held, that liis right to appeal 
 from the order was exhausted by the first ap- 
 peal; and that the second appeal could not be 
 anaintained. — Supreme Ct., (ith Dept.,) Jan., 
 1878. Tiiompson v. Taylor, 13 Hun 201. 
 
 20. What errors are ground for re- 
 versal, generally. Where a motion to dis- 
 miss is made upon the ground that the complaint 
 •does not state facts sufficient to constitute a 
 
 cause of action, the granting it is not a matter 
 of discretion, but of legal right; and where the 
 objection was raised and was not waived, and no 
 amendment of the complaint was made or asked 
 for on the trial, the correctness of the ruling 
 denying the motion to dismiss must be tested on 
 appeal, on the complaint as it stood, not as it 
 migh^ have been changed by amendment; and 
 if the ruling was erroneous it is fatal to a recov- 
 ery.— Cl!. o/ App., March, 1879. Tooker v. 
 Arnoux, 76 N. Y. 397. 
 
 21. Where the affirmative is on the plain- 
 tiff, his right to open and close is a strict legal 
 right, the denial of which is cause for reversal 
 of the judgment. Nor is the error of refusing 
 to allow him to open the case to the jury, cured 
 by allowing him the closing address, — Com. 
 Pleas, April, 1878. Penhryn Slate Co. v. Meyer, 
 8 Daly 61. 
 
 22. Admission of im.prop6r evi- 
 dence. Improper evidence, damaging in ils 
 character, cannot be disregarded on appeal, 
 where it can be seen that, upon the whole evi- 
 dence, a verdict the other way could not have 
 been disturbed as against evidence or the 
 weight of evidence. — Ct. of App., Nov., 1879. 
 New York Guaranty, &o., Co. v. Gleason, 7 Abb. 
 N. Cas. 334. See also Foote v. Beecher, Id. 
 358. 
 
 23. The putting in evidence of a, writfen 
 memorandum made by a witness who testifies 
 from his own, recollection to transactions to which 
 the memorandum relates, for the purpose of 
 corroborating the witness, is an error which 
 calls for reversal. — Com. Pleas, June-, 1879. 
 Wightman v. Overhiser, 8 Daly 282. 
 
 24. Exclusion of proper evidence. 
 In an action by an assignee for creditors of one 
 J., against defendants, for the conversion of 
 property of the debtor, the defendants' answer 
 alleged substantially that the property be- 
 longed to H., and was seized by virtue of 
 an execution against her. Upon the trial, 
 defendants offered to prove by competent 
 legal evidence the allegations of the answer ; 
 this offer was rejected. Held, that under the 
 answer defendants had a right to show that the 
 transfer to J. was, as to them, fraudulent and 
 void, leaving the title in H. ; tliat the offer was 
 in effect to prove this, and its exclusion there- 
 fore was error. — Ct. of App., Oct., 1879. Eay- 
 mond V. Eichmond, 78 N. Y. 351. 
 
 25. Improper instructions, or direc- 
 tion of verdict. In an action against co-part- 
 ners upon an alleged contract of employment, 
 plaintiff and one of the defendants were the 
 only witnesses ; their testimony was directly in 
 conflict ; the court charged in substance that it 
 was the duty of defendants to produce the other 
 defendant as a witness ; and not having done so, 
 that the jury might infer that his evidence would 
 have been prejudicial to them. Held, error. — 
 Ct. of App., April, 1877. Bleecker ii. Johnston, 
 69 N. Y. 309. 
 
 26. Where, in an action by a real estate broker 
 against the personal representatives of a deceased 
 customer, to recover an alleged agreed compen- 
 sation for effecting a sale, the only witness as to 
 the contract was the son of the plaintiff, whose 
 own compensation depended upon plaintiff's 
 success ; and where the compensation alleged to 
 have been agreed upon was more than double 
 the usual compensation ; and where other cir- 
 cumstances rendered the statement of the wit- 
 
APPEAL. I. 
 
 13 
 
 ness not entirely free from improbability — Beld, 
 that the case was a proper one for the jury; 
 and that a refusal to submit the question to the 
 jury, and a direction of a verdict for the 
 amount claimed, was error. — Ct. of App., June, 
 
 1877. Kavanagh v. Wilson, 70 N. Y. 177. 
 
 27. Erroneous amendment striking 
 out party. In an action to charge a trust 
 estate in the hands of trustees, with a claim for 
 services rendered by plaintiff to the trustees, a 
 cestui que trust was made a party defendant, and 
 final judgment was perfected in her favor upon 
 demurrer to the complaint. Plaintiff there- 
 upon obtained an ex parte order, striking out 
 said defendant as a party. Held, that the effect 
 of the judgment upon the demurrer, was that 
 said defendant's share or interest in the trust 
 estate, in the hands of the trustee, could not be 
 bound for, or affected by, plaintiff's claim, but 
 to enable her to avail herself of the benefits of 
 the adjudication, she must remain a party ; that 
 the order striking her from the case, in effect 
 nullified the judgment, and so was error. — Ct. of 
 App., Jan., 1879. Stanton v. King, 76 N. Y. 585. 
 
 28. Erroneous rulings in relation to 
 costs. One of the defendants, a bank, de- 
 murred to the complaint on the ground that its 
 receiver should have been made a party ; two 
 of the remaining defendants answered jointly, 
 and the others separately, none of them setting 
 up by demurrer the non-joinder of the receiver, 
 which defect appeared upon the face of the 
 complaint. The demurrer was overruled on 
 the ground that the bank had no interest in the 
 joinder, but it appearing that, in this respect, 
 there was a defect of parties, the plaintiff was 
 allowed to join the receiver as a party, but was 
 required to pay costs up to that time to all the 
 defendants who had answered. The bringing 
 in of the receiver did not change any of the 
 issues in the action. 
 
 Held, 1. That it was error to compel the 
 plaintiff to pay costs to the defendants who had 
 not demurred. 
 
 2. That the order requiring him to do so was 
 appealable. — Supreme Ct., {1st Dept.,) Oct., 1878, 
 Hand v. Burrows, 15 Hun 481. 
 
 29. What errors maybe disregarded, 
 generally. In an equity case,^ the fact that 
 decree gives relief not prayed for, is not ground 
 for reversal, if such relief is such as plaintiff is 
 entitled to upon the evidence.— Com. Pleas, Jan., 
 1880. Buswell v. Lineks, 8 Daly 518. 
 
 30. A refusal to comply with a request to 
 charge a perfectly correct proposition which has 
 no bearing on the issues involved, is not error. — 
 Superior Ct., March, 1879. Menard v. Stevens, 
 44 Superior 515. 
 
 31. Errors not objected to below — in 
 respect to evidence. One who permits 
 objectionable evidence to be given at the trial, 
 without objection, or motion to strike it out, or 
 request for an instruction to the jury to disregard 
 it, cannot, on appeal, ask a reversal for error in 
 admitting such evidence. Superior Ct., Jan., 
 
 1878. Carr v. Mayor, &o., of New York, 43 
 Superior 158. -S. P., Ct. of App., Sept., 1879. 
 Plainer v. Platner,'78 N. Y. 90. 
 
 33. Where, upon trial before a referee, his 
 decision upon objections to evidence is, reserved, 
 and no exception to the mode of treatment is 
 taken, an objection to it cannot be considered ' 
 upon appeal. — Ct. of App., Jan., 1878. Holden 
 V. New York and Erie Bank, 72 N. Y. 286, 300. 
 
 33. Where the instruments, the signatures to- 
 which are compared by experts with the signa- 
 ture of a note sued on, (the defence being forgery, ) 
 were, for aught that appears in the case, offered 
 in evidence for other purposes than comparison,, 
 and were received without objection, it cannot 
 be objected upon appeal that they were imma- 
 terial for any other purpose and so could not b& 
 used for comparison ; having been received 
 without objection they must be regarded as 
 properly in evidence for all the purposes of the- 
 case. — Ct. of App., Nov., 1878. Miles v. Loomis, 
 75 N. Y. 288. 
 
 34. Whether, where it clearly appears either 
 by the avowal of the party offering them or 
 otherwise, that the instruments were put in 
 evidence simply for the purpose of comparison,, 
 the failure to object precludes the other party 
 from subsequently resisting their use for that 
 purpose, see lb. 
 
 35. — in respect to the pleadings. The 
 objection that a complaint for malicious prosecu- 
 tion does not allege want of " probable cause," 
 but only want of "just" or "proper" cause, 
 cannot be made for the first time on appeal from 
 an order vacating a dismissal of the complaint 
 and granting a new trial. — Com. Pleas, Jan., 1878. 
 Van Be Wiele v. Callauan, 7 Daly 386. 
 
 36. Where an answer sets up a counter-claim, 
 to which there is no reply, but the trial of the 
 action proceeds as if every matter contested by 
 the parties was at issue, and no point is raised 
 that the counter-claim is admitted, it cannot be 
 taken on appeal. — Ct. of App., Oct., 1878. Jordan 
 V. Nat. Shoe and Leather Bank, 74 N. Y. 467. 
 
 37. A j udgment for plaintiff will not be reversed 
 on appeal because of an omission to aver in the 
 complaint, or to prove upon the trial, a fact 
 essential to the plaintiff's case, unless the defect 
 was pointed out and is reached by a proper 
 exception taken on the trial. — Ct. of App., Dec.y 
 
 1878. Thayer v. Marsh, 75 N. Y. 340. 
 
 38. In an action by the assignee of a mortgage 
 against a grantee of the mortgaged premises, 
 upon a covenant in his deed to pay the mortgage, 
 the complaint alleged the execution of the mort- 
 gage by P., defendant's grantor, that it was given 
 to secure a part of the purchase price of the 
 mortgaged premises, and that at the time it was 
 executed P. was the owner in fee. These facts 
 were admitted in the answer. Held, that in the 
 absence of a demurrer, or of a motion on the 
 part of defendant to make the complaint more 
 definite and certain, or of any specification of 
 any defect on the trial, the complaint might be 
 construed, for the purpose of upholding the 
 judgment, as inferentially averring that the 
 mortgage was given for a debt owing by P., and 
 for which he was personally liable. lb. 
 
 39. Various applications of the rule. 
 Where, in an action upon an attachment bond, 
 issued by a justice of the peace, no objection is 
 made upon the trial to its sufficiency, or manner 
 of execution, such objections cannot be raised 
 on appeal. — Supreme Ct., {ith Dept.,) April, 1879. 
 Northrup v. Garrett, 17 Hun 497. 
 
 40. The objection that a judgment in an action 
 against an executor as such is not in proper 
 form, in that it should be de bonis testatoris, can- 
 not be taken for the first time upon appeal ; if 
 the judgment is erroneous in this respect, defend- 
 ant should move in the court in which it was 
 rendered to have it amended. — Ct. of App., Jan., 
 
 1879. De Lavallette v. Wendt, 75 N. Y. 579. 
 
14 
 
 APPEAL, I. 
 
 41. Where, in a ease tried by a jury, there is 
 no motion for a nonsuit, or exception to a charge, 
 the verdict is final as to facts. — Ct. of App., Nov., 
 
 1877. Mumby v. Jackson, 71 N. Y. 599. 
 
 42. Wliere a broker to sell is at the same time 
 the broker to buy, the fact of the double agency, 
 if unknown to the principals, is a breach of his 
 implied contract with each ; he cannot, in such 
 case, recover a compensation for his services, 
 whether the sale was or was not advantageous to 
 the party from whom t h e compensation is claimed. 
 But in an action by the broker against one of his 
 principals, the double employment and want of 
 knowledge on the part of defendant should be 
 pleaded ; at least the question should be raised 
 in some form on the trial ; it is too late to raise 
 it for the first time on appeal. — Ct. of App., Dec., 
 
 1878. Duryee v. Lester, 75 N. Y. 442 ; affirming 
 43 Superior 564. 
 
 43. The following objections are held to be 
 untenable on appeal, unless first raised in the 
 court below : 
 
 The objection that an instrument was not 
 proved by the subscribing witness. Marshall v. 
 Lippman, 16 Hiin 110. 
 
 The objection that the husband should have 
 been plaintiff, instead of the wife, in an action 
 for services rendered by the latter. Snow v. 
 Cable, 19 Hun 280. 
 
 The objection that the order to show cause, 
 on a motion to vacate a previous order, failed to 
 specify the irregularities complained of. Miller 
 I). Kent, 59 How. Pr. 321. 
 
 An objection of variance between pleadings 
 and proof. Laughran v. Smith, 75 N. Y. 205. 
 
 An objection that a referee appointed in an 
 action resides, and that the trial was had out of 
 the jurisdiction of the court. Blake v. Lyon, 
 Ac, Manuf. Co., 77 N. Y. 626. 
 
 44. Instances. The objection that no 
 demand before suit had been proved, was raised 
 for the first time on appeal. Held, that it should 
 have been distinctly taken at the trial. Not 
 having been taken then and -there, it is not 
 available on appeal. — Superior Ct., March, 1879. 
 Burnett v. Snyder, 45 Superior 582. 
 
 45. Upon trial of an action upon a policy of 
 fire insurance, brought by the personal represen- 
 tative of an assignee to whom the policy was 
 assigned after loss, defendant moved for a non- 
 suit, on the ground that there was no proof of 
 plaintiff's right or title to recover the amount 
 of the loss. Held, that the ground stated did 
 not cover a defect in the title of the insured, or 
 a.ny breach of a condtion of the policy by reason 
 of such defect, if any existed ; and that as such 
 a.n cfbjection, if it had been taken, might have 
 been obviated, it was not availaible on appeal. 
 — Gt. of App., JuTie, 1877. Adams v. Greenwich 
 Ins. Co., 70 N. Y. 166. 
 
 46. Errors cured below. For an appli- 
 cation of the rule that the reception of objec- 
 tionable evidence or testimony tending to prove 
 a fact in the case, is not ground for reversal, 
 where other unobjectionable evidence proving 
 the fact was afterwards put in, see Strause v. 
 Josephthal, 8 Daly 417 ; S. P., Trow v. Shan- 
 non, Id. 239. 
 
 47. Whether the doctrine that an appellate 
 •court may in equity cases, disregard errors in 
 the admission of evidence, if satisfied that the 
 findings of fact were supported by other and 
 sufficient proof, has not been overturned by the 
 
 - decision of the Court of Appeals in Foote v. 
 
 Beecher, * quaere. — Supreme Ct., ^Sd Dept.,) Jan., 
 1880. Schoonmaker v. Wolford, 20 Hun 166. 
 
 48. What errors are not cured. 
 When error in reception of evidence is not 
 cured by a motion of the party in whose favor 
 it was received to strike it out. — Ct. of App., 
 Feb., 1878. Furst v. Second Avenue E. B. Co., 
 72 N. Y. 542. 
 
 49. An erroneous ruling, as to the burden 
 of proof, is not cured by the fact that the party 
 upon whom the burden is improperly imposed, 
 ineffectually attempts to make a case under the 
 ruling ; he may rest upon his exception, but it 
 is not waived or its force impaired by his 
 attempting to comply with the erroneous rul- 
 ing.— Cf. of App., Feb., 1879. Nickerson v. 
 Ruger, 76 N. Y. 279. 
 
 60. Harmless errors, generally. That 
 an exception to a ruling which does not damage, 
 is not available, see Bardin v. Stevenson, 75 N. 
 Y. 165. 
 
 51. A refusal to charge a propo.'sition which, 
 however true, is foreign to the case, is not error. — 
 Ct. of App., April, 1879. Priebe v. Kellogg 
 Bridge Co., 77 N. Y. 597. 
 
 52. — in respect to evidence. The ad- 
 mission of irrelevant evidence in an equity case, 
 is not ground for reversal, unless the court can 
 see that the decision of the trial judge was im- 
 properly -affected by it. — Com. Pleas, Fdi., 1877. 
 Consolidated Fruit Jar Co. v. Mason, 7 Daly 
 64 ; S. P., Gush man v. United States Life Ins. 
 Co., 70 N. Y. 72. 
 
 53. The rule applies when the evidence is, 
 as to facts which, if not testified to, the jury 
 would know, from jn experience common to all, 
 must have exisled.— Superior Ct., March, 1879. 
 Menard v. Stevens, 44 Superior 515. 
 
 54. There is no distinction between legal and 
 equitable actions or between actions tried by a 
 jury or a court, in respect to the availability 
 of exceptions taken upon the trial upon admis- 
 sion of incompetent evidence; in any case an 
 error in receiving such evidence, if properly 
 excepted to, can only be disregarded when it 
 can be seen that it could do no harm. — CI. of 
 App., Sept., 1879. Foote v. Beecher, 78 N, Y. 
 155 ; reversing 12 Hun 374. To same effect, 
 Haveraeyer v. Havemeyer, 43 Superior 506. 
 
 55. Presumptions in favor of regu- 
 larity below. Jurisdiction having been once 
 acquired over the parties and the subject mat- 
 ter, every presumption is in favor of the legal- 
 ity of the judgment. — Gt. of App., June, 1879. 
 Blake V. Lyon, &o., Manuf. Co., 77 N. Y. 626. 
 
 56. On appeal from an order denying a 
 motion to vacate an attachment, where the 
 record does not show otherwise, it will be pre- 
 sumed that the attachment was granted on 
 sufficient grovmds. Dinan v. Allen, 16 Hun 407. 
 
 57. It is not to be assumed that extrinsic 
 facts alleged as the foundation of an objection 
 to the competency of a witness are true — as that 
 he has been convicted of felony ; and when no 
 evidence is offered to sustain the objection, and 
 it is overruled, it is" to be assumed it was because 
 no foundation was laid for it.— 'Ct. of App., 
 April, 1877. Elverson v. Vauderpoel, 69 N. Y. 
 610 ; affirming 41 Superior 257. 
 
 58. When findings of fact will be presumed 
 to sustain judgment entered on report of 
 referee, see Meyer v. Lathrop, 73 N. Y. 315, 321. 
 
 * 78 N. Y. 155. 
 
APPEAL, I. 
 
 15 
 
 59. The defendants, on the trial, proposed to 
 read, and did offer in evidence certain parts of 
 answers made by a witness (examined under 
 •commission for plaintiff) to cross-interrogatories 
 put by defendants ; the parts offered being the 
 answers, " so far as the same were responsive to 
 ■such interrogatories." Thereupon defendant 
 moved to strike from the answers other parts, as 
 immaterial, irrelevant and not responsive to the 
 interrogatories ; which motion was denied. 
 Seld, that upon the record the conclusion is, 
 that the referee denied a motion to strike out of 
 the deposition certain things which had not 
 been put in evidence or proposed as such, which 
 was not an error for which the judgment can be 
 reversed. — Superior Gl., May, ' 1879. Oostello' 
 V. Lawless, 45 Superior 276. 
 
 60. Revie'wing the evidence or the 
 facts. The verdict of the jury will not be 
 disturbed upon appeal, where the evidence given 
 upon a questiotr of fact was conflicting, or so 
 uncertain as to be capable of different inter- 
 pretations. — Com. Pleas, April, 1878. Kelly v. 
 Sheehy, 8 Daly 29. 
 
 61. Where in an action by a real estate 
 broker for commissions, there is a conflict 
 of evidence as to the fact of his employ- 
 ment, and also in regard to the sale of the 
 property having been effected through his 
 agency, and the case is properly submitted to a 
 jury, the verdict cannot be disturbed. — Superior 
 Ct., June, 1877. Lamsou v. Main, 43 Su- 
 perior 24. 
 
 62. Exceptions to the refusal of a judge or 
 referee to pass upon questions of fact present no 
 questions for review on appeal. — Superior Cl., 
 Jan., 1879. Arrowsmith v. O'SuUivan, 44 
 Superior 573. 
 
 63. In reviewing the decision of a trial 
 court upon a challenge to the favor, the appel- 
 late court has the power, and it is its duty, to 
 pass upon the facts de novo, from the evidence 
 adduced before the court below. — Supreme Ot., 
 (ith Dept.,) Jan., 1878. Greenfield v. People, 
 13 Hun 242. 
 
 3, Procedure on appeal. 
 
 Q4:. The security. The provision of Code 
 •of Civ. Pro., •? 1308, authorizing an appellate 
 court to require the appellant to file a new 
 undertaking, in case of the insolvency of one 
 of the sureties, is not imperative ; if the remain- 
 ing surety is solvent and abundantly able to 
 satisfy the judgment, or if the judgment is 
 otherwise well secured, and the appeal is likely 
 to be heard and disposed of without delay, the 
 court may, in its discretion, refuse the order. — 
 Ct. of App., Feb., 1878. Bering v. Metcalfe, 72 
 N. Y. 613. 
 
 65. Although Code of Pro., ? 339, authorized 
 "the court to dispense with or limit the security, 
 required by ?J 335-338, to be given upon an 
 appeal, when the appellant was an executor, 
 administrator or trustee acting in the right of 
 another, yet an executor who, without making 
 any application to have the security limited or 
 dispensed with, gives the undertaking in the 
 ordinary form, thereby admits that he has sufl- 
 oient assets applicable to the payment of the 
 judgment appealed from, to satisfy it. — Supreme 
 €t., (Uh Dept.,) April, 1878. Yates v. Burch, 13 
 Hun 622. 
 
 66. Bringing up the record. Neces- 
 
 sity of a case. The objection that a judgment 
 in replevin is for money only, instead of for a 
 return of the property or its value, in case of 
 non-delivery, cannot be reviewed upon appeal, 
 except upon a case made and settled according 
 to the established practice. — Supreme Ct., (2d 
 Dept.,) Feb., 1878. McLean v. Cole, 13 Hun 300. 
 
 67. Where the record on appeal from a judg- 
 ment contains no case or exceptions, and no 
 evidence that a trial was had, save an order 
 reciting that the action was brought to trial at 
 Special Term, and a motion made to dismiss the 
 complaint, and directing that the same be dis- 
 missed, such record presents nothing for review. 
 An appeal from the order dismissing the com- 
 plaint does not bring up for review the proceed- 
 ings on the trial. — Ct., of App., June, 1877. 
 Smith V. Starr, 70 N. Y. 155. 
 
 68. Proper contents of the case. 
 Where the error complained of is in the charge 
 of the court, that the jury disregard all that 
 "counsel has said of irrelevant matter," the 
 case on appeal should either show that the 
 appellant called the attention of the court spe- 
 cifically to the irrelevant matters that had been 
 spoken of by counsel, or should contain the 
 alleged irrelevant matter. — Superior Ct., Jan., 
 
 1878. Woodruff v. Beekman, 43 Superior 282. 
 
 69. Issues in an equity action were framed 
 and submitted to a jury ; a verdict rendered 
 thereon ; the whole case afterwards heard before 
 the same judge before whom the jury trial was 
 fiad ; a decision made by him on which judg- 
 ment was entered ; a case served on appeal con- 
 taining the testimony and plaintiff's exceptions 
 to evidence taken on the jury trial. The judge, 
 on the settlement of the case, substituted in 
 place of this, the specific questions of fact sub- 
 mitted to the jury, and their answers thereto. 
 Held, that appellant had a right to include in 
 the case the evidence given on the jury trial as 
 well as any subsequently given before the judge 
 alone. — Supreme Ct., (Zd Dept.,) Sept., 1879. 
 Chapin v. Thompson, 18 Hun 446. 
 
 70. Exceptions taken at the trial, but not 
 inserted in appellant's points, or discussed upon 
 the argument, will be presumed to have been 
 waived as untenable. — Com. Pleas., April, 1878. 
 Blaut I). Gabler, 8 Daly 48. 
 
 11. The hearing. "What questions 
 are before the court. Upon appeal from a 
 judgment entered on a verdict giving damages 
 in an action for negligence, facts in the case, 
 which, at the trial, the plaintiff disclaimed as a '' 
 ground of recovery, will not be considered in 
 support of the judgment. — Com. Pleas, July, 
 
 1879. Fuchs V. Schmidt, 8 Daly 317. 
 
 72. Where, upon trial, the only question 
 raised is as to the plaintiff's right to recover 
 anything, an exception to a decision thereof, in 
 favor of plaintiff, does not present for review 
 any question as to amount, — Ct. of App., March, 
 1877. Jarvis v. Driggs, 69' N. Y. 143. 
 
 73. Where, upon the trial of an action, after 
 plaintiff has opened his case, the complaint is 
 dismissed on the ground that it does not state 
 facts sufficient to constitute a cause of action, 
 and plaintiff, without asking leave to amend, 
 excepts to the decision and appeals, the com- 
 plaint will bg treated as if it had been demurred 
 to, and the sole question presented on appeal is 
 whether it sufficiently states a cause of action. — 
 Cl. of App., Jan., 1878. Sheridan v. Jackson, 
 72 N. X. 170. 
 
16 
 
 APPEAL, I, II. 
 
 "74. On appeal from an order adjudging the 
 appellant guilty of contempt in not obeying a 
 peremptory writ of mandamus, the question as 
 to the propriety of the order granting the writ 
 is not presented and cannot be considered. — Ot. 
 of App., March, 1879. People, ex rel. Garbutt, 
 V. Kochester, Ac, By. Co., 76 N. Y. 294. 
 
 75. Receiving ne'w evidence on ap- 
 peal. The rule which sanctions the introduc- 
 tion of record evidence upon an appeal, has no 
 application to the ordinances of a municipal 
 corporation — ^that such evidence can only be 
 received upon appeal to uphold the judgment, 
 not to reverse it, — see Ct. of App., April, 1877. 
 Porter v. "Waring, 69 N. Y. 250. 
 
 76. The provision of the act of 1832, (Laws 
 of 1832, ch. 158, § 1,) authorizing ordinances of 
 the common council of the city of New Yorli to 
 be read in evidence in all courts, relates to 
 their introduction upon a trial, not to their 
 being read in an appellate tribunal. lb. 
 
 77. Granting amendments. An amend- 
 ment of a pleading which might have been 
 made at the trial, may be made on appeal, so as 
 to conform the pleading to the proofs. — City Ct. 
 of Srooklyn, Oct., 1879. Hudson v. Swan, 7 Abb. 
 N. Cas. 324. S. P., Ot. of App., June, 1877. 
 Beeder v. Sayre, 70 N. Y. 180, 190. 
 
 78. A re-argument will only be granted 
 where some question decisive of the ease and 
 duly submitted by counsel was overlooked, or 
 where the decision is in conflict with an express 
 statute or a controlling decision, to which atten- 
 tion was not called by counsel. — Com. Fleas, 
 Jan., 1878. Banks v. Carter, 7 Daly 417. 
 
 79. A question not presented by exception 
 cannot be considered on re-argument of an 
 appeal. — Ot. of App:, April, 1878. Hunt v. 
 Church, 73 N. Y. 615. 
 
 80. "When an affirmance is proper. 
 An order granting a new trial upon the minutes 
 will be sustained on appeal if it ought to have 
 been made upon any of the grounds upon which 
 the motion for it was made. The appellate 
 court is not limited to review only the grounds 
 upon which the new trial was in fact ordered. — 
 Com. Pleas, Clark v. Mechanics' Nat. Bank 
 of New York, 8 Daly 481. 
 
 81. Although, when the grounds upon which 
 the judgment in the court below were based are 
 erroneous, and the case was not there considered 
 in all its aspects, the appellate court is justified 
 in reversing the judgment and ordering a new 
 trial; yet it may and sometimes will, at the 
 request of respondent's counsel, inquire whether 
 the judgment can be sustained on propositions 
 contended for, other than those on which the 
 judgment below proceeded. — Superior Ct., 
 Jan., 1878. Sixth Ave. B. B. Co. v. Gilbert 
 Elevated B. B. Co., 43 Superior 292. 
 
 82. When the appellate court may make an 
 order permitting appellant to ask leave of court 
 below to present the matter in a new aspect, 
 affirming order appealed from if such applica- 
 tion below be not made, &c., see Koch v. Purcell, 
 45 Superior 162. 
 
 83. Modifying the judgment ap- 
 pealed from. A judgment of a court of 
 equity adjudicating upon the rights of judgment 
 creditors of an insolvent debtor, may be modi- 
 fied by the appellate court in accordance with 
 its views of such equities, without costs to either 
 party. — Superior Ct., Dee., 1879. Claflin v. 
 
 Maguire, 45 Superior 521. S. P., Heim v. 
 Davenport, Id. 523. 
 
 84. Where it appears to the appellate court 
 that the court below would, if specific attention 
 had been called to the point raised on appeal, 
 and as to which a modification is desired, have 
 held in accordance with the views of the appel- 
 late court, the modification need not be made to 
 depend on the respondent's being deprived of 
 the costs of the appeal. — Superior Cl., March, 
 1879. Thompson v. Bank of British North 
 America, 45 Superior 1. 
 
 II. Appeal to the General Tebm. 
 1. When an appeal will lie. 
 
 85. From judgm.ent on report of 
 referee. What is not such a final judgment, 
 entered on a referee's report, as may be appealed 
 from. Simple confirmation of report not a final 
 judgment. — Supreme Ct., (Ist. Dept.,) Oct., 1876. 
 People ex rel. Banta v. Kent, 58 How. Pr. 407. 
 
 86. What orders are appealable, 
 generally. The General Term may reverse 
 orders of Special Term affecting substantial 
 rights — i, e., matters of substance, not of mere 
 form — although discretionary. — Ot. of App., June, 
 1877. Martin v. Windsor Hotel Co., 70 N. Y. 
 101. 
 
 87. An ordei- of reference is an order affecting 
 a substantial right, as the mode of trial of an 
 action, whether by jury or referee, is a matter 
 of substance, and such an order is appealable to 
 the General Term. lb. 
 
 88. A motion for an extra allowance may be 
 made at a Special Term for the hearing of 
 motions; and an order granting it may be 
 appealed from to the General Term. — Superior 
 Ot., March, 1879. Mills v. Watson, 45 Su- 
 perior 591. 
 
 89. Orders respecting the pleadings. 
 An order denying a motion to require plaintiff 
 to separately number his causes of action, and 
 to strike allegations therefrom, is appealable to 
 the General Term. — Supreme Ct., (ith Dept.,) 
 June, 1878. Sprague v. Dunton, 14 Hun 490. 
 
 90. Order that answer be made more definite 
 and certain, when appealable, as affecting a 
 substantial right of defendant, see Hughes i\ 
 Chicago, &c., By. Co., 45 Superior 114. 
 
 91. Orders on motions for postpone- 
 ment or change of venue. A decision of 
 the judge at trial term on motion for postponement 
 on account of absence of witness, where excep- 
 tion is taken, is reveiwable by General Term. — 
 Superior Ct., April, 1879. Gallaudet v. Stein - 
 metz, 45 Superior 239 ; S. C, 6 Abb. N. Cas. 
 224. 
 
 92. An or4er denying a motion to change the 
 place of trial, on ground of the convenience of 
 witnesses, is appealable to the General Term. — 
 Supreme Ct., {1st. Dept.,) May, 1878. McDonald 
 V. McDonald,. 14 Hun 496. 
 
 93. Orders on demurrer. A decision 
 sustaining or overruling a demurrer, is an order, 
 not an interlocutory judgment ; and, as in the 
 provision of the Code of Civil Procedure (§ 1349), 
 specifying appealable orders, this is not enume- 
 rated, an appeal to the General Term from such a 
 decision does not lie. It can only be reviewed on 
 appeal from a final judgment entered thereon. — 
 Cl. of App., March, 1879. Cambridge Valley Nat. 
 Bank v. Lynch, 76 N. Y. 514 ; Lacustrine Fer- 
 
APPEAL, II. 
 
 17 
 
 tilizer Co. v. Lake Guano, &c., Co., 16 Hun 484 ; 
 S. C, 56 How. Pr. 370 ; Garner v. Harmony 
 Mills, 45 Superior 148 ; S. C. 6 Abb. N. Cas. 
 212 ; Cameron v. Equitable Life Assurance Soc, 
 45 Superior 628. 
 
 94. Orders on motions for judg- 
 ment. An order denying a motion for judg- 
 ment on the ground of the frivolousness of a 
 demurrer, is not appealable to the General 
 Term.— Supreme Gt., {3d. Deft.,) Jan., 1878. 
 Smith «. Eathbun, 13 Hun 47. 
 
 05. Orders in special proceedings. 
 A proceeding for the discharge of an imprisoned 
 debtor on assignment of his property, is a special 
 proceeding, as defined by the code (^? 1, 2, 3) ; 
 and an order of Special Term therein, discharg- 
 ing the petitioner is a final order, and is appeal- 
 able to the General Term, under the provisions 
 of the act of 1854, (Laws of 1854, ch. 270,) 
 authorizing appeals in special proceedings. — Cl. 
 of App., April, 1877. Matter of Brady, 69 N. 
 Y. 215. 
 
 96. The right to review a Special Term 
 decision in a matter afiecting a substantial right, 
 ' being general and fundamental, will be deemed 
 to exist unless the intent to destroy it is ex- 
 pressed with great clearness. lb. 
 
 &7."When the proper remedy is by- 
 motion at Special Term. One of several 
 tenants in common, plaintifis, having died, his 
 personal representatives were made parties plain- 
 tiff; the complaint was dismissed as to them, 
 and judgment was entered for the survivors 
 without its being stated that it was for them, as 
 survivors. Held, an irregularity to be taken 
 advantage of on motion, and not a ground of 
 appeal. — Ol. of App., June, 1877. Eeeder v. 
 Sayre, 70 N. Y. 180, 190. 
 
 2. Procedure. 
 
 98. wno may appeal. In proceedings 
 by the attorney-general for the appointment of a 
 receiver of a life insurance company, pursuant 
 to the act of 1869, (ch. 902,) the court has juris- 
 diction to permit parties interested in the ad- 
 ministration of the assets of the corporation to 
 appear and represent their own interests, and 
 to be made parties to all proceedings taken by 
 or against the receiver, by which their rights 
 may be affected. Persons thus becoming par- 
 ties to the proceedings have a right to appeal 
 from all orders made therein affecting their 
 interests. — G. of App., May, 1879. Attorney- 
 General V. North America Life Ins. Co., 77 
 N. Y. 297 ; reversing 15 Hun 18. 
 
 09. After the appointment of a receiver in 
 such proceedings, by order of the court, liberty 
 was given to certain policy-holders to appear by 
 attorney in all motions and proceedings therein, 
 and it was provided that notices of all motions 
 and proceedings in court on the part of the 
 attomeygeneral or of the receiver, be served 
 upon the attorneys of said policy-holders. An 
 actuary was appointed, who made his report ; a 
 copy thereof, with notice of hearing thereon, was 
 served upon said attorneys. Upon the hearing 
 said attorneys appeared and interposed certain 
 objections and exceptions to the report; the 
 report was confirmed; the policy-holders, rep- 
 resented by said attorneys, appealed to the 
 General Term from the order of confirmation, 
 where the appeal was dismissed, on the ground 
 that they were not parties to the proceedings. 
 
 and had no right to appeal Held, error ; that 
 they were made parties by the notice and ap- 
 pearance, and were parties aggrieved within 
 the meaning of Code of Civ. Pro., J 1294. Jb. 
 
 100. A trustee of a fund for the security of 
 an indebtedness to others, who as such is plain' 
 tiff in an action to enforce such indebtedness, 
 may appeal from a judgment which reduceep 
 and limits the number of those who are cred- 
 itors upon the fund ; he is aggrieved by the 
 judgment when a real claim is not added into 
 the amount adjudged to be due, and a real 
 claimant is shut out by it from a share in the 
 proceeds. — Ct. of App., Sept., 1879. Bockes v. 
 Hathorn, 78 N. Y. 222. 
 
 101. Where an action is brought by one of 
 several trustees, the plaintiff may appeal from 
 the judgment without the consent of his co- 
 trustees. The responsibility of his position as 
 plaintiff having been put upon him by the 
 refusal of his associates to act, it is with him to 
 take such action in the suit as his judgment 
 dictates. lb. 
 
 102. The plaintiff in such an action may, and 
 it is his duty in a proper case, to permit his 
 name to be used by a cestui que trust, for the 
 review of a judgment fatally adverse to the 
 latter ; and the court may by order permit such 
 an appeal to be brought. lb. 
 
 103. The fact that the cestui gue tryst is a 
 party to the action, and has taken or may take an 
 appeal in his own name, does not take away the 
 power in the trustee or the court ; it is for the 
 consideration of the trustee and the court in 
 the exercise of their discretion. lb. 
 
 104. Where an order was granted in such an 
 action, allowing several persons, claimants upon 
 the fund, some of whom were parties to the 
 action and some not, but who were all in a 
 class and in like manner affected by the judg- 
 ment, to appeal in the name of plaintiff — 
 
 Held, 1. That the court properly exercised 
 its discretion. 
 
 2. That it appearing from the papers that the 
 plaintiff was cognizant of, and assented to, the 
 motion, the motion was properly granted ex 
 parte, and that neither the co-trustees nor the 
 parties interested in upholding the judgment 
 were entitled to notice, lb. 
 
 105. Limiting time to appeal.. Li an 
 action by a judgment-creditor of one defendant 
 to set aside as fraudulent a conveyance made by 
 him to another defendant, plaintiff recovered a 
 judgment, which was entered and notice thereof 
 served, under Code of Pro., § 332, upon the 
 attorney who had appeared in the action for all 
 the defendants. Held, that such service limited 
 the time to appeal, not only as against the plain- 
 tiff, but also as to an appeal by one defendant 
 against his co-defendant. — Supreme Ct., (4th 
 Dept.), Jan., 1879. Morrison v. Morrison, 16 
 Hun 507. 
 
 106. The notice of entry of judgment 
 required to be served (Code of Civ. Pro., J 
 1351), in order to limit the time of appeal from 
 ■a. judgment entered upon the report of a referee, 
 must be one coming from the prevailing party ; 
 no other party, nor the attorney representing 
 another party, has the right to serve a notice 
 for the prevailing party ; and a notice so served 
 will not, so far as he is concerned, set running 
 the bar of the statute. — Ct. of App., Sept., 1879. 
 Kilmer v. Hathorn, 78 N. Y. 228. 
 
 107. Two of three trustees brought an action, 
 
IB- 
 
 APPEAL, II. 
 
 among other things, to determine the validity 
 of claims upon the trust fund, in which action, 
 B., a co-trustee, was made a party defendant. 
 Judgment was ente;red upon the report of a 
 referee against certain of the defendants ; B. was 
 only affected thereby as trustee. Notice of judg- 
 ment was served by plaintiff's attorney on de- 
 fendants ; no notice thereof was served on behalf 
 of B. Within thirty days after such service, 
 notice of appeal, on the part of one of the de- 
 fendants .against whom the judgment was 
 rendered, was served upon plaintiff's attorney. 
 None was served upon B. Upon plaintiff's 
 motion, the appeal was dismissed. • 
 
 Held 1. That service of notice of appeal upon 
 B. was not required, and that the notice of appeal 
 was good as to the prevailing party, who served 
 notice of judgment. 
 
 2. That the notice of judgment was insuffi- 
 cient to limit the time to appeal, as the office 
 address or place of business of the attorney was 
 not stated, as required by the rules. lb. 
 
 108. What is a copy of the judgment ap- 
 pealed from, within Code of Civ. Pro., § 1351, 
 see EoUins v. Wood, 16 Hun 586. 
 
 109. Mode of taking an appeal. In 
 order to bring up the case for review upon the 
 facts, there must he an appeal from the order 
 denying the motion for a new trial. The mere 
 denial of a motion made upon the judge's 
 minutes, presents no question of fact for review 
 upon appeal from the judgment. On the other 
 hand, if it be claimed that the order denying 
 such motion is an intermediate order involving 
 the merits and affecting the judgment, the new 
 code requires that, before it can be reviewed 
 upon an appeal from the judgment, it must be 
 specified in the notice of appeal (§§ 1301, 1316.) 
 — Superior Gt., Nov., 1878. American Medi- 
 cine Co. V. Keisler, 44 Superior 557. 
 
 110. An order made at the trial term denying 
 an application for a postponement on the 
 ground of the absence of a material witness, 
 cannot be reviewed upon appeal from a special 
 term order made by a different judge, upon a 
 motion for a new trial, founded upon affidavits 
 alleging surprise and mistake. How such an 
 appeal should be taken, considered. — Com. 
 Pleas, June, 1878. Giraudat v. Korn, 8 Daly 
 406. 
 
 111. Security. Undertaking. The de- 
 fendants, pending the appeal, deposited, under 
 stipulation, bonds to an amount less than that 
 specified by the code as security in such cases. 
 Seld, that they thereby waived all right to the 
 exercise of the discretion of the court, in limit- 
 ing or reducing the amount of security. — Superior 
 Cl., May, 1879. Jesup v. Carnegie, 45 Superior 
 310. 
 
 112. The judge to whom the undertaking is 
 submitted for approval, is vested with entire 
 discretion as to the sufficiency of the sureties. 
 Undertaking with one surety only, rejected. — 
 Supreme a., {Isl Dept. Sp. T.,) April, 1879. 
 Delamater v. Byrne, 57 How. Pr. 170. 
 
 113. Necessity of a case. Where the 
 printed papers contain the judgment roll and 
 "exceptions, the appeal will not be dismissed for 
 want of a case. But on such an appeal the pro- 
 priety of granting costs, in an equity action tried 
 before a referee, will not be reviewed. — Supreme 
 Gt., {3d Dept.,) Nov., 1878. Palmer v. Rankin, 
 56 How. Pr. 354. 
 
 114. Settlement and service of case. 
 
 The settlement of a case is left very much to the 
 discretion of the judge who presides at the trial ; 
 and where he allows an amendment striking 
 out an exception, by doing which appellant's 
 case is destroyed, the cause will be stricken 
 from the appeal docket, and judgment rendered 
 in respondent's favor, for want of service of a 
 case.— -Stipe7-ior Ot., Jan., 1878. Canzi v. Conner, 
 4 Abb. N. Cas. 148. 
 
 115. As to the time within which a case on 
 appeal must be served, under Code of Civ. Pro., 
 M 997, 998, and when it begins to run, see 
 French v. Powers, 58 How. Pr. 389. 
 
 116. "When case should contain the 
 evidence. Code of Civ. Pro., g 999, leaves it 
 to the discretion of the trial justice to decide 
 whether or not he will entertain a motion, upon 
 his minutes, to set aside a verdict as against the 
 weight of evidence. Where such a motion is 
 entertained and denied, it cannot be reviewed 
 at General. Term, unless the case states that it 
 contains all the evidence bearing upon the 
 question. — Supreme Ot., {4th Dept.,) Jan., 1879. 
 Cheney v. New York Central B. K. Co., 16 
 Hun 415. 
 
 117. Discontinuing an appeal. Where, 
 on an ex parte application, an order is made dis- 
 continuing an appeal, upon an affidavit which 
 omits to state that no other application for the 
 same order has been made, as required by rule 
 25, such order will be vacated, on motion there- 
 for, on that ground. — Supreme Ot., {1st D^t.,) 
 May, 1879. Gouraud v. Trust, 17 Hun 578. 
 
 118. The hearing. 'What papers may 
 be examined. On appeal from a Special 
 Term order, the consideration of the General 
 Term must be confined to the papers which the 
 order states were read on the motion. If papers 
 not recited in the order were read, the defend- 
 ant should have applied to the court to have 
 the order amended in that respect before appeal- 
 ing. — Superior Ot., Jan., 1878. Smith v. Smith, 
 43 Superior 140. 
 
 119. Affidavits, made after the making of a 
 Special Term order, cannot be read at the 
 General Term, even where all the parties to 
 the appeal consent. — Supreme Ct., (4iA Dept.,) 
 Jan., 1878. Thompson v. Taylor, 13 Hun 201. 
 
 120. WTiat questions are before the 
 court. The question whether or not a verdict 
 is against the weight of evidence, or not sup- 
 ported by sufficient evidence, can only he raised 
 by appeal from an order denying a motion for 
 a new trial, on the minutes. Such question 
 does not arise on appeal from the judgment 
 entered on the verdict. — Com. Pleas, Jan., 1878. 
 Wagner v. Jones, 7 Daly, 375. 
 
 121. An appeal from a final judgment does 
 not bring up for review, under Code of Civ. Pro. 
 § 1316, an intermediate order separately ap- 
 pealed from, and affirmed by default, by the 
 court, or term of the court to which the appeal 
 from the judgment is taken. — Com. Pleas., Feb., 
 1878. A'V'iener v. Morange, 7 Daly, 446. 
 
 122. An order directing the severance of an 
 action is reviewable upon its merits, on appeal. 
 —Supreme a., {4th Dept.,) Oct., 1879. . Hill v. 
 Alvord, 19 Hun 77. 
 
 123. In what eases the General Term will 
 consider an error committed upon the trial, to 
 which an exception was duly taken, though not 
 argued on appeal, considered. — Supreme Gt., {5d 
 Dept.,) Jan., 1880. Schoomaker v. Wolford, 20 
 Hun 166 ' 
 
APPEAL, II. 
 
 19 
 
 124. Revie-wlng the evidenoe or the 
 facts. On appeal from an order denying an 
 application for a new trial on the minutes, and 
 from the judgment, the General Term may 
 review and set aside a verdict, which, upon due 
 •examination, appears to have been influenced 
 by passion or prejudice, or which is clearly 
 sigainst the weight of evidence. — Com. Pleas, 
 Nov., 1879. Hynes v. McDermott, 7 Abb. N. 
 •Cas. 98, 108. 
 
 125. Upon appeal from a judgment entered 
 upon the report of a referee, or the decision of 
 a single judge, the General Term should 
 examine the evidence, when so requested, 
 ■whether exceptions were taken to findings of 
 fact or not. — Com. Pleas, Dec, 1878. Robertson 
 «. Stillings, 8 Daly 153. Compare Schintzer v. 
 Adelson, Id. 269. 
 
 126. The rule that where there is conflicting 
 •evidence, or any evidence to sustain a finding, 
 it is error to reverse, has no application where 
 the appellate court has power to review the facts. 
 In such case, while proper allowance should be 
 made for, the judgment of the trial court, it is 
 not controlling, and the appellate court must 
 assume the responsibility of determining the 
 facts from the evidence.— Ci!. of App., Nov., 1878. 
 Moran v. McLarty, 75 N. Y. 25. 
 
 127'. In an action to reform an assignment of 
 a mortgage by striking out a guaranty of pay- 
 ment contained therein, plaintiflf's evidence was 
 *o the effect that no guaranty was contemplated 
 by the parties, and nothing was ever said to him 
 about guaranteeing. Two witnesses for defend- 
 ant, however, testified that plaintiff positively 
 agreed to guarantee, immediately before the 
 assignment was drawn, and that the form of the 
 assignment was dictated in his presence. 
 Plaintiff testified that he partially read over the 
 instrument and had full opportunity to examine 
 it, but failed to notice the guaranty. Held, that 
 no case was made out authorizing a reformation, 
 and that a judgment of Special Term in favor 
 of plaintiff was properly reversed by the 
 General Term. JJ ; affirming S. C, 11 Hun 66. 
 
 128. AUo'wing' amendments. In a suit 
 upon apromissory note made and delivered to one 
 W., the complaint alleged her death,the admission 
 of her will to probate, and the issue of letters 
 testamentary to the plaintiff as sole executor. 
 The answer denied the appointment of plaintiff 
 as executor and the issue of the letters to him. 
 It appeared on the trial that no executor had 
 been named in the will, and that letters of 
 administration with the will annexed had been 
 granted to the plaintiff and one A. 
 
 Held, 1. That the error in the description of 
 plaintiff's representative character was amend- 
 :able, either before or after judgment, and that 
 such amendment should be allowed by the 
 ■General Term. 
 
 2. That the defect of parties plaintiff arising 
 from plaintiff's omission to join his co-adminis- 
 tratrix, was waived by failure of defendant to 
 plead it. — Supreme Ct., (4th Dept.,) Jan., 1878. 
 Risley v. Wightman, 13 Hun 163. 
 
 129. Re-aygument. When the former 
 decision is based in part on a decided case, 
 which has subsequently been reversed by the 
 Court of Appeals, a re-argument will be ordered. 
 —Superior Ct., March, 1879. Freeman v. Fal- 
 coner, 44 Superior 579. 
 
 130. 'When an aflarmance is proper. 
 .Judgment was entered upon a decision of the 
 
 General Term, allowing plaintiff to redeem a 
 certain contract, upon payment of $15,000, 
 within sixty days from the entry of such judg- 
 ment, with interest, &o. Subsequently, upon 
 plaintiff's application, an order was made at 
 Special Term staying all proceedings on the 
 part of defendants under the judgment until the 
 hearing and decision by the Court of Appeals 
 of an appeal by plaintiff, and extending the 
 time to redeem until sixty days after such 
 decision of the Court of Appeals. Held, that 
 the Special Term had power to make it, and 
 that it should be affirmed. — Supreme Ct., {1st 
 Dept.,) April, 1878. Gray v. Green, 14 Hun 18. 
 
 131. AfBrmance after dismissal. Where 
 an appeal has been dismissed on the consent of 
 the only appellant, no other party to the action 
 has a right to afterwards move the General 
 Term for an affirmance of the order or judg- 
 ment appealed from. The party or parties 
 appellant are the only parties who can move the 
 court in favor of the appeal. — Superior Ct., 
 June, 1877. Struppman v. MuUer, 43 Superior 
 38 ; S. C, 55 How. Pr. •427. 
 
 132. What errors are ground for 
 reversal. In what cases the General Term 
 will reverse the finding of a referee, as being 
 without evidence, or against the weight of 
 evidence, see Eoosa v. Smith, 17 Hun 138. 
 
 133. The failure to except to a direction of 
 verdict for plaintiff on the court's own motion, 
 does not affect defendant's right to a new trial, 
 if his motion to dismiss was well founded. 
 This, although the case comes before the 
 General Term upon exceptions so ordered to 
 be heard on the court's own motion. — Superior 
 Ct., March, 1879. Durant v. Abendroth, 44 
 Superior 463. 
 
 134. Errors not objected to below. 
 The General Term cannot sustain a judgment 
 dismissing the complaint on the ground that the 
 cause of action was equitable, not legal, where 
 the point was not raised below, and where the 
 relief of plaintiff, if he succeeded, would be 
 the same in either case. — Ct. of App., June, 
 1877. Williams v. Slote, 70 N..Y. 601. 
 
 135. Necessity of motion for nevr 
 trial below. Where, on appeal in an equity 
 case, it appears that specific questions of fact 
 were submitted to a jury, under the direction 
 of the court, and no motion for a new trial was 
 made upon the judge's minutes, or at Special 
 Term upon a case and exceptions, the appellant 
 will be deemed to have acquiesced in the ver- 
 dict, and the questions of fact involved cannot 
 be reviewed on appeal. — Supreme Ct., (3d Dept.,) 
 Nov., 1878. -Ward v. Warren, 15 Hun 600. 
 
 136. The appellate judgment, and 
 its effect. It is within the discretion of the 
 General Term, upon the reversal of an order 
 modifying an assessment for a local improve- 
 ment, whether to grant a new trial, or to direct 
 a dismissal of the petition, and award judgment 
 absolute against the petitioner. — Ct. of App., 
 June, 1878. Matter of Mead, 74 N. Y. 216. 
 
 137. Where there has been a series of orders 
 connected with the same matter, so that if one 
 is erroneous all are, upon appeal from one the 
 General Term is authorized to reverse the whole, 
 so as to leave the records of the court clear and 
 consistent. The provision of the new code (? 
 1317), in reference to, and so far as it affects, 
 this point, does not differ from the old (? 330.) 
 The General Term, however, in such case, can 
 
20 
 
 APPEAL, ir. 
 
 only grant costs of one motion, and on appeal 
 from one order. — Ct. of App., Jan., 1879. Stan- 
 ton V. King, 76 N. Y. 585. 
 
 138. Where, in an order of General Term, 
 reversing a judgment entered upon a decision 
 of the court on trial without a jury, it is not 
 stated that the reversal was upon questions of 
 fact, the reversal, to be sustained in the Court of 
 Appeals, must be justified by some error of law; 
 the opinion cannot be looked to to ascertain tlie 
 ground of the reversal ; if upon the facts, it 
 must appear in the body of the order. (New 
 Code, i 1338.)— a. of App., Feb., 1879. Van 
 Tassel v. Wood, 76 N. Y. 614; S. P., Nov., 
 1879 ; Marshall v. Davies, 58 How. Pr. 231, 234. 
 
 139. An order of the General Term, revers- 
 ing a judgment entered upon a referee's report, 
 and granting a new trial, does not, of itself, 
 vacate the order of reference. That can only be 
 done by an express direction entered in the 
 order of reversal, or by an order made at 
 Special Term. — Supreme Gt., {1st Dipt.,) Dec., 
 1879. Catlin v. Adirondack Co., 19 Hun 389. 
 
 140. The necessary concurrence of 
 the justices. A decision of the General Term 
 of the Supreme Court, to be valid, must be con- 
 curred in by ajt lea^t two justices. Where two 
 only are present at a decision, a judgment in 
 the caae to which one of them dissents is not 
 made effective by his assent to the entry thereof. 
 —Gl. of App., Oct., 1879. Matter of Kings 
 County Elevated K. K. Co., 78 N. Y. 383. 
 
 141. A motion to conform the report of rail- 
 road commissioners was heard at a General 
 Term of the Supreme Court, three justices 
 being present ; no decision was then made, and 
 the General Term was adjourned to a subse- 
 quent day; on that day one of the justices was 
 not present. One of those present read an 
 opinion in favor of confirming the report, from 
 which the other dissented. The absent justice 
 had sent to the Chief Justice a statement, in 
 writing, that the report should be confirmed; 
 there was no written concurrence by him in the 
 opinion, and no personal consultation had been 
 had between him and either of the other justices, 
 A memorandum was filed, the same as if all 
 three of the justices were present, stating that 
 the report of the commissioners was confirmed. 
 Hdd, that an order of confirmation entered 
 thereon was unauthorized, and that a refusal of 
 the General Term to vacate the same, on motion, 
 was error. Ih. 
 
 142. Modifying the judgment ap- 
 pealed from. Under Code of Civ. Pro., g 
 1317, the General Term has no power to reduce 
 the damages awarded by a jury in an action for 
 malicious prosecution, but must either reverse 
 oraffirmthe judgment.— -Supreme Ct., (IstDept.,) 
 March, 1879. Thaule v. Krekeler, 17 Hun 338. 
 . 143. When, in an action upon contract, a, 
 recovery has been had upon distinct and sepa- 
 rate items and claims, and error, either of ract 
 or law, has been committed on the trial in re- 
 spect to one or more of the claims embraced in 
 the recovery, the General Term, if no other 
 error exists, may, instead of reversing the judg- 
 ment absolutely, reverse it only as to the errone- 
 ous items, and aflSrm it as to the residue, pro- 
 vided the plaintiff' consents to forego his claim 
 to recover them, and the items as to which the 
 error exists are separable and distinguishable 
 from the others. — Ot. of App., May, 1877. 
 Whitehead v. Kennedy, 69 N. Y. 462, 468. 
 
 144. But the provision of Code of Pro., 
 2 330, authorizing the appellate court, on appeal 
 from a judgment, to reverse, affirm or modify th& 
 judgment, does not authorize the General Term,, 
 where it has decided that a judgment in favor 
 of plaintiff, in an action upon a contract for 
 services, or upon a quantum meruit, is erroneous^ 
 to determine, upon the examination of conflict- 
 ing evidence, what sum plaintiff ought to re- 
 cover, and render judgment therefor; it should, 
 in such cases, award a new trial. lb.; reversing 
 7 Hun 230. 
 
 145. The Supreme Court, whether sitting in 
 General or Special Term, is one court ; the 
 General Term has the records of the court be- 
 fpre it, the same as the Special Term ; and, after 
 entry of judgment upon its decision, has power 
 to correct, amend or modify the judgment so as 
 to give true expression to its decision. The 
 distinction between the jurisdiction of the Court 
 of Appeals and the General Term of the Stipreme 
 Court in this particular, pointed out. — Qt. of App., 
 Dec., 1878. Salmon v. Gedney, 75 N. Y. 479'. 
 
 146. Ordering new trial on reversal. 
 The General Term cannot order a new trial on 
 reversing a case which comes before it on appeal 
 from the judgment on exceptions only. — CS. of 
 App., Nov., 1879. Marshall v. Davies, 58 How. 
 Pr. 231, 234. 
 
 147. Where the allegations of the complaint 
 are put at issue by the answer, and, upon the 
 trial, are found in favor of plaintiff", but judg- 
 ment is rendered thereon in favor of defendant, 
 it is error for the General Term, upon reversal 
 of the judgment, to direct judgment for plaintiff'; 
 a new trial should be ordered. Defendant, 
 having obtained judgment, is not called upon to 
 except to the findings, or to insert the evidence 
 in the case to show that they were controverted. 
 —a. of App., Dec., 1878. Ehrichs v. De Mill, 
 75 N. Y. 370. 
 
 148. Defendant's answer put in issue most 
 of the material allegations of the complaint. 
 Upon reversal of judgment in his favor, the 
 General Term directed judgment absolute for 
 plaintiff's. Held, error ; that a new trial should 
 have been granted.^Ci. of App., June, 1879. 
 FoxB. Kidd,-77 K Y. 489. 
 
 149. Rendering judgment ■which 
 should have been rendered below. 
 When the General Term, on appeal from an 
 order of the Special Term, may make such 
 order as should have been made below, see 
 Griffin V. Helmbold, 72 N. Y. 437. 
 
 150. Effect of the appeal while pend- 
 ing An appeal from a judgment, restraining 
 action on the part of defendant, and a stay of 
 proceedings thereon, does not aff'ect the validity 
 or eff'ect of the judgment pending the appeal, 
 defendant is not absolved from the duty of 
 obedience to it, or permitted to do that which- 
 the judgment absolutely prohibits. The judg- 
 ment, so far as it enjoins the defendant, needs 
 no execution; it acts directly without process, 
 and the stay only operates to prevent action on. 
 the part of plaintiff".- Ct. of App., Dec., 1877. 
 Sixth Ave. E. E. Co. v. Gilbert Elevated K. E. 
 Co., 71 N. Y. 430. 
 
 151. That the Supreme Court, so long as an 
 action is pending therein on appeal from the- 
 Special to the General Term, has power' to 
 enforce obedience to itsjudgments, andthatastay 
 of proceedings pending the appeal does not pre- 
 vent the exercise of this power, see lb. 
 
APPEAL, III. 
 
 21 
 
 152. Effect of the pendency of an appeal, 
 upon the power of the Special Term to punish 
 disobedience to an injunction issued in the case, 
 ty proceedings in contempt. — Supreme Ct., (Si 
 Dept. Sp. T.,) Troy & Boston E. R. Co. v. 
 Boston, &c.,Ey. Co., 57 How. Pr. 181. 
 
 III. Appeal to the Cotjbt op Appeam. 
 1. When an appeal will lie. 
 
 153. Jurisdiction as dependent upon 
 the amount in controversy. Appeal to 
 the Court of Appeals is not proper in action tried 
 'by jury, where the facts were before General 
 Term, or where the judgment of General Term 
 reverses judgment for less than $500. — Ct. of 
 App., Sept., 1877. Wagner v. Long Island E. 
 E. Co., 70 N. Y. 614. 
 
 154. An action to vacate and set aside an 
 assessment, which is an apparent lien upon real 
 property, is not an action " affecting the title to 
 real property or an interest therein," within the 
 meaning of Laws, 1874, ch. 322, limiting 
 a.ppeals; and where the subject in controversy 
 in such an action is less than $500 it is not 
 appealable. To take a case out of the limita- 
 tion it is not sufficient that the action relates to 
 real property or in some way affects it ; it must 
 itself affect the title or an interest therein, — Gt. 
 of App., May, 1878. Nichols v. Voorhis, 74 N. 
 Y.28,-S. C, 9Hunl71. 
 
 155. In an action to compel defendant to 
 anite with his co-trustee, in paying to plaintiff a 
 «um alleged to he in their hands, as income of 
 the trust estate to which she was entitled, the 
 amount claimed was less than $500. Defendant 
 demurred to the complaint, and upon an order 
 sustaining the demurrer a judgment was entered 
 in favor of defendant. Held, that the case was 
 aot appealable to the Court of Appeals. — Ot. of 
 App., June, 1878. Burleigh v. Centei', 74N.Y. 608. 
 
 156. Ascertaininjg' the amount in con- 
 troversy. The question as to the appealability 
 •of a judgment under the amendment of 1874, 
 >to section 11 of the code (Laws of 1874, ch. 
 522,) is determined by the amount in contro- 
 versy at General Term. Although, therefore, 
 the matters in issue on trial exceed $500, and 
 the judgment is for more than that sum, if the 
 ■only controversy at General Term is as to an 
 item less than that sum, the judgment is not 
 appealable. — Ot. of App., Jan., 1878. Brown ji. 
 Sigoumey, 72 N. Y. 122. 
 
 157. In determining whether plaintiff's de- 
 mand amounts to $500, so as to authorize an 
 appeal by him to the Court of Appeals, under 
 New Code, § 191, subd. 3, the amount of that 
 demand at the time of the commencement of 
 the action must govern ; interest subsequently 
 accruing cannot be considered, although the 
 ■case is one where allowance of interest to the 
 otirae'of the trial is the ordinary incident of a 
 recovery. — Gt., of App., Nov., 1878. Josuez v. 
 -Conner, 75 N. Y. 156. 
 
 158. Plaintiff commenced her action Feb- 
 ruary 17th, 1877, against defendant, a sheriff, for 
 an alleged false return ; she asked judgment for 
 -$414.30, with interest from January 15th, 1875. 
 Judgment dismissing the complaint was entered 
 ■October 25th, 1877, and an appeal to the General 
 Term taken December 3d, 1877 ; adding interest 
 ■on the amount claimed up to this time it would 
 not amount to $500. Held, that in the absence 
 of an order of the General Term allowing an 
 
 appeal, its judgment affirming the judgment 
 below, was not appealable. lb. 
 
 159. In an action to' foreclose a mortgage of 
 $1100, the only question in controversy was as 
 to the priority of the liens of the mortgage and 
 a judgment against the mortgagor, held by one 
 of the defendants, upon which less than $300 
 was due. Upon appeal to this court. — Held, 
 that the amount in controversy was the amount 
 due on the judgment, and that, as this was less 
 than $500, the judgment below was not appeal- 
 able.— C*. of App., Oct., 1877. Petrie v. Adams, 
 71 N. Y. 79. 
 
 160. Leave to appeal. To authorize an 
 appeal to this court in a case where the judg- 
 ment is less than $500, there must be an order 
 of General Term, as prescribed by the act of 
 1874 (Laws of 1874, ch. 322,) stating_ that the 
 case involves some question of law which ought 
 to be reviewed here. An order simply giving 
 leave to appeal, without assigning any cause for 
 so doing, is insufficient. — Gt. of App., Jan., 1878. 
 Bastable v. City of Syracuse 72 N. Y. 64. 
 
 161. That in an action for assault and battery, 
 wherein the recovery is less than $500, no 
 appeal lies to the Court of Appeals, notwith- 
 standing title to an easement in real property 
 comes in question, without an order of the 
 General Term allowing the appeal, see McMil- 
 len V. Cronin, 57 How. Pr. 53. 
 
 162. Before an action of trespass can be said 
 to affect the title to real estate, within the 
 meaning of the provision of the Code of Pro- 
 cedure {§ 11, as amended by Laws of 1874, 
 ch. 322,) limiting appeals to this court, the 
 issues, trial and judgment must be such as to 
 determine or establish the title in favor of one 
 party or the other. — Gt. of App., April, 1879. 
 Scully V. Sanders, 77 N. Y. 598. 
 
 163. What orders are appealable 
 generally. A Special Term order granting 
 an examination of defendant for the purpose of 
 enabling plaintiff to make and serve his com- 
 plaint, is appealable to the Court of Appeals, 
 becjyise the court has no power to grant such 
 an order. Code of Civ. Pro., §§ 872, 873, pro- 
 vides that such an application shall be made to 
 a judge. — Ot. of App., May, 1879. Heishon v. 
 Knickerbocker Life Ins. Co., 77 N. Y. 278. 
 
 164. An order of the County Court, under 
 the drainage act (Laws of 1869, ch. 888, as 
 amended by Laws of 1871, ch. 303,) auditing 
 and confirming the accounts of commissioneis 
 appointed under said act, is appealable to the 
 General Term upon questions of law. The 
 provision of said act (| 12,) making the deci- 
 sion of the County Court final, only applies to 
 and makes the order final upon matters of fact. 
 Such an order is a final order in a special pio- 
 ceeding, affecting a substantial right, and so is 
 reviewable in the Court of Appeals. — Ot. of 
 App., Jan., 1878. Matter of Kyers, 72 N. Y. 1. 
 
 165. What are not appealable. Where, 
 upon appeal from an order of General Term 
 affirming an order of Special Terra denying 
 a motion to vacate an order for the service of a 
 summons by publication, and the judgment 
 entered thereon, the papers contained in the 
 printed record show a case authorizing the 
 granting of the order of publication, the order 
 denying the motion is not reviewable in the 
 Court of Appeals. — Ct. of App., May, 1878. 
 Howe Machine Co. v. Pettibone, 74 N. Y. 63 ; 
 S. C. 12 Hun 657. 
 
22 
 
 APPEAL, III. 
 
 166. Where an order of Special Term, 
 quashing a return to a writ of alternative man- 
 damus and directing a peremptory mandamiis, 
 ia reversed by the General Term, with liberty to 
 the relator to demur or to take issue upon the 
 allegations of the return, the order of General 
 Term is not appealable to the Court of Appeals ; 
 it is not a final order, nor does it affect a sub- 
 stantial right, and it is a matter of discretion. — 
 Ct. of App., May, 1877. People, ex rel. Loril- 
 lard, V. Clyde, 69 N. Y. 603. 
 
 167. An order of General Term directed T., 
 chamberlain of the city of New York, to pay 
 over to the petitioner her proportion of so 
 much of a fund deposited with L., late cham- 
 berlain, as came to the hands of T., and directed 
 a reference to take proof of the facts relating to 
 the manner in which L. had invested the fund, 
 and his disposition thereof, etc. The grder 
 provided that upon proofe the petitioner might 
 apply for relief, reserving all questions until 
 such application. L. appealed from the order 
 so fer as it affected him. Held, that the court 
 had power to make the order; and that those 
 portions appealed from were simply interlocu- 
 tory, affecting no substantial rights, and were not 
 appealable. — Ct.ofApp., Oct., 1878. Chesterman 
 V. Eyland, 74 N. Y. 452. 
 
 168. An order of Special Term setting aside 
 a judicial sale, on the ground of fraud, is re- 
 viewable at General Term, but, as a general 
 rule, where only the rights of the parties to the 
 action are involved, no appeal lies to this 
 court.— 01;. of App., Oct., 1879. Fisher v. 
 Hersey, 78 N. Y. 387. 
 
 169. A cause was moved for trial at Circuit ; 
 by direction of the court, it was placed on the 
 Special Term calendar. Tlie Special Term 
 ordered additional parties to be brought in as 
 parties defendant. On appeal from such order, 
 the General Term reversed it, and directed the 
 cause to be placed' on the Circuit calendar for 
 trial. Seld, that the General Term order was 
 not appealable; that any question as to the 
 
 ' mode of trial, or as to parties, could and should 
 be raised upon trial, and an exception taken, to 
 be heard on appeal from judgment. — Ct. of 
 App., Nov., 1879. Kellum v. Durfoo, 78 N. Y. 484. 
 
 IVO. Instances. The following orders have 
 been held not reviewable in tlie Court of Appeals : 
 
 An order of the General Term, reversing a 
 judgment entered upon a decision of the court 
 on trial without a jury, which order does not 
 direct a new trial, and upon which no judgment 
 has been entered. Kust v. Hauselt, 69 N. Y. 435. 
 
 An order granting an attachment, unless it 
 presents a question of law, or of absolute legal 
 right. Allen v. Meyer, 73 N. Y. 1. 
 
 A.n order setting aside and vacating an at- 
 tachment. Claflin V. Baere, 59 How. Pr. 20. 
 
 Unless the order itself shows that it was 
 vacated for want of power. Allen v. Meyer, 73 
 N. Y. 1. 
 
 An order refusing to vacate an attachment. 
 Whitaker v. Imperial Skirt Manufacturing Co., 
 78 N. Y. 621. 
 
 An order of the General Term on mere ques- 
 tions of practice. Tyng v. Halstead, 74 N. Y. 
 604 ; Kellum v. Durfoo, 78 N. Y. 484. 
 
 An order overruling a reply to a counter- 
 claim, as frivolous, will leave to plaintiff to 
 reply anew, and, in case of failure so to do, 
 directing judgment for defendant. Jones v. 
 Ludlum, 74 N. Y. 61. 
 
 An order aenying a motion to set aside a judg- 
 ment of foreclosure and sale because of non-: 
 joinder of a party defendant. Tucker v. Leland,. 
 75 N. Y. 186. 
 
 An order denying a motion to set aside a 
 judgment for deficiency in a foreclosure suit,, 
 where the motion is based upon the fact that, by 
 a clerical error, the name of the^defendant 
 against whom such judgmei^ is rendered, was 
 omitted from the prayer for judgment for defi- 
 ciency, in the copy of the complaint attached t(v 
 the judgment roll. lb. 
 
 An order refusing to change place of trial .. 
 Abrahams v. Benson, 76 N. Y. 629. 
 
 An order directing judgment upon a pleading^ 
 as frivolous. A frivolous pleading is not 
 stricken out, but remains upon the record, and 
 becomes part of the judgment roll; and an- 
 order directing judgment thereon is only re- 
 viewable here upon appeal from the judgment. 
 Commercial Bank of Kochester v. Spencer, 76 N> 
 Y. 155. 
 
 An order denying a motion for leave to serve- 
 an amended complaint. Quimby v. Claflin, 77 
 N. Y. 270. 
 
 An order denying a motion to vacate a judg- 
 ment for deficiency in a foreclosure suit, on the- 
 ground that the report of the referee who. made- 
 the sale was not confirmed, and no a^pplicatiora 
 for a personal judgment against defend!ant made^ 
 Moore v. Shaw, 77 N. Y. 512. 
 
 An order of the General Term, reversing an 
 order of the Special Term, confirming the report 
 of a referee awarding surplus moneys in fore- 
 closure, and directing that the case be referred 
 to the referee to report as to priority of liens. 
 But if such order imposes costs of the appeal 
 upon the appellant, absolutely and not condi- 
 tionally, it is in that respect a final determina- 
 tion from which an appeal can be taken. Ber- 
 gen V. Snediker, 8 Abb. N. Cas., 50. 
 
 An order vacating and setting aside an ex 
 parte order discharging an assignee for the bene- 
 fit of creditors, and his sureties, from all liability 
 to the creditors, and canceling his bond. Matter 
 ofHorsfalls, 77]Sr. Y. 514. 
 
 171. Orders on demurrer. An order sus- 
 taining a demurrer to a complaint, with costs,, 
 and dismissing the complaint unless plaintiff 
 amends and pays costs within a specified time, 
 cannot be reviewed in the Court of Appeals 
 until after final judgment has been entered dis- 
 missing the complaint, and only on appeal from 
 the judgment. — Ot. of App., June, 1878. Elwell 
 V. Johnson, 74 N. Y. 80. 
 
 172. An order of aflirmance by the General 
 Term recited such an order as entered June 6th,. 
 1874, giving plaintiff twenty days to amend ;. 
 also, that judgment was entered for costs June- 
 13th, 1874 ; no judgment roll was contained in the 
 case, and that a judgment was entered only ap- 
 peared from the recital. Held, that this did not 
 show a final judgment on the demurrer, as it 
 could not be a judgment dismissing the com- 
 plaint, it having been entered before the expira- 
 tion of the twenty days ; and that the order of 
 General Term was not appealable. lb. 
 
 173. Orders granting or refusing a, 
 ne^w trial. The Court of Appeals has no power 
 to review an order refusing to set aside, as exces- 
 sive, a verdict in an action for slander. — Ct. of 
 App., Feb., 1878. Hayes v. Ball, 72 N. Y. 418, 424. 
 
 174. An appeal to the Court of Appeals from 
 an order of General Term, granting a new trials 
 
APPEAL, III. 
 
 23 
 
 in a case tried by a jury, will not be entertained 
 if any material and controverted question of fact 
 was iuTolved, and tbe General Term mi^ht 
 have granted the new trial upon such question 
 of fact.— Ct. of App., March, 1878. Bfarris v. 
 Burdett, 73 N. Y. 136 ; affirming 43 Superior 60 ; 
 S. P., Snebley v. Ctonner, 78 N. Y. 218. 
 
 ITo. The appealability of the order does not 
 depend upon the question whether the new trial 
 was or was not actually granted upon questions 
 of fact. It would not be appealable, although it 
 should conclusively appear that the decision was 
 based upon questions of law only, Harris v. 
 Burdett, supra. 
 
 176. This, however, cannot be made con- 
 dusively to appear, as the opinion of the court 
 below win not be regarded as conclusive, and 
 tlTere is no authority for inserting in the order 
 the ground of reversal. lb. 
 
 177. Where exceptions have been taken, and 
 a motion for a new trial has also been made upon 
 the minutes or at Special Term, the unsuccess- 
 ful party may waive any further review upon 
 the facts, and appeal to the General Term from 
 the judgment ; and this appeal will bring up the 
 exceptions only. Or, where an appeal is taken 
 from the order refusing a new trial, as well as 
 from the judgment, the General Term may re- 
 verse the judgment upon the exceptions, and at 
 the same time affirm the order refusing a new 
 trial upon the facts. In either of the cases sup- 
 posed, the order of the General Term is appeal- 
 able. But in no others will such an appeal lie 
 where the trial has been by jury, if controverted 
 and material questions of fact are involved, and 
 a motion for a new trial has been made on the 
 evidence, lb. 
 
 178. An order denying a motion to set 
 aside a verdict and for a new trial, because of the 
 alleged misconduct of a jury, is not reviewable 
 in the Court of Appeals. The provisions of the 
 new code as to the jurisdiction of this court in 
 such a case are not materially different from the 
 old.— Ci. of App., Jan., 1879. Gale v. New York 
 Central, &c., K. E. Co., 76 N.Y. 594. 
 
 179. Orders in proceedings for con- 
 tempt. An order of General Term vacating 
 an order requiring a party to show cause upon 
 short notice, why he should not be punished for 
 contempt, in violating an injunction awarded by 
 iinal judgment, is not appealable to the Court of 
 Appeals.— Ci. of App., Dec., 1877. Sixth Ave. E. 
 E. Co. V. GUbert Elevated E. E. Co., 71 N. Y. 430. 
 
 180. To proceed upon an order at short 
 notice, instead of upon a notice for the usual and 
 regular term, is not an absolute right. It is in 
 the discretion of the judge at chambers to grant 
 the order to show cause, and within the discre- 
 tion of the General Term to vacate it and remit 
 the moving party to the usual course of proceed- 
 ing, and their action in this respect is not review- 
 able here. lb. 
 
 181. An order refusing to punish an alleged 
 contempt in disobeying an injunction, is not 
 appealable to the Court of Appeals. — Cl. of App., 
 Dec, 1878. Simmonds t). Simmonds, 75 N.Y. 612. 
 
 182. Orders in relation to costs, 
 allowances, &c. In an action against hus- 
 band and representatives of deceased wife, the 
 complaint was dismissed as to the husband, with- 
 out costs. On appeal by him from that portion 
 of the judgment denying costs, the General Term 
 affirmed the judgment charging him with costs. 
 Held, that costs were in the discretion of the 
 
 court below, and its decision was not reviewable 
 here. — Q. of App., Nov., 1877. Herrington v. 
 Eobertson, 71 N. Y. 280. 
 
 183. In an action to obtain the construction 
 of a will, the allowance of costs is in the discre- 
 tion of the court below, and its determination is 
 not reviewable in the Court of Appeals. — Cl. of 
 App., June, 1877. Provost v. Provost, 70 N. Y. 
 141, 146. 
 
 184. Where the amount of an extra allow- 
 ance is, by inadvertence, slightly in excess of the 
 amount allowed by Code of Pro., ^ 309, the 
 Court of Appeals will not interfere on appeal ; 
 the error should be corrected by motion to cor- 
 rect the judgment. — Ct. of App., Jan., 1878. 
 Kraushaar v. Meyer, 72 N. Y. 602. 
 
 185. Plaintiff was nonsuited; on appeal a 
 new trial was granted, costs to abide event. On 
 the second trial defendant had a verdict, and the 
 clerk taxed costs of appeal in his favor. On 
 appeal from an order of General Term, affirming 
 an order of Special Term, directing a re-taxa- 
 tion and disallowing costs of appeal. — Hdd, that as 
 the appeal was from the construction by a General 
 Term of its own order, which was in accordance 
 with the construction of other similar orders, 
 such interpretation would not be interfered with 
 by this court.^d. of App.. Nov., 1879. Union 
 Trust Co. V. Whiton, 78 N. Y., 491. 
 
 186. Surrogate's orders and decrees. 
 Where an order of General Term reversing a 
 surrogate's decree granting an allowance, in a 
 case where the surrogate's court had power to 
 make the allowance, is silent as to the ground of 
 reversal, it may be assumed, in support of the 
 order, on appeal to this court, that the decree 
 was reversed upon the merits ; the opinion of 
 the General Term will not be resorted to for the 
 purpose of showing that the reversal was for a 
 supposed want of power in the surrogate's court 
 to give the allowance. Such order, therefore, is 
 not reviewable here. — Ct of App. Sept., 1877. 
 Noyes v. ChUdren's Aid Soc, 70 N. Y. 481 ; S. 
 C, 3 Abb. N. Cas., 36 ; 16 Alb. L. J. 224. _ 
 
 187. The Court of Appeals cannot review a 
 decision of the Supreme Court reversing, upon 
 a question of fact, a surrogate's decree on appli- 
 cation for the probate of a will. — Ct. of App., Feb., 
 1878. Sutton v. Eay, 72 K Y., 482. 
 
 188. The court may, however, on appeal 
 from the judgment of the Supreme Court, cor- 
 rect any error of law in granting or refusing a 
 new trial in such case. 2 Eev. Stat. 67, § 58. lb. 
 
 189. The only direction or order the Supreme 
 Court can make upon the reversal, is to award 
 an issue to be tried by a jury as directed by the 
 statute. 2 Eev. Stat. 66, § 65, et seq. ; Id. 609, 
 § 98. Accordingly — Held, that an order of the 
 Supreme Court upon reversal of a, surrogate's 
 decree on the facts, remitting the proceedings to 
 the surrogate, was error. lb. 
 
 190. From a surrogate's decree made in 1867, 
 on the accounting of an administrator, the latter 
 appealed; the petition of appeal specified cer- 
 tain portions of the decree as erroneous. The 
 General Term made an order in February, 1871, 
 which the contestant claimed reversed the whole 
 decree. The latter made a motion at General 
 Term, in June, 1878 : Ist. For leave to renew 
 a former motion. 2d. To amend or modify the 
 General Term order. This motion was denied. 
 Held, that the order was not reviewable here ; 
 that if the order of 1871 was erroneous and re- 
 viewable, an appeal should have been taken 
 
24 
 
 APPEAL, III. 
 
 therefrom; if irregular, the attention of the 
 court should sooner have been called to it ; _ but, 
 in any view, it was a matter within the discre- 
 tion of the Supreme Court. — Ot. of App., Nov., 
 1879. Bentley v. Waterman, 78 N. Y. 623. 
 
 191. Revie-wing discretionary action — 
 in respect to the pleadings. _ The exer- 
 cise of discretion by the court below in granting 
 or refusing leave to iile a supplemental pleading, 
 is not reviewable in the Court of Appeals. — Ct. 
 of App., Feb., 1878. Spears v. Mayor, &c., of 
 New York, 72 N". Y. 442. 
 
 192. — in respect to orders made after 
 judgment. The granting of an order opening 
 a judgment taken by defaillt is in the discretion 
 of the court below, and in the absence of evi- 
 dence of an abuse of this discretion such order 
 is not reviewable here. — Ot. of App., March, 1878. 
 Lawrence v. Farley, 73 N. Y. 187. 
 
 193. The fact that while the provision of the 
 new code (§ 190), in reference to appeals to this 
 court, expressly excludes from review orders 
 resting in discretion, made during the pendency 
 of an action, no such exclusion is expressed as 
 to such orders made after judgment, does not 
 make the latter appealable. lb. 
 
 194. The reason for not entertaining appeals 
 from orders resting in discretion is not founded 
 upon the express restrictions of the code, but 
 upon the character of the jurisdiction of this 
 court, which is coniined to the review of questions 
 of law, except where otherwise expressly author- 
 ized. Ih. 
 
 195. An appeal, however, Yrom an order made 
 after judgment, is expressly provided for by 
 section 1337, which declares in substance that 
 such appeals bring up for review only questions 
 not resting in discretion, lb. 
 
 196. Where a judgment creditor seeks by 
 motion to set aside a prior judgment on the 
 ground of fraud, it is within the discretion of 
 the Supreme Court, whether to determine the 
 matter on motion, or to require the creditor to 
 bring an action ; and from its determination no 
 appeal lies to the Court of Appeals. — Ct. of App., 
 Feb., 1879. Beards v. Wheeler, 76 N. Y. 213 : 
 S. C, 11 Hun 539. 
 
 197. Where a receiver has been appointed in 
 proceedings supplementary to execution insti- 
 
 ^tuted in favor of one judgment creditor in an 
 action brought by another judgment creditor to 
 
 . set aside such proceedings on the ground of col- 
 lusion, it is in the discretion of the court to 
 appoint another receiver, and to direct the first 
 receiver to hand over to him the property 
 received. An order, therefore, making such 
 appointment and giving such direction, is not 
 reviewable here. — Ct. of App., Nov., 1879. Con- 
 nolly V. Kretz, 78 N. Y. 620. 
 
 198. —in respect of amendments. 
 Amendment of complaint, after judgment and 
 satisfaction, by adding new cause of action, is in 
 the discretion of the court. — Ct. of App., Nov., 
 1879. Hatch v. Central Nat. Bank, 78 N. Y. 487. 
 
 199. Defendant's attorney having served an 
 offer of judgment signed by the attorney, but 
 with no affidavit showing his authority to make 
 it, and plaintiff, on the trial, having recovered 
 less than the amount named, said attorney moved 
 to be allowed to serve the affidavit nunc pro tunc, 
 and for an extra allowance. The motion was 
 denied. Held, that if such an amendment was 
 authorized it was in the discretion of the court, 
 and an order denying the application therefor. 
 
 was not reviewable here ; and that as the ques- 
 tion of costs could not arise until this relief was 
 obtained, the decision of the motion did not deter- 
 mine the right to costs, and so was not appealable 
 on that account.— C*. of App., Nov., 1879. Biggs 
 V. WaydeU, 78 N. Y. 586. 
 
 200. — ingrantingorvacatinginjunc- 
 tion or mandamus. The granting of the 
 writ of mandamus is, in general, discretionary; 
 and where it is so, the exercise of the discretion 
 by the Supreme Court is not reviewable in the 
 Court of Appeals. — Ct. of App., March, 1879.' 
 People, ex rel. FaUa v. Ferris, 76 N. Y. 326. 
 
 201. Although the granting or refusal of a 
 writ of mandamus is regarded as discretionary, 
 as distinguished from a writ of right, it is not 
 an absolute or arbitrary discretion, but is to be 
 exercised under, and may be regulated and con- 
 trolled by legal rules ; and the exercise of the 
 discretion is reviewable here. — Ot. of App., Sept., 
 1879. People, ex rel. Gaslight Co., v. Common 
 Council of Syracuse, 78 N. Y. 56. 
 
 202. Where the writ is refused, and it 
 appears that there js a clear legal right, and 
 that there is no other adequate remedy, the 
 order or judgmennt may be reversed. lb. 
 
 203. In an action by a taxpayer tarestrain 
 the collection of a tax for the payment of certain 
 bonds, issued by some of the defendants as com- 
 missioners of a town, to pay for railroad stock, a 
 preliminary order of injunction was vacated on 
 the grounds that plaintiff himself had taken 
 part in the issue of the bonds, that it did not 
 appear that the town desired to contest them, 
 and that the bondholders had no opportunity to 
 be heard. Held, that even if there was any 
 supposable case where the Court of Appeals 
 would review the discretion of the court oelow 
 in refusing or vacating a temporary order of 
 injunction, this was not one. — CS. of App., Jan., 
 1879. Young v. Campbell, 75 N. Y. 525. 
 
 204. — in special proceedings. Aboard 
 of assessors allowed to B., as owner, $1500 for dam- 
 age done by a street improvement. He claimed 
 the fund, on the ground that he was the owner at 
 the time the damage was done. He presented his 
 petition, asking for an order directing the fund to 
 be paid over to him. The court, upon a hearing of 
 the parties, directed a reference to ascertain their 
 respective rights. The referee reported in favor 
 of B. The court, on a hearing, on its own 
 motion dismissed the proceedings. B. appealed 
 to the General Term, and from an order of 
 affirmance appealed to the Court of Appeals. 
 Held, that it rested in the discretion of the court 
 below whether to dispose of the matter in a 
 summary way upon petition, or to put the parties 
 to an action, and that the order was not appeal- 
 able. — Ct. of App., June, 1878. Matter of Hatch, 
 74 N. Y. 611. 
 
 205. If the power to send back the report of 
 an actuary, in proceedings by the attorney- 
 general against a life insurance company, exists 
 in the court of original jurisdiction, it is a dis- 
 •cretionary one; and where the discretion has 
 been fairly exercised, the Court of Appeals can- 
 not review the order of the court below. — Ct. of 
 App., May, 1879. Attorney-General v. Atlantic 
 Mut. Life Ins. Co., 77 N. Y. 336. 
 
 206. The provision of the general railroad 
 act (Laws of 1850, ch. 140, ? 18,) making the 
 decision of the Supreme Court final in the mat- 
 ter of appraisal of lands taken for railroad 
 purposes by proceedings in invitum, was not 
 
APPEAL, III. 
 
 25 
 
 Abrogated by the provision of the act of 1854, 
 (Laws of 1854, oh. 270), "in relation to special 
 proceedings" authorizing an appeal from "a 
 final order affecting a substantial right made in 
 ■a special proceeding." This relates solely to the 
 ordinary special judicial proceedings under the 
 general provisions of law regulating the practice 
 of courts of justice. — Ct. o/ Am., April, 1877. 
 Matter of Delaware and Hudson Canal Co., 69 N. 
 Y. 209. 
 
 207. Miscellaneous oases. The follow- 
 ing matters, and orders, have been held discre- 
 tionary with the court below, and so not review- 
 able in the Court of Appeals : 
 
 Whether a referable action shall be referred or 
 not. Martin v. Windsor Hotel Co., 70 N. Y. 101. 
 
 The granting of the writ of mandamus to en- 
 force the right of a stockholder to examine the 
 transfer books of the corporation. Matter of 
 Sage V. Lake Shore, &o., Ey. Co., 70 N. Y. 220. 
 
 Whether or not to set aside a verdict as exces- 
 sive. Peck w. New York Central, &c., E. E. 
 Co.. 70 N. Y. 587, 592. 
 
 An order filing the compensation of a sheriff 
 " for his trouble and expense in taking possession 
 of and preserving" property attached, as pro- 
 vided for by section 243 of the code. German 
 Amer. Bank v. Morris Eun Coal Co., 74 N. Y. 
 58; S. C, 9 Hun 20.5. 
 
 The granting or denial of an application by a 
 receiver of the property of an attachment debtor, 
 to come in, in place of the defendant, to move to 
 set aside the attachment. Duidop v, Patterson 
 Fixe Ins. Co., 74 N. Y. 145. 
 
 The question whether there are any relations 
 between the referee in the case and the plaintiff, 
 or his assignor, which render it improper for the 
 referee to hear and decide the case, and call upon 
 the court to vacate the order of reference. Baird 
 ^. Mayor, &c, of New York, 74 N. Y. 382, 385. 
 
 An order setting aside a judgment taken by 
 default in a foreclosure suit, and a sale there- 
 under, and allowing a defendant to put in a de- 
 fence. Ailing V. Fahy, 70 N. Y. 571. 
 
 The question whether a re-sale shall be 
 ordered in a, foreclosure suit, and an order 
 •diiecting a re-sale. Goodell v. Harrington, 76 
 N.Y.547. 
 
 Whether to grant or withhold a common law 
 certiorari. People, ex rel. Hudson, v. Fire Com- 
 missioners of New York, 77 N. Y. 605 
 
 2. Procedure. 
 
 208. The time -within 'which an appeal 
 from a judgment of the General Term to the 
 Court of Appeals must be perfected, viz., one 
 year from the date of the entry of judgment 
 <Code of Civ. Pro., ? 1325,) is not extended by a 
 re-taxation of costs, which is not followed by any 
 modification of the judgment as previously 
 •entered. — CM. of App., Nov., 1878. Wilson v. 
 Palmer, 75 N. Y. 250. 
 
 209. "Who may appeal. An executor, 
 <'Ommitted to the county jail by virtue of a war- 
 rant of commitment issued by a surrogate, upon 
 an order adjudging him in contempt for mso- 
 bedienee of a final decree, directing him to pay 
 over a sum specified to various parties named, 
 was dischaiged by order in proceedings on 
 JwAeag eorpus. The General Term, on certiorari, 
 afSrmed the proceedings. Seld, that one of the 
 parties named in the surrogate's decree as en- 
 titled to a portion of the sum, who was not 
 
 named in the writ of certiorari, had no sucn* 
 standing in the proceedings as to entitle her to 
 appeal to the Court of Appeals. — Gt. of App,, 
 May, 1877. Matter of Watson v. Nelson, 69 N. 
 Y. 536. 
 
 210. Q.,« having been appointed receiver of 
 an insolvent savings bank, executed his bond 
 with O'D. as surety. Q. entered upon his duties, 
 but subsequently, by leave of the court, resigned, 
 and a new receiver was appointed. An order 
 of Special Term was made, settling the accounts 
 of Q., as receiver, which contained a clause 
 authorizing O'D. to appeal on stipulating to be 
 bound by the decision thereon. O'D. appealed 
 to the General Term, making the requiredstipu- 
 lation, which was accepted by the opposite 
 party. The appeal was heard without objection 
 to the right of O'D. to appeal; the order ap- 
 pealed from was affirmed, with a direction that 
 O'D. pay to the hew receiver the amount of the 
 bond. Held, that CD. was entitled to appeal to 
 this court.— C*. of App., Oct., 1879. Matter of 
 Guardian Savingsjnst., 78 N. Y. 408. 
 
 211. The notice of appeal. Under- 
 taking. Under the Code of Civ. Pro., § 1300, a 
 notice of appeal to the Court of Appeals may be 
 served before any undertaking has been executed, 
 and the undertaking may be given at any time 
 before the expiration of the time for appealing 
 (2 1334) ; but the notice does not become effectual 
 for any purpose until the undertaking has been 
 given (g 1326.)— Ci. of App., Jan., 1879. Eay- 
 mond V. Eichmond, 76 N. Y. 106. 
 
 212. A regular notice of appeal had been 
 served, and an undertaking given which was not 
 in compliance with the statute, and so was a 
 nullity. A return was made, and the cause put 
 upon the calendar. The appellant moved to 
 strike the cause from the calendar ; the respond- 
 ent moved to dismiss the appeal. Beld, that the 
 case must be treated as if only a notice of appeal 
 had been served; that, as this was regular, it 
 could not be set aside, and as there was no under- 
 taking, there was no appeal to dismiss, no return 
 could properly be made, and the cause was not 
 properly upon the calendar ; appellant's motion, 
 therefore, granted, and respondent's denied. lb. 
 
 213. Where the sureties to an undertaking, 
 upon appeal to the Court of Appeals, from a 
 final judgment, failed to justify, the appellant 
 may give a new undertaking at any time within 
 the year allowed for appeal, and, when given, _ 
 the appeal becomes effectual ; and if the respond- * 
 ent fails to except to the sureties within the time 
 allowed, the new undertaking becomes perfect 
 for the purposes of the appeal. Code of Civ. 
 Pro., §J 1325, 1326, 1327.— a of App., Dee., 
 1878. Blake v. Lyon, &c., Manufacturing Co., 
 75 N. Y. 611. 
 
 214. When notice of appeal should be served 
 on defendant who has not answered, see Argall 
 ■V. Pitts, 78 N. Y. 239. 
 
 215. What must appear by the re- 
 cord. The legal presumption is that the 
 General Term, on appeal from a judgment 
 entered upon the report of a referee, considers 
 and reviews the facts, and to rebut this presump- 
 tion, so as to present the point on appeal to the 
 Court of Appeals that said court refused so to 
 do, the refusal must clearly appear by the record. 
 The opinion of the General Term is not conclu- 
 sive on this subject. — Ct. of App., Nov., 1878. 
 Verplanck v. Member, 74 N. Y. 620. 
 
 216. The case. A reference to an opinion 
 
26 
 
 APPEAL, III. 
 
 in an action, as reported in the Supreme Court 
 Keports, is not a substitute for a compliance with 
 the rule of this court (rule 5) requiring the 
 printing in a case of any opinion of the court 
 below. — Gt. of App., Jan., 1878. ^astable v. 
 City of Syracuse, 72 N. Y. 64. 
 
 217. The calendar. The decision of the 
 General Term, reversing the proceedings of the 
 fire commissioners of New York city, removing 
 a derk, was appealed from as from an order, and 
 was so heard. Mdd, that the appeal was from 
 a judgment, and should have been heard as such 
 in its regular order on the calendar. — Ot. of App., 
 Feb., 1878. People, ex rel. Munday v. Fire Com- 
 missioners, 72 N. Y. 445, 450. 
 
 218. The Court of Appeals has control of its 
 calendar, and when a case is put upon the motion 
 calendar and argued, it will not be stricken there- 
 from and put on the regular calendar. — Ct. of 
 Ami., June, 1879. Matter of Reynolds, 77 N. 
 Y. 631. 
 
 219. What questions are before the 
 court. Whether the decision of the trial court 
 as to the qualifications of a proposed expert is 
 reviewable on appeal to the Court of Appeals, 
 see Nelson v. Sun Mut. Ins. Co., 71 N. Y. 453, 
 460. 
 
 220. The Court of Appeals has jurisdiction 
 to determine upon appecd whether property 
 attached in the court below, was the legal sub- 
 ject of attachment. — Ct. of App., June, 1868. 
 Dunlop V. Patterson Fire !ms. Co., 74 N.Y. 145. 
 
 221. Where, in the proceediags upon an 
 order to show cause, a receiver is adjudged guilty 
 of the alleged misconduct — refusal to pay over 
 moneys in his hands as receiver, on the order of 
 the Court of Appeals— the court cannot, upon 
 appeal therefrom, review the order directing the 
 payment; the Supreme Court has power to 
 direct its receiver as to the disposition of funds 
 in his hands, and its order to that effect, if not 
 appealed from, must be obeyed, whether correct 
 or not; the propriety of the exercise of the 
 power cannot be considered on such an appeal. — 
 a. of App., Dec., 1878. Clark v. Bininger, 75 
 N. Y. 344 ; modifying 43 Superior 126. 
 
 222. Where an order granting an applica- 
 tion under the Code of Civ. Pro., || 682, 
 683, by a lienor to vacate or modify an attach- 
 ment, recites the reading of certain affidavits 
 specified, including new affidavits on the part of 
 plaintiff, without noticing any objections thereto, 
 the only question for the General Term upon 
 appeal is whether, upon all the papers before tte 
 Special Term, its order was justified ; and, upon 
 appeal to the Court of Appeals, the lienor can- 
 not raise the question, that plaintiff should have 
 been confined to his original affidavits, and that 
 affidavits supplying defects were improperly 
 admitted on the hearing of the motion. — Ol. of 
 App., Dee., 1878. Godfrey v. Godfrey, 75 N. 
 
 223. That where such an application is based, 
 in part, upon "proofs by affidavits" attacking 
 allegations in plaintiff's original affidavits, it is 
 sufficient to let in new proofs on the part of 
 plaintifiF, although the allegations were not of 
 material importance; and that the right of 
 plaintiff to new proof does not depend upon the 
 directness or force of the lienor's proof, see lb. 
 
 224. In an action to foreclose a mortgage, 
 A. & G. were mad^ parties defendant; their 
 interests were the same, G. claiming as grantee 
 of A. They put in separate answers ; the liti- 
 
 gation was upon the answer of A. PlaintifiT 
 obtained judgment; A. appealed, G. did not_ 
 The minutes of the decision of the General 
 Term were as follows: "Judgment reversed, 
 new trial gfranted, costs to appellant to abide the- 
 event." An order was thereupon entered re- 
 versing the judgment as to A. only, and direct- 
 ing a new trial as to her. It appeared by th& 
 opinion of the General Term to have been its 
 intention to re-open the whole case and to send it 
 back for a new trial as to all the parties inter- 
 ested. Plaintiff, without notice to G., discon- 
 tinued as to A. On motion of G., the General 
 Term modified its order so as to reverse the 
 judgment in toto and to grant a new trial both as 
 to G. & A. Held, that the General Term had 
 power to so modify ; and that upon appeal to the 
 Court of Appeals from the order directing the- 
 modification, the question as to the power of the- 
 General Term to reverse a judgment against a 
 party who had not appealed was not presented, 
 as its judgment was not up for review ; that the 
 question could only be presented by appeal from 
 the order of reversal. — Ct. of App.. Dec., 1878. 
 Salmon v. Gedney, 75 N. Y. 479. 
 
 225. "When opinion of General TeniL 
 may be examined. Where an appeal to^ 
 the Court of Appeals from an order of General 
 Term involves an inquiry into the power of that 
 court over its own records, to correct them so- 
 that they may express the purpose and judgment 
 of the court, it is proper to look into the opinion 
 of the General Term, as delivered upon the ren- 
 dition of judgment, to learn what was its pur- 
 pose. — Ct. of App-, Dee., 1878. Salmon v.. 
 Gedney, 75 N. x. 479; see also Snebley v.. 
 Conner, 78 N. Y. 218. 
 
 226. An order vacating an order of arrest or 
 commitment cannot be reversed in the Court of 
 Appeals, where it appears from the order that 
 it was made "upon due consideration of the- 
 proofs in the matter and the affidavits upon 
 which the warrant was granted." The court 
 wUl not look into the opinions to find matter 
 there differing from that in the order, unless the 
 language of the order is ambiguous and needs 
 aid for an understanding of the theory upon 
 which it went. — Ct. of App., May, 1880. Matter 
 of Nebeuzahl, 59 How. Pr. 192. 
 
 227. Revie-w of questions of fact. 
 The general rule that the findings of a court or' 
 referee upon the facts are conclusive upon this- 
 court, if there is any evidence to warrant them, 
 applies as well to actions in equity as actions at 
 law.— a. of App., Feb., 1878. StilweU v. Mutual 
 Life Ins. Co., 72 N. Y. 385, 388. 
 
 228. Where, upon appeal from on order al- 
 lowing to plaintiff costs, in an action on a claim 
 against an estate, the question as to whether there 
 was an offer to refer the claim appears to have been 
 one of fact, although the Court of Appeals has 
 power to pass upon the question as an original 
 one, the general rule acted upon by it is to adopt 
 the finding of the court below. — Ct. of App., May, 
 1879. Field v. Field, 77 N. Y. 294. 
 
 229. The facts that the plaintiff in such an 
 action was allowed to amend his complaint so as 
 to daim a larger recovery, aad to prove and to 
 recover a larger compensation for services than 
 that stated in the claim presented to the execu- 
 tors, do not change the claim from that originally 
 presented. lb. 
 
 230. Extent of review of referred 
 causes. Where a referee in an action for negli- 
 
APPEAL, III. 
 
 27 
 
 gence, instead of pafising upon the question 
 directly as one of fact, makes special findings of 
 the circumstances, and from these finds negli- 
 gence as a conclusion of. law, it is not the duty 
 of this court to decide as matter of law, whether 
 or not the facts found establish negligence. In 
 such case, a finding of negligence as a fact is 
 essential to the conclusion reached by the 
 referee, and wUl be assumed in support of the 
 judgment, provided there is any evidence upon 
 which it could have been predicated. — Ct. of Arm., 
 June. 1877. Hays v. MiUer, 70 N. Y. 112, 118. 
 
 231. Where there is conflicting evidence 
 upon a question of fact, in an action on trial be- 
 fore a referee, a request on behalf of one of the 
 parties to find the fact as claimed by him, and a 
 refusal by the referee, is not the ground of an 
 exception. — Ot. of App., Oct., 1877. Potter v. 
 Carpenter, 71 N. Y. 74. 
 
 ' 232. But where the fact is material, and the 
 referee refuses to make any finding upfcn the 
 subject, and the court, on motion, refuses to send 
 the case back for a finding as to such question 
 of fact, a judgment of General Term, affirming 
 the judgment entered upon the report of the 
 referee, is error. Ih. 
 
 23S. In such case, on appeal to this court, 
 the judgmient of the Greneral Term wiU be re- 
 versed, but not the judgment entered- on the 
 referee's report ; the order will be, that the case 
 be sent back to the referee to pass upon the 
 question of fact; and, when passed upon, the 
 case can be re-heard at General Term. lb. 
 
 234. What errors are ground for 
 reversal. The finding of a material fact, 
 where there is a total absence of evidence to sus- 
 tain it, is error of law, reviewable in this court 
 upon due and proper exception. — Ct. of Arm., 
 Nov., 1877. PoUock v. PoUock, 71 N. Y. 137. 
 
 235. On March 24th, 1876, plaintiff obtained a 
 verdict against defendant, judgment was sus- 
 pended until exceptions could be heard at 
 General Term. They were argued in Novem- 
 ber, 1876, and in May, 1877, the exceptions were 
 overruled, and judgment ordered on verdict. 
 The defendant died after argument and before 
 decision. Plaintiff, following the practice pre- 
 scribed by the Code of Civ. Pro., |§ 763, 1210, 
 entered up judgment in the names of the original 
 parties. In March, 1879, the General Term, on 
 application of plaintiff, granted an order vacating 
 the judgment, and directing that it be "re- 
 entered nunc pro tunc as of the day when the 
 said verdict was rendered." Sdd, error; that 
 the case was within the said provision of the 
 code, and that the General Term had no power 
 to make the order. Such an order cannot be 
 sustained under the common law practice. — Ct. 
 of App., June, 1879. Tuomy v. Dunn, 77 N. Y. 
 515. 
 
 236. "What are not. In an action against 
 two joint co-sureties for certain lessees, judgment 
 was ordered against both, which was reversed by 
 the General Term as to one, and a new trial 
 granted him on the ground of failure of con- 
 sideration, as to him, and was affirmed as to the 
 other. Held, that it was no ground of reversal 
 on appeal to this court by the latter that, in case 
 his co-surety succeeded on the new trial, he 
 would lose his right of contribution. — Ct. of 
 App., Sept., 1877. Morgan v. Smith, 70 2Sf. Y. 
 537. 
 
 237. The fact that the General Term, in 
 passing upon the correctness of a non-snit, over- 
 
 look an amendment to the pleadings, is not 
 ground for reversal, as the court can pass upon 
 the question. — Ct. of App., June, 1877. Vaui 
 Valkenburgh v. Am. Pop. Life Ins. Co., 70 N. Y. 
 606. 
 
 238. The Court of Appeals has no jurisdic- 
 tion to reverse a judgment in an action for negli- 
 gence because of excessiveness of damages. — Ct.^ 
 of App., Jan., 1879. Gale v. New York Central^ 
 &c.,^. E. Co., 76N. Y. 594. 
 
 239. In an action of trespass upon lands, de- 
 fendant claimed to be in possession under a parol 
 contract for the purchase ; the referee found that 
 defendant was in lawful possession. Sdd, that 
 an exception to evidence bn the part of defend- 
 ant, incompetent under section 399 of the code,, 
 as to the parol contract (the vendor having died) 
 was not ground for reversal, as the evidence was 
 entirely mimaterial, and could not have injured^ 
 — Ct. of App., Nov., 1879. Former v. Johnson,. 
 78 N. Y. 617. 
 
 240. Effect of failure to object in. 
 court below. In an action to recover for 
 property destroyed through defendant's negli- 
 gence, the complaint alleged' ownership in 
 plaintiff. On the trial plaintiff proved an as- 
 signment from the owner after loss. This was 
 objected to, but not because of defect in com- 
 plaint. A motion for non-suit was denied. 
 Hdd, no error; that the complaint must be 
 deemed sufficient here. — Ct. of App., April, 1878. 
 Eiddell v. New York Central, &c., E. E. Co., 73- 
 N. Y. 618. 
 
 241. The complaint, in an action for rent,^ 
 alleged a written lease for five years ; the lease- 
 put in evidence was executed by the lessee only. 
 No question as to the pleadings was made upon 
 the trial. Sdd, that the question of variance- 
 could not be raised on appeal to the Court of 
 Appeals. — Ct. of App., Nov., 1878. Laughran v^ 
 Smith, 75 N. Y. 205. 
 
 242. A party is not prevented from urging, 
 in an appellate court, a point distinctly made- 
 and presented on the trial, because it was not 
 made in an intermediate appellate court. — Ct. of 
 App., Feb., 1879. Cohn v. Goldman, 76 N. Y. 
 284. 
 
 243. When order striking out, incompetent 
 evidence received without objection, not review- 
 able here, see Miller v. Montgomery, 78 N. Y. 
 282. 
 
 244. "When an afiarmance is proper. 
 Upon appeal to this court from an order grant- 
 ing a new trial, the appellant takes the risk, not 
 only of the questions considered by the court 
 below, but of every other exception appearing on 
 the record; the respondent may sustain the- 
 order upon showing any legal error, whether- 
 noticed by the court below or not. — Ct. of App., 
 April, 1878. Mackay v. Lewis, 73 N. Y. 382 r- 
 June, 1877, People, ex rel. Witherbee, v. Super- 
 lisors of Essex Co., 70 N. Y. 228, 233. April,. 
 
 1878, Krekeler v. Thaule, 73 N. Y. 608. Sept.,. 
 
 1879, Snebley v. Conner, 78 N. Y. 218. 
 
 245. Allowing amendments. The 
 Court of Appeals has no power to amend a 
 record of the Supreme Court ; any amendment 
 must be sought in that court. — Ct. of App., Feb., 
 1879. Kenyon v. New York Central, &o., E. E. 
 Co., 76 N. Y. 607. 
 
 246. Modifying the judgment ap- 
 pealed from. Where the Court of Appeals, 
 reverses the judgment of the court Ijelow, unless 
 the plaintiff stipulates to deduct therefrom. 
 
28 
 
 APPEAL, III, IV. 
 
 ■certain amounts, with interest, &c., but does not 
 ■direct that plaintiff's costs on appeal to the 
 -General Term, be waived or deducted, this court 
 win not modify the judgment by any change of 
 ■the conditions therein. — Superior Ot., Dec., 1879. 
 Nicoll V. Burke, 45 Superior 526. 
 
 247. "Withdrawal of appeal. "Where 
 judgment on report of a referee was rerersed 
 ty the General Term on questions of law and 
 fact, the court disagreeing with the General Term 
 as to law, and beinp equally divided upon the 
 facts (one of the judges not sitting), ordered that 
 appellant have leave to withdraw the appeal.— 
 
 d. of App., Oct , 1879. Parsons v. Brown, 78 N. 
 Y. 613. ^ ^ 
 
 248. Where a party has appealed under a 
 mistake, and before a decision of the appeal asks 
 permission to withdraw it, the court upon being 
 satisfied that the proceeding was in good faith, 
 will ordinarily give leave to withdraw the appeal 
 on payment of costs. — Gt. of App., April, 1878. 
 Mackay v. Lewis, 73 N. Y. 382. 
 
 249. Dismissal of appeal. A notice of 
 jnotion to dismiss an appeal to the Court of 
 Appeals, is not fatally defective because of an 
 omission to specify therein upon what papers 
 the motion will be made; the nature of the 
 -motion apprises the appellant that it is based 
 upon the record. — Ct. of App., May, 1877. 
 Browne v. Taylor, 69 N. Y. 627. 
 
 250. A motion to compel appellant's attorney 
 .to pay costs, personally, on dismissal of appeal, 
 cannot be made in the Court of Appeals; it 
 must be made in the court below after the judg- 
 jnent has been there entered. — Ct. of App., May, 
 1878. Struffman v. MuUer, 74 N. Y. 594. 
 
 251. Reinstatement. When an appeal 
 -to this court has been dismissed for failure to 
 serve papers, and the remittilMr has been set 
 down, judgment entered thereon and execution 
 issued, a motion wUl not be entertained to rein- 
 state the appeal.— Oi. of App., Nov., 1877. Jones v. 
 Anderson, 71 N. Y. 599. 
 
 252. That in such case the appellant should 
 snove in the Supreme Court to have the proceed- 
 jngs there vacated, and the remillitur returned 
 
 here, to the end that he may then make his 
 -motion for relief, see lb. 
 
 253. Efifeot of the appellate judg- 
 anent. The afSrmance of an order, by the 
 •Court of Appeals, does not add to its effect, or 
 
 preclude a renewal of the motion in the discre- 
 iion of the court below, upon different or 
 additional facts. — Ot. of App., Sept., 1876. Kiggs 
 .«,. Purcell, 74 N. Y. 370. 
 
 254. Where on appeal to the Court of 
 Appeals from an order granting a new trial, 
 the order is afSrmed and judgment absolute 
 directed on appellant's stipulation given in 
 pursuance of Code of Pro., § 11, subd. 2, all 
 .traversable allegations in the pleadings of the 
 respondent stand admitted; but allegations of 
 ^special damage are not traversable, and conse- 
 quently must still be established by evidence on 
 
 . a writ of inquiry in the court below. — Com. Pleas, 
 March, 1877. Thompson v. Lumley, 7 Daly 74. 
 
 255. Where an order granting a new trial to 
 the defendants is affirmed in the Court of Appeals, 
 iSuoh affirmance and the direction for "judgment 
 xibsolute upon the right of the appellant," 
 without any further or other direction, does not 
 .authorize the clerk of the county in which judg- 
 ment is to be entered, to include therein a 
 
 .demand made against the plaintiff for an inde- 
 
 pendent claim, when the right thereto has never 
 been adjudicated in his favor, and when no 
 judgment, which has been rendered, necesBardy 
 involves its merits.— /Sitprme Gt., {3d Dept. 8p. 
 T.,) May, 1880. People ». Denison, 59 How. Pr. 
 157, 171. 
 
 256. Defendant was arrested in an action on 
 contract under an order granted upon grounds 
 extrinsic to the cause of action, and imprisoned 
 in the county jail. Subsequently he was taken 
 and held by the sheriff under an execution 
 against the body, issued upon a judgment entered 
 in the action in favor of the plaintiff, which 
 judgment was affirmed by the General Term 
 but reversed by the Court of Appeals, the latter 
 court granting a new trial because of errors 
 committed on the trial.' Held, the reversal by 
 the Court of Appeals only operated to restore 
 the parties to the position in which they were 
 before any trial had been had, and did not su- 
 persede the order of arrest, or authorize the 
 defendant's discharge from confinement. — Siir 
 preme Ct., (1st Dept.,) Jan., 1880. People, ex rel. 
 Boberts, v. Bowe,* 20 Hun 85. 
 
 IV. Appeaxs trom Mabinb Coubt AOT) 
 
 DlSTBICT CotTETS, TO COtTKT OF COM- 
 MON Pleas in New Yobk C;tt. 
 
 1. From Marine Court. 
 
 257. "What orders are appealable. 
 An order of the Marine Court substituting 
 another party in place of the defendant, and 
 relieving the latter from all liability in the 
 action, is a final order, and ig appealable to the 
 Greneral Term of the Common Pleas. — Com. 
 Pleas, Dee., 1878. Lynch v. St. John, 8 Daly 
 142; S. C, 56HOW. Pr.144. 
 
 258. An order of the General Term of the 
 Marine Court, reversing an order of the Special 
 Term granting a new trial, and ordering judg- 
 ment on the verdict, is final, and the jud^ent 
 entered in pursuance of it, is appealable to the 
 Court of Common Pleas.— Cbm. Pleas, Feb., 1880. 
 Merceron v. Fowler, 8 Daly 536. 
 
 259. The Court of Common Pleas of the . 
 city and county of New York has no jurisdiction 
 to entertain an appeal from an order of the 
 Marine Court, except it be an order granting a 
 new trial. Therefore, an order of the General 
 Term of the Marine Court, granting a perpetual 
 stay of proceedings, is not appealable to the 
 Common Pleas. — Ci. of App., April, 1879. Bam- 
 berg V. Stem, 76 N. Y. 555. 
 
 260. Revie-wring the evidence. How 
 far the General Term of the Common Pleas 
 will look into the evidence, on appeal from an 
 order of the General Term of the Marine Court, 
 granting a new trial on the ground that the 
 verdict was against the weight of evidence, see 
 McEteere v. LitUe, 8 Daly 167 ; S. C, 7 Abb. N. 
 Cas. 374. 
 
 261. In an action in the Marine Court, tried 
 before a referee, the complaint was dismissed 
 upon the merits and the General Term of that 
 court refused a new trial. On appeal to the 
 Common Pleas — Held, that the evidence taken 
 before the referee could not be reviewed except 
 for the purpose of ascertaining whether there 
 was any competent evidence upon which he 
 could have reported in favor of the defendant. — 
 
 * Said t« have been reversed in the Court of Appeals, 
 April 20th, 1880. 
 
APPEAL, IV, V. 
 
 23' 
 
 Com. Pleas, Jan., 1880. Faxley t). Lyddy, 8 Daly 
 514. 
 
 262. Where it appears on an appeal from 
 the General Term of the Marine Court to the 
 Common Pleas, by the return, that questions of 
 fact were legitimately before the court below, 
 and that the evidence was such thai that court 
 may have reversed the judgment on the facta, 
 the appeal must be dismissed. — Cfam. Pleas, Nov., 
 1878. McEnteere v. Little, 56 How. Pr. 427. 
 
 263. Reversal for excessive dam- 
 ages. The Common Pleas may reverse a judg- 
 ment of the Marine Court on the ground of ex- 
 cessive damages, notwithstanding no motion for 
 a new trial was made below. Code of Pro., 
 'i 366.— Own. Pleas, March, 1878. Smith v. 
 American Institute, 7 Daly 526. 
 
 264. NeTV action after reversal. 
 Under the provision of the code (? 104) allow- 
 ing a new action to be brought withiii a year after 
 reversal, upon appeal irom a judgment against 
 plaintiff in an action brought within the time 
 prescribed by the statute of limitations in the 
 Marine and other inferior courts, when the judg- 
 ment of the Marine Court is reversed by the 
 General Term of the Court of Common Pleas of 
 New York, and by authority of that court an 
 appeal is taken to this court, the plaintiff is not 
 required to bring his second action within- a year 
 after the reversal by the Common Pleas, but may 
 await the final determination of the appeal to 
 this court ; and, in case the reversal is affirmed, 
 may bring suit within a year thereafter. — Gt. of 
 Amp., Dec., 1877. Wooster v. Forty-Second St., 
 &c., K. E. Co., 71 N. Y. 471. 
 
 2. From District Courts. 
 
 265. Security. Notice of appeal. 
 When, on an appeal from a judgment of th6 
 District Court, the appellant gives the under- 
 takings required by sections 354 and 356 of the 
 code, in one instrument, which is duly approved 
 by a justice of said court, and files it with the 
 clerk of the Court of Common Pleas, it is a suffi- 
 cient compliance with the statute to operate as a 
 stay upon the judgment appealed frozn..— Su- 
 perior Ot., March, 1879. Ennis v. Broderick, 
 45 Superior 92. 
 
 266. The Common Pleas has power, where 
 a notice of appeal from the judgment of a Dis- 
 trict Court has been properly served on the 
 justice, but not on the adverse party, to allow 
 such service to be made after the time to appeal 
 has expired. Code of Pro., ^ 327. — Com. 
 Pleas, Feb., 1878. Zinsser v. SeUer, 7 Daly 464. 
 
 267. Grounds for reversal. It is 
 ground for reversal if a District Court justice 
 knowingly permits a person to try a case before 
 him who has not been regularly admitted to 
 practice. — Com. Pleas, March, 1880. Newburger 
 V. Campbell, 58 How. Pr. 313. 
 
 268. A refusal of a justice of a District Court 
 to allow a proper amendment of the summons, 
 on a trial before him, is ground for the reversal 
 of his judgment, on appeal to the Common 
 Pleas.— On. Pleas, Feb., 1880. Martin v. John- 
 son, 8 Daly 541. 
 
 269. Restitution after reversal. Ap- 
 pellant from judgment of District Court to 
 Common Pleas, if he desires restitution of money 
 collected on execution in the court below, must 
 apply for restitution on the argument of the ap- 
 peal ; or, in case he falls so to apply, and the 
 
 judgment is reversed, he may apply for a re- 
 argument on that point. — Com. Pleas, Feb., 1878, 
 Gushing v. VanderbUt, 7 Daly 512. 
 
 270. Restitution, in such cases, is not at 
 matter for the Special Term to decide upon;-, 
 the application should be made at General 
 Term. lb. 
 
 V. Appeals tegm Cotjnty Couet to Supeemjb 
 
 COUET. 
 
 271. In proceedings for draining- 
 lands. An appeal lies to the General Term 
 from a decision of the county court in proceed- 
 ings for draining lauds, instituted under Laws of 
 1869, ch. 888, as amended by Laws of 1871, ch. 
 S03.— Supreme Ct., (4<A Dept.,) Oct., 1879. Burk 
 V. Ayers, 19 Hun l7. 
 
 272. To authorize a party aggrieved to ap- 
 peal from the determination of the drainage 
 commissioners, it is not necessary that any of 
 his land should have been actually taken ; if he 
 be the owner or possessor of-laud in any way 
 affected by the proceedings, it is enough. lb. 
 
 273. A decision of the county court, affirm- 
 ing a judgment of the commissioners, with a 
 modification to the effect that, on request of the 
 appellant, they should open a drain through his^ 
 land, is a final judgment for the purposes of an 
 appeal. lb. 
 
 274. Prom judgment on report of 
 referee. An appeal lies to the General Term 
 from a judgment entered upon a referee's report,, 
 in ah action pending in a county court, upon a 
 case and exceptions settled by such referee. A 
 prior motion for a new trial in the county court, 
 upon the exceptions and the decision of the 
 referee, is no longer necessary or proper. — Su- 
 preme Ct., {4th Dept.,) Jan., 1878. Kilmer v. 
 O'Brien, 13 Hun 224. 
 
 275. "What orders are appealable. 
 An appeal lies to the General Term from an 
 order of a county court, dismissing an appeal 
 from a Justice's Court, on the ground that the 
 notice of appeal was defective. Code of Civ. Pro., 
 i lU2.—Suprems CU., {2d Dept.,) Deo., 1879. 
 Andrews v. Long,* 19 Hun 303. 
 
 276. So, also, under the same section (1342), 
 an appeal lies from an order of a county judge, 
 adjudging a party guilty of contempt in violat- 
 ing, an injunction contained in an order in sup- 
 plementary proceedings. — Supreme Ct., {4th 
 Dept.,) Oct., 1879. Newell v. Cutler, 19 Hun 74. 
 
 27*7. The notice of appeal, and how 
 served. A notice' of appeal from the decision 
 of the county court, affirming a decision of th& 
 drainage commissioners, need only be served 
 upon the commissioners. — Supreme Ct., (4th 
 Dept.,) Oct., 1879. Burk v. Ayers, 19 Hun 17. 
 
 And the notice need not specify the errors 
 complained of. lb. 
 
 278. The security. An appeal from a 
 decree of a county judge, upon the final account- 
 ing of an assignee for creditors, is subject to the 
 rules governing appeals from final judgments of 
 the county court under Code of Civ. Pro., J 1340, 
 and the security required by section 1341 must be 
 given. — Supreme Ct., {4th Dept.,) Oct., 1878. Mat- 
 ter of, Beckwith, 15 Hun 326. 
 
 279. "When a reversal is proper. In 
 an action commenced in the county court, the 
 
 * Said to have been reversed in tlie Court of Appeals,. 
 Jan. 20th, 1880. 
 
30 
 
 APPEAL, VI, VII. 
 
 summons and complaint demanded judgment for 
 a sum exceeding $1000. Defendant, after an- 
 -swering generally on the merits, moved upon 
 the trial to dismiss the summons and complaint, 
 ■on the ground that the court had no jurisdiction. 
 The court thereupon allowed the su mm ons and 
 ■complaint to be amended so as to demand but 
 ■11,000. Upon an appeal from the order grant- 
 ing the amendment. — Held, that the court 
 iad no power to make it, and that it should be 
 reversed. — Svpreme Ot., ('id Dept.,) Jan., 1879. 
 Mclntyxe v. Carriere, 17 Hun 64. 
 
 VI. Appeals pbom Stjbkogates' Cottrts. 
 
 280. 'What determinations are re- 
 "Vie"wable. A decree of the surrogate grant- 
 ing an allowance may be reviewed upon the 
 merits by the General Term. — Ct. of App., Sept., 
 1877. Noyes v. Children's Aid Soc, 70 N. Y. 
 481 ; S. a, 3 Abb. N. Cas. 36 ; 16 Alb. L. J. 224. 
 
 281. Where a surrogate, in his decree upon 
 the final accounting of an executor, directed the 
 payment by him to his counsel of a sum stated — 
 Held, that the question as to the jurisdiction of 
 the surrogate to make the order, could be raised 
 by motion before the surrogate to set aside that 
 portion of the decree; and that an appeal lay 
 from an order denying such motion. — Ct. of App., 
 Sept., 1879. Seaman v. Whitehead, 78 N. Y. 
 506, 308. 
 
 282. Revie'w of discretionary action. 
 That an ajpplication to re-open a will case to let 
 in extrinsic evidence, as to the intention of the 
 testator, is to the discretion and favor of the sur- 
 rogate, and the denial thereof not reviewable, at 
 least unless under very special circumstances, 
 see Ct. of App., Oct., 1878. Boughton v. Flint, 
 74 N. Y. 476 ; S. C, 5 Abb. N. Cas. 215. 
 
 283. Procedure. The exclusion of com- 
 petent evidence, by the surrogate, in a will case, 
 IS not ground for reversal of his decree, where it 
 can be seen that the result would not have been 
 ■changed by the evidence offered. — Ot. of App., 
 Jan., 1878. Horn v. Pullman, 72 N. Y. 269, 
 278 ; affirming 10 Hun 471. 
 
 284. To a complaint setting forth several 
 orders of the surrogate of the couiity of New 
 York, defendant demurred, upon the ground that 
 the complaint omitted to allege the facts neces- 
 sary to give the surrogate jurisdiction; the 
 demurrer was overruled and judgment rendered 
 for plaintiff, which was affirmed by the General 
 Term. On appeal to this court, defendant asked 
 leave, in case the judgment should be affirmed, 
 to withdraw the demurrer and put in an answer 
 on terms. Held, that the application should, 
 under the circumstances of the casp, be made to 
 the court below; judgment therefore affirmed, 
 with leave to make such application. — Ot. of App., 
 June, 1879. Beams v. Gould,'77 N. Y. 455, 460. 
 
 285. As to the proper practice on a remand 
 for further proceedings before the surrogate, on 
 appeal to the Gonrt of Appeals in proceedings 
 for a final accounting, see Wright v. Wright, 3 
 Eedf. 325 ; Matter of Wright, Id. 362. 
 
 Vn. ElSTFOBCEMENT OF ApPEAL BoNDS. 
 
 286. The parties to the bond. A judg- 
 ment having been recovered by plaintiff in a 
 foreclosure suit, the appellants, defendants in 
 foredosure, being in possession of the premises, 
 appealed from the judgment and procured a stay 
 
 of proceedings by furnishing an undertaking, 
 executed by two sureties, conditioned to pay the 
 rents and profits and waste that might accrue 
 during the pendency of the app^l. Plaintiff 
 having been successful, brought this action 
 against the sureties to the undertaking, and the 
 appellants, who were not parties thereto. The 
 complaint alleging facts showing that the liability 
 of the sureties had become fixed. — Held, that as 
 the appellants were not parties to the undertak- 
 ing, they were not liable to plaintiff for a breach 
 of it, and that as to them the complaint did not 
 contain facts sufficient to constitute a cause of 
 action. — Supreme Ot., (1st Dept.,) April, 1878. 
 Delancey v. Stearns, 14 Hun. 50. 
 
 287. Sufllcient of the sureties. A 
 surety, upon an undertaking on appeal to the 
 Court of Appeals, pursuant to Code of Civ. Pro., 
 § 1326, who is engaged in the milling business, 
 and who rents and occupies a mill within the 
 State and owns the machinery therein, is to be 
 deemed a " householder," within the meaning of 
 I 812, and is sufficient. — Swpreme Ct., {1st Dept., 
 Sp. T.) Nov., 1879. Delamater v. Byrne, 59 
 How. Pr. 71. 
 
 288. Justification — new bond. Where 
 the justification of the sureties to an undertak- 
 ing on appeal to the Court of Appeals has been 
 inadvertently adjourned " out of court," the 
 appellant has no such " fixed right" to sue on 
 the undertaking to the General Term as pre- 
 vents the court from directing the new bond to 
 be filed nunc pro tunc. — Supreme Ct., (Isi Dept.,) 
 July, 1880. Hardt v. Schulting, 59 How. Pr. 
 
 ,353. 
 
 289. Extent of their liability. In 
 1864, plaintiff recovered a judgment against one 
 W. for the possession of certain premises. W. 
 appealed to the General Term, and gave an 
 undertaking, signed by the defendant S., by 
 which the latter agreed, among other things, 
 " that during the possession of such property by 
 the appellant, he will not commit, nor suffer to 
 be committed, any waste thereon." The judg- 
 ment was affirmed in 1865, and W. appealed to 
 the Court of Appeals, giving an undertaking, 
 with other sureties, to stay proceedings. In 
 January, 1867, the Court of Appeals affirmed 
 the judgment. During the winter of 1866 and 
 1867, W. committed waste upon the property. 
 In an action, on the undertaking, to recover the 
 damages occasioned thereby — Held, that S. was 
 not liable ; that his liability became fixed upon 
 the giving of the undertaking upon appeal to 
 the Court of Appeals, and could not be affected 
 by any subsequent acts of W. — Swpreme Ct., 
 (3d Dept.,) Nov., 1879. Church v. Simmons, 19 
 Hun 220. 
 
 290. "What will operate to discharge 
 them. _ The liability of a surety to an under- 
 taking given on appeal prior to adoption of new 
 code (i 758) is discharged by his death.— Ci. of 
 App., June, 1879. Bandall v. Sackett, 77 N. Y. 
 480. 
 
 291. A discharge in bankruptcy of a judg- 
 ment debtor pending an appeal from the judg- 
 ment, does not release the sureties to an under- 
 taking in the form required, to stay execution, 
 given upon the appeal.— Oi!. of App., Dec., 1877. 
 Knapp V. Anderson, 71 N. Y. 466. 
 
 292. That such an undertaking is not in- 
 cluded in the provision of the banlunpt act (TJ. 
 S. Eev. Stat., f 5118,) declaring that no discharge 
 granted under the act shall release one liable 
 
APPEAL, VII— ARBITRATION AND AWARD, I, II. 
 
 31 
 
 "with the bankrupt for the same debt, as surety or 
 ■otherwise; that this only applies to sureties 
 liable for the debts of the bankrufpt existing 
 before, and which woijld be discharged by the 
 bankrupt proceedings, while the sureties to the 
 lindertEUf in^ do not become liable for the debt of 
 their principal, and it does not become a debt 
 until the happening of the contingency — i. e., 
 the affirmance of the judgment or dismissal of 
 the appeal, see lb. 
 
 293. Contribution among sureties. 
 Plaintiff and defendant's testator were joint 
 sureties to an undertaking, given by one E., on an 
 appeal ftom a judgment recovered against him by 
 one B., in 1872. Befeudant's testator died in Janu- 
 aiy, 1873. In July, 1873, the judgment .was 
 affirmed, and in November of that year plaintiff 
 was compelled to pay the amount thereof to B. 
 Hdd, that plaintiff was entitled to compel the 
 estate of his deceased co-sui-ety to contribute one- 
 iialf of the amount so paid. — Supreme Ot., {.ith 
 Dept.,) June, 1878. Comes «. Wilkin,* 14 Hun 
 428. 
 
 294. Service of notice of entry of 
 judgmentof afBrmanoe. A complaint in an 
 action upon an undertaking on appeal given in 
 pursuance of section 348 of the old code, which 
 fails to allege " service of notice on the adverse 
 party of the entry of the order or judgment affirm- 
 ing the judgment appealed from," ten days before 
 the commencement of the action, is defective; 
 the notice is a condition precedent to the com- 
 mencement of the action, and in the absence of 
 the allegation the complaint does not state a 
 cause of action. — Ot. of App., Oct., 1877. Porter 
 ». Kingsbury, 71 N. Y. 588 ; To the same effect, 
 Feb., 1879, Bae v. Beach, 76 N. Y. 164. 
 
 295. The term " adverse party," as used in 
 flection 348, means the parties to the original 
 judgment by whom the appeal was taken. — 
 S«p)-eme Ct.. {4ih Dept.,) April, 1878. Yates v. 
 :Burch, 13 Hun 622. 
 
 296. The objection that notice of judgment 
 of affirmance was not served as prescribed by sec- 
 .tion 348, is not waived by not pleading it, nor by 
 basing refusal to pay on other grounds. — Ot. of 
 App., Feb., 1879. Kae v. Beach, 76 N. Y. 
 164. 
 
 297. Deposit in lieu of undertaking. 
 When, upon an appeal from a judgment of the 
 Oeneral Term to the Court of Appeals, money 
 is deposited in court in lieu of an undertaking, 
 such deposit is subject only to the decision of 
 the appeal to which it relates, and upon the 
 reversal of the judgment by the Court of 
 Appeals, the fund is released from all liens 
 •except those created by judgment or assignment. 
 — Supreme Ct., (ls< Dept.,) April, 1878. Jordan 
 «). Volkening, 14 Hun 118. 
 
 298. Plaintiff is not entitled in such a case, 
 -on showing that the defendant who made the 
 •deposit is insolvent, to have the money held as 
 security for the payment of any judgment he 
 may recover on a new trial. 76. 
 
 As to Taking exceptions, framing the biU, the 
 hearing, &c., see Exceptions. 
 
 For other methods of review, see Ceetioeaei; 
 ^BKOB ; New Tbiai. 
 
 As to costs on appeal, see Costs, II. 
 
 As to appeals from Justices? Courts, see Jus- 
 tice or THE Peace, III. 
 
 * Said to have been affirmed in the Court of Ap- 
 ■ I, Deo. 2d, 1S79. 
 
 APPEARANCE. 
 Action, 22-33. 
 
 APPLICATION OF PAYMENTS. 
 
 Debtor and Obeditoe, 8-11. 
 
 ARBITRATION AND AWARD. 
 
 I. The Submission; and Peocebdings 
 
 Theebundbe. 
 II. The Awaed ; and how Enpoeced. 
 III. Impeachment oe the Awabd. 
 
 1. The Submission; and Pboceedings 
 Theeeundeb. 
 
 1. Wlio may make a submission. 
 Executors and administrators have the power 
 to submit to arbitration disputed claims or 
 demands in favor of or against the estate they 
 represent. This right is not taken away by 2 Rev. 
 Stat. 89, i 36, et seq., relating to the reference 
 of disputed claims against the estate of deced- 
 ents, nor by the general statute of arbitrations. 2 
 Eev. Stat., 540.— Ol!. of App., May, 1878. Wood 
 V. Tunnidiff, 74 N. Y. 38. 
 
 2. For an application of the role that a 
 married woman cannot make a valid submission 
 to arbitration, see Keep v. Keep, 17 Hun 152. 
 
 3. Construing the submission. A 
 submission to arbitrators of an action pending 
 between the parties to the submission, and of "all 
 other actions or causes of action," and of "all 
 other matters in controversy," is a general sub- 
 mission of all questions and controversies 
 between the parties. — Ol. of App., Nov., 1877. 
 Jones V. WeUwood, 71 N. Y. 208 ; reversing 9 
 Hun 166. 
 
 4. In cases of doubt, the presumption is in 
 favor of an intention that all matters should be 
 decided. Jb. 213. 
 
 5. Fees of arbitrators. What evidence 
 as to value of services, is insufficient to justify a 
 recovery for services rendered as arbitrator, see 
 Haorrison v. Ayres, 18 Hun 336. 
 
 II. The Awaed; and how Enfoeced. 
 
 6. The time for making an a'ward 
 under a sealed submission, may be extended by 
 parol agreement; and where parties proceed 
 with an arbitration, after the time fixed in the 
 submission, without objection, and an award is 
 subsequently made, the parties Will be deemed 
 to have waived the stipulation as to time — Ct. 
 of App., Mm/, 1878. Wood v. Tunniclifl574 N. 
 Y. 38. 
 
 7. Form and requisites generally. 
 An award of arbitrators, to be valid, must be 
 within the submission, certain to a common in- 
 tent, and final. — Ct. of App., June, 1878. His- 
 cock V. Harris, 74 N. Y. 108. 
 
 8. Must be full; partial avrard in- 
 valid. Where a submission is full and general 
 of all matters in question between the parties, 
 and the intent appears to be to have everything 
 decided if anything is, a decision of all matters 
 submitted will be imperatively required to vali- 
 
32 
 
 AEBITRATION AND AWARD, III— ARREST, I. 
 
 date the award, and an award determining a 
 part only, is void. — Ot. of App., Nov., 1877. 
 Jones V. Wellwood, 71 N. Y. 2()8. 
 
 8. The omission to insert in the submission, 
 in express terms, an "ita quoad" clause, does 
 not make a partial award valid.- lb. 212. 
 
 10. The parties to an arbitration have the 
 right to submit only a portion of the subjects in- 
 volved, and an award will not be set aside for 
 not including matters not brought to the atten- 
 tion of the arbitrators. But that a partial 
 award in any case will only be sustained when 
 the matters omitted are not necessarily depend- 
 ent upon and connected with the other points, 
 see 76. 
 
 11. "WTiat awards are valid. A sub- 
 mission to arbitrators, and their award thereon, 
 in a partnership case, construed, and the award 
 held not invalid, because made by a majority 
 only of the arbitrators, nor because, in some 
 particulars, they exceeded their authority. 
 Locke V. Filley, 14 Hun 139. 
 
 12. "WTiat awards are invalid. Arbi- 
 trators can make but one award; a second 
 award in correction of a previous one which is 
 void for uncertainty, is also void. — Supreme Ct., 
 (2d Dept.,) Dee., 1878. Fallon v. Kelehar, 16 
 Hun 266. 
 
 13. The parties being tenants in common of 
 certain lands, and entitled, as next of kin, to 
 certain personal property, consisting of farming 
 stock, money and government bonds, made a 
 submission to arbitrators of " all questions and 
 matters" as to their respective shares and 
 claims, agreeing that the arbitrators " shall par- 
 tition the real estate and appraise and divide the 
 personal property" between them. The parties 
 bound themselves mutually to "keep and ob- 
 serve the award made." The award partitioned 
 the real estate and awarded that the plaintiffi 
 "shall receive for their share of the personal 
 property, * * * to be by us partitioned to 
 them, the amount of $3000," and the defendants 
 the remainder. Plaintiffi demanded of defend- 
 ants, who were in possession of the property, the 
 sum of $3000 of the property,-which they refused 
 to pay or deliver. In an action upon the award 
 — Held, that in respect to the personalty, it was 
 not a certain and final adjudication, and so was 
 void; that, while it was not necessary for the 
 arbitrators to incorporate in their award the 
 particulars of their appraisal, or that it should 
 show that this preliminary step to a division was 
 taken, and it was to be presumed that the ap- 
 praisal was made, yet, that the award made no 
 division of the property within the meaning of 
 the submission, but reserved to the arbitrators 
 the right thereafter to designate and set apart 
 the particular articles, amounting, in the aggre- 
 gate, to the sum named.— (S. of App., June, 1878. 
 Hiscock V. Harris, 74 N. Y. 108. 
 
 14. Award valid in part. Where the 
 questions involved in two actions are, by consent 
 of the parties, submitted to arbitrators, and the 
 submission, as to the questions involved in one 
 of the actions, is invalid, this will not affect the 
 validity of the award as to the questions in- 
 volved in the other action, as to which the sub- 
 mission was valid.— Saprc?jie Ct., (2d Dept ) 
 Fa., 1879. Keep v. Keep, 17 Hun 152. 
 
 ni. Impeachment oi" the Awaed. 
 
 15. For error in judgment. An award 
 
 will not be set aside for error of judgment on the 
 part of the arbitrators, either in law or in fcict, 
 if within the submission, and not tainted with 
 misconduct or corruption. — Supreme Ct., (1^. T.,) 
 Sept., 1878. De Castro v. Brett, 56 How. Pr. 484_ 
 
 16. For mistake. But it may be set aside 
 for a palpable mistake of fact, such as a mis- 
 calculation of figures ; or for an error of law ap- 
 pearing on the face of the award, i. e., where it 
 appears that the arbitrators intended to decide 
 according to law, but, through mistake as to the 
 law, did not. lb. 
 
 As to the appointment, powers and duties of 
 Referees, see Eefeeence, and titles there re- 
 ferred to. 
 
 As to refe!rring claims against decedemt^ estates, 
 see ExECUTOES aud Administeatoes, 58-64, 
 
 ARRAY. 
 
 As to Challenging jurors, collectively or indi- 
 vidually, see Teial, 87-92. 
 
 ARREST 
 
 I. In Civil Actions. 
 
 1. Under the StihueU act. 
 
 2. Under the Cades. 
 
 (a) The right to an arrest. 
 (6) Obtaining and service of the order, 
 (c) Motion to vacate. 
 n. In Ceiminaij Cases. 
 
 I. In CrvTL Actions. 
 1. Under the StUweli act. 
 
 1. 'Warrant not issued to enforce 
 judgment in tort. A warrant of arrest 
 cannot he issued vmder the provisions of the 
 non-imprisonment act, (Laws 1831, ch. 300,) Uy 
 enforce a judgment in an action in tort. To 
 authorize the issuing of the warrant, it must ap- 
 pear by the affidavit presented, that the judg- 
 ment was founded upon a contract, or that the- 
 cause of action was to recover damages for the 
 non-performance of a contract, express or im- 
 plied. A contract, within the meaning of the 
 act, must be one resulting from the voluntary 
 arrangement of the parties, and not one implied 
 by law for the purpose of giving a remedy for a 
 wrong.— a. of App., April. 1879. People, ex reL 
 Dusenbury, v. Speir, 77 N. Y. 144; S. C, 57 
 How. Pr. 274 ; reversing 54 How. Pr. 74. 
 
 2. The implied contract referred to in the- 
 statute, (i 1), is one where, although not ex- 
 pressed in words, the intention of the parties to- 
 contract may be presumed from their acts and 
 surrounding circumstances, so that there appears- 
 to be the aggregatio mentium," essential to a 
 contract at common law. Therefore, where an 
 affidavit, presented for the purpose of obtaining 
 a warrant, set forth a judgment in an action for 
 obtaining money deposit^ in court, by fraud 
 and imposition, and in violation of an i&junction 
 — Seld, that defendant was not protected from 
 arrest in that action by the statute, and that th& 
 
ARREST, I. 
 
 33 
 
 jiflBdavit did not give jurisdiction to issue a war- 
 rant under the statute. lb. 
 
 3. Nor -where defendant has been 
 arrested under code. Where defendant 
 has been held to bail under the provisions of the 
 Code of Civ. Pro., § 548, he cannot be taken 
 again under the Stilwell act, upon facts substan- 
 tially the same as those stated in the affidavits 
 for the first arrest. — Hupreme Cl., (Sp. T.,) July, 
 1879. Matter of Nebenzahl, 57 How. Pr. 328; 
 affirmed 20 Hun 81. 
 
 2. Under the Codes, 
 (a) The right to an arrest. 
 
 4. In general. The rule, that a reasonably 
 clear case must appear to authorize the granting 
 of an order of arrest, applies, and the order 
 should not be granted, where the propriety of 
 granting it depends upon a doubtful and import- 
 ant question of law. — Cl. of App., April, 1877. 
 Cormier v. Hawkins, 69 N. Y. 188. 
 
 5. Whether, where a party, who has availed 
 himself of an undertaking by prosecuting it to 
 judgment, can thereafter maintain an action 
 against a surety thereto for deceit, based upon 
 the alleged falsity of the affidavit of justification, 
 not decided ; but the right to maintain such an 
 action, held at least too doubtful to justify a 
 preliminary order of arrest. lb. 
 
 6. In an equitable action against all the de- 
 fendants combined, the allegations constituting an 
 action at law as to some defendants, for which, 
 under the code, an arrest may be had, those defend- 
 ants can be arrested after the action has been 
 tried as an equitable action, and disposed of as 
 such, and the issues as to allegations constituting 
 the legal cause of action have been sent to a 
 jury for disposition. — Svperior Cl., March, 1879. 
 Henuequin v. Clews, 45 Superior 108. 
 
 7. Actions for fines and penalties. 
 In an action to enforce the statutory liability of 
 a trustee of a manufacturing company, for a 
 debt of the company, on their failure to file 
 the annual report required by law, the liability 
 to pay such debt is not a fine or penalty in the 
 sense in which those words are used in the Code 
 of Civ. Pro., i 549, subd. 1, so as to subject the 
 defendant to arrest. To subject a party to arrest, 
 the cause of action must be a fine or penalty, and 
 not something of a penal character. — Supreme 
 a., (Sp. T.,) Dec., 1879. Glen's Falls Pkper 
 Co. V. White, 58 How. Pr. 172. 
 
 8. For injuries to realty. The word 
 "property," as used in Code of (Sv. Pro., g 549, 
 Bubd. 2, authorizing the granting of orders of 
 arrest in actions "to recover damages * * 
 for an injury to property, includmg the wrong- 
 ful taking, detention or conversion of personal 
 property," includes real as well as personal prop- 
 erty, and an order of arrest may be granted in 
 an action of trespass brought under 2 Eev. Stat. 
 338, § 4, to recover damages for a forcible eject- 
 ment. — Supreme Cl., (ls« Depl.,) July, 1878, 
 Welch V. Winterbum, 14 Hun 518. 
 
 9. Actions for chattels." An order of 
 arrest, in an action to recover possession of per- 
 sonal property, is authorized under Code of 
 Pro., § 179, subd. 3, as amended in 1851, when it 
 appears that possession of thft property was 
 acquired by defendant, as purchaser, fraudu- 
 lently and' under circumstances justifying a 
 reclamation by the vendor, and that defendant 
 haa sold the property with intent to perfect the 
 
 fraud, and to put the property beyond the reach 
 of the owner ; such a sale is a disposition of the 
 property "with intent to deprive the plaintiff of 
 the benefit thereof," within the meaning of said 
 section.— Of. of App., Hept., 1877. Bamett v. 
 Selling, 70 N. Y. 492; S. C, 3 Abb. N. Cas. 83. 
 
 10. Fraud in contracting the debt. 
 False statements made by a party in regard to 
 the solvency and pecuniary resources of his firm, 
 for the pui-pose of obtaining credit on the pur- 
 chase of goods for said firm, and with the intent 
 to cheat and defraud the paity from whom the 
 goods are purchased, when sufficiently averred 
 in a pleading or affidavit, are sufficient to sustain 
 an action on the case for fraud and deceit against 
 the party making such false statements ; and un- 
 controverted they show the debt to have been 
 fraudulently contracted ; and for the iraud thus 
 perpetrate|l, the partner by whom the false rep- 
 resentations are made, if not others who profited 
 by the transaction, can be lawfiilly arrested and 
 held to bail. — Superior Cl., June, 1878. Wit- 
 mark V. Herman, 44 Superior 144. 
 
 11. Disposal of property -with intent, 
 &c. The complaint alleged the sale of goods 
 by plaintifis to defendant ; that such sale as to a 
 portion of the goods was procured by his frauii^ 
 ulent representations, and that since the con- 
 tracting of the debt the defendant had disposed 
 of his property with intent to defraud his cred- 
 itors. An order of arrest was granted, on the 
 ground that defendant had disposed of his 
 property with intent to defraud his creditors. 
 Held, that had the order been granted merely 
 on account of the fraudulent representations, it 
 could not be sustained, as plaintiflfe sought to 
 recover for the sale of other goods not so pro- 
 cured ; but as the order was granted for a cause 
 applicable to the whole claim, it was proper 
 and should be affirmed.^ — Supreme Cl., (1st Dept.,) 
 Oct., 1878. Bassett v. Pitts, 15 Hun 464. 
 
 12. Actions for money received in a 
 fiduciary capacity. Code of Pro., § 179, 
 does not apply to a case where, by agreement 
 between principal and agent, the agent may use 
 the principal's money as his own, so far as the 
 legal title to it is concerned, while he promises 
 to pay the amount on demand — i. e., when the 
 agreement contemplates the relation of debtor 
 and creditor-^but only to a case where the obli- 
 gation of the agent is to return the identical 
 money or its traceable proceeds to the princi- 
 pal.— /Supmor Cl., Feb., 1878. Bobbins v. Fa>t 
 coner, 43 Superior 363. 
 
 13. The mere fact that one is an agent to sell 
 and to receive the proceeds does not make him 
 liable for a tort in case he does not pay over the 
 proceeds on demand, after those proceeds have 
 passed from the specific form in which they were 
 received and have been commingled with the 
 agent's^wn money. While they remain in the 
 specific form, the principal may become entitled 
 to their possession upon demand. Unless such 
 is the case, to make the agent liable to hold the 
 specific proceeds for the principal, there must be 
 allegations to show that such was his special 
 obligation. lb. 
 
 14. Where the principal receives from his 
 factor the notes of third persons, some of which 
 he collects and retains the others without offer- 
 ing to return them, he cannot arrest the factor 
 for failure to turn over the proceeds of goods 
 sold. — Com. Pleas, April, 1877. Truuninger v. 
 Busch, 7 Daly 124. 
 
 3 
 
.34 
 
 AREEST, I. 
 
 15. InBtances. Where plaintiff consigned 
 goods to H , who turned them over to a firm in 
 which he was a partner, disclosing plaintiff's 
 ownership, and the firm sold the goods — Held, 
 that these facts failed to establish a relation of 
 trust or confidence between plaintiff and the 
 partners of H., so as to make them liable to 
 arrest, on their failure to pay over the proceeds, 
 under Code of Pro., ^ 179, sudb. 2, as hav- 
 ing received money in a fiduciary capacity. — 
 Com. Pleas, April, 1877. Fuentes v. Mayorga, 
 7 Daly 103. 
 
 16. Defendant D., by the representation that 
 defendants, who were sugar brokers, had made 
 sales of sugars upon terms proposed by plaintiff, 
 induced it to ship the sugars to the purchasers, 
 and to send to defendants the invoices of bills of 
 lading, they undertaking to collect and pay over 
 the proceeds of sales. Defendants, in fact, had 
 made sales upon different terms, 'they made 
 out new invoices in defendants' firm name, 
 received the proceeds, and reiused to pay 
 them over. Held, that the transaction was, in 
 effect, the same as if plaintiff had intrusted 
 defendants with possession of the sugars, with 
 authority to sell and collect the price, and they 
 therefore occupied the position of factors, not of 
 brokers ; and that in an action to recover the 
 proceeds of the sale an order of arrest was 
 proper, either under Code of Pro., I 179, subd. 
 2, authorizing an arrest in an action for moneys 
 received in a fiduciaiy capacity, or the provision 
 authorizing it when the debt was fraudulently 
 contracted (siibd. 4) ; and that it was no defence 
 that sales were made on different terms from 
 those authorized by plaintiff; that D. could not 
 set up his own fraud to shield him from respon- 
 sibility as factor, and plaintiff could adopt the 
 sales made and claim the proceeds. — Gl. g/ App., 
 Sept., 1877. Standard Sugar Eefinery v. Davton! 
 70N. Y. 486. ' ' 
 
 17. Second arrest. The fact that an 
 order of ariest has been vacated, because 'the 
 affidavit upon which it was granted failed to 
 establish any fraudulent intent on the part of 
 defendant, does not prevent the granting of a 
 second order of arrest in the same action upon 
 further facts, if the court is satisfied that the 
 application for such second order is not vexa/- 
 tiom.— Supreme Gl., (1st Dept.,) March, 1880. 
 Meucd V. Baudnitz, 20 Hun 343. 
 
 18. Defendant had been arrested in an action 
 in the Supreme Court, and the order was vacated 
 because the complaint united two causes of 
 action, only one of which authorized an arrest. 
 Plaintiffl, having discontinued the suit, com- 
 menced another in the Common Pleas, alleging 
 substantially the same facts, but framing the 
 complaint so as to show but one cause of action, 
 and sued out an order of arrest. On motion to 
 vacate — Held, that such second oider was vexa- 
 tious and should be vacated.— Com. Pleas, April 
 1877. Young v. Weeks, 7 Daly 115. 
 
 (6) Obtaining and service of the order. 
 
 19. Power to grant it. A judge of the 
 JNew York Common Pleas is a county judge 
 within the meaning of that term as used in Code 
 of Civ. Pro., § 556, and an order of arrest may 
 VfU'^^'T^*^ ^^ him.— Saprme a., (1st Dept.,) Oct., 
 if '^' , ,?eople, ex rel. Ireland v. Donohue, 15 
 Hun 446. 
 
 _ 20. In the fij-st judicial district, an applica- 
 tion for an order of arrest may be lawfully 
 
 made to, and properly granted by, a justice out 
 of court, — Supreme Ct., {1st Dept.,) May, 1880. 
 Boncicault v. Boucicault, 59 How. Pr. 131. 
 
 21. Form and suffloienoy of the afll- 
 davit. Where, in an affidavit upon which an 
 order of arrest is granted, the facts are staled 
 positively, not on information and belief; are 
 not denied or .disputed by defendant when op- 
 portunity is afforded ; and the facts alleged are 
 not such that the affiant could not by any possi- 
 bility have sufficient knowledge of to verify, an 
 appellate court, sitting in review of the order, 
 may take tlie facts as stated. — Ct. of App., April, 
 1879. Pierson v. Freeman, 77 N. Y. 589. 
 
 22. Where facts are thus positively affirmed, 
 the affiant is not required to state the source of 
 his knowledge or his means of information ; 
 this is necessary only where the facts are stated 
 on information and belief, lb. 
 
 . 23. In an action for the price of lumber sold 
 to defendants, who were paitners, and for work 
 performed for them, the affidavit, used on the 
 motion for an order of arrest, alleged that one 
 of the defendants had falsely represented that 
 the firm was fully responsible, when, in fact, it 
 was insolvent ; that shortly before these repre- 
 sentations were made, each of the partners con- 
 veyed certain lands of the value of $6000 to 
 their wives, without consideration ; that the 
 deeds were not recorded until four months after 
 the making of the representations, and that the 
 conveyances were made to cheat the creditors of 
 the firm ; that the concealment thereof was to 
 cheat and defraud the plaintiffi, and that each 
 partner ordered some of the items of the bill, 
 knowing at the time that they were-insolvent. 
 Seld, that the affidavit showed facts, indepen- 
 dent of the false representations, sufficient to 
 sustain an order of arrest against both partners. 
 —Supreme Gt., {4th Dept.,) June, 1878. Hitchcock 
 V. Peterson, 14 Hun 389. 
 
 24. The affidavit need not specify the grounds 
 of arrest, in terms; it is enough that it states 
 facts sufficient to authorize the conclusion that 
 the grounds exist. lb, 
 
 25. What must be alleged' in the 
 complaint. Under Code of Civ. Pro., |g 549, 
 550, 557, 558, as amended by Laws ol 1879, ch. 542, 
 in order to subject a defendant to arrest for fraud 
 in contracting or incurring the liability sought 
 to be enforced, the facts showing such fraud 
 must be alleged in the complaint. — Supreme Gl. 
 {1st Dept.,) Jan., 1880. Hecht v. Levy, 20 Hun 
 53. 
 
 26. As to the sufficiency of the complaint to 
 show that the action is in tort, so as to defeat a 
 motion to vacate an order of arrest granted iu 
 the action, see Combs v. Dunn, 56 How. Pr. 
 169. 
 
 2*7. "What need not be alleged. To 
 sustain an order of arrest in a, civil action 
 under the provisions of the new code, it is not 
 essential that the cause of arrest should appear, 
 in every case, in the complaint itself. Section 
 558 simply requires the order to be vacated, on 
 motion, when the complaint shows affirmatively 
 that the case is not one of those mentioned iu 
 U 549 and 550.— Ci!. of App., Oct., 1878. 
 Bowery Nat. Bank v. Duryee, 74 N. Y. 491 ; S. 
 P. Sloan V. Liverinore, 14 Hun 29 : S. C, 55 
 How. Pr. 85. 
 
 28. Where the action is one of those men- 
 tioned in § 550, where the cause of arrest may 
 be dehors the cause of action, and the complaint 
 
ARREST, I. 
 
 35 
 
 • States simply the cause of action, without alleg- 
 ing facts to authorize the order of arrest, it 
 does not thereby show affirmatively that the 
 <;ase is not one of those mentioned in said sec- 
 tions ; but shows that it may be one of those 
 specified in § 550. lb. ; S. P., Taylor v. Faas, 
 14 Hon 166. 
 
 29. Where the arrest is sought on facts ex- 
 trinsic to the cause of action, (Code of Civ. Pro., § 
 558) it is improper to allege such facts In the 
 complaint. — Gt. of App., S&pt., 1878. Bowery 
 ISTat. Bank v. Duryee, 56 How. Pr. 42 ; affirm- 
 .ing55 Id. 88 ; and reversing 54 Id. 450 ; Mather 
 ». Hannaur, 55 Id. 1. 
 
 30. The undertaking. Where an under- 
 taking on arrest is in the form required by the 
 Code of Procedure, the defect may be cured by 
 service of a new undertaking conforming to the 
 requirements of the Code of Civil Procedure. 
 And such service made before the hearing of 3, 
 motion to vacate will defeat the motion. — N. Y. 
 Marine Ot., (Sp. T.,) April, 1880. Pember v. 
 -Shaller, 58 How. Pr. 511. 
 
 31. The failure to serve a copy of the under- 
 -taking upon the defendant at the time of the 
 arrest (as would seem to be required by ^§ 559, 
 562), is only an irregularity, and does not entitle 
 z, defendant to his discharge. — Oneida Sp. T., 
 AprU, 1878. Mather v. Hannaftr, 55 How. Pr. 1. 
 
 32. Where a defendant, who has been ar- 
 jested in an action, obtains judgment by default 
 for costs, for want of prosecution, during the 
 absence of the plaintiflf from the state, which 
 judgment is subsequently vacated at the instance 
 t)f plaintiff a judgment against the sureties on 
 plaintiff's undertaking given on procuring the 
 order of arrest, obtained subsequent to the judg- 
 ment for costs and prior to the proceedings 
 setting it aside, should also be vacated. — Superior 
 Ct., Ntyv., 1879. Wettig v. Moltz,-45 Superior 
 389. 
 
 33. The order. The validity of an order 
 of arrest is to be determined by the law exist- 
 ing at the time of the arrest of the defendant 
 thereunder, and not by that existing at the time 
 the order was issued. — Supreme Gt., {1st Dept.,) 
 Jan., 1880.' Hecht v. Levy, 20 Hun 53. 
 
 , 34. The fact that the order of arrest is not 
 digued by the attorney, as required by Code of Civ. 
 Pro., § 561, is not fatal. It is an irregularity 
 which should not be overlooked in practice, but 
 such omissions may be supplied by amendment 
 under §§ 723, 724. Whether the name of the 
 ^attorney upon the back of the order, and not at 
 the end or face of it, would be a sufficient com- 
 pliance with the provisions of ? 561, nwere. — 
 Oneida Sp. T., April, 1878. Mather v. Hannaur, 
 55 How. Pr. 1. 
 
 35. An order of arrest which prescribes the 
 form of undertaking as directed in Code of Civ. 
 Pro., § 575, snbd. 1, is not irregular. Defend- 
 ant's right to the Jail liberties under J 149, is 
 not in the least afifected by such direction. If 
 he does not desire to give the bail required by 
 the order to effect his discharge, he has a perfect 
 jight to offer the limit bond under J 149, and 
 the sheriff is bound to accept it. — Smreme Gt., 
 {1st Dept.j) May, 1880. Boucicault v. R)ucicault, 
 59 How. Pr. 131. 
 
 36. Indorsement of rule 6, of 1874. 
 Eule 6, of the rules of 1874, requiring the 
 sheriff to file with the clerk the order of arrest 
 and affidavits on which it was granted, and direct- 
 ing that a copy of the rule be indorsed on the 
 
 order of arrest before its delivery to the sheriff, 
 is sufficiently complied with, if the substance of 
 the rule is indorsed upon the outside of the ori- 
 ginal 'papers given to the sheriff, although 
 omitted from the copy served upon the person 
 arrested. — Supreme Ct., {ith Dept.,) Jan., 1878. 
 Kopelowich v. Kersburg, 13 Hun 178. 
 
 S"?. Undertaking to procure dis- 
 charge. Defendants arrested in au action to 
 recover chattels wrongfully concealed or dis- 
 posed of, may, under the new code, either give 
 an undertaking to pay any judgment finally re- 
 covered, or be admitted to the liberties of the 
 jail upon the ordinary limit bond. — N. Y. 
 Marine a., {Sp. T.,) March, 1878. Levy v. 
 Kairn, 55 How. Pr. 136. 
 
 38. Where an undertaking, given under the 
 old code (J 187), to procure the discharge of a 
 defendant from arrest, was, by its terms, simply 
 a joint obligation, not joint and several — Hdd, 
 that upon the death of a surety thereto, his 
 estate was absolutely discharged, both at law 
 and in equity, and the surviving obligors only 
 were liable. — Gt. of App., FA., 1858. Davis v. 
 Van Buren, 72 N. Y. 587. 
 
 39. Defendant having been arrested in an 
 action of replevin, an undertaking was given, 
 conditioned that he should be, at all times, 
 answerable to process, " and for the payment to 
 the plaintiff of such sum as may, for any cause, 
 be recovered against the defendant." Plaintiff 
 objected that the undertaking was not such as 
 was required by section 211, and a new under- 
 taking was given, conditioned for a return of 
 the property, as required by the code. Plaintiff 
 recovered a judgment, and brought an action 
 against the stireties on the first undertaking. 
 Hdd, that, as it was not in the form required by 
 the statutes, it was void, and could not be en- 
 forced.— (Supreme Gt., {2d Dept.,) Sept., 1878. 
 Cook V. Horwitz, 14 Hun 542. 
 
 (c) Motion to vacate. 
 
 40. Right to move. An order for the 
 arrest was granted November 20th, 1869, and 
 December 28th, 1869, a motion to vacate was 
 denied, with leave to renew the motion on show- 
 ing the amount secured by an attachment pre- 
 viously issued in the action. In 1872 the action 
 was tried, and judgment recovered by plaintiff. 
 In February, 1877, a new mqtion to vacate the 
 order of arrest was made. Held, that leave to 
 renew was only given for a special purpose, and 
 the right to renew was terminated by the entry 
 of the judgment. — Supreme Gt., {1st Dept.,) 
 March, 1878. MiUs v. Kodeweld, 13 Hun 439. 
 
 41. Time to move. A motion to vacate an 
 order of arrest, under Code of Pro., ? 204, may 
 be made after verdict, and before entry of judg- 
 ment. — Com. Pleas, April, 1877. Fuentes v. 
 Mayorga, 7 Daly 103. And see Genesee Eiver 
 Nat. Bank v. Mead, 18 Hun 303. 
 
 42. Evidence of the hearing. Upon the 
 hearing of a motion to vacate au order of arrest, 
 the proceedings of the board of trustees of a 
 private oorpofation were material, and the 
 sworn official record of the trustees' meetings was 
 introduced by defendant, and attacked by plain- 
 tiff, by his own unsupported affidavit, as having 
 been fabricated and falsified. Held, that how- 
 ever strongly plaintiff's evidence on this point 
 might be supported on a trial of the issues, upon 
 the motion to vacate the order of arrest, the 
 
36 
 
 ARREST, II— ASSAULT, L 
 
 court were bound to rely upon the sworn official 
 record. — Com. Pleas, June, 1879. Dixon v. 
 Beach, 8 Daly 284. 
 
 43. "Wlien the motion -will be 
 granted. Where the allegations of fraud are 
 not proved, and no motive to cheat -is shown, 
 the order of arrest wiU be vacated. See this 
 case for evidence of false' and fraudulent repre- 
 sentations deemed insufficient to sustain the 
 order. — Supreme Ot., {Kings Sp. T.,) Aug., 1876. 
 Anderson v. Hunt, 55 How. Pr. 336. 
 
 44. Where a plaintiff unites in his complaint 
 two causes of action, one of which is bailable 
 and the other not, he waives his right to bail as 
 to both, and an order of arrest cannot be sus- 
 tained. — Cl. ofApp., Dec., 1877. Madge v. Puig, 
 71 N. Y. 608 ; reversing 12 Hun 15. 
 
 45. If, according to tlie averments of a com- 
 plaint, the plaintiff may have judgment, without 
 proof of any facts which justify an order of ar- 
 rest under Code of Pro., ? 179, the court is not 
 precluded from vacating an order of arrest on 
 ihe ground that the cause of action and the 
 ground of arrest are identical. — Superior Gt., 
 Feb., 1878. Bobbins v. Falconer, 43 Superior 
 363. 
 
 "46. "When denied. Where the cause of 
 action set forth in the complaint and the ground 
 of arrest are the same, the controversy should be 
 left to an investigation at a regular trial, and 
 should not be decided upon conflicting affidavits 
 on a motion to vacate the order of arrest. — 
 Swpreme Cl., {1st Dept.,) Jvly, 1878. Welch v. 
 Winterbum, 14 Hun 518. 
 
 47. Where a principal obtains the arrest of 
 his agent for fraudulently turning over notes, 
 falsely represented to be well secured, in place 
 of money collected for the principal, when in 
 fact the notes were not well secured, the notes 
 must either be surrendered to defendant, or 
 filed with the clerk to await the final order of 
 the court, in order to prevent the granting of a 
 motion to vacate the arrest, — Supreme Cl., {Sp. 
 T.,) July, 1880. Spence v. Baldwin, 59 How. 
 Pr. 375. 
 
 48. Discharge after vacating order. 
 The discharge of a defendant, pursuant to an ei 
 parte order taken by default, vacating the order 
 of arrest for neglect to enter judgment (Clode, 
 § 288,) when it was within the plamtiff's power 
 so to do, denied under the peculiar circumstances 
 of the particular case. Sdielly v. Zink, 13 Hun 
 538. 
 
 II. Itr Cmminai, Cases. 
 
 49. Form and requisites of the com- 
 plaint. A complaint in writing, made before 
 a magistrate, alleged that certain goods had been 
 stolen, and that complainant "has probable 
 cause to suspect, and does suspect, that B." stole 
 them. Held, insufficient to justify the issuing 
 of a warrant for the arrest of B. — Supreme Cl., 
 (3d Dept.,) May, 1879. Blodgett v. Bace, 18 
 Hun 132. 
 
 50. Arrest -without a -warrant. A 
 policeman cannot arrest a person violating a city 
 ordinance without a warrant, dnless expressly 
 authorized so to do by the city charter, or unless 
 such violation is accompanied by a breach of the 
 peace.— Supreme Cl., {4th Dept.,) Jan., 1878. 
 Hennessy v. Connolly, 13 Hun 173. 
 
 51. To justify a policeman in arresting a 
 person in New York City, without a warrant, 
 the act for doing which the arrest is made, if not 
 
 a felony, must be committed in the immediate 
 presence of the officer, whether or not it amounts- 
 to or tends to a breach of the peace. — Com. Pleaa, 
 April, 1877. Sternack v. Brooks, 7 Daly 142. 
 
 As to putting in bail, see Bail. 
 
 As to execidion against the person, see ExBCir- 
 Tws, XL 
 
 ARSON. 
 
 Averment of ownership of building. 
 
 Plaintiff in error was convicted as an accessory 
 before the fact to arson in the first degree. The- 
 iire was set in a five-story tenement-house, having 
 a common entrance upon the street, and from a 
 yard in "the rear. The apartments of the ten- 
 ants, consisting of several rooms, opened upon 
 common halls, in the several stories. Plaintiff 
 in error and his wife, rented and lived in three 
 rooms on the second floor. One K., with his 
 wife and two children, occupied three rooms ad- 
 joining those of plaintiff in error, but not 
 directly communicating with them. The firfr 
 was set in the rooms of plaintiff in error, and 
 burned portions thereof, but not to any extent 
 the rooms occupied by K. There was no one in 
 the rooms of pl^ntiff in error when the fije wa» 
 set, but there were in those of K. The indict- 
 ment charged the principal with having, in the 
 night time, set ' fire to and burned a certain 
 dwelling house of one K. Held, that the in- 
 dictment properly described the dwelling-house 
 as that of K. — Swpreme Cl., {Isl Dept^ Dec.^ 
 1879. Levy v. People,* 19 Hun 383. 
 
 ASSAULT. 
 
 I. The Crvni Action. 
 II. The Ceiminai, PBOSECtrrioN. 
 
 I. The Ciytl Action. 
 
 1. What constitutes an assault. T* 
 constitute an actionable assault and battery, it 
 must have been unwarranted, but need not 
 have been committed in anger. — Swpreme Cl.^ 
 {tlh Dept.,) Oct., 1878. Johnson v. McConnell, 
 15 Hun 293. 
 
 2. Matters of defence. Where one 
 having a right of way over the lands of another 
 subject to gates, removes the gates, this does 
 not work such an immediate and absolute for- 
 feiture as to justify the use of force on the part 
 of the latter to the extent of an assault and 
 battery, to prevent the use of the way ; a right 
 to the possession does not justify the use offeree 
 in taking possession. — Ci of App., Dee., 1878. 
 McMillan v. Cronin, 75 N. Y. 474. 
 
 3. Plaintiff had cut the grass upon the side, 
 adjoining his land, of a highway dividing the 
 farms of the parties. Defendants in the absence- 
 of plaintiff went into the highway and com- 
 menced raking the hay into piles perparatory 
 to_ removing it, whereupon plaintiff went with 
 his team and wagon for the purpose of carrying 
 away the hay, and thereupon the affray occurred. 
 
 * Said to have been affirmed fn the Court of Ap- 
 peals, March 9th, 1880, 
 
ASSAULT, 11— ASSIGNMENT, I. 
 
 37 
 
 Defendants alleged in their answer that one of 
 them was owner of the land on which the grass 
 grew, and that the alleged assault was com- 
 mitted in resisting an attempt on the part of 
 plaintiff by force to prevent them from gather- 
 ing the hay. Plaintiff proved that for several 
 jrears prior to the occurrence he had mowed and 
 <!ropp§d the land, and exercised such acts of 
 ■ownership as were consistent with its use as a 
 highway. It was not disputed but that if the 
 ■title was as claimed by defendants they had the 
 right of possession subject to the public use. 
 The court rejected evidence offered by defend- 
 ants showing such title, and withdrew that 
 ■question from the jury. Held, that assuming 
 title to be as claimed, defendants had the right 
 to enter upon the highway and remove the hay ; 
 that there was no proof of such a possession in 
 plaintiff at the time of the affray as justified 
 him in ejecting defendants or deprived the latter 
 •of the right to resist by the use of reasonable 
 .and necessary force an attempt by plaintiff to 
 prevent them from removing the ha,y. — Ot. of 
 App., May, 1878. Bliss .,. Johnson, 73 N. Y. 
 ^29, 534. 
 
 II. The Criminal Pbosecution; 
 
 4. "What is a criminal assault. A 
 "blow given with the handle of a pitchfork, 
 without pushing or thrusting with the tines, is 
 not an assault with a " sharp, dangerous weapon," 
 within the meaning of the act uf 1854, (Laws of 
 1854, eh. 74,) providing for the punishment of 
 -assaults with dangerous weapons. — Ot. of App., 
 March, 1877. Pilkins v. People, 69 N. Y. 101. 
 
 5. The indictment charged the prisoner 
 with an assault with a " knife, pistol, slung-shot, 
 hilly and club, * * * the same being then 
 .and there a sharp, dangerous weapon, with 
 intent to do bodily harm, without justifiable or 
 •excusable cause." It was claimed on behalf of 
 the prisoner that this indictment was void, for 
 ■duplicity in charging two distinct offences in 
 ■one count ; one under Laws of 1854, ch. 74, to wit, 
 an assault with " a sharp, dangerous weapon," 
 a,nd one under Laws of 1866, ch. 716, ? 1, to wit, 
 the use against another person of a " slung-shot, 
 hilly," etc. Held, untenable; that the indict- 
 ment was simply for an assault, under the act of 
 1854 ; that it was immaterial that some of the 
 weapons named in the indictment could not 
 ■well be "sharp," within the meaning of the act, 
 as they were all alleged so to be, and whether 
 ihe instrument used was "sharp" was matter to 
 be proved on the trial ; that it was sufficient to 
 «ustain the indictment that one of the instru- 
 ments alleged to have been used was sharp, and 
 was one named in the statute. — Ot. of App., Feb., 
 1878. People v. Casey, 72 N. Y. 393. 
 
 6. Evidence. Upon the trial of an indict- 
 ment under the act of 1854, above mentioned, 
 ■evidence on the part of defendant, that the 
 -assault was committed in defending his property, 
 ■or that of others entrusted to his care, against a 
 trespasser seeking to take forcible possession, is 
 -competent, both upon the question as to whether, 
 io the extent that force may lawfully be 
 used in the defence of one's goods, the assault 
 was justified, and also upon the question whether 
 the assault was "with intent to do bodily harm." 
 If the intention was merely to defend the pos- 
 session, although unjustifiable means may have 
 been reaoited to, the offence is not within the 
 
 statute. — Ct. of App., March, 1877. FilHns v. 
 People, 69 N. Y. 101. 
 
 7. Instructions to jury. The court was 
 requested by the prisoner's counsel to charge 
 that " if the jury can satisfactorily account for 
 the wound on complainant's head in any other 
 manner than by an assault by the prisoner with 
 such a weapon as is named in the indictment, it 
 is their duty to acquit the prisoner." The court 
 refused so to charge, but charged that in that 
 event they might convict of simple assault and 
 battery. Held, no error.— Oi. of App., Feb., 1878. 
 People V. Casey, 72 N. Y. 393. 
 
 8. Assaults -with. Intent to commit 
 rape. Under 3 Rev. Stat. (6 ed.) 938, ? 49, 
 providing that " every person who shall be con- 
 victed of an assault with the intent to commit 
 any robbery, burglary, rape, manslaughter," &c., 
 " shall be punished," &o., it is sufficient to allege 
 in the indictment that an assault was made upon 
 a female child, " with intent then and there, 
 willfully and feloniously, to commit a rape 
 against the form of the statute," &c., and it is 
 not necessary to allege that the intent was to 
 " carnally and unlawfully know " the child. — 
 Supreme Ot., (1st Dept.,} March, 1878. Singer v. 
 People, 13 Hun 418 ; affirmed 75 N. Y. 608. 
 
 9.""Where such an assault is made upon a 
 female child under ten years of age, the fact of 
 her assent does not alter the nature of the crime 
 or diminish the defendant's guilt. lb. 
 
 lO. Indecent assaults upon chiidren. 
 To -sustain a conviction for an indecent assault 
 and battery upon young girls, under the age of 
 twelve years, it is not necessary to show resist- 
 ance ; if their persons were indecently interfered 
 with, without their actual assent, it is enough. — 
 Supreme Ot., (Ut Dept.,) July, 1879. People, ex 
 rel. Engel v. Special Sessions, 18 Hun 330. 
 
 ASSESSMENTS. 
 
 Corporations; Eminent Domain; Insub- 
 ance; MnNioiPAii Cobpobations; NewYokk 
 City J Taxes. 
 
 ASSIGNMENT. 
 
 [Consult, also, AssiaxMBNTs fob Benefit of Crbdi- 
 TORS ; Feacddlent Convey ancbs ; Saues j Vbhdob 
 
 AND FUBCHASEB.] 
 
 « 
 
 I, What may be Assigned, and how. 
 II. Construction and Validity. 
 HI. Eights and Liabilities op the As- 
 signee. 
 
 I. What may be Assigned, and how. 
 
 1. What is assignable, generally. All 
 choses in action are now assignable, except 
 those that from their nature, or because they are 
 forbidden by law, cannot be assigned, such as 
 the right to a revolutionary pension, the un- 
 earned salary of a public officer, the beneficial 
 interest of a cestui que trust in certain cases, &c. ; 
 and the action must be brought in the name of 
 the assignee, he being the real party in interest. 
 —Com. Pleas, 1880. Boyd v. Belmont, 58 How. 
 Pr.513. 
 
38 
 
 ASSIGNMENT, II 
 
 2. A cause of action in tort, affecting the 
 properly rather than the person of the claim aat, 
 may be bought and sold. — Superior Cl., March, 
 1879. Hyde v. Tuffts, 45 Superior 56. 
 
 3. The right to the ice which may form upon 
 a given area of water in a pond, is assignable. — 
 Supreme Cl., (Sd Dept.,) January, 1878. Meyer 
 t;. Whitaker, 5 Abb. N. Cas. 172. 
 
 4. Assignment by delivery. Although 
 a bond and mortgage may be transferred by 
 mere delivery, there must be an intention so to 
 transfer accompanying the delivery. Where 
 the intention is to have a written assignment, a 
 mere manual delivery does not pass title. — Ci. 
 of App., June, 1879. Strause v. Josephthal 77 
 N. Y. 622. 
 
 II. CONSTETTCTION AND VaLIDITT. 
 
 5. "Wliat •wUl be deemed an equit- 
 able assignment. While an ordinary draft 
 or check on a bank does not operate as an equit- 
 able assignment of so much money, so as to vest 
 the title in the payee without acceptance, yet 
 when a particular fund is specified, out of which 
 the amount is payable, or the source from which 
 the money is to be derived, the order operates as 
 an equitable assignment of the fund, or so much 
 thereof as is necessary to satisfy the draft, with 
 or without acceptance by the drawee; and so 
 operating, it transfers the fund, so that the 
 drawee, having notice of the drafU is bound to 
 keep the fund, as upon a special deposit in "his 
 hands, for the benefit of.the payee. — Supreme Cl., 
 (4«A Dept.,) June, 1878. Ballou v. Boland, 14 
 Hun 355. 
 
 6. Plaintiff being entitled, under a will, to 
 the income of certain property, held by an 
 executor, during her life ; M. agreed to support, 
 maintain and clothe her, and give her a home, in 
 consideration of receiving the income above men- 
 tioned. Plaintiff gave M. a power of attorney 
 to receive the income from the executor, which 
 was never revoked. The executor accepted and 
 acted upon the agreement for eighteen years. A 
 judgment having been recovered against M., in 
 an action by the receiver in supplementary pro- 
 ceedings, to recover surplus income in the hands 
 of the executor, which had accumulated while 
 plaintiff was supported by M — Held, that the 
 accrued income passed to M. by virtue of an 
 equitable assignment, and the receiver was 
 entitled to recover. — Supreme Gt., (2d Dept,) 
 Dec., 1879. McEwan v. Brewster,* 19 Hun 337. 
 
 1. Where a tenant, by authSrity of his wife, 
 delivered to an agent of the landlord, a note 
 made by a third person to the order of the ten- 
 ant's wife, as security for the rent — Sdd, that 
 this pledge of the note was an equitable assign- 
 ment to the landlord, who, the rent not being 
 paid, could sue thereon, in his own name, not- 
 withstanding the tenant's wife had not endorsed 
 it, and refused to do so. — Supreme Ct., (id Dept.,) 
 Dec., 1879. Van Eiper v. Baldwin, 19 Hun 344. 
 
 8. "What -will not be. An-- order, check 
 or draft, to have the effect of an equitable assign- 
 ment, must be drawn on a particular specified 
 fund. Therefore, where an insurance company 
 gave its check upon a trust company, in pay- 
 ment of a loss, the company having, at the time, 
 on deposit, a sum exceeding the amount of the 
 check, but, prior to its presentation, a receiver 
 
 *0 verruling previous decision in same case. 17 Hun 
 223. 
 
 of the company was appointed, who withdrew 
 all the funds deposited — 
 
 Held, 1. That the check hot having been 
 drawn on a particular fund, did not operate as- 
 an equitable assignment pro tanto of the deposit ; 
 and that the claim having been only liquidated, 
 not paid, when the company failed and went into 
 the hands of the receiver, whereby the rights of 
 all the creditors became fixed by statute, the 
 payee of the check was not entitled to have the 
 same paid by the receiver, out of the funds, in 
 preference to the claims of other creditors. 
 
 2. That the fact that there was a receipt on- 
 the back of the check — intended for the signa- 
 ture of the payee — did not affect its negotiability, 
 or create a lieu upon an appropriation of the 
 particular fund. — Ct. "bf App., Nov., 1877. At- 
 torney-General V. Continental Life Ins. Co., 71 
 N. Y. 325 ; reuersing 10 Hun 604. 
 
 9. The following order — 
 
 Mohawk, August 31st, 1876. 
 " Jerome Tuttle : Pay Brill and Eussell three 
 hundred dollars, and charge the same to our 
 account, for labor and materials performed 
 and furnished in the repairs and alterations' 
 of the house in which you reside in the village 
 of Mohawk. J. P. Ackekmau & Son" — 
 
 Seld, not to constitute an equitable assignment, 
 as there was no specification of any particular 
 fund out of which it was to be paid. — Supreme- 
 a., (ith Dept.,) Oct., 1878. BrUl v. Tuttle, 15 
 Hun 289. 
 
 10. Assignment of lease. Plaintiff 
 leased certain premises to one S. for five years. 
 Shortly thereafter S. assigned the lease, subject 
 to the rents and conditions, to L., who entered- 
 into possession and paid the rent in the name of 
 S. Subsejjuently S. assigned to plaintiff all his 
 claim against L. for accruing rents. Held, that 
 these facts established a privity of contract be- 
 tween plaintiff and L., and that plaintiff could 
 maintain an action against L. for the rent re- 
 served by the lease. — Supreme Ct., (2d Dept.,) 
 Dec., 1878. Marshall v. Lippmau, 16 Hun 110. 
 
 _ 11. — of policy of insurance. An ^- 
 signment of a policy of life insurance, absolute 
 on its face, may be shown by parol to have 
 been given simply as security. — Ct. of App.^ 
 May, 1877. Matthews v, Sheehan, 69 N. Y. 585.^ 
 12. B. procured a policy of insurance upon 
 his life " until the 6th day of September, 1882, 
 or until his decease in case of his death before 
 that time ; " in the latter event the amount in- 
 sured was, by the terms of the policy, to be paid 
 to the wife of B. if living, otherwise to his 
 daughter. The policy was delivered to the 
 wife, and placed where both she and her hus- 
 band could have access to it. Subsequently B., 
 as the court found, " through undue influence 
 and control, amounting to compulsion," pro- 
 cured his wife tb execute an assignment of the 
 policy to McC. ; she signing the assignment 
 " without any knowledge of its purpose or pur- 
 port, without consideration, and without any in- 
 tention on her part to divest herself of any prop- 
 erty or right, or of any interest in said insurance." 
 This, with the policy and an assignment executed 
 by himself, B. delivered to McC. McO. an* 
 plaintiff, his assignee, subsequently paid the 
 premiums. B. died in 1875. In an' action upon 
 the policy, wherein the wife of B. was brought 
 in by order of interpleader — Held, that upon 
 delivery of the policy, the wife of B. acquired^ 
 a direct interest therein, which, independent 
 
ASSIGNMENT, III— ASSIGNMENTS. 
 
 39' 
 
 of the statutes relating to insurance upon the 
 life of a husband for the benefit of his wife, 
 could only be transferred by an assignment duly 
 executed ; that said interest was unaffected by 
 the instrument so executed by the wife, and 
 that she was entitled to the amount of the insur- 
 ance.— Cl!. ofApp., Sept., 1879. Powler v. But- 
 terly, 78 N. Y. 68. 
 
 13. — of judgment. Where a judgment 
 against the members of a firm is paid by one of 
 the partners, and at his request is assigned to a 
 third person, the payment discharges ^he judg- 
 ment and the assignee acquires no title. — Ct. of 
 App., Sept., 1878. Booth v. Farmers', &c., Nat. 
 Bank, 74 N. Y. 228. 
 
 14. — of mortgage. B. conveyed a piece 
 of land to P., taking back a purchnse-money 
 mortgage for $2800, as to $1400 of which it was 
 provided that, as B.'s wife refused to join in the 
 deed, it should be set apjirt as an indemnity 
 against her claim of dower, the interest to be 
 paid to B. during his life, and in case he sur- 
 vived his wife, the principal to be paid to him 
 or his heirs, executors or administrators ; in case 
 she survived him, the interest to be paid to her 
 during her life, if she elected to receive it in- 
 stead of claiming her dower, and if not, then no 
 interest to be paid until her death, but the 
 principal to be paid within twelve months there- 
 after to the heirs, executors or administrators of 
 B. B. assigned the mortgage, and the same vraa 
 paid to the assignee, and satisfied of record. B.'s 
 wife survived him, and elected to take the 
 interest of the $1400 in lieu of dower. After 
 her death, B.'s administrator brought an action, 
 claiming that B. had no right to assign the. 
 mortgage ; that the $1400 was made a trust fund 
 for the benefit of B.'s heirs, and that the pay- 
 ment to the assignee did not satisfy the mort- 
 gage. Seld, that the assignment was valid, and 
 that the payment to the assignee discharged the 
 mortgage. — Supreme Ct., (3d Dept.,) Jan., 1878. 
 Benham v. Pennock, 13 Hun 103. 
 
 15. A., a resident of Oswego county, gave a 
 mortgage on land there situate, to B., who died 
 in Illinois. B.'s administrator, appointed in 
 Illinois, assigned the mortgage to plaintiff in 
 foreclosure. Seld, that the assignment vested 
 the title in plaintfi^ and that be could maintain 
 the action. — Supreme Ct., (4th Dept.,) Jan., 1879. 
 Smith V. Tifiany, 16 Hun 552; consuU Mobt- 
 GAOES, V. 
 
 16. — of right to use patented ma- 
 chine. Where the' right acquired by contract 
 to the use of a patented machine, under an agree- 
 ment to pay a " royalty " for such use, is assigned, 
 the case is analogous to the assignment of a. lease 
 by the lessee, and the same rules of law apply. — 
 Cam. Pleas, Jan., 1879, Wilde v. Smith, 8 Daly 
 196. 
 
 ni'. Bights axd IiIAbilities of the 
 AssiairsE. 
 
 17. Kule that assignee takes, subject 
 to equities. An assignee of a bond and 
 mortgage takes it subject to the equities between 
 the original parties, and the assignor can give 
 no better title than he has himself. — Cl. of App., 
 April, 1877. Davis v. Becbstein, 69 N. Y. 440. 
 
 18. It is only where theowner has, by his own 
 affirmative act, conferred the apparent title and 
 absolute ownership of a non-negotiable chose in 
 action upon another, on the faith of which it has 
 
 been purchased for value, that he is precluded 
 from asserting his real title. lb. 
 
 19. Exceptions to the rule. The gen- 
 eral rule that a purchaser of a mortgage takes 
 it subject to all the latent equities existing in 
 favor of the mortgagor, and also of third par- 
 ties, relates only to those equities which are not 
 within the scope of the recording act, and 
 against which subsequent purchasers, bona fide, 
 are thereby protected. — Supreme Ct., (So. T.,) 
 Feb., 1878. Mut. Life Ins. Co. v. WUcoz, 55 
 How. Pr. 43. 
 
 20. B. contracted to buUd a wagon for de- 
 fendant, but before its completion sold it to plain- 
 tiff" by bill of sale. S "sequently B. dehvered 
 it to defendant in plaiuiuf's presence, defendant 
 not, however, paying B. the price. Held, that 
 by virtue of the bill of sale plaintiff was enti- 
 tled to recover the value of the wagon fi:om the 
 defendant. — Supreme Ct., (2d Dept.,) Sept., 1878. 
 Weissenstein v. Elias, 14 Hun 533. 
 
 21. An attaching creditor cannot defend an 
 action, brought by an assignee of the debtor, for 
 the conversion of a chose in action attached, by 
 showing fraud in the assignment. — Ct. of App., 
 Sept., 1879. Castle v. Lewis, 78 N. Y. 131. 
 
 _ 22. The M. Gr. Co., a manufacturing corpora- 
 tion, prior to May, 1872, had three trustees, one 
 of whom resigned. One of the others was 
 the treasurer and general agent of the company, ' 
 having charge of its property and business. 
 The two remaining trustees left a portion of 
 the company's goods with B. & Co. to sell on 
 commission, and subsequently, in the name of • 
 the company, made an assignment of the goods 
 unsold and of the proceeds of sales in the hands 
 of B. & Co. to A., to secure a loan made by 
 him to the company, and in pursuance of an 
 arrangement made at the time of the loan. 
 In actions brought by an assignee of A. against 
 creditors of the company, who had caused the 
 property and the avails of sales to be levied 
 upon under attachments in their favor, defend- 
 ants daimed the transfer to A. to be void for 
 want of authority, as by the statute (Laws of 1860, 
 ch. 2p9, § 1, amending Laws of 1848, ch. 40,) it is 
 required that such corporations shall have not less 
 than three trustees. Held, untenable; that the 
 objection was not available in these actions, and • 
 defendants were not in a position to raise the 
 same. lb. 
 
 23. Assignee's right to sue. The- 
 assignee of a cause of action, who purchases 
 pending a suit to enforce it, may continue to 
 prosecute the action in the name of the assignor, ' 
 as though no assignment had been made. — 
 Supreme Ct., {Ut -Dept.,) Dec., 1878. Cuff v. Dor- 
 land, 7 Abb. N. Gas. 194. 
 
 As to the mode of assigning or transferring 
 any particular instrument, see the title of the 
 writing in question. 
 
 As to Assigning errors, see Appeal ; Eeeoe. 
 Assignment of Dower, see Dower. 
 
 ASSIGNMENTS FOR BENEFIT OF 
 CREDITORS. 
 
 I. Validity, Interpretation and Effect. 
 
 1. The right to make an assignment, and how 
 
 exercised. 
 
 2. Interpretation on question of validity. 
 
40 ASSIGNMENTS FOR BEXEFIT OF CREDITORS, I, II. 
 
 II. Eights, Powees asj> Liabilities of the 
 Assignee. 
 
 I, Validity, Interprbtatiok and Effect. 
 
 1. The right to make an assignment, and how 
 
 exeraised, 
 
 1. Right to prefer one creditor above 
 another. An insolvent debtor may make an 
 assignment of all his property for the benefit of 
 his creditors, and he may make preferences. — 
 Gt. of App., April, 1879. Hauselt v. Vilmar, 76 
 N. Y. 630. 
 
 2. Effect of bankrupt act. The bank- 
 rupt act does not invalidate or affect a voluntary 
 assignment for the benefit of creditors, valid 
 under the laws of the state, where no proceed- 
 ings in bankruptcy have been instituted ; if the 
 creditors proceed under the laws of the stale for 
 the collection of their debts, those laws must 
 govern and no question under said act can arise. 
 Therefore — Held, that an assignment was not 
 void as against a subsequent execution creditor 
 levying upon the assigned property, although it 
 gave preferences. — Ct. of App., Sept., 1878. Bost- 
 wick V. Burnett, 74 N. Y. 317 ; reversing S. C, U 
 Hun 301. S. P., Williams v. Pilts, 55 How. Pr. 
 331. 
 
 3. Priority over subsequent attach- 
 ment. A voluntary assignment under the 
 laws of Ohio, takes precedence of a fund in this 
 state, as against a subsequent attachment 
 instituted at suit of creditors. — -Sapreme Ct., ( Sp. 
 T.,) May, 1878. Kelstadt v. Eeill v, 55 How. Pr. 
 373. 
 
 4. A revocation by the assignors in a 
 general assignment, cannot in any way prejudice 
 or impair the rights of creditors. — Com. Pleas, 
 (Sp. T.,) Jan., 1879. Whitcomb v. Fowle, 7 
 Abb. N. Cas. 295. 
 
 2. Interpretation on question of validity. 
 
 5. Intent to hinder creditors. If the 
 assignment be free from fraud, it will not be 
 avoided because it will incidentally and inevit- 
 ably hinder and delay creditors ; the nece.ssary 
 delay incident to the execution of the trust is 
 not within the condemnation or meaning of the 
 statute (2 Rev. Siat., 137, J 1,) declaring void 
 conveyances made with intent to hinder, delay or 
 defraud creditors.— Q!. of App., April, 1879. 
 Hauselt v. Vilmar, 76 N. Y. bSO; affii-ming 43 
 Superior 574. 
 
 6. Provision as to compromising 
 debts. An assignment provided, "that the 
 party of the second pait may h;ivo the right to 
 compromise with the creditors of the party of 
 the first part for all his debts and liabilitits 
 which the party of the first part iii;iy be owing 
 or indebted to any person, if, in the opinion of 
 the second party, it would be advaniageous to 
 the party of ihe first part and to the creditors 
 of the party of the first part." Held, that the 
 power to compromise with the creditors rendered 
 the a£signment void.— Sup-erne C'c, (ilh Depi.,) 
 Jan., 1879. McConnell v. Sherwood, 19 Hun 
 519. 
 
 But a, general assignment is not rendered 
 void by a clause authorizing the a.'ssignee ''to 
 compromise or compoimd any claim by taking a 
 part for the whole, where they shall deem it 
 
 expedient so to Ao."— Supreme Ol., (4th Dept.,) 
 June, 1879. Gintber v. Kichmond, 18 Hun 232. 
 
 7. "WTiat creditors may avoid an 
 assignment. A creditor at large cannot 
 assail an assignment or other transfer of 
 property by the debtor as fraudulent against 
 creditors, but must first establish his debt by 
 the judgment of a court of competent jurisdic- 
 tion, and either acquire a lien upon the specific 
 property or be in a situation to perfect a lien 
 thereon, and subject it to the payment of his 
 judgment upon the removal of the obstacle 
 presented by the fraudulent assignment or 
 transfer.— a. of App., Feb., 1878. Southard v. 
 Benner, 72 N. Y. 424. 
 
 8. Right of creditors to inspect 
 books. The creditors have an absolute right 
 to examine into the affairs of the assignors, and 
 to inspect their books for that purpose, and this 
 inspection need not be made by the creditor 
 personally ; he may" designate an expert or 
 other person to make it for him; — Gom. Pleas, 
 ' ' I, 1880. Matter of Isidor, 59 How. Pr. 98. 
 
 II. Eights, Powers and Liabilities op the 
 Assignee. 
 
 9. The bond. The statute of 1860, (Laws of 
 1860, eh. 348,) regulating voluntary assignments 
 for the benefit of creditors, does not make the 
 giving by the assignee of the security therein 
 prescribed a condition precedent to the vesting of 
 the estate in him, nor does the failure to give 
 the security within the time limited restore the 
 title of the assigned property to the assignor; 
 the assignment and an acceptance by the 
 assignee makes the transfer complete and 
 irrevocable. — Of. of App., Dec., 1877. Brennan 
 v. Willsou, 71 N. Y. 502 ; S. C, 4 Abb. N. Cas. 
 279 ; S. P., Matter of Parker, 5 Abb. N. Cas. 
 334; Bostwick «.' Burnett, 74 N. Y. 317. See 
 also Plume & Atwood Manuf. Co. v. Strauss, 17 
 Hun 586. 
 
 But the creditor uiay apply for liis removal 
 and an accounting. M atter of Parker, 5 Abb. N. 
 Cas. 334. 
 
 And the assignee, has no power to act in 
 e.tecution of the trust, without giving the Jbond. 
 Until this is done bis trust is simply to take 
 possession and hold the property. Brennan v. 
 Willson, 71 N. Y. 502; Worthy v. Benham, 13 
 Hun 176. 
 
 10. "What -will pass by the assign- 
 ment. The proprietary right in a trade mark, 
 will pass under a general assignment, whether 
 voluntary or under the statute. — Gom. Pleas, 
 (Sp. T.,)Feb., 1880. Hegenian v. Hegeman, 8 
 Daly 1. 
 
 11. In the cass of a general assignment of 
 an interest in goods not in the debtor's posses- 
 sion, or under his control, a delivery to the 
 assignee is not essential ; and where the sheriff 
 has seized the goods under an execution, the 
 assignment will transfer the debtor's interest 
 therein, subject to the execution lien, as against a 
 subsequent attaching creditor. — Supreme Ct., {2d 
 Dept.,) Sept., 1878. Mumper v. Kushmore, 14 
 Hun 591. 
 
 12. What -will not pass. A cause of 
 action for services rendered by an assignor for 
 benefit of creditors, accruing after the date 
 but before the delivery of a general assignment, 
 does not pass to t he assignee. — Com. Pleaa, Feb., 
 1877. Crow v. Colton, 7 Daly 52. 
 
ASSIGNMENTS FOR BENEFIT OF CREDITORS, II. 
 
 41 
 
 13. "Where goods are consigned to a firm to 
 cell under a dd credere commission, and the firm 
 makes a general assignment, the consignors are 
 «ntitled to the proceeds of the goods in the 
 hands of the assignee. — Supreme Gt., {2d Dept.,) 
 Sept., 1878. Conversveille Co. v. Chambersfiurg 
 Woolen Co., 14 Him 609. 
 
 14. Protection of prior liens and 
 "Claima. Plaintiffs had befen prevailed upon 
 to give a bond of indemnity to the sureties in a 
 bond given to release an attachment on a stock 
 of goods belonging to a business firm, upon the 
 
 Eromise that the goods so released should be 
 eld for the plaintifi''s indemnity and security 
 against loss. Held, that the plaintiffs, had an 
 •equitable lien on such stock of goods for the 
 amount they had been legally compelled to pay 
 by reason of the bond of indemnity, and that 
 «uch Ijen could be enforced as against the gen- 
 eral assignee of the firm for the benefit of their 
 creditors. — Cbm. Pleas, Feb., 1878. Arnold v. 
 Morris, 7 Daly 498. 
 
 15. The court has power, upon the petition of 
 a person having an equitable claim to a fund 
 held by a third person, which fund is also 
 claimed a.s a portion of an estate assigned for 
 the benefit of creditors, to order the assignee to 
 ■consent to the payment by the third person, of 
 the fund, to the petitioner. — Com. Pleas, April, 
 1 878. Matter of Bonne]f, 8 Daly 75. Compare 
 Person v. Oberleuffer, 59 How. Pr. 339. 
 
 16. PoTwers as respects management 
 of estate, generally. The rule that an 
 assignee for creditors will not be permitted to 
 mismanage the estate for his benefit, applied to 
 the facts of the particular case. — Com. Pleas, 
 (Sp. T.,) Judy, 1879. Matter of Marquand, 57 
 How. Pr. 477. 
 
 17. — collection and payment of 
 debts. An assignee who pays money to coun- 
 sel out of the estate, does so at his own risk. 
 Allowances cannot be granted until the final 
 accounting. — Matter of Thomas, 5 Abb. N. Cas. 
 554. And see Matter of Weinliaus, Id. 355. 
 
 18. Where an assignee applies for leave to 
 <M)mpromise a claim due the estate, the court 
 may, in its discretion, require notice to be given 
 to the creditors.— Com. Pleas, {Sp. T.,) Nov., 1879. 
 Matter of Youngs, 5 Abb. N. Cas. 346.' And see 
 also Matter of Ransom, 8 Daly 89. 
 
 19. A. made a general assignment in which 
 the assignee was directed to sell the property, 
 and after paying- the costs and expenses of the 
 trust "to distribute and pay the remainder of 
 the said proceeds to all the creditors of said 
 party of the first part, for all debts and liabili- 
 ties which the said party of the first part may 
 be owing or indebted to any person whatever;" 
 and if the proceeds were insufficient to pay the 
 debts in full, they were directed to be paid pro 
 rata. Held, only to authorize payment of debts 
 which existed at the time of the execution of the 
 assignment, and not of such as the assignor 
 •subsfequently contracted. — Supreme Ct., (4th 
 Dept.y) Jan., 1879. McConnell v. Sherwood, 19 
 Hun 519 ; S. C, 68 How. Pr. 453. 
 
 20. Joint assignees must act in con- 
 cert. One of three assignees in a general 
 assignment, all of whom had accepted the trust, 
 notified the other two that he resided and 
 would not act, and failed to give a bond. Seld, 
 that a conveyance by such two others, acting 
 alone, of the debtor's real estate, was void as 
 against creditors. — Gam. Pleas, Feb., 1877. Bren- 
 
 nan v. Willson, 7 Daly 59 ; affirmed 71 N. Y. 
 502; S. C, 4 Abb. N. Cas. 279. 
 
 21. Power to sue. Where, shortly before 
 making an assignment for the benefit of his 
 creditors, the assignor had allowed a judgment 
 by default to be entered against him, under 
 which his stock of goods in trade had been 
 levied on and sold, and the facts and circum ■ 
 stances of the transactions tended to show that 
 the claim sued on was fictitious, and that it was 
 done for the purpose of defrauding the actual 
 creditors of the assignor, the court allowed the 
 assignee to bring suit for the recovery of the 
 property, but refused to allow him to examine, 
 under the provisions of the general assignment 
 act, the persons who were alleged to have taken 
 part in or have knowledge of the scheme. — Com. 
 Pleas, April, 1879. Matter of Burtnett, 8 Daly 
 363. 
 
 22. As to the right of an assignee of a sur- 
 viving partner, to recover assets of the firm, 
 wrongfully mortgaged to the retiring partner, 
 by suit against the latter or one claiming under 
 him, see Hard v. Milligan, 8 Abb. N. Cas., 58.' 
 
 23. Duties and liabilities. An assignee 
 is not required to pay arrears of taxes, pending 
 an action for foreclosure of a mortgage made by 
 his assignor, where the mortgagees nave posses- 
 sion, through a receiver, because the mortgaged 
 lands are insufficient security. — Ct. of App., June, 
 1880. Matter of Lewis, 59 How. Pr. 251. 
 
 24. Assignee for creditors of a corporation — 
 Udd, not liable for rent of premises leased by 
 the corporation before the assignment, under the 
 circumstances of the particular case. — Ct. of 
 App., Nov., 1878. Knickerbocker Life Ins. Co. v. 
 Patterson, 75 N, Y. 589 ; affirming 43 Superior 547. 
 
 25. Power to compel him to account. 
 The power of the County Court to compel as- 
 signees for creditors to account, and to make 
 distribution among creditors, is not exclusive, 
 but concurrent with that of the Supreme Court. 
 — Supreme Ct., (2d Dept.,) Sept., 1878. Converse- 
 ville Co. V. ChambersDurg Woolen Co., 14 Hun 
 609. 
 
 But, see to the contrary, (ith Bept,) Oct., 
 
 1878. Matter of Nichols, 15 Hun 317. 
 
 26. Proof of claims. Distribution. 
 A firm indebted to one of its partners, for goods 
 sold, made a general assignment, and the partner 
 also made an assignment. The assignee of the 
 partner was allowed to prove, on the accounting, 
 the amount due from the firm to his assignor as a 
 firm debt, and to share in the distribution with 
 the other firm creditors. Held, that this was 
 error, as such debt could only be paid after 
 all the other creditors of the partnership were 
 paid in full. — Supreme Ct., (3d Dept.,) Nov., 
 
 1879. Matter of Eieser, 19 Hun 202. 
 
 27. As to what creditors are entitled to share 
 in the distribution of the trust fund, on an ac- 
 counting by the assignee; and what is a suffi- 
 cient presentation and proof of a claim, see Hatter 
 of Bailey, 58 How. Pr. 446. 
 
 28. Decree. Conflrmation of re- 
 feree's report. The final decree in an ac- 
 counting by an assignee for creditors, cannot be 
 enforced by an attachment against him. The 
 proper remedy is an execution upon the decree. 
 —Com. Pleas, Nov., 1879. Matter of Stock- 
 bridge, 58 How. Pr. 128. 
 
 29. The referee's report, on final accounting 
 by the assignee, may be confirmed on the con- 
 sent of the creditors. — Com. Pleas, {Sjp. T.,) 
 
42 
 
 ATTACHMENT, I. 
 
 Dec., 1878. Matter of Weinhaus, 5 Abb. N. 
 Gas. 355. 
 
 30. Compensation of aBsignee. A 
 general assignment directed the assignees "to 
 pay and discharge all the just and reasonable 
 expenses, costs and charges of executing this as- 
 signment, and of carrying into effect the trust 
 hereby created, together with a reasonable com- 
 mission or compensation to the assignees for 
 their own services in executing the said trust." 
 Hdd, that they were entitled to the same com- 
 missions as are, by law, allowed to executors and 
 administrators, and no more. — Supreme Q.., {Sd 
 Dept.,) May, 1879. Matter of Shaw, 18 Hun 195- 
 
 31. Right to renounce or disclaim. 
 Where there are severai assignees, and all have 
 accepted the trust, they cannot afterwards, col- 
 lectively or severally, renounce orrepudiate the 
 duties and responsibilities of the office, or divest 
 themselves of the title so vested in them, save in 
 the performance of the trust. — Ct. of App., Dec., 
 1877. Brennan v. Willson, 71 N. Y. 502; S. C, 
 4 Abb. N. Gas. 279. 
 
 32. That an assignee, having once accepted, 
 can only be relieved of the trust and divested 
 of the estate by the order of a court of compe- 
 tent jurisdiction, see li. 
 
 33. Termination of the trust by 
 lapse of time. Laws of 1875, ch. 545, amend- 
 ing the Revised Statutes, by providing that, 
 " where an estate has been conveyed to trustees 
 for the benefit of creditors, and no different 
 limitation is contained in the instrument creat- 
 ing the trust, such trust shall be deemed dis- 
 charged at the end of twenty-five years from tlie 
 creation of the same; and the estate conveyed 
 to trustee or trustees, and not granted or con- 
 veyed by him or them, shall revert to the 
 grantor or grantors, his or their heirs or devisees 
 or persons claiming under them, to the same 
 effect as though such trust had not been 
 created," only applies to estates conveyed to 
 trustees for the benefit df creditors after its 
 passage; it does not operate retrospectively. — 
 Supreme Ct., {1st Dept.,) March, 1880. McCahill 
 V. Hamilton, 20 Hun 388. 
 
 34. Removal for misconduct. The 
 words "misconduct" or "incompetency," in 
 the provision of the act in relation to assign- 
 ments for the benefit of creditors, (Laws of 1877, 
 ch. 466, ? 6,) as amended by Laws of 1878, ch. 
 318, ? 2, providing for the removal of an as- 
 signee, were intended to embrace all the reasons 
 for which an assignee ouglit to be removed ; 
 and the power of removal conferred by said 
 provision upon the county judge, sitting as a 
 court, is equal to that possessed by a court of 
 equity.— tt. of App., Sept., 1879. Matter of 
 Gohn, 78 N. Y. 248. 
 
 35. In proceedings to remove an assignee 
 under said provision, it appeared that, prior to 
 making the assignment, a judgment for the 
 benefit of the wife of the assignor wiis obtained 
 against him, under circumstances giving reason 
 to believe that it was, to a large extent, fraudu- 
 lent, being founded on claims in large part fic- 
 titious ; the assignee was the adviser, counsel 
 and active agent of the wife in procuring the 
 judgment; under his direction, an execution 
 was issued five days before the assignment, 
 which was levied upon property worth about 
 $28,000, which, with his co-operation, was sold 
 four days after the assignment, and the proceeds 
 paid to the assignor's wife. 
 
 Held, 1. That the assignee would be presumed 
 to have knowledge of the facts, and that his omis- 
 sion to make any effort to arrest the sale or the 
 proceeds, was misconduct within the meaning of 
 
 til 6 3>c1i 
 
 2. That his duty to the wife, as her counseV 
 being inconsistent with his duty as assignee, 
 made him incompetent; that the creditors were 
 entitled to an assignee who could, impartially 
 and without the violation of a duty which he 
 owed to others, assail the judgment and the sale 
 made under it ; and that, therefore, the assignee 
 was properly removed, lb. 
 
 As to assignments directed by the court io 
 proceedings under the Insolvent laws, see InsoIi' 
 
 TENCY. 
 
 As to the effect of theJate Sanhrupt law upon 
 assignments for creditors, see BaukeuptOT. 
 
 ASSOCIATIONS. 
 
 Societies akd Associatioits. 
 
 ASSUMPSIT. 
 
 CoNTHACTs; Mistake; Money Beceited;' 
 Saxes; Sebvices. 
 
 ATTACHMENT. 
 
 I. When an Attachment wili, mb. 
 II. Obtaining and Sebting the "Wasbakt, 
 
 . AND ITS Effect. 
 in. Motion to Vacate, oe Dissolve. 
 IV. Remedies foe Wbongftjl Attachment. 
 
 I. When an Attachment will Lie. 
 
 1. In general. Persons who are sued have 
 a perfect right to give up business if it does not 
 pay, or their factory is burned out, to collect 
 tlieir debts and assets, and to pay or secure 
 tlieir creditors. An attachment should not 
 issue unless it clearly appears that but one con- 
 struction is to be placed on their acts — a con- 
 struction unfavorable to honesty. — Com. Pleas., 
 May, 1878. Andrews v. Schwartz, 55 How. Pr.' 
 190. 
 
 2. What property is subject to 
 attachment. — Money deposited with the 
 clerk of a court, in lieu of an undertaking on 
 appeal, is liable to an attachment in an action 
 by a third person against the depositor. The 
 right of the latter in the deposit is not contin- 
 gent. The ultimate title remains in him, subject 
 to the claim of the respondent on the appeal. — 
 Ct. of App., June, 1878. Dunlop v. Patterson 
 Fire Ins. Go., 74 N. Y. 145 ; affirming S. C., 12- 
 Hun 627. , Jl y , 
 
 3. An attachment obtained on the ground 
 that the defendant has made a fraudulent assign- 
 ment for benefit of cieditoi's, can only be levied 
 on the property assigned, and not upon its pro- 
 ceeds, and moneys received by the collection of 
 clioses in action, by the assignee, are proceeds 
 within this rule. To reach such proceeds, a 
 creditor's bill is the proper remedy. — Qrni.. 
 PIms, (Sp. T.,) Jan., 1878. Matter of True, 4 
 Abb. N. Gas. 90 ; S. C., suh nom. Matter of 
 Freel, 55 How. Pr. 386. 
 
 4. Attachment of judgments. Where 
 
ATTACHMENT, I, II. 
 
 45 
 
 a sheriff having an execution in his hands, 
 receives an attachment against the judgment- 
 creditor, and by virtue thereof levies upon the 
 judgment debt, the attachment becomes a lien 
 upon the judgment and execution, and all 
 moneys collected upon the execulion are liable 
 to be applied toward the payment of any judg- 
 ment recovered in the action wherein the 
 attachment was issued ; and, until the attach- 
 ment is vacated, or the lien thereof in some 
 manner discharged, it must be regarded as valid 
 process, and the sheriff has no right to pay 
 over to the judgment creditor moneys collected 
 on the execution. — Ct. of App., May, 1877. 
 Wehle V. Conner, 69 N._Y. 546. 
 
 5. Where, therefore, it appears in an action 
 against the sheriff for failure to return the 
 execution, ' that such a lien by attachment 
 existed at the time of the commencement of the 
 action, plaintiff is only entitled to nominal 
 damages. The defendant's failure to perform 
 his duty, although not jiistifiq^ or excused, 
 does not entitle plaintiff to recover more than 
 the damages he has actually sustained. lb. 
 
 6. Where the sheriff acted lawfully in levy- 
 ing the attachment, the question whether he 
 acted in bad faith, cannot be considered in such 
 action, as the rights of the attaching creditors 
 could not be affected thereby. lb. 
 
 1. Where, in an action by a judgment credi- 
 tor upon an undertaking given to stay proceed- 
 ings pending an appeal to the Court of Appeals, it 
 appeared that at the time of the commencement 
 of the action the judgment had been regularly 
 attached at the suit of creditors of the judgment 
 creditor, and the attachments were still in force 
 — JSsW, that the action could not be maintained ; 
 that the undertaking was simply a collateral 
 security for the judgment and passed with it to 
 the sheriff; that it was not necessary to attach 
 the undertaking separately, as it was an incident 
 of the judgment, not an independent liability 
 of the sureties. — Cl. of App., Jan., 1879. Wehle 
 V. Spellman, 75 N. Y. 585. 
 
 8. Attachments against national 
 banks. An attachment cannot issue against 
 a national bank before final judgment, in a 
 state court, even though it has property within 
 the state and is located and carries on business 
 in another state. — Supreme Ct., (1st Depl.,) April, 
 1878. Khoner v. First Nat. Bank, 14 Hun 126. 
 
 0. The last clause of section 5242, U. S. Eev. 
 Stat., forbidding an attachment, injunction or 
 execution to be issued against a national bank 
 before a final judgment, in any proceeding in a 
 state court, applies only to such banks as have 
 committed or are contemplating an act of insol- 
 vency. — Ct. of App., May, 1880. Eobinson v. 
 Nat. Bank of New Berne, 59 How. Pr. 218; 
 affirming 58 How. Pr. 306; S. C, 19 Hun 477. 
 
 lO. Cases of fraudulent assignments. 
 It appeared from the papers upon which the 
 attachment was granted, that defendant was 
 indebted to plaintiff for goods sold,^and deliv- 
 ered; that oh the plaintifls applying for 
 payment defendant admitted that he was in- 
 solvent; that he said he was willing to turn out 
 his ^oods to his creditors, if they would accept 
 them and apply them pro rata on their claims, 
 and discharge him from further liability ; that 
 if sued he would make an assignment with 
 preferences, and leave those suing him, out, so 
 that they should get nothing. It also appeared 
 that notwithstanding his admitted insolvency. 
 
 he kept his store open, and continued to dispose- 
 of his property, and appropriated the proceeds, 
 refusing to pay anything, either in goods or 
 money, to his creditors. Hdd, to show such an 
 attempt to fraudulently dispose of his property 
 as to justify an attachment. — Supreme Cl., (Scf 
 Dept.,) Nov., 1879. Anthony v. Stype, 19 Hun 
 265. 
 
 11. In an action against a sheriff to recover 
 the possession of certain property, defendant 
 justified under two attachments against B. ; the 
 property formerly belonged to a firm composed 
 of plaintiff and B. Plaintiff's evidence was to- 
 the effect that, prior to the seizure, the co-part- 
 nership was dissolved and the personal property- 
 divided between the partners ; that B. sold his^ 
 portion to third persons, and all had been 
 removed, save a small portion left by one of 
 the purchasers in plaintifl's care. Defendant 
 seized all the goods of the late firm in plaintiff's 
 possession, as the sole property of B. Defend- 
 ant conceded the partnership, but controverted 
 the dissolution and division. The court charged' 
 that if the jury believed there was a nominaV 
 assignment by B., of his interest in the property 
 seized, to plaintiff, with intent to defraud B.'s 
 creditors, and with knowledge on plaintiff's 
 part, then the property was liable to the attach- 
 ments. 'Held, error. — Ct. of App., May, 1879.. 
 Atkins V. Saxton, 77 N. Y. 195, 199. 
 
 II. Obtainhtg and Sebting the Wabran t y 
 AND ITS Effect. 
 
 12. At what stage of the action the 
 application may be made. The provisioa 
 of the section of the code authorizing the issuing 
 of attachments (Code, J 227,) which declares- 
 that for the purpose of the section an action 
 shall be deemed commenced when the summons- 
 is issued, if personal service of the summons be 
 made, or publication commenced within thirty 
 days, applies to all courts having authority to- 
 issue attachments, and therefore to the Court 
 of Common Pleas of New York. — Ct.ofApp., 
 March, 1878. Allen v. Meyer, 73 N. Y. 1. 
 
 13. Form and sufficiency of the afla- 
 da-vits. Affidavits alleging absence of defend- 
 ant from his usual place of business and resort, 
 soon after the debt was demanded, coupled with 
 his refusal to give to plaintiff his address 
 or residence, are sufficient. — Com. Pleas, April, 
 1877. Easton v. Malavazi, 7 Daly 147. 
 
 14. An affidavit for a District Court attach- 
 ment, stating only that defendant is indebted to- 
 the attaching creditor in a sum named "over 
 and above all discounts," is insufficient to 
 sustain the process, and both that and all sub- 
 sequent proceedings are without jurisdiction. 
 The affidavit must state the amount of the 
 indebtedness " over all payments and set-offl." — 
 Com. Pleas, Jan., 1878. Solinger v. Patrick, 7 
 Daly 408. 
 
 15. An affidavit, used on an application for 
 an attachment, which fails to state that a certainr 
 sum is due to the plaintiff " over and above alt 
 counter-claims known to him," as required by- 
 Code of Civ. Pro., I 636, subd. 1, is fatally- 
 defective, and an attachment granted thereon^ 
 will be set aside. — Supreme Ct-, (2d Dept.,) Dee., 
 1879. Lyon v. Blakesly, 19 Hun 299. 
 
 16. The grounds upon which a warrant of 
 attachment was issued were, as stated in the- 
 affidavit, that the attachment debtor was " about 
 
44 
 
 ATTACHMENT, II, III. 
 
 to assign, dispose of, or secrete his property with 
 latent to defraud his creditors." All of the 
 material facts were stated on information and 
 belief only; it was not shown that the per- 
 sons from whom the aflSant professed to have 
 -ohtained his information were absent, or that 
 their depositions could not be procured. Hdd, 
 that the affidavit was insufficient to give the 
 court jurisdiction to issue the attachment; and 
 that the order granting it was reviewable here. 
 — Cl. of App., Sept., 1879. Steuben County 
 Bank v. Alberger, 78 N. Y. 252. S. P., Claflin 
 r. Baere, 57 How. Pr. 78. 
 
 17. Compelling' •witness to make 
 affidavit. An application for an attachment 
 is a motion within section 401 of the code, and 
 nnder the provision of that section (subd. 7) 
 authorizing the appointment of a referee to 
 summon and examine a witness who refuses to 
 make affidavit voluntarily when required for the 
 purposes of a motion, the deposition of a witness 
 may be taken to be used upon the application. — Ot. 
 •of App., March, 1878. Allen v. Meyer, 73 N. 
 
 18. Undertaking on applying for at- 
 tachment. The giving of an undertaking, 
 under Code of Civ. Pro., J 688, to procure the 
 release of property attached, is not a waiver of 
 the right to have the security given ugon the 
 issuing of the attachment increased, pursuant to 
 ^ 682.— Supreme Ct., {1st Dept.,) Jan., 1879. 
 Dusseldorfi). Kedlich, 16 Hun 624. 
 
 19. Several attachments may be issued 
 in the same action to different counties, and if 
 one should be defective, or fail for any reason, 
 there is nothing which prohibits an application 
 for a new one. — Ct. oj App., April, 1880. , Moja- 
 rietta v. Saenz, 58 How. Pr. 505. 
 
 20. Upon ■whom service may be 
 ma4e. An attachment of a judgment cannot 
 be properly levied by service of a certified copy 
 •of the warrant upon the attorney who repre- 
 sented the judgment debtor (now deceased,) in 
 the action in which the judgment was recovered. 
 Such attorney is not " an individual holding " 
 the judgment, within Code of Pro., 2 235. — Sw- 
 vreme Ct., (ls( Dept.,) Jan., 1880. Matter of 
 Flandrow, 20 Hun 36. 
 
 21. The levy, and its effect. That a 
 seizure and levy by a sheriff, under an attach- 
 ment or execution against one person, upon the 
 «ntire property of a firm, as the sole property 
 of the debtor, is not justified by showing that 
 the debtor has an interest in the property as a 
 co-partner, see Ct. of App., May, 1879. Atkins v. 
 Saxton, 77 N. Y. 195, 199. 
 
 22. The power of the sheriff, for the purpose 
 ■of rendering the levy upon the interest of one 
 partner in the co-partneiship property effectual, 
 to take possession of the whole property, is 
 merely incidental to the right to reach the 
 debtoPs interest ; and is to be exercised, as far 
 as possible, in harmony with, not in hostility 
 to, the rights of the other partners. When, 
 therefore, the sheriff exceeds this limit, and, in- 
 stead of levying on the debtor's interest, levies 
 upon and seizes the property as the sole prop- 
 erty of the debtor, he is a trespasser. lb. 
 
 23. That in order to make a valid levy of 
 an attachment upon a judgment in favor of de- 
 fendant in the attachment suit, when the sheriff 
 Jiimself holds an execution on such judgment, 
 it is not necessary to serve notice of the property 
 levied on, as required by section 235 of the 
 
 code, see Ct. of App., May, 1877. Wehle v. 
 Connor, 69 N. Y. 546, 552. 
 
 24. Appointment of receiver. In 
 what cases a receiver of property levied on 
 under an attachment will be appointed, see 
 Shehan v. Mahar, 17 Hun 129. 
 
 25. Undertaking to discharge at- 
 tachment. When the affidavits of justifica- 
 tion of the sureties on an undertaking given to 
 discharge an attachment, were made before the 
 defendant's attorney, as notary, the undertaking 
 was disapproved, and the discharge refused. — 
 Supreme a., {Sp. T.,) Dec., 1879. Bliss v. 
 Molter, 58 How. Pr. 112. 
 
 26. An undertaking, given to procure the re- 
 lease of defendant's property from an attach- 
 ment, will not be set aside because the surety 
 was induced to sign it through the fraud of de- 
 fendant, if plaintiffs were in no way privy to 
 the fraud.— Sitpreme Ct., (2d Dept.,) Dec., 1878. 
 Kelly V. Christal, 16 Hun 242. 
 
 2*7. One undertaking cannot be given to dis- 
 charge two attachments, issued in different 
 actions. — Supreme Ct., (IsJ Dept.,) May, 1879. 
 Walton V. Daly, 17 Hun 601. 
 
 III. MoTioir TO Vacate, ob Dissolve. 
 
 28. Who may move. An irregularity in 
 issuing an attachment, which is waived by the 
 debtor, cannot be taken advantage of by a sub- 
 sequent attaching creditor, in the absence of 
 collusion or fraud. — Supreme Ct., (4th Dept.,) 
 Oct., 1878. Jacobs v. Hogan, 15 Hun 197. 
 
 29. The discharge of an attachment, under 
 section 687 of the Code of Civ. Pro., does not 
 prevent the vacating or modifying of the war- 
 rant under section 682. — Supreme Cl., (Sp. T.,) 
 AprU, 1879. Claflin v. Baere, 57 How. Pr. 78. 
 
 30. The giving of an undertaking by a de- 
 fendant, on an application to discharge an at- 
 tachment, does not bar the right to move to 
 vacate the same. lb. 
 
 31. Where goods have been seized nnder an 
 attachment, it is not sufficient to prevent one 
 who has acquired a lien thereon, after the at- 
 tachment, from moving to vacate or modify under 
 Code of Civ. Pro., ? 682, that a levy has been 
 made upon such goods, under an execution 
 issued on a judgment recovered in the action in 
 which the attachment issued, unless the goods 
 have been actually sold, and the proceeds ap- 
 plied to the payment of the judgment. — Supreme 
 Ct., (1st Dept.,) March, 1880. Woodmansee v. 
 Kogers, 20 Hun 285 ; S. C, 58 How. Pr. 439 ; 
 affirming Id. 98. 
 
 32. Upon motion made under Code of Civ. 
 Pro., § 682, giving a person having a lien upon 
 property attached, acquired subsequent to the 
 attachment, a right to apply to vacate or modify 
 it, it appeared that the attorney of the party 
 claiming the lien delivered to the clerk of E. 
 county a judgment roll, including a sufficient 
 statement in writing, to warrant the entry of a 
 judgment by confession in her favor against the 
 attachment debtor ; the clerk did not, in fact, 
 enter the judgment, but delivered a transcript to 
 the attorney, which was filed the next day, in 
 the office of the clerk of N. county, and execu- 
 tion issued to the sheriff of that county. Sdd, 
 that the lien acquired by the docket of the judg- 
 ment in N. county, and the issuing of execution, 
 upon the personal property of the debtor, in 
 that county, was sufficient, until set aside, to 
 
ATTACHMENT, III, IV. 
 
 45> 
 
 confer upon the plaintiff therein the rights of a 
 lienor under said provision. — Ct. of App., Sept., 
 1879. Steuben County Bank v. Alberger, 78 N. 
 Y. 252. 
 
 33. Time of moving. Under Code of 
 Civ. Pro., i 682, the time in which a defendant 
 may move to vacate or modify an attachment, 
 is extended until the actual application of the 
 attached property to the payment of a judgnSent 
 recovered in the action. — Supreme Ct., (Sp. T.,) 
 April, 1879. Claflin v. Baere, 57 How. Pr. 78. 
 
 34. Grounds. Under the provision of Code 
 of Civ. Pro., 2 682, giving a person having a 
 lien upon property attached, acquired subse- 
 quent to the attachment, a right to apply to 
 vacate or modify the writ, he may make appli- 
 cation on the ground of insufficiency of the affi- 
 davits upon which the writ was issued. — Ct. of 
 App., Nov., 1878. Steuben County Bank d. Al- 
 berger, 75 N. Y. 179; S. C, 66 How. Pr. 345; 
 reversing S. C, 14 Hun 379 ; 55 How. Pr. 481. 
 
 35. The motion papers. The provision 
 {i 683) prescribing the method of making such 
 application, gives the moving party the option 
 to move either upon the papers on which the 
 attachment was granted alone, or upon proofs 
 on his part; and if he electa the former, the 
 plaintiff is confined to the original aCBdavits. 76. 
 
 36. The word "defendant" in that portion 
 of the section declaring that the application 
 "may be founded upon proof by affidavit on the 
 part of the defendant," designates the party 
 making the motion, whether the party to the 
 record or a lienor. lb, 
 
 37. Where a lienor moves upon the original 
 papers, and upon an affidavit simply showing 
 the existence of his lien, this does not make the 
 motion one " founded upon proof by affidavit," 
 within the meaning of that section, so as to 
 entitle plaintiff to support the attachment by 
 new affidavits; the additional affidavits simply 
 establishes a preliminary fact necessary to be 
 shown to give the court jurisdiction, and the 
 motion is founded on the papers on which the 
 attachment was granted. lb. 
 
 38. Where a motion to vacate an attachment, 
 issued upon an affidavit only, is made upon the 
 affidavit, and also upon the complaint, plaintiff 
 is entitled, upon the hearing, to read addi- 
 tional affidavits in support of the attachment. 
 — Supreme Ct., {ith Dept.,) June, 1878. Ives v. 
 Holden, 14 Hun 402. 
 
 39. The hearing'. Upon a motion to 
 vacate an attachment, the question is not one of 
 jurisdiction, but whether upon , the "facts pre- 
 sented the attachment ought to issue ; and this 
 is so when the motion is founded upon the 
 alleged insufficieney of the affidavits upon which 
 the order for the attachment was granted. — Ct. 
 of App., March, 1878. Allen v. Meyer, 73 N. 
 Y. 1 ; S. C. below, 7 Daly 229 ; S. P., Easton v. 
 Malavazi, Id. 147. 
 
 40. Vacating under "thirty- day 
 clause," {I 638.) Upon the thirtieth day 
 after the granting of a warrant of attachment, 
 an order for the publication of the summons in 
 this action was obtained, and it was published on 
 the same day in one of the papers designated; 
 it was delivered upon the same day to the other 
 paper, but was not published until the next day. 
 Copies of the summons and complaint were 
 mailed to the defendants, as directed in the 
 order, on the day it was granted. Held, that the 
 publication of the summons was not commenced 
 
 within thirty days after the granting of the 
 attachment, within the meaning of Code of Civ. 
 Pro., J 638 ; and that the attachment was- 
 properly vacated. — Ct. of App., Feb., 1879. 
 Taylor v. Troncoso, 76 N. Y. 599. 
 
 For other instances of non-compliance with 
 the thirty-day rule, (§ 638,) see Donnell v, 
 Williams, 59 How. Pr. 68; Blossom v. Estes,, 
 Id. 381 ; Kelly v. Countryman, 15 Hun 97 ' 
 Mojarietta v. Saenz, 58 How. Pr. 505. 
 
 IV. Bemedies for Wbonqptji, Attachment. 
 
 41. For failure to restore property 
 after warrant dissolved. Where a regular 
 attachment is dissolved by operation of the- 
 bankrupt law, the plaintiff is not liable for 
 failure of the sheriff to restore the property 
 attached. The officer becomes his' agent only 
 where the process is irregular, or void, or where 
 express authority or ratification is shown. — 
 Om. Pleas, Feb., 1879. Hall v. Waterburv, 5- 
 Abb. N. Cas. 374; S. C, 57 How. Pr. 131. 
 
 42. Liability of sheriff for wrongful 
 levy. When a sheriff seizes property in the- 
 possession of and owned by a person other thaii 
 the one against whose property the warrant is 
 issued, he is liable in replevin to such person. 
 He cannot defend bis seizure on the ground that 
 the property had been conveyed to the claimant 
 by the defendant in the attachment suit with 
 intent to defraud his creditors, since the plain- 
 tiffin the attachment suit, not being a judgment 
 creditor of the one making the transfer, cannot 
 attack it on that ground. — Com. Pleas, Dee.y 
 
 1878. Deutsch v. Keilly, 8 Daly 132; S. C... 
 57 How. Pr. 75. 
 
 43. Where goods have been shipped for 
 transportation, the master or ship owner has a 
 lien for freight, expenses and charges, and for 
 his liability upon outstanding bills of lading,, 
 and a sheriff cannot, by virtue of an attachment 
 or other process against the shipper, take the- 
 goods without first giving indemnity. Laws of 
 1841, ch. 242.— a of App., Sept., 1877. Campbell 
 ■u. Conner, 70 N. Y. 424, 427. 
 
 44. In case the goods are seized by a sheriff 
 without furnishing indemnity, in an action by the- 
 ship owner for the unlawful taking, he is entitled 
 to recover the full value of the goods. lb. 
 
 45. The rights of the parties are not the 
 same as if the action had been upon a bond of 
 indemnity if one had been given ; without fur- 
 nishing the indemnity, the sheriff, in th& 
 absence of bad faith on the part of the carrier, 
 is a trespasser, and the latter is entitled to- 
 recover the full value and hold the same as hi» 
 security in lieu of the property. lb. 
 
 46. As a vessel was ready to sail, a sheriff 
 seized a portion of its cargo, by virtue of attach- 
 ment against the shipper, detained the vessel 
 and unloaded the goods levied on. In an action 
 by the ship owner for the unlawful taking, 
 demurrage was allowed from the time of the 
 seizure. Held, no error; that the time com- 
 menced when the seizure was made, not 
 when the work of unloading began. lb. 429. 
 
 47. Damages recoverable in suit on 
 bond. The expenses and counsel fees, in- 
 curred by defendant in preparing for and trying 
 the attachment suit, are recoverable in an action 
 on the bond given upon the granting of the 
 attachment. — Supreme Ct., (4(A Dept.,) April,. 
 
 1879. Northrup v. Garrett, 17 Hun 497. 
 
46 
 
 ATTORNEY AND CLIENT, I, II. 
 
 AHEMPTS. 
 
 To commit crime, generally, see CBlMrfTAi. 
 Law ; and the titles of the graver offences. 
 
 As to Assaults with special intent, see As- 
 SATJIT, II. 
 
 ATTESTATION. 
 
 Deeds Moetqages; WiLiiS. 
 
 ATTORNEY AND CLIENT. 
 
 I. The Vocation. 
 II. The Relation with the Client. 
 
 III. Compensation op Attorneys. 
 
 IV. PsivrLBOBD Communications. 
 
 I, The Vocation. 
 
 1. Liability for fees and. costs. De- 
 fendants, a firm of attorneys, being engaged in 
 preparing for trial a case involving the settle- 
 ment of an extinct partnership, employed plain- 
 tiff, an accountant, to examine the partnership 
 books, this being necessary in order to prepare 
 the case for trial. ' He sued the firm for the 
 value of his services, and, on the trial, the de- 
 fendants requested the court to charge, that if 
 they employed plaintiff under authority from 
 their client, and plaintiff had knowledge of that 
 fact, then he could not recover. Sdd, that the 
 <!ourt erred in refasing so to charge. — Supreme 
 a., {3d Dept.,) May, 1878. Covell v. Hart, 14 
 Hun 252. 
 
 2. Costs of motion, when chargeable on at- 
 tornejr, see Jordan v. Shoe and Leather Bank, 45 
 Superior 423. 
 
 _ 3 — for stenographer's fees. The plain- 
 tiff a stenographer, sued to recover the value of 
 services alleged to have been rendered by him 
 at defendant's request, &c., in taking minutes of 
 testimony, &c., in certain legal proceedings in 
 which defendant appeared as attorney for one 
 of the parties. Held, that defendant being the 
 agent of a known principal, did not incur a 
 personal liability by simply requesting the per- 
 formance of such a service for his client. — Su- 
 perior Ct., March, 1879. Bonynge v. Field, 44 
 Superior 581. 
 
 3 o. A stenographer cannot require an attor- 
 ney to pay in advance for an ofiicial copy of his 
 minutes taken at the trial. Wright v. Nostrand, 
 68 How. Pr. 184. 
 
 To the contrary, Guth v. Dalton, Id. 289. 
 
 3 6. As to the proper fees of a stenographer 
 for furnishing counsel with an official copy of 
 the testimony taken in short-hand on the trial ; 
 and the remedy of the stenographer against an 
 attorney who wrongfully refuses to pay the legal 
 •charges for such service, see Tb. lb. 
 
 4. Statutory offence of buying de- 
 mands -witli intent to sue thereon. The 
 provision, (Code of Pro., J 303,) abolishing 
 statutes and rules in relation to attorney's fees, 
 and leaving their compensation to be fixed by 
 a,greement between them and their clients, has 
 not abrogated the provisions of the Revised 
 ■ Statutes (2 Rev. Stat., 288, U 71, 72,) prohibit- 
 
 ing attorneys from buying claims for prosecu- 
 tion, or from advancing, or agreeing to advance, 
 moneys, &c., to any person, as an inducement 
 to, or a consideration for, the placing in his 
 hands of a claim for collection. — Ck. of App., 
 Dec., 1877. Coughlin v. New York Central, 
 &o., B. R. Co., 71 N. Y. 443 ; reversing 8 Hun 
 136. 
 
 5. An attorney may stipulate with his client 
 for any agreed compensation, and may make it 
 absolute or contingent, but he cannot advance, 
 or agree to advance, the money needed to carry 
 on a prosecution, as an inducement to the plac- 
 ing of a claim in his hands for prosecution, lb., 
 453. 
 
 6. Disbarring attorneys. Where an 
 attorney, employed by a husband to bring a 
 divorce suit, enters into collusion with the wife 
 to manufacture evidence, which, if not wholly 
 untrue is deceptive, and thus to enable the hus- 
 band to procure a divorce, this is an act of pro- 
 fessional misconduct which authorizes an order 
 disbarring the attorney. — Ct. of App., Jan., 1879. 
 Matter of Gale, 75 N. Y. 526. 
 
 7. Punishing them for contempt. 
 When violation of an injunction order by an at- 
 torney cannot be punished as a contempt, see 
 Ct. of App., April, 1878. People, ex rel. Morris, 
 V. Randall, 73 N. Y. 416. See also Ellia v. 
 Bice, 77 N. Y. 610. 
 
 II. The Relation with the Client. 
 
 8. When the relation arises. Peti- 
 tioner alleged that he was retained as counsel by 
 appellant, who was attorney for commissioners 
 appointed to open a street ; that it was agreed 
 upon that petitioner's fees and charges ought to 
 be $500 ; that they were taxed and certified at 
 that sum ; that appellant undertook to collect 
 that amount and pay it over to petitioner, and 
 that he did collect it, but refused to pay it over, 
 and petitioner applied for an order that he pay 
 the money over to him. The attorney filed an 
 answer, denying all the above allegations. 
 Hdd, that the facts alleged in the petition 
 showed that the relation existing between the 
 parties was that of debtor and creditor, not thait 
 of attorney and client, and that the controversy 
 between them should be settled in an action, 
 and not on a summary application to the court. 
 — Supreme Ct, (2d Dept.,) May, 1879. Matter 
 of Haskin, 18 Hun 42. 
 
 9. The attorney's authority, gener- 
 ally. It is not within the scope of the au- 
 thority of an attorney, in an action, to change 
 the rights of his client, except so far as it may 
 be done in the action; he cannot justify the 
 commencement of another action, or create a 
 cause of action against his client, which did not 
 before exist. — Ct. of App., Nov., 1879. Arthur 
 V. Homestead Fire Ins. Co., 78 N. Y. 462. 
 
 10. — to submit to arbitration. The 
 attorneys for the respective parties, in a civil 
 action, have full authority to submit to arbitra- 
 tion, all the matters in controversy in the action. 
 —Com. Pleas, {Sp. T.,) June, 1878. Tilton v. 
 United States Life Ins. Co., 8 Daly 84. 
 
 11. — to commence supplementary 
 proceedings. An attorney employed to col- 
 lect a claim, has authority, by virtue of his 
 original retainer, after he obtains judgment, to 
 institute supplementary proceedings thereon, 
 and to procure the appointment of a receiver ; 
 
ATTORNEY AND CLIENT, 11, III. 
 
 47 
 
 these are proceedings in the suit. — Cl. oj App., 
 March, 1877. Ward D.Eoy, 69 N. Y. 96, 100. 
 
 12. Whether he has authority by virtue of 
 ■such retainer to commence an action in the name 
 ■of the receiver against a third person, to set 
 ■aside as fraudulent a conveyance from the judg- 
 ment debtor, see lb. 
 
 13. The death of the client after judgment, 
 «nds the attorney's authority. He has no 
 power to commence proceedings supplementary 
 to execution. Such proceedings can only be 
 instituted by, and in the name of the personal 
 representative or successors in interest of the 
 •deceased plaintiff. — Superior Ct., {Sp. T.,) Sept., 
 1878. Amor^ v. LaMothe, 5 Abb. N. Cas. 146. 
 
 14. Actions against attorneys. An 
 attorney or counselor, who advises ignorant 
 adult owners of lands, that they are not com- 
 petent to convey it, and thereby induces them to 
 ■employ him to institute a suit in partition, and 
 incur the expenses thereof, for the purpose of 
 afiectihg a ^e of the lands, misleads them 
 within the meaning of the statute, giving an 
 ■action against an attorney, counselor or solici- 
 tor, for any deceit, with intent to deceive the 
 «ourt or party, 2 Rev. Stat. 287, § 68. — Supreme 
 €t., (2d Dept.,) Sept., 1878. Looff v. Lawton, 14 
 Hun 588. 
 
 15. When an action against an attorney for 
 misconduct, cannot be sustained, see Jaquiss v. 
 Hagner, 72 N. Y. 605. 
 
 16. Substitution of attorneys. A 
 ■client has the right, of his own volition, to 
 ■change his attorney of record, even though no 
 complaint is made against the attorney, and 
 though the object for which the benefit of his 
 services was required has been accomplished; 
 iut, in such case, the attorney must be fully paid 
 for his services, both as attorney and counsel.— 
 JSuperior. Ct., Nov., 1879. Ogden v. Devlin, 45 
 ■Superior 631. 
 
 17. In a proceeding to substitute attorneys, 
 security for payment for services rendered by 
 them in suits in another court, will not be 
 required as a condition of granting the order of 
 substitution. — Com. Pleas, Feb., 1877. Matter 
 «f Davis, 7 Daly 1. 
 
 18. Where a party has applied for a substi- 
 tution of attorneys, and a reference has been 
 had in which the amount due the attorneys has 
 heen litigated, and the referee's report filed, he 
 ■will not be permitted to withdraw his applica- 
 Jtion and have the report vacated, but the same 
 ■will be confirmed so far as correct, in order that 
 the attorneys may use it as evidence in case they 
 «ue their client for services rendered in the suits, 
 in which he Bought to have them removed. lb. 
 
 19. As to the power of the court to order a 
 substitution of attorneys, and when the burden 
 of proof is upon the attorney to establish his 
 ■anthority, upon an application by the client for 
 a substitution, see Stewart v. Stewart, 56 How. 
 Pr. 256. 
 
 20. Appointment of ne-w attorney 
 on death of former one. Where, under 
 ■Code of Civ. Pro., ^ 65, upon the death of an attor- 
 ney, notice to appoint another attorney is served 
 upon the party, all proceedings are stayed for 
 ;thirty days, and a motion to dismiss an appeal 
 for a failure to appoint an attorney, made 
 Tvithin that time, is premature. In such a case, 
 ■where there is more than one party, both must 
 .The notified.— <S«it»-eTOe 01!., (4iA Dept.,) Oct., 1878. 
 ■Hickox V. Weaver, 15 Hun 375. 
 
 III. Compensation of Attoeneys. 
 
 21. The right, generally. Where the 
 ground of a client's refusal to pay an attorney's 
 bill is that he was defeated and damaged by 
 reason of negligence and want of skill on the part 
 of the attorney, such defence must be established 
 by him affirmatively. The failure to succeed 
 in a law suit is not prima fade evidence of negli- 
 gence or want of skill. — Supreme Ct., {3d Dept.,) 
 Jan., 1878. Seymour v. Cagger, 13 Hun 29. 
 
 22. A lawyer has no right, while acting 
 merely as a lobbyist, to ask the court to consider 
 him as entitled to the protection and compensa- 
 tion generally regarded as due to the office of 
 attorney and counselor. — Supreme Ct., (lai Dept,) 
 Sept., 1880. Matter of Knapp, 59 How. Pr. 367. 
 
 23. Special agreements for com- 
 pensation. The provision of the Code of 
 Pro., § 303, repealing former restrictions, and de- 
 claring that the measure of compensation for the 
 services of an attorney shall be left to the agree- 
 ment between him and his client, has no appli- 
 cation to a contract in relation to services 
 already rendered, but has reference only to 
 prospective services. — Cl. of App., May, 1877. 
 Whitehead v. Kennedy, 69 N. Y. 462, 467. 
 
 24. Whether said provision qualifies in any 
 manner the general principle requiring an 
 attorney, seeking to avail himself of a contract 
 made with his client, to establish affirmatively 
 that it was made by the latter with full knowl- 
 edge of all the material circumstances known 
 to the former, and was in every respect free from 
 fraud on his part, or misconception upon the 
 part of the client, and that a reasonable use 
 was made by the attorney of the confidence 
 reposed in him, see lb. 
 
 25. — for costs. The English rule which 
 prohibits attorneys from taking, in advance, a 
 security for the payment of future costs of the 
 litigation, is not in force in this state. — Supreme 
 Ct; {ith Dept.,) AprU, 1878. Hall ii. Crouse, 13 
 Hun 557. 
 
 26. Effect of settlements bet'ween 
 parties. An attorney has a lien upon a 
 judgment obtained by him for the amount of 
 his costs and agreed compensation, and to that 
 extent may be regarded as an equitable assignee 
 of the judgment; but, in the absence of notice 
 of such lien, the defendant, acting in good faith, 
 has the light to pay the judgment to the plaintiff. 
 —Ct. of App., June, 1877. Wright v. Wright, 
 70 N. Y. 98 ; affirming 7 Daly 62. 
 
 2Y. Where a notice was incorporated in a 
 stipulation extending time to answer, which 
 stipulation was not acted uppn by defendant's 
 attorney, but was returned ; and where it did not 
 satisfactorily appear that it came to the attention 
 of said attorney — Held, that the proof of notice 
 was not sufiicient to nullify a settlement, made in 
 good faith, by defendant with plaintiff. lb. 
 
 Whether notice to defendant's attorney of 
 the lien, is sufficient in any case, see lb. 
 
 28. A settlement between the parties and a 
 release of a cause of action in its nature not 
 assignable, is a bar to an action commenced 
 thereon, although, by agreement between the 
 plaintiff and his attorney at the commencement 
 of the action, the latter was to receive a share of 
 any recovery therein for his services, and 
 although the defendant had notice of the agree- 
 ment; the defendant is not bound to care for 
 the interests of the attorney ; nor will the court 
 
48 
 
 ATTORNEY AND CLIENT, IV— AUCTION. 
 
 intervene and allow the action to be prosecuted 
 for the sole purpose of enabling the attorney to 
 reap the benefits of the agreement. Therefore, 
 — Sdd, where one having a claim against a 
 railroad corporation for damages resulting from 
 negligence, accepted the proposition of attorneys 
 that they would take the claim for collection, 
 pay all expenses attending its prosecution and 
 divide the recovery, and where, after service of 
 the summons, defendant, having notice that the 
 attorneys had an interest in the cause of action, 
 settled with plaintiff and obtained a release ; 
 that the release was a bar to the action, and 
 that the attorneys could not prosecute it, to give 
 them the benefit of the agreement. — Ct. of App., 
 Dee., 1877. Coughlin v. New York Central, 
 &c., E. E. Co., 71 N. Y. 443 ; reversing 8 Hun 
 136 ; S. P., Quincy v. Francis, 5 Abb. N. Cas. 
 286 ; McBratney v. Eome, &c , E. E. Co., 17 Hun 
 385. 
 
 29. Before the commencement of this action, 
 plaintiff agreed with his attorney that the latter 
 should be paid out of the amounts collected a fee 
 contingent upon the recovery. During the pro- 
 gress of the trial the parties settled, and plaintiff 
 gave to defendant a release of the cause of 
 action, and an agreement that the action might 
 be discontinued without costs. Defendant, 
 however, at the time, promised to pay all costs 
 to plaintiff's attorney. On motion, an order 
 discontinuing the action on payment of plaintiff's 
 costs and disbursements to be taxed, was granted. 
 On appeal from an order of General Term affirm- 
 ingsaid order — Held, that plaintiff's attorney had 
 no lien upon the cause of action, and the parties 
 had the right to settle without providing for his 
 costs ; that, it not appearing that defendant had 
 refused to pay said costs, or that a bill thereof 
 had ever been presented to or demanded of him, 
 or that he was unable to pay them, and as it was 
 no part of the agreement that the costs should 
 be paid before or as a condition of the discontin- 
 uance, an unconditional order of discontinuance 
 might have been granted, but that plaintiff 
 could not complain of a condition imposed for 
 his benefit, and if the taxable costs were not a 
 sufficient compensation to his attorney, he or his 
 attorney still had a remedy upon the agreement. 
 —&. of App., June, 1877. Wright v. Wright, 70 
 N. Y. 96. 
 
 30. Where a client, after argreeing to com- 
 pensate his attorney by a percentage on the 
 amount collected, and taxable costs, &c., settles 
 the suit without collection, he may be required, 
 as a condition of discontinuance to pay a com- 
 pensation in addition to costs. — Supreme Gt.,{l.st 
 Dept.,) Oct., 1878. Bryon v. Durrie, 6 Abb. N. 
 Cas. 135. 
 
 31. Actions for services— evidence. 
 In an action by an attorney for services, when 
 the defence is set up that the services were 
 merely friendly, and in mutual interchange of 
 friendly services, evidence that plaintiff has 
 received benefits, accommodations and services 
 from defendant, is ^competent. — Gl. of App., Feb., 
 1878. Young v. Hunt, 72 N. Y. 604. 
 
 32. What may be an offset to the 
 lien. An attorney's lien on judgment for costs, 
 is subject to the set-off of a judgment against his 
 client and in favor of the party against whom 
 the judgment for costs is obtained. Such offset 
 will generally be granted when the client is in- 
 solvent. — Com. Pleas, Dec., 1878. Sanders v. 
 Gillett, 8 Daly 183. 
 
 IV. PBiviiiEGED Communications. 
 
 33. "What communications ar© 
 privileged. All communications made lo- 
 an attorney by a client, for the purpose of 
 getting advice as to the law applicable to the 
 facts so stated, are privileged, whether such advici& 
 relate to a suit or not. — Swpreme Gl., (3d Dept.,) 
 Sept., 1878. Bacon v. Frisbie, 15 Hun 26. See 
 also Armstrong v. People, 70 N. Y. 38, 47. 
 
 34. What are not. An atttorney em- 
 ployed to draw a deed is competent to testify a» 
 to the directions received by him from the 
 parties, and as to the transaction between them 
 at the time. Knowledge acquired under such 
 circumstances is not within the class of 
 privileged communicationSi — Ct. of App., June, 
 1877. Hebbard v. Haughian, 70 N. Y. 54, 61. 
 
 35. Where an attorney who drew up a will, 
 or advised testator about it, accepts a retainer 
 for the purpose of contesting the probate of such 
 will, he is not privileged from testifying as a wit- 
 ness for the proponents. — Supreme Ct., (1st 
 Dept.,) Jan., 1879. Sheridan v. Houghton, & 
 Abb. N. Cas. 234. 
 
 As to the competency of attorneys as Wit- 
 nesses, see WiTuiBSES, 33, 34. 
 
 AUCTION. 
 
 1. Employment of puffers. By-bid- 
 ding. Where defendants employed a puffer tty 
 bid at a partition sale, with intent to impose 
 upon plaintiffi and induce them to bid more 
 than they would otherwise have done, and 
 plaintifls were thereby induced to purchase th& 
 property at a higher prioe than they would 
 otherwise have bid for it — Held, that the sale 
 should have been set aside absolutely, on de- 
 fendants' application, and that the denial of a 
 motion therefor should be reversed. — Supreme 
 a., {4:th Dept.,) AprU, 1879. Fisher v. Hersey, 
 17 Hun 370. , 
 
 2. Memorandum required by statut& 
 of frauds. The rule that when an article is 
 sold at auction, and is announced as sold at th& 
 highest bid made for it, it is the duty of the 
 auctioneer to call for the name of the buyer,, 
 that a memorandum in writing may be made, at 
 the time of the sale, in conformity with the- 
 statute, to bind the buyer — applied lo the facts 
 of the particular case. — Com. Pleas, April, 1879. 
 Townsend v. "Van Tassel, 8 Daly 261. 
 
 3. Rights of purchasers. A purchaser 
 at an auction sale of real estate, who, in accord- 
 ance with the terms of sale, has paid to the- 
 auctioneer a portion of the purchase price, may, 
 upon failure of the vendor to convey a perfect 
 title as agreed, maintain an action to recover his 
 deposit, either against the auctioneer or the^ 
 vendor, or both, and is entitled to interest from 
 the time of a demand for the money and a. 
 reftisal to pay. He is entitled, however, to but 
 One satisfaction ; and a recovery and satisfaction, 
 of the judgment against either the vendor or 
 auctioneer will discharge the other.— Ct. of App.,. 
 Dec., 1877. Cockcroft v. Muller, 71 N. Y. 367. 
 
 4. Where, therefore, in ah action against the- 
 vendor, plaintiff failed to prove a demand, and 
 so was refused_ interest— B"eW, that the satisfac- 
 tion of said judgment was a bar to an action 
 against the auctioneer, although in the latter 
 
AUCTION— BAIL, I. 
 
 49 
 
 action proof was given of a demand and re- 
 tasal. lb, 
 
 5. By the terms of a receipt for the deposit, 
 given by the auctioneer upon such sale, it was 
 declared that payment was made and received, 
 payable to the seller on return of the receipt, 
 indorsed by the purchaser. On trial of an action 
 against the seller to recover the depdsit, plain- 
 tiff indorsed and delivered the receipt to the 
 clerk of the court for the seller, to whom it was 
 delivered by order of the court. Hdd, that 
 thereby the seller became entitled to the money, 
 and that an action could not be maintained by 
 the purchaser against the auctioneer. lb. 
 
 6. An auctioneer's fees for selling under 
 an execution, are two and one-half per centum, 
 unless a different agreement be made. — Com. 
 Pleas, Bee., 1877. Palmer i;. Clark, 4 Abb. N. 
 Cas. 25. 
 
 ' 7. The sheriff seized certain property upon 
 an attachment; by consent of the parties 
 interested an order "was obtained providing that 
 he should proceed to sell by an auctioneer 
 named, "and hold the proceeds thereof in the 
 same manner as the property sold, subject to the 
 existing rights of all parties therein." In pur- 
 suance of the order the sheriff sold and rendered 
 his account, which was settled, save as to items 
 charged for auctioneer* s fees, which were ob- 
 jected to as excessive. Hdd, that an order was 
 proper taxing the items and requiring the 
 sheriff to pay over the difference between the 
 amount so allowed on taxation and that retained, 
 although the money did not actually come into 
 
 his hands ; that it was to be presumed that he 
 assented to the order naming the auctioneer, as 
 neither the court nor the parties could compel 
 him to employ an auctioneer, or could name one 
 whom he should employ without his consent; 
 that the auctioneer was his agent, and for 
 moneys coming into the hands of such agent he 
 was responsible; and that this was a proper 
 case for taxation under the provision of 2 Kev. 
 Stat. 652, § 1.— O. of App., Feb., 1878. GrifSa 
 V. Helmbold, 72 N. Y. 437. 
 
 8. Auction price as evidence of 
 value. The price at which real estate sells 
 upon foreclosure sale is competent evidence as 
 to its value. — Ct. of App., Sept., 1879. Knicker- 
 bocker Life Ins. Co. v. Nelson, 78 N. Y. 137. 
 
 AUTREFOIS ACQUIT. 
 
 JtnXJMBNT, 47. 
 
 AVERAGE. 
 Insubakce, 143-146. 
 
 AWARD. 
 
 Abbiteation and Awabd, II., m. 
 
 B. 
 
 BAGGAGE. 
 
 Cabbtbbs, 33-36 ; Ikns and Initeeefebs, 1 ; 
 Bazlboad Companies, 69-76. 
 
 BAIL. 
 
 I. In Civil Actions. 
 n. In Ceiminal Cases. 
 
 I. In Civil Actions. 
 
 1. Liability of sheriff as bail. Where 
 the sureties to an undertaking of bail, on being 
 excepted to by plaintiff fail to justify, the 
 sheriff becomes liable as bail, and can only ex- 
 onerate himself by re-arresting defendant and 
 holding him in actual custody. He cannot sur- 
 render him to a coroner, and an undertaking 
 taken by that officer, on releasing him after 
 such surrender, is void. — Supreme Ct., {4th 
 Dept.,) Oct., 1879. Douglass v. Warren, 19 Hun 
 1 ; S. C, 58 How. Pr. 264. 
 
 2. The sheriff may, however, in such case, 
 surrender him at the jail at any time before the 
 time to answer in the action to charge him as 
 bail expires ; and the Special Term has power 
 to grant him such further time, after answer, as 
 it deems just, to make such surrender. But to 
 
 entitle him to such relief, after the time for 
 ajQswering has expired, he must show a substan- 
 tial and sufficient excuse for permitting the de- 
 fendant in the execution to be at large. What 
 is not a substantial and sufficient excuse, con- 
 sidered. — Swpreme Ct., (4th Dept.) Douglass v. 
 Habustro, 59 How. Pr. 194. 
 
 3. Surrender of principal. What is 
 sufficient indemnity to a surety on a bail bond, 
 to justify the denial of his application for leave 
 to surrender his principal, after judgment and 
 execution returned nvUa bona and suit.com- 
 menced.to enforce the bond, see Mills v. Kode- 
 wald, 17 Hun 297. 
 
 4. Bail to the action may be released on 
 motion if their principal is discharged from his 
 debts before their liability is fixed as bail, for 
 the reason that they may, at any time, surrender 
 their principal, and, as upon his surrender, he 
 would be entitled to his immediate discharge, to 
 avoid circuity, courts release bail without the 
 formality of a surrender. But after their lia- 
 bility has become fixed, it is not released by the 
 discharge of their principal. — Ct. of App., Dec., 
 1877. Knapp v. Anderson, 71 N. Y. 466, 469. 
 
 o. New bail after surrender. Prior to 
 the new code, a defendant surrendered by his 
 bail, was entitled to his'discharge by substituting 
 new bail, and there is nothing in the new code 
 taking away this right. — N. Y. Marine Ct., 
 Dee., 1879. McCallum v. Barnard, 58 How. Pr. 
 169. 
 
60 
 
 BAIL, I., II.— BAILMENT, I., II. 
 
 6. Enforcement of bail bonds. The 
 sheriff, having a defendant in custody, under an 
 order of arrest requiring a bond in a penalty of 
 $1000, with two sureties, at the request of de- 
 fendant's testator, and subject to the approval of 
 plaintiff's attorneys, accepted a bond with a 
 penalty of 12000, with one surety only. Plain- 
 tiff's attorney accepted the bond, and the sheriff 
 allowed defendant to go at large. The condition 
 of the bond having been broken, — Sdd, that it 
 was not void as taken under color of office, but 
 was valid and enforceable against the estale of 
 the deceased surety. — Supreme Ot., {3d Dept.,) 
 Nov., 1878. Adee v. Adee, 16 Hun 46. 
 
 "7. In an action for libel, a defendant was ar- 
 rested at his residence in Morrisania, and sub- 
 sequently Morrisania was annexed to the county j 
 of New York by statute. Judgment having 
 been recovered, fi. fas. were issued to the sherifS 
 of the counties of New York and Westchester, 
 and upon their return unsatisfied, a ca. la. was 
 duly issued to the sheriff of New York county, 
 and by him returned non est. In an action 
 against the bail, — Held, that it was not necessary 
 to issue a ca. sa. to the sheriff, of Westchester 
 county, as at the time of the issuing thereof the 
 defendant did not reside therein. Supreme Gl., 
 (2d Dept.,) Feb., 1879. Johnson v. Myer, 17 
 Hun 232. 
 
 II. In Ceiminal Cases. 
 
 8. By whom and -where bail may be 
 taken. Laws of 1879, ch. 300, conferring exclu- 
 sive jurisdiction on Courts of Special Sessions, 
 of certain offences, does not restrict the power of 
 a Supreme Court justice to admit to bail persons 
 arrested for criminal offences. Supreme Ot., {2d 
 Dept.,) Feb., 1880. People, ex rel. Comaford, o, 
 Dutcher, 20 Hun 241. 
 
 9. The exercise of the power given by the 
 provision of the Revised Statutes (2 Eev. Stat. 
 728, § 56,) authorizing a justice of the Supreme 
 Court to admit to baU a person indicted for a 
 bailable offence, if the court having cognizance 
 of the offence is not, at the time, sitting, is not 
 restricted to the county in which the indictment 
 was presented ; and, under that provision, one 
 arrested upon a warrant, after indictment, may be 
 admitted to bail by a justice in the county where 
 he is arrested, although the indictment was 
 fotmd in another county. — Ct. of App., April, 
 1879. People v. Clews, 77 N. Y. 39 : affirming 
 14 Hun 90. 
 
 10. Said provision was not repealed or altered 
 by the provision of the act of 1830 (Laws of 1830, 
 ch. 320, § 62,) providing for the issuing of war- 
 rants of arrest after indictment found, which 
 prescribes proceedings upon such warrants when 
 served in a county other than that in which the 
 indictment was presented. The purpose of the 
 latter enactment was to add to, not to repeal, 
 alter or ameni the former one. lb. 
 
 11. 'When bail should be refiased. 
 In cases of ffilony, the prisoner is not entitled to 
 be admitted to bail, as matter of right. The 
 question rests in the sound discretion of the 
 court. In such a case the court or judge will 
 not look beyond the minutes of the grand jury, 
 and if from the minutes of testimony taken be- 
 fore them in a capital case, it appears that it was 
 not indifferent whether the prisoner be guilty or 
 innocent, baU. will be refused. Buff. Supemr 
 Ct., June, 1878. People v. Shattuck, 6 Abb. N. 
 
 Cas. 33 ; S. P., People, ex rel. Cowley v. Bowe, 
 5S How. Pr. 393. 
 
 12. The accused was brought before a police 
 justice, acting as a Court of Special Sessions, 
 upon a warrant charging him with petit larceny, 
 and pleaded not guilty, which plea was duly en- 
 tered in the minutes. Upon his application the 
 case was twice adjourned. X)n the last adjourned 
 day accused appeared and said he would waive 
 examination, and offered bail to answer any in- 
 dictment that might be found against him. The 
 justice refused to permit him to do so, and put 
 him on his trial, which resulted in conviction. — 
 Held, that by pleading to the charge, without 
 objecting, and applying for and obtaining two 
 adjournments, he had lost his right to waive an 
 examination and give bail. — Supreme Gl., (Sd 
 Dept.,) Jan., 1880. Devine v. People, 20 Hun 98. 
 
 BAILMENT. 
 
 I. General Principles. 
 II. The Difpebent Species op Bailments. 
 
 I. G-enebal Pbinoiples 
 
 1. Liability of bailee, generally. Ab- 
 sence of all supervision and care on the part of 
 bailees, in respect to the subject matter bailed, is 
 such negligence as will render them liable for - 
 loss of the property through the wron^ul acts 
 of their agents and servants. — Supreme Gt., Jan., 
 1879. Cutting v. Marlow, 57 How. Pr. 56 ; S. 
 C, 6 Abb. N. Cas. 388 ; 17 Hun 573 ; affirmed 78 
 N. Y. 454. 
 
 2. Conversion by bailee. Where a 
 gratuitous bailee sends the property bailed to 
 auction and has it sold, without notice to, or 
 authority from the bailor, he is guilty of con- 
 version. — Com Pleas, Feb., 1877. Dale v. Brinck- 
 erhoff, 7 Daly 45. 
 
 3. A bailee who refuses to deliver the prop- 
 erty to the bailor, on the ground that the latter 
 is not entitled thereto, and who avers an inten- 
 tion to contest his right in court, is guilty of 
 conversion. It is not necessary for the bailor to 
 tender the fees due for storage before commenc- 
 ing an action for the recovery of the property. — 
 Supreme Ct., (2d -Dep«.,) July, 1879. Long Island 
 Brewery Co. v. Fitzpatrick, 18 Hun 389. 
 
 II. The Dippebent Species op Bailments. 
 
 4. Deposit. When moneys collected by 
 the husband for the wife, and retained by him 
 at her request, are to be considered as a deposit, 
 see Boughton v. Flint, 74 N. Y. 477 ; S. C, 5 
 Abb. N. Cas 215. 
 
 5. How the liability of the depositary may be 
 discharged ; and what wUl constitute payment by 
 him to the depositor, see Thompson v. Bank of 
 British North America, 45 Superior 1. 
 
 6. What constitutes a pledge. An 
 agreement was made between the maker and 
 surety on a note, after its maturity, that the 
 surety would remain liable as such one year 
 longer, and the maker would turn over to him a 
 horse ; and in case the surety was compelled to 
 pay the note, the horse should be his, and he 
 was to have the right to go and take it. The 
 horse was not pr&ent at the time, nor ever de- 
 
BAILMENT, II.— BANKRUPTCY. 
 
 51 
 
 ■ livered to the surety. Hdd, not a valid verbal 
 pledge for want of delivery. — Supreme Ct., {Sd 
 Bept.,) May, 1879. Ceas o. ^Bramley, 18 Hun 
 187. 
 
 "7. Bights of pledgor. The owner of a 
 vessel who has pledged it to secure a debt, may 
 maintain an action to recover damages for negli- 
 gent injury thereto. — Gk of App., June, 1877. 
 Wilson ». Knapp, 70 N. Y. 596. 
 
 8. In an action to recover possession of personal 
 iproperty, alleged in the complaint to belong to 
 plaintiff, and to be in the possession of and 
 wrongfully detained by defendant, the answer 
 contained a general denial; and also alleged 
 ■that the property was owned by plaintiff, and by 
 her pledged as security for a debt to defendant's 
 wife, and that it was in the possession of the 
 latter as such pledgee. Held, that under the 
 pleadings, defendant was not entitled to give 
 ■evidence of the pledge to his wife ; that in the 
 xibsence of any sdlegation connecting defendant 
 with the title, possession or interest of his wife, 
 the special matter set up in the answer consti- 
 tuted no defence, as plaintiff's right to the 
 property under the alleged pledge remained per- 
 fect against aU the world save the pledgee ; and 
 that defendant had no standing under his 
 answer to try the question of right between 
 pledgor and pledgee. — Gl. of App., Oct., 1877. 
 Stowell V. Otis, 7i N. Y. 36. 
 
 9. Whenever the purpose of a trust or lien, 
 b^ way of pledge or mortgage, is satisfied, the 
 nght of the owner, pledgor, or remainder-man to 
 the residue or surplus, then becomes absolute. — 
 Om,. Pleas, June, 1877. Earle v. New York Life 
 Ins. Co., 7 Daly 303. 
 
 10. Bights of pledgee. ' Sale of thing 
 pledged. Interest to the amount of $829.53 
 
 _had accumulated upon a bond and mortgage 
 given by defendant to plaintiffs, and it was 
 agreed that a note made by one W., secured by 
 two camel's-hair shawls, should be taken in pay- 
 ment thereof, which was accordingly done, and 
 plaintifS released the claim for interest. The 
 note not being paid at maturity, judgment was 
 recovered against the maker, an execution issued, 
 the shawls levied upon, and sold at plaintiff's 
 store, and bidden in by their clerk for |l50. In 
 an action against defendant to recover the balance 
 of the interest, on the ground that W. was insol- 
 vent when the note was given, of which fact 
 plaintifls were then ignorant, plaintiffi were 
 nonsuited, on the ground that the sale of the 
 ahawls under the execution was irregular. Held, 
 <error; that even if the sale was irregular it 
 ^simply left the shawls in the hands of plaintiffs 
 as pleiigees, and only entitled defendant to have 
 the full value thereof applied upon the debt. — 
 Swpreme Gt., (1«« Vept.,) Dee., 1878. Duden v. 
 Waitzfelder, 16 Hun 337. 
 
 11. As to the rights of a pledgee of stocks, 
 wrongfully hypothecated by a broker, as against 
 the true owners, in respect to the sale of the 
 stocks to satisfy his loan, see Gould v. Central 
 Trust Co., 6 Abb. N. Cas. 381 ; Chamberlain v. 
 •Greenleaf 4 Id. 178 ; Merchants' Bank v. Liv- 
 ingston, 17 Hun 321. 
 
 12. Bights of third persons, pur- 
 -chasers, &o. One who has purchased from 
 the general owner, goods pledged for advances, 
 with knowledge or notice of the lien of the 
 pledgee, and who receives the goods from the 
 latter with notice of his claim of a lien thereon 
 for a specific amount, takes them with the obliga- 
 
 tion to pay the lien, and in an action therefor, 
 cannot bffset a claim against the pledgor.— O. of 
 App., Dee., 1877. Carrington v. Ward, 71 N. Y. 
 360. 
 
 13. Where goods pledged have been disposed of 
 by the pledgee, who, however, substitutes in their 
 place and delivers to a purchaser from the 
 pledgor, upon the orderof the latter, other goods 
 of the same kind, quality and value, which are 
 accepted by the purchaser, the latter cannot 
 take advantage of the wrong of the pledgee; 
 and it is no defence to an a<:tion by the pledgee 
 to recover the amojint of his lien upon the 
 goods, lb. 
 
 14. A paivnbroker's liability is that of 
 a warehouseman, and if he uses ordinary dili- 
 gence, he is not liable, if goods are stolen in the 
 commission of a burglary on his premises. — Com . 
 Pleas, Mny, 1876. Abbett v. Frederick, 56 How. 
 Pr. 68. 
 
 As to what constitutes a Gonverdon of property 
 bailed, see Tboveb, 6-10. 
 
 As to the Measure of damages in actions againt 
 bailees, see Damages, 13. 
 
 For further rules applicable to distinct Species 
 of bailees, see Banks; Carriers; Express 
 Companies; Inns and Innkeepers; Eaii,- 
 ROAD Companies ; Warehousemen. 
 
 BANKRUPTCY 
 
 1. Suspension of state insolvent laws. 
 As to the effect of the bankrupt act to suspend 
 the New Jersey insolvent law, passed April 16th, 
 1846, entitled "An act to secure to creditors an 
 equal and just division of the estates of debtors, 
 who convey to assignees for the benefit of credi- 
 tors," see Boese v. King, 78 N. Y. 471 ; affirming 
 17 Hun 270. 
 
 2. Effect of oommencing proceed- 
 ings. Notice. While every person is charge- 
 able with notice of bankruptcy proceedings 
 legally and properly conducted, such notice is 
 only for the protection and efficacy of the pro- 
 ceedings. A party to a controversy, who does 
 not claim under, and bases no right upon, said 
 proceedings, cannot claim that the opposite party 
 is charged thereby with any notice whatsoever. 
 Such proceedings are in no case constructive 
 notice of facts not needful or proper to be stated 
 or to appear therein. — Cl. of App., Mareh, 1879. 
 Page V. Waring, 76 N. Y. 463, 472. 
 
 3. It is not necessary for the bankrupt to 
 make any statement in his schedules or other- 
 wise as to property formerly owned by him, but 
 which he did not then own, and in which he 
 had for a long time ceased to have any interest. 
 There can, therefore, be no constructive notice 
 of statements in the bankrupt's schedules as to 
 such property. lb. 
 
 4. When an order of the bankruptcy court, 
 appointing a special receiver to take the prop- 
 erty of a bankrupt corporation, will not prevent 
 the lien of a prior execution attaching to such 
 property, or excuse the sheriff from proceeding 
 and selling the property under the execution, 
 see Nat. Bank v. Babbitt, 17 Hun 447. 
 
 5. Effect of bankruptcy proceedings upon 
 pending procee_dings for the discharge of the 
 debtor under the provisions of the non-imprison- 
 ment act of 1831, see Maas v. O'Brien, 14 Hun 
 95. 
 
52 
 
 BANKRUPTCY 
 
 6. The assignment, and its effect. 
 An assignment, in proceedings under the bank- 
 rupt act, discharges the lien of an attachment, 
 levied within four months of the commencement 
 of the proceedings upon property of the bank- 
 rupt ; no intervention or action of the court is 
 required. — Ct. o/' App., April, 1878. Duffield *. 
 Horton,73N.Y.218; affirming XO^anUfd. See 
 also Cromwell v. Gallup, 17 Hun 49. 
 
 7. "What will pass by the assig'n- 
 ment. Plaintiff was induced by the fraudulent 
 statements of defendant to enter into partnership 
 with him, and to contribute a large sum as capi- 
 tal, which sum was lost to plaintiff by defend- 
 ant's said deceit and sabsequent fraudulent acts. 
 Afterwards, and prior to the commencement of 
 this action against defendant for deceit, plaintiff 
 petitioned for and obtained a discharge in bank- 
 ruptcy. HM, that upon the above facts the action 
 could not be maintained by plaintiff; that what- 
 ever daim he may have had against defendant 
 passed by the assignment to his creditors, as an 
 asset. — Superior Ot., March, 1879. Hyde v. 
 Tufits, 45 Superior 56. 
 
 8. Powers and duties of ' assig'nee, 
 generally. The assignee in bankruptcy is not 
 the trustee of the estate of any debtor within 
 the meaning of the Revised Statutes. Nor is he 
 under the Code of Civ. Pro., ^ 317, personally 
 liable for costs, except where guilty of miscon- 
 duct or bad faith. His non-residence is, there- 
 fore, not any reason for requiring security for 
 costs. — Oom. Pleas, Jan., 1879. Hall v Water- 
 bury, 5 Abb._N. Cas. 356. 
 
 9. An assignee in bankruptcy, having gone 
 into the Supreme Court and invoked its juris- 
 diction, cannot complain on appeal that the 
 court determined all the questions necessary for 
 a proper disposition of the case. — ^O. of App., 
 Dec., 1878. Hewitt v. Northrup, 75 N. Y. 506. 
 
 10. Proceedings to reaUze the estate 
 for creditors. The provision of the bank- 
 rupt act (U. S. Rev. Stat., g 5023,) authorizing 
 the issuing of a warrant to the marshal, com- 
 manding him "forthwith to take possession 
 provisionally of aU the property and effects of 
 the debtor," etc., relates only to property belong- 
 ing to and in the possession of the debtor, and 
 over which he nas control; it does not 
 authorize the marshalto take under his warrant 
 property in the possession of another who claims 
 title thereto, and in regard to the ownership of 
 which a serious dispute exists ; and this, although 
 it may be claimed that the property has been 
 transferred by the debtor and came into the 
 possession of the claimant in violation of some 
 provisions of the act. — Ot. of App., June, 1878. 
 Doyle V. Sharpe, 74 N. Y. 154 ; affirming 43 
 Superior 545. 
 
 That the proper legal mode of determining 
 such a controversy is by an action brought by 
 the assignee in bankruptcy, see lb. 
 
 11. Conflicting rights of assignees of a bank- 
 irupt firm, and persons who were co-sureties with 
 one of the partners in the firm on the bond of a 
 defaulting town collector, and who seek contri- 
 bution, as to rents collected by a bank, of real 
 estate in which such partner was part owner, 
 determined.— iSiiorenie Gt., April, 1878. Upham 
 V. Paddock, 13 Hun 571. 
 
 12. Proof of debts, and effect thereof. 
 Under the provision of the bankrupt act prohibit- 
 ing any creditor who has proved his debt from 
 maintaining thereupon any suit at law or in 
 
 equity against the bankrupt, unless a " discharge 
 has been refused or the proceedings have been 
 determined without a discharge," the proceed- 
 ings are not so determined until an order to that 
 ^fect has been entered by the federal court. — ■ 
 Supreme Ct., {4th Depl.,) April, 1878. Muller v. 
 O'Kain, 13 Hun 594. 
 
 13. If the creditor has proved his claim, a 
 surety for the bankrupt, who, after such proo£^ 
 pays the debt, is subrogated to the position of 
 the creditor as respects the enforcement of the 
 claim by suit. lb. 
 
 14. Plaintiff purchased of T. & Co., defend- 
 ant's factors, ^, bill of goods upon credit, giving 
 his notes for the purchase price, and receiving 
 and accepting a portion of the goods, the balance 
 being left with T. & Co., to be delivered when 
 called for. T. & Co. subsec^uently transferred 
 the notes. Plaintiff became insolvent, and pro- 
 ceedings in bankruptcy were instituted; the 
 notes were proved as an unsecured claim. 
 Plaintiff proposed a composition which wa» 
 accepted by his creditors, including the trans- 
 feree of the notes, who received the percentage 
 agreed upon ; the composition was confirmed by 
 the coiurt, and by its order, the assignee in bank- 
 ruptcy, turned over the assets to plaintiff. De- 
 fendants refused to deliver the residue of the 
 goods. In an aclion to recover their value, the 
 6,ct of the existence of a lien for the purchase 
 money was controverted and not found. Held, 
 that whatever lien T. & Co., or their principals 
 had, passed with the notes to the transferees, 
 and was extinguished by proof of the claim as 
 unsecured and acceptance of a dividend on the 
 full amount of the notes ; and that, therefore,, 
 plaintiff was entitled to recover. — Ot. of App-, 
 Sept., 1879. Johnson v. Dickinson, 78 N. I. 
 42. 
 
 15. Jiirisdlction of state courts over 
 suits by assignees. The Supreme Court 
 has jurisdiction in all actions, legal or equitable, 
 brought by an assignee in bankruptcy to recover 
 the estate of the bankrupt, or to determine 
 rights to property claim^ by him as such 
 assignee, or in any way affecting the same. The 
 jurisdiction conferred upon the federal courts 
 by the bankrupt act is not exclusive ; nor does^ 
 the amendment, passed June 22d, 1864, affect the 
 statute in this respect. — Supreme Cl., {Steuberk 
 Equity T.,) March, 1880. Rutherford v. Hewey 
 59 How. Pr. 231. And see Tullis v. Mill<^,. 
 13 Hun 363. 
 
 13. The amendment of 1874 to section 1 of the 
 bankrupt act, providing that the court havings 
 charge of the estate of a bankrupt, may direct 
 that any of his legal assets or debts, not exceed- 
 ing $500, be collected in the courts of the state, 
 did not have the effect to confer or take away 
 jurisdiction of the state court, but simply to- 
 allow the federal courts to decline to entertain 
 actions at common law in which the assignee is 
 a party, where the debt demanded is less than 
 the amount which determines the jurisdiction of 
 these courts in other cases. — Ot. of App., Jan., 
 1878. Kidder v. Horrobin, 72 N. Y. 159. And 
 see Id. 600. 
 
 17. A suit by an assignee in bankruptcy, to- 
 collect a debt due the bankrupt, is not a, matter 
 or proceeding in bankruptcy within the mean- 
 ing of U. S. Rev. Stat., ? 711, declaring the 
 jurisdiction of federal courts to be exclusive in 
 the cases specified, lb. 166. 
 
 18. State courts have been held to have juris- 
 
BANKRUPTCY, 
 
 53 
 
 Miction of actions by assignees in bankruptcy, 
 when instituted for the following purposes : 
 
 To recover a debt due the bankrupt. Wheelock 
 «. Lee, 5 Abb. N. Cas. 72 ; Kidde* v. Horrobin, 
 
 72 N. Y. 169, 600. 
 
 To recover a debt paid to the defendant by the 
 bankrujjt within four months of the filing of 
 *he petition in bankruptcy. Tyler v. McCallum, 
 19 Hun 622. 
 
 To recover for property assigned by the bank- 
 rupt, in fraud of the act. Olcott v. Maclean, 73 
 N. Y. 223 ; affirming 10 Hun 277. 
 
 To set aside judgments against the bankrupt 
 as collusive and fraudulent. Thompson v. Sweet, 
 
 73 N. Y. 622. 
 
 To set aside and have declared void a chattel 
 mortgage executed by the bankrupt, on the 
 ground that it constitutes a fraudulent preference 
 within the bankrupt act, and to compel an ac- 
 'Counting on the part of the mortgagee. Ansley 
 V. Patterson, 77 N. Y. 156. 
 
 To recover the proceeds of a foreclosure sale 
 under a, chattel mortgage made in fraud of the 
 {bankrupt's creditors. Southard v. Benner, 7 Daly 
 40; S. C, 5 Abb. N. Cas. 184: affii-med 72 N. Y. 
 424. 
 
 19. Iiimltations of suits against as- 
 signees. The provision of the bankrupt 
 act (U. S. Eev. Stat., J 5057,) providing that no 
 ^oit shall be maintainable " between an assignee 
 in bankruptcy and a person claiming an adverse 
 interest, touching any property or right of prop- 
 erty transferable to or vested in such assignele, 
 wnless brought within two years from the time 
 ■when the cause of action accrued," extends to all 
 •cases where adverse claims are made to prop- 
 erty found by the assignee in the possession of 
 the bankrupt, and lawfully passing into the cus- 
 4ody of the assignee, he taking it in good faith as 
 4he property of the bankrupt. — Ct. of App., 
 March, 1879. Esmond v. Apgar, 76 X. Y. 359 ; 
 *tffirming 7 Daly 379. 
 
 20. In an action for the conversion of certain 
 ■certificates of stock, it appeared that they came 
 into the possession of defendant as assignee in 
 bankruptcy of an insolvent firm, with its assets ; 
 indorsra upon each certificate was an assignment 
 and power of attorney executed in blank ; with 
 them were certain obligations of plaintifi's hus- 
 band. Defendant refused to deliver the certifi- 
 <a,tes when demanded, claiming to hold them as 
 security for said obligations, and subsequently 
 ^old the obligations and certificates, believing he 
 was acting as assignee in doing so. Defendant 
 pleaded as a defence that the action was not 
 brought within two years of the time the cause 
 •of action accrued, as required by said provision ; 
 -also, that plaintiff" did not give twenty days' 
 notice of the action, specifying the cause thereof, 
 33 required by said act. § 5056. The referee 
 so found the facts. Hdd, that the acts com- 
 j)lained of were done by defendant as assignee | 
 that said provisions were applicable ; and that 
 the facts found constituted a bar to the action. 
 lb. 
 
 . 21. It appeared that notice had been given 
 ■of a previous action brought by plaintiff" in a 
 justice's court, in which plaintiff" claimed to re- 
 •cover $235 ; this action was abandoned. In the 
 present action plaintiff" claimed to recover 
 $1000. Held, that such notice did not dispense 
 with the necessity of notice of the present ac- 
 tion, lb. 
 
 22. The disoharge : "What claims are 
 
 barred. Although the creditor was, in fact, 
 wholly ignorant of the bankruptcy proceedings, 
 and his debt was not mentioned nor set forth in 
 the petition or schedules, yet the discharge in 
 bankruptcy discharges the debt, — Superior Ct., 
 Feb., 1878. Poillon v. Lawrence, 43 Superior 
 385. 
 
 23. An action for the conversion of securi- 
 ties, pledged to the defendant as collateral secu- 
 rity for a loan, is barred by the defendant's dis- 
 charge in bankruptcy. The cause of action is 
 not a debt " created by the fraud * * * of 
 the bankrupt, * * * or whUe acting in any 
 fiduciary capacity,'' within the meaning of the 
 provision of the act declaring that such debts 
 shall not be discharged by proceedings in bank- 
 ruptcy. (U. S. Eev. Stat., g 5117.) The word 
 "fraud," as used in said provision, means an 
 active, express fraud, liot one implied from an 
 unjustifiable or illegal act. — Gt. of App., May, 
 1879. Hennequin t). Clews, 77 N. Y. 427. Com- 
 pare Eowe V. (rillsaume, 18 Hun 556. 
 
 24. "What are not. A cause of action in 
 tort is not barred by a discharge in bankruptcy. — 
 Supreme Gt, {1st Dept.,) April, 1880. Newman 
 V. Goddard, 20 Hun 563. 
 
 25. As, by § 357 of the bankrupt act, a dis- 
 charge from its debts is prohibited to a bankrupt 
 corporation, a debt against it is not discharged, 
 though proven, and the provision of § 21, prohib- 
 iting a creditor who has proved his debt from 
 maintaining a suit therefor, does not apply as 
 against a creditor of such corporation.^OJfw CI. 
 of ■Brooklyn, May, 1878. Birmingham Nat. 
 Bank v. Keck, 55 How. Pr. 222, 230. 
 
 26. Defendants were sureties to an undertak- 
 ing, given under Code of Civ. Pro., § 688, to dis- 
 charge an attachment against one McC. Within 
 four months from the issuing of the attachment, 
 McC. filed a voluntary petition in bankruptcy, 
 and was discharged therein. Plaintiff" in attach- 
 ment prosecuted his claim to judgment, and as- 
 signed it to plaintiff", who sued on the undertak- 
 ing. Held, that defendants were liable, and were 
 not released by the discharge of McC. in bank- 
 ruptcy.— ^jpreme Gt., (3d Dept.,) May, 1879. 
 McCombs V. Allen, 18 Hun 190. 
 
 27. Cancellation of judgments after 
 discharge. Code of Civ. Pro., g 1268, allows 
 the judgment creditor, two years after the bank- 
 rupt's discharge, to make his general lien efifect- 
 ive, and allows the banltrupt, after two years 
 have elapsed, to apply, upon proof of his dis- 
 charge, to the court in which the judgment was 
 recovered, for an order directing it to be dis- 
 charged of record ; and if, upon the hearing of 
 the motion, it is made to appear that the bank- 
 rupt has been discharged from the payment of 
 the judgment, an order must be made granting 
 the application.— .ST. T. Marine Ct., March, 1879. 
 Fellows V. Kittredge, 56 How. Pr..498. But see 
 Popham V. Barreto, 20 Hun 299. 
 
 That section applies to judgments entered 
 against him in favor of the people. Matter of 
 Brandreth, 14 Hun 585. 
 
 28. Confession of Judgment after 
 discharge? Where a bankrupt, subsequent 
 to his discharge in bankruptcy, confesses judg- 
 ment upon an old debt, the debt is a good con- 
 sideration for the judgment, and the latter is not 
 aff"ected by the discharge. — Gt. of App., Jan., 
 1878. Dewey v. Moyer, 72 N. Y. 70. 
 
 29. Where, prior to his discharge, the bank- 
 rupt placed property belonging to him in the 
 
51 
 
 BANKRUPTCY. 
 
 hands of another, to be held for his benefit, and 
 to be restored after his discharge, or where he 
 disposed of his property, with intent to defraud 
 his creditors, to one cognizant of the Iraudulent 
 intent, an action is maintainable, by the holder 
 of the judgment by confession, after return 
 of execution thereon unsatisfied, to procure sat- 
 isfaction thereof out of the properly so transfer- 
 red, lb. 
 
 30. Pleading the dlsoliarge. A dis- 
 charge may be pleaded by simply averring that 
 on the day of its da'.e it was granted to the bank- 
 rupt, and setting forth a copy thereof. It is not 
 necessary for defendant to allege facts showing 
 that the bankruptcy court had jurisdiction either 
 of the party or of the subject matter. — Cbm. 
 Pleas, May, 1880. Cromwell ii. Burr, 59 How. 
 Pr. 93. 
 
 But all other proceedings which are relied 
 upon to discharge a bankrupt from his debts 
 must, when pleaded, be accompanied by aver- 
 ments which show that the court in which they 
 were taken had jurisdiction of the parties and 
 of the subject matter. 1 b. 
 
 3X. Itnpeaoliing' the discharge. The 
 remedy given by the bankrupt act (U. S. Eev. 
 Stat., § 5120,) by application to the District 
 Court which granted a discharge, to annul it, 
 applies only to cases where, upon some of the 
 grounds specified, the creditor could iiave suc- 
 cessfully opposed the granting of the discharge, 
 liad he known of the facts at the time of the ap- 
 plication. The remedy given by said act is ex- 
 clusive only when the invalidity of the discharge 
 is based on one or more of the grounds specified 
 therein. — Ct. of App., May, 1879. Poillou v. 
 Lawrence, 77 N. Y. 207, 213, 214. 
 
 32. A discharge may be a.tacked by a credit- 
 or, in an action in a state court to recover his 
 debt, for a fruuil which is not one of those speci- 
 fied, and which does not necessarily affect its 
 validity except as to the cieditor. lb. 214 ; 
 reversing 43 Superior 385. 
 
 33. Composition proceedings: State- 
 ment of debts. A mere inadvertent mistake, 
 made by a bankrupt in stating the amount of a 
 debt, will not avoid, a^ to the cre:litor, a compo- 
 sition made under and in pursuance of the act 
 of congress of June, 1874, (^ 17,) amending the 
 bankrupt act. — Ot. of App., Oct., 1877. Beebe 
 V Pyle, 71 N. Y. 20. 
 
 34. In making a statement of Ills debts under 
 said act, it is immaterial to what time the in- 
 terest on the debts is computed, provided in- 
 terest on all the debts is computed to the same 
 time. lb. 
 
 35. In such a statement, the bankrupt slated 
 a debt due plaintiff at an amount greater than 
 the sum actually due thereon at the time of 
 filing the petition in bankruptcy. A composi- 
 tion was perfected in pursuance of the provisions 
 of said act, and the amount tendered to plain- 
 tiff. In an action brought to recover the debt — 
 JJdd, that in the absence of evidence that the 
 statement included, in the debts shown, any in- 
 terest after the filing of the petition, the plain- 
 tiff failed to show any under-stateflient of his 
 claim, or error of which he could complain; 
 and that the composition was a bar to a recovery. 
 
 i 36. List of creditors. A general meet- 
 ing of creditors for the purpose of varying the 
 origloal resolution of composition, and of allow- 
 ing -'the debtor to correct his original statement 
 
 of creditors, by including other partial, has- 
 power, subject to the approval of the bankrupt 
 court, to consent to the addition of others to the 
 original list of creditors, and to bind those so- 
 added by a resolution extending the term named' 
 in the first resolution for the payment of the 
 composition amounts thereby fixed. — Stuperior 
 at., April, 1879. Woodruff v. Terry, 45 Supe- 
 rior 176. 
 
 37. Effect of the discharge. 'What; 
 debts are barred. A discharge in composi- 
 tion proceedings does not release a previous debt 
 fraudulently contracted. — Supreme Ot., (1st Dml.,) 
 April, 1878. Libby o. Strashurger, 14 Hu» 
 120. 
 
 38. The discharge of the mortgagor under 
 composition proceedings, does not discharge the 
 mortgage lieu, or bar the subsequent foreclosure- 
 of the mortgage. — Supreme Ct., (Sp. T.,) March, 
 1879. Cohn v. Colby, 57 How. Pr. 168. 
 
 39. The discharge of a debtor in composition! 
 proceedings does not affect iiis liability as an 
 indorser on a note which was not due whe(n such 
 discharge was obtained. — Supreme Gt., (1st Dept.,} 
 March, 1878. Smith v. Krauskop^ 13 Hu» 
 526. 
 
 40. A debt which becomes due after a resolu- 
 tion of composition, but before a resolution ex- 
 tendiug the time to pay the composition amounts 
 specified in the first resolution, and correcting- 
 the first list of creditora, by adding the name of 
 the party holding the claim, such party having^ 
 due notice of the second meeting, is bound. — 
 Superior Ct., April, 1879. 'Woodruff v. Terry,. 
 45 Superior 176. 
 
 41. Impeaching the proceedings. !» 
 an action for the price of goods sold and de- 
 livered, where a money judgment was demanded,, 
 defendant pleaded a discharge under a composi- 
 tion in bankruptcy, in which a plaintiff had. 
 joined. 
 
 Held, 1. That plaintiff might put in evidence,, 
 on the trial, an order of arrest, and the affidavits 
 upon which it was granted, to prove fraud in. 
 contracting the debt and thereby avoid the effect 
 of the said composition. 
 
 2. That defendant might put in evidence to- 
 disprove such allegation of fraud. — Supreme Ot., 
 (hit Dept.,) Oct., 1879. Talcott d. Harris, 18 Hua 
 5^7. 
 
 42. In respect to resolutions of composition^ 
 the bankrupt court is vested with jurisdiction 
 upon a certain notice to creditors to inquire and 
 determine whether such resolutions have been, 
 passed in the manner directed by law! It can- 
 not be attacked by evidence showing that the^ 
 creditors who passed the second resolution were not 
 creditors, because they had received the compo- 
 sition given by the first resolution ; nor by evi- 
 dence that there was no timeto be extended 
 (the resolution being one of extension,) because- 
 all the composition amounts had already been 
 paid, nor by evidence that an omission to place 
 in the list of creditors, certain creditors, (the- 
 resolution being one of correction in this respect,) 
 was not a mistake inadvertently made ; because 
 all these matters must be regarded as haying- 
 been passed on judicially by the bankrupt court, 
 when it ordered the resolutions to be recorded. 
 —Superior Ct., April, 1879. Woodruff*. Terry, 
 45 Superior 176. 
 
 43. Prohibited and fraudulent 'trans- 
 fers. As to what is an unlawful preference,- 
 within the meaning of § 35 of the bank- 
 
BANKRUPTCY— BANKS AND BANKING, I., II., III. .55 
 
 rupt act, and wliat constitutes leasoiiable cause 
 to believe the party giving such preference to 
 be insolvent, see Ql. of App., Jan., 1S79. 
 Upham 1). New York Loan and Trust Co., 76 
 N. Y. 1. 
 
 44. The appropriation, by a member of an 
 insolvent firm, of his individual property to the 
 payment in full or pro raia of his individual 
 debts, if honestly and fairly made, would be 
 upheld under the bankrupt law, as it is such a 
 disposition as the law authorizes and directs. — 
 C*. of App., Dee., 1878. Hewitt v. Northrup, 
 75 N. Y. 506; affii-ming S. C, 9 Hun 543. 
 
 45. Defendant C, who was a member of the 
 firm of C. & S., executed to defendant K. a 
 mortgage upon his individual real estate to 
 secure an individual debt. The firm was at the 
 time insolvent, and was contemplating bank- 
 ruptcy, which facts were known to C. and N., 
 and the mortgage was executed with the view of 
 giving N. a preference over firm creditors, and 
 to prevent C.'s property from coming into the 
 hands of an assignee in bankruptcy, save as sub- 
 ject to the mortgage. Within two montlis after 
 the execution of the mortgage, a petition in 
 bankruptcy was filed and the firm was adjudged 
 bankrupt. C.'s individual property was more 
 than sufficient to pay his individual debts. Held, 
 that an action by the assignee in bankruptcy of 
 said firm to set aside the mortgage as fraudulent 
 and void under the bankrupt act, was not main- 
 tainable, that it was not sufficient under the act 
 (IT. 8. Eev. Stats., ?? 5121, 5128,) that the 
 parties intended that N. should obtain a prefer- 
 ence over the firm creditors, they also must have 
 intended a fraud on the act, and this the facts 
 did not show. lb. 
 
 46. The defendants were, in the fore part of 
 November, 1873, the holders of an over-due and 
 protested note, given to them by the bankrupts 
 for goods sold. The bankrupts promised to pay 
 the note November 21st, and on their failure so to 
 do, defendants placed the note in the hands of 
 an attorney for collection. The bankrupts then 
 saw one of the defendants, and it was agreed 
 that the note should be extended ; and to secure 
 its payment, a package of lace, worth $3,000, 
 was taken from tlie bankrupts' store and placed 
 in the hands of one C, the proceeds of its sale 
 to be applied upon the note. A few days after 
 this, the bankrupts were thrown into bankruptcy. 
 Hdd, that the transaction was void under the 
 bankrupt act, J 5128. — Supreme Ct., {1st Dept.,) 
 Oct., 1878.- Rosin v. Ammidown, 15 Hun 422. 
 
 For decisions under the Insolvent laws of the 
 state, now revived by the repeal of the bank- 
 rupt law, see Insolvency. 
 
 As to Assignments far benefU of creditors, see 
 that title. 
 
 BANKS AND BANKING. 
 
 I. Oroanization and Management. 
 II. Eights and Liabilities op Stockhold- 
 
 EK.S. 
 
 III. Powers and Dealings of Banks. 
 
 IV. OrncERs; their Powers, Duties and 
 
 Liabhties. 
 V. Dissolution, Receiver, &c. 
 VI. Savings Banks. 
 
 I. Organization and Management. 
 
 1. Statutory restriotione on banking. 
 The discounting of notes by a safe deposit com- 
 pany, incorporated under Laws of 1868, ch. 
 816 — Sdd, a violation of the laws restricting 
 the carrying on of a banking business. — Supreme 
 Ct., (ith Dept.,) Jwne, 1879. Pratt v. Eaton,* 18 
 Hun 293. 
 
 2. Interpretation of special charter. 
 By plaintiff''s charter, (Laws of 1870, ch. 685,) it 
 was authorized " to grant, bargain, sell, buy or re- 
 ceive all kinds of property, * * * or to hold 
 the same in trust, or otherwise, * * * and 
 to advance moneys, securities and credits upon 
 any property." In an action u pon two promissory 
 notes made by defendants, their answer alleged 
 in substance that plaintifi" carried on a regular 
 banldng business, keeping an office for discounts 
 and deposits ; that the notes in question were dis- 
 counted by it in the course of such business, and 
 the proceeds credited upon its books to one of 
 the defendants. Held, that said provision of its 
 charter did not confer upon plaintifi' banking 
 powers, or authorize it to dLseount commercial 
 paper ; and, this being prohibited by statute to 
 any corporation not expressly incorporated for 
 banking purposes, (1 Rev. Stat. 600, | 4; see also 
 Id., 712, §§3, 5,) that the notes were void ; and that 
 the answer set up a good defence. — Ot. of App., 
 April, 1879. New York Loan and Trust Co. v. 
 Helmer, 77 N. Y. 64; affirming 12 Hun 35. 
 
 3. Keport to state banking depart- 
 ment. As to the power of the superintendent 
 of the banking department to prescribe the form, 
 contents and verification of the report to be 
 made by a bank, under Laws of 1843, eh. 218, 
 ? 3, as amended by Laws of 1847, ch. 419, see 
 People V. Vail, 57 How. Pr. 81; S. C, 6 Abb. 
 N. Cas. 206. 
 
 4. Stocks, transfers, &o. A certificate 
 of bank stock is merely the evidence of an in- 
 terest in dividends as they are declared, and of 
 a right to a pro rata distribution of the efiects 
 of the corporation on hand at the expiration of 
 the charter. — Com. Pleas, Aug., 1878. Seeley v. 
 Nat. Exchange Bank, 4 Abb. N. Cas. 61. 
 
 5. Where a bank wrongfiilly refuses to trans- 
 fer shares of stock on its books, it is liable for 
 the value thereof Ih. 
 
 II. Eights and LiABiLiTiEa op Siock- 
 
 HOLDEBS. 
 
 6. Rights, generally. A national bank 
 cannot, after reducing the amount of its capital 
 stock, retain, as a surplus or for other purposes, 
 the whole or any portion of the money which it 
 received for the stock it retained. — Com. Pleas, 
 Aug.j 1878. Seeley v. Nat. Exchange Bank, 4 
 Abb. N. Caa. 61. 
 
 7. Dividends. When a dividend has once 
 been declared, the directors cannot afterwards 
 refuse to pay it, because they have determined 
 to establish a surplus fund with the view to bene- 
 fit the corporation and its stockholders. lb. 
 
 IIL Powers and Dealings op Banks. 
 
 8. Power to make contracts. A na- 
 tional bank has corporate power to enter into an 
 agreement with a customer to exchange for him 
 
 * Said to have been reversed by the Court of Ap- 
 peals, January 13th, 1880. 
 
56 
 
 BANKS AND BANKING, III. 
 
 non-registered United States bonds for registered 
 bonds; and it is bound by an agreement to that 
 effect, made for a sufiScient consideration, by its 
 cashier. — Ct. of App., Aprii, 1877. Yerlres v. 
 Nat. Banls; of Port Jervis, 69 N. Y. 382. 
 
 0. — to take taortgages. Under and 
 by the provisions of the national banking act 
 (|g 8, 28,) a national bank is prohibited from 
 taking a mortgage upon real estate, except for 
 debts contracted prior to the giving of the mort- 
 gage ; and a mortgage given to secure future in- 
 debtedness is void. — Ct. of App., Nov., 1877. 
 Crocker v. Whitney, 71 N. Y. 161, 166. 
 
 10. That a bank, in the absence of any re- 
 striction imposed by its charter, may take a 
 mortgage to secure anticipated liabilities, as well 
 as those existing at the time, but that the leg- 
 islature, whose creation it is, may impose such a 
 restriction in its charter, see 1 b. 
 
 10 a. An indorsement of a promissory note 
 by a married woman, by its terms charging her 
 separate estate with the payment of the note, is 
 not a mortgage in any sense. It is simply a 
 personal security within the meaning of the na- 
 tional bankrupt act, and a national bank is not 
 prohibited from taking it.^Ol!. of App., April, 
 1878.— Third Nat. Bank v. Blake, 73 N. Y. 260. 
 
 11. Receiving deposits, and obliga- 
 tion to repay. When a depositor has parted 
 with or ceased to have an interest in the dt-posit, 
 and others have succeeded to his rights by his 
 act or through the operation of law, the bank 
 would not be justified, upon being notified of the 
 facts and of the adverse claim, in paying the de- 
 positor. — Supreme Ct., {Isl Dept.,) March, 1879. 
 German Exchange Bank v. Commissioners of 
 Excise, 6 Abb. N. Cas. 394. 
 
 12. In an action against a bank, commenced 
 prior to the going into effect of the code of civil 
 procedure, by the- personal representatives of a 
 deceased customer, to recover a deposit which 
 was due and payable to the deceased in his life- 
 time — Hdd, that defendant could not, as matter 
 of law, and in' the absence of facts entitling it to 
 equitable relief, set off a claim against the de- 
 ceased which did not become due until after his 
 death. A demand, to be set off in such an ac- 
 tion, must have been due and payable from the 
 decedent in his lifetime. — Cl. of App., Oct., 
 1878. Jordan v. Nat. Shoe and Leather Bank, 
 74 N. Y. 467 ; affi-mlng 12 Him 512. 
 
 13. A bank has not a right to retain the 
 balance of a customer's deposit to pay or apply 
 upon an indebtedness of the customer to the 
 bank, not yet matured, lb. 
 
 14. Upon a contract for the sale of a quantity 
 of oil by plaintiff to one S., defendant, a national 
 bank, made an indorsement to the effect that S. 
 had deposited with it $2500, " to be held by us 
 as collateral security for the faithful perform- 
 ance of the within contract;." The complaint, 
 in an action to recover the amount deposited, 
 set forth the contract and the indorsement, and 
 alleged that the money was deposited by S., that 
 defendant agreed to hold it as secuiity for the 
 performance by S. of the contract, and caused 
 the certificate to be made aiid'signed by its cash- 
 ier on its behalf, and to be delivered to plaintiff, 
 and then alleged a breach of the contract. De- 
 fendant demurred; the demurrer was over- 
 ruled. 
 
 Hdd, 1. That no question could be raised on 
 appeal as to the authority of the cashier to re- 
 ceive the deposit ; that the contract was one de- 
 
 fendant had power to make ; that it was not 
 requisite to have the damages ascertained and 
 determined in an action against S. before defend- 
 ant was bound to pay them ; that it would have 
 been proper to have made S. a party to this 
 action, demanding judgment against biirn for the 
 damages, and against the bank, that it apply the 
 fund to the payment thereof, and defendant 
 might have required this ; but that a failure to 
 take the objection was a waiver to it. 
 
 2. That as the action was in the nature of a 
 proceeding in rem to reach the fund, defendant i 
 should be protected against costs not unnecessa- 
 rily and unreasonably occasioned by it;' and 
 that whatever of such costs are awarded should 
 be payable out of the fiind. — Ct- of App., Sept., 
 
 1878. Bushnell v. Chantaugiua Co. Bank, 74 N. 
 Y. 290 ; modifying, on question of costs, 10 Hun 
 378. 
 
 15. Special deposits. An agreement by 
 a national bank to receive securities to be depos- 
 ited in its vault for safe keeping, as a gratuitous 
 bailee, is valid, and the bank is liable to the de- 
 positor if such securities are lost through its 
 gross negligence. — Supreme Gt., [ith Dept.,) April, 
 
 1879. Patterson v. Syracuse Nat. Bank,* 17 
 Hun 419. 
 
 16. The fact that a deposit with a bank is 
 not made for the sole benefit of the depositor, 
 but may in a certain contingency become paya- 
 ble in whole or in part to a third person, for 
 whose security it was made, does not deprive it 
 of its character of a deposit. — Ct. of App., Sept., 
 1878. Bushnell v. Chautauqua Co. Bank, 74 N. 
 Y. 290. 
 
 17. A bank authorized to receive deposits, 
 may receive such a deposit ; so long as it under- 
 takes nothing more than to pay over money de- 
 posited with it, to the person who, according to 
 the conditions upon which the deposit was made, 
 may become entitled to it, it does not transcend its 
 powers. lb. 
 
 18. It is immaterial that the portion of the 
 sum deposited which may become payable to the 
 third person, is, at the time of the deposit uncer- 
 tain and subject to litigation ; the bank is simply 
 entitled before payment to have the amount 
 liquidated in such a manner as to bind all par- 
 ties, lb. 
 
 19. Certificates of deposit. Plaintiff 
 deposited money in the defendant's bank, and 
 received a certificate of deposit therefor, purport- 
 ing to be issued by the president of the bank 
 individually. He had previously made deposits 
 under similar circumstances, and had received 
 similar certificates, which had been paid on 
 demand. He deposited the money on the credit 
 of the bank, and accepted the certificate under 
 the belief that it was the obligation of the bank. 
 Held, that he was entitled, under the circum- 
 stances, so to believe, and that the bank was 
 estopped from denying its liability on the certi- 
 ficate. — Supreme Ct., (3d Dept.,) April, 1880. 
 West V. First Nat. Bank, 20 Hun 408. 
 
 20. Checks. A check is a request of the 
 customer to ptiy the whole or a portion of an 
 indebtedness of the bank to the customer, to the 
 bearer, or to the order of the payee. Until pre- 
 sented and accepted, it is indicate ; it vesta no 
 title or interest, legal or equitable, in the payee to 
 the ftmd. Before acceptance, the drawer may 
 withdraw his deposit ; the bank owes no duty to 
 
 •Said to have been afiSrmed in Court of Appeals 
 February 2«h, 1880. f J™™". 
 
BANKS AND BANKING, III. 
 
 57 
 
 the holder of a check until it is presented for pay- 
 ment. Knowledge that checks have been drawn, 
 •does not render it obligatory upon the bank to re- 
 tain the deposit to meet them. — Ct. of App., Nov., 
 WXJ. 'Attorney-General u. Continental Life Ins. 
 ■Co., 71 N. Y. 325, 331 ; rojersing 10 Hun 604. 
 
 21. A check drawn m the ordinary form, not 
 describing any particular fund, or using any 
 words of transfer of the whole or any part of any 
 amount standing to the credit of the drawer, does 
 not operate as an assignment, equitable or other- 
 wise, of funds of the drawer, in the hands of 
 the drawee ; and it is immaterial that the drawee 
 IS not a bank. lb. 
 
 22. Oertifled obeoks. By the certifioar 
 tion of a negotiable check, properly negotiated, 
 the depositary of the fund checked upon be- 
 comes liable to the owner of the certified paper, 
 and is bound to have in readiness the money to 
 meet it, from the fund drawn upon. When the 
 -check is not negotiable, or has not been indorsed, 
 but has by assignment come into the hands of a 
 lawful 'Owner, who has a ri^ht to enforce it 
 against the maker, the effect is the same. — CM. 
 of App., March, 1879. Freund v. Importers', 
 Ac, Nat. Bank, 76 N. Y. 352, 358. 
 
 23. A bare certification, of itself alone, at a 
 time when the drawer is not entitled to be re- 
 lieved from any risk connected with the funds 
 in the bank, will not discharge him. — Superior 
 <X, March, 1879. Thompson v. Bank of British 
 North America, 45 Superior 1. 
 
 24. A holder of a check, with no specific day 
 for payment, may withhold its presentation for, 
 payment for six years from date, and the drawer 
 undertakes for that period to keep the drawee in 
 funds. A certification is a promise by a drawee 
 to do, BO far as the fund is concerned, the same 
 thing that the drawer undertook. It follows 
 that a mere certification of such a check will not 
 •discharge the drawer. He will only be dis- 
 ■charged, either in the event of a loss or injury 
 jiccruing from a neglect to present for payment 
 within a reasonable time after the date of the 
 ■check, or in the event of a neglect to present for 
 payment within six years from date ; a fortiori, 
 where the drawee, having previously certified a 
 •check given to A, payable to the order of B, 
 pays it on a forged indorsement, and returns it 
 to the drawer, the drawee at the time of such 
 return being solvent, and there being up to that 
 time no more delay than would have been 
 allowed or expected by the drawer, for A to 
 deliver the check to B. or to return it in case a 
 delivery was not made. lb. 
 
 25. Where the payee of a check is the person 
 to whom the maker meant the money should go, 
 but the name inserted to designate him, in the 
 •check, is fictitious, and he gets the check certi- 
 fied under that name, and passes it, for value, to 
 a third person, by the aid of the certification, 
 neither these facts, nor the fact that the check 
 was obtained from the maker by fraud, and 
 •without parting with value, are any defence to 
 the bank when sued on its certification by siicli 
 holder for value. — Omn. Pleas, April, 1877. Mer- 
 chants' Loan, &c., Co. v. Bank of the Metropo- 
 lis, 7 Daly 137. 
 
 26. Plaintiflfe drew their check upon the de- 
 fendant's bank, payable to the order of O. & 
 Sons, and delivered it to the payees, for their 
 accommodation, and without restriction as to the 
 use of it ; the payees delivered it unendorsed to 
 B. & Sons, in payment of a prior indebtedness. 
 
 and it was so applied. B. & Sons procured the 
 check to be certified by defendant ; afterwards 
 plaintiff notified defendant not to pay it j de- 
 fendant, however, paid it to ,B. & Sons. In an 
 action by plaintiffi to recover the amount so 
 paid, as a balance of their deposits — Hdd, that 
 at the time of the certification, B. & Sons were 
 the owners of the check, with the right to en- 
 force it against the drawers, the existing debt 
 being a sufficient consideration for the transfer ; 
 that the certification, therefore, had the same 
 legal effect as if the check had been properly 
 indorsed ; that by the certification defendant be- 
 came bound to pay ; and that therefore the ac- 
 tion was not maintainable. — Ot. of App., March, 
 1879. Freund v. Importers', &o., Nat. Bank, 76 
 N. Y. 352 ; affii-ming 12 Hun 537. 
 
 27. Forged checks. A depositor owes 
 no duty to a bank requiring him to examine his 
 pass-book or returned checks, with a view to the 
 detection of forgeries in the indorsements ; he 
 has a right to assume that the bank, before pay- 
 ing his checks, will ascertain the genuineness of 
 the indorsements. — Gt. of Amp,, April, 1878. 
 Welsh V. German' American Bank, 73 N. Y. 
 424, 429 ; affirming 42 Superior, 462 ; Frank v. 
 Chemical Nat. Bank, 45 Superior 452. 
 
 28. A bank on which a check is drawn by 
 A for money deposited with him by B, and at 
 B's request made payable to C, becomes liable 
 to A for conversion, by taking and paying the 
 check upon a forged indorsement, before its de- 
 livery to C— Superior &., March, 187d. Thomp- 
 son V. Bank of British NortH America, 45 Su- 
 perior 1. 
 
 29. The drawer of such check, by assuming 
 dominion over it, after its payment by the bank, 
 for the purpose of finally extinguishing B's 
 claim to the money on deposit, is also liable to 
 B for a conversion, and demand and refusal are 
 unnecessary. lb. 
 
 30. Overdrafts. An agreement on the 
 part of a bank, to hold the deposit of one per- 
 son as security for the overdrafts of another, is 
 not enforceable by the debtor, after the insol- 
 vency of the bank. — Supreme Ot., {2d Depl.,) 
 Feb., 1880. Van Dyck v. McQuade, 20 Hun 262. 
 
 31. Stoppage of payment— lost draft. 
 Where the officers of a bank have been notified 
 by the drawer of a draft on it that the same has 
 been lost, and stoppage of payment has been re- 
 quested, the bank is bound to give notice of such 
 facts to any person making inquiries in regard 
 to a draft drawn by the same person and bearing 
 the same number as the lost draft of which pay- 
 ment has been stopped. The name of the drawer 
 and the number of the draft afford the bank 
 sufficient means to identify the draA. — Com. 
 Pleas, Jan., 1880. Clews v. Bank of Uew York, 
 &c., 8 Daly 476. 
 
 32. Loans and discounts — effect of 
 usury. The provisions of the national bank- 
 ing act (U. S Bev. Stat., U 5197, 5198,) limiting 
 the rate of interest to be taken by national 
 banks upon loans and discounts, apply as well to 
 discounts of business paper as of accommodation 
 paper. The effect of the provisions is to restrict 
 the rate of discount on all paper, business or 
 accommodation, to the rate of interest for the 
 use of the, money established by the state law, 
 and to seven per cent, per annum where there is 
 no such established rate. Therefore— BeM, that 
 a national bank in this state which had dis- 
 counted business^ paper at a greater rale than 
 
68 
 
 BANKS AND BANKING, III., IV. 
 
 seven per cent., was liable to the penalties im- 
 posed by said provisions, although the state law 
 fixes no limit to the rate which natural persons 
 may take for the discount of such paper, and 
 the transaction was not usurious under said law. 
 — Cl. ofApp., Sept., 1878. Johnson v. Nat. Bank 
 of GloversviUe, 74 N. Y. 329. 
 
 33. In an action by a national bank upon a 
 promissory note, one count of the answer alleged, 
 in substance, that the note was presented by its 
 makers to plaintiff for discount for their sole 
 benefit, which wasi known to plaintiff; that it 
 discounted the note and " then and there know- 
 ingly, corruptly and usuriously deducted there- 
 from and took, received, reserved and charged 
 by way of discount and * * * for the loan 
 and forbearance of the sum of money secured 
 by said note " a sum of money much greater than 
 seven per cent, for the timethe note had to run, "to 
 wit, the sum of $160 or thereabouts," and asked 
 that the interest paid and that which the note 
 carried with it should be adjudged to be forfeited. 
 
 Hdd, 1. That the said count sufficiently set 
 forth a corrupt and usurious agreement and was 
 good as a plea of usury. 
 
 2. That the facts stated establislied a case 
 within the meaning and intent of the provisions 
 of the national banking act in reference to usury 
 (U. S. Bev. Stat., g? 5197, 5198,) authorizing the 
 forfeiture of the interest, and that the same was 
 available as a defence by way of set-off or re- 
 batement; *nd that the recovery should be 
 limited to the money actually loaned, without 
 interest. — Cl. of App., Dec., 1878. National 
 Bank of Auburn d. Lewis, 75 N. Y. 516 ; revers- 
 ing 10 Hun 468. 
 
 34. Liability for loss of collaterals. 
 When a bank is chargeable with negligence, 
 where securities deposited as collaterals to a loan 
 are converted by its president, see Cutting v. 
 Marlor, 78 N. Y. 454 ; affii-ming 17 Hun, 573 ; 
 S. C, at Special Term, 57 How. Pr. 56 ; 6 Abb. 
 N. Cas. 388. 
 
 35. OoUections. An out-of-town bill or 
 note deposited with a bank for collection may be 
 sent by mail to the bank on which it is drawn 
 or at which it is made payable, provided that be 
 the ordinary method of transacting such busi- 
 ness. The collecting bank is authorized to sur- 
 render the bill or note to the bank upon which 
 it was drawn on receiving its draft for the 
 amount. — Ct. of App., Feb., 1880. Nidig v. Nat. 
 City Bank of Brooklyn, 59 How. Pr. 10. 
 
 36. In an action against a bank for negli- 
 gence, while acting as a collection agent, plain- 
 tiff must prove in what respect defendant has 
 been negligent. So long as the ordinary and 
 reasonable methods of making the collection are 
 pursued, the collecting bank is free from fault. lb. 
 
 37. Plaintiff, a customer of the defendant 
 bank, deposited with it for collection a note, 
 payable at the L. bank. The note was forwarded 
 to that bank, and at maturity paid, and on the 
 following day the L. bank sent to defendant a 
 draft on a bank in New York for the amount of 
 the nota On the same day the L. bank failed. 
 The draft was never paid, though duly presented. 
 In an action by plaintiff to recover from defend- 
 ant the amount thereof, the court directed a 
 non-suit. J3eW, error; that defendant was liable 
 for any neglect or misconduct on the part of 
 
 * Said to have been reversed in the Court of Ap- 
 peals, February 24th, 1880. 
 
 the L. hsiok.— Supreme Cl., {2dDept.,) Dec., 1878. 
 Indig V. Nat. City Bank,* 16 Hun 200. 
 
 37. Plaintiff sent to defendant, its correspon- 
 dent in the city of New York, for collection anil 
 credit, a sight draft, drawn by a bank ia Mead- 
 ville, Pa., upon C. P. & Co., bankers in that 
 city ; on the morning of its receipt defendant 
 presented it to the drawees for payment, re- 
 ceived their check for the amount, and delivere.l 
 the draft to them. Defendant did not present 
 the check for payment on that day ; it was pre-" 
 sented.the next day, when the bank refused ti> 
 pay, C. P. & Co. having failed. Defendant on 
 the same day returned the check to C. P. & Co.,. 
 received back the draft, formally demanded 
 payment thereof, caused the same to be pro- 
 tested for non-payment, and on the next day due- 
 notice of non-payment was served by mail upon 
 plaintiff and upon the drawer. In an action to 
 recover damages for alleged negligence on th& 
 part of defendant — Held, that it was the duty 
 of the defendant to have presented the check 
 for payment or certification as soon, as with 
 reasonable diligence, it could, and that for any 
 damages arising from the delay in presentation 
 it was liable. — Ct. of App., May, 1879. First 
 Nat. Bank of Meadville ». Fourth Nat. Bank of 
 New York, 77 N. Y. 320 ; reversing 16 Hun 332. 
 
 39. It appeared that the account of C. P. & Co- 
 at the bank upon which the check was drawn, 
 was largely overdrawn on the day when' the 
 check was received by defendant, but it ap- 
 peared that the bank had been in the habit of 
 allowing them to overdraw during any daj^ 
 they depositing collaterals or making the ac- 
 count good when made np the next day, and 
 that the bank paid aU checks down to the fail- 
 ure of C. P. & Co., and among them checks, 
 drawn after the one given to defendant. Held, 
 that the facts justified the conclusion that th& 
 check in question would have been paid had it 
 been promptly presented. lb. 
 
 40. It was alleged in the complaint that th& 
 draft could be collected from the drawer ; plain- 
 tiff recovered as -damages, the ~full amount of 
 the draft. Held, error ; that defendant was only 
 liable for the actual or probable damages caused 
 by negligence, and that, as sufficient was done by it 
 to charge the drawer who was responsible, defend- 
 ant was only liable for nominal damages. lb. ' 
 
 IV. Officers; theib Powers, Duties, and. 
 Liabilities. 
 
 41. The president. When a bank wilt 
 be bound by false representations of its presi- 
 dent, though he has represented to the bank 
 that the statements made were true, see Gould 
 i;. Cayuga Nat. Bank, 56 How. Pr. 505. 
 
 42. Defendant, as collateral security for a. 
 loan made to him by a bank, delivered to it cer- 
 tain securities, which were converted by B., the 
 president. In an action by the receiver of the^ 
 bank to recover the amount loaned, it was found 
 that the trustees left the entire management of 
 it with B. and one O., who was styled " man- 
 ager ;" that the trustees took the statement of 
 B. without question or examination ; that the- 
 securities were taken without objection on the 
 part of the trustees or officers ; that no meetings 
 of the trustees were held pursuant to the by- 
 laws, or examination made by them of the secu- 
 rities, and they exercised no care or yigilanee- 
 in regard to them ; also, that B. had been in the. 
 
BANKS AND BANKING, IV., V., VI. 
 
 53" 
 
 habit of abstracting securities and using them 
 in his priy«te business, most of them being 
 returned when called for ; that O. had knowl- 
 edge of this habit, and took no means to prevent 
 it, or to notify the trustees. 
 ^ Held, 1. That the bank was chargeable with 
 negligence, and defendant was entitled to coun- 
 ter-claim the value of the securities. 
 
 2. That the bank was under an implied obli- 
 gation, by the transaction, to return the securi- 
 ties when the debt was paid, and that the failure 
 to do so rendered it presumptively liable, and 
 that the arms was upon it to relieve itself from 
 that liability. 
 
 3. That the bank was not excused, by the fact 
 that B., having access to the securities, might 
 have abstracted them secretly, although the 
 utmost vigilance had been used, as the point 
 was whether care or diligence would have pre- 
 vented what was actually done. — Ct. of App., 
 Nov., 1879. Cutting v. Marlor, 78 N. Y. 454; 
 affirming 17 Hun 573 ; S. C. at Special lerm, 5r 
 How. Pr. 56 ; 6 Abb. N. Cas, 388. "* 
 
 43. The cashier. A bank cashier cannot, 
 as such, compromise a claim in favor of the 
 bank, or release the same under a composition 
 agreement. Such a power is dTscretionaiy, call- 
 ing, oftentimes, for the exercise of considerable 
 reflection and a high degree of judgment. It is 
 .strictly a sacrifice, at least, of nominal property of 
 the bank, and is a function of the board of direc- 
 tors, and not of an executive oflBcer. — Gom. Pleas, 
 Jan., 1880. Chemical Nat. Bank of New York 
 V. Kohner, 58 How. Pr. 267 ; S. C, 8 Daly 530. 
 
 44. A bank had in its hands certain United 
 States bonds belonging to plaintiff. Its cashier, 
 in the spring of 1869, for a sufficient considera- 
 tion, agreed to exchange the same for registered 
 bonds. This he failed to do, and in November, 
 1869, the bonds were stolen. In an action to 
 recover their value — Held, that defendant was 
 liable.— a. of App., AprU, 1877. Yerkes v. Nat. 
 Bank of Port Jervis, 69 N. Y. 382. 
 
 45. A national bank and a savings bank 
 occupied for their business purposes, the same 
 offices, and the business of the savings bank 
 with its depositors, was conducted through the 
 national bank. One B. was the cashier of the 
 national bank and treasurer of the savings 
 bank, and the active manager of both. B., 
 without the knowledge of the other officers of 
 the national bank, took certain securities belong- 
 ing to the savings bank, and pledged them to 
 secure a loan of money owing by the national 
 bank. In an action by the savings bank against 
 the national bank and its receiver, for the con- 
 version of tlie bonds — 
 
 Held, 1. That the national bank was charge- 
 able with the knowledge of its cashier as to the 
 loan, and the means by which it was effected. 
 
 2. That the reception and using of the money 
 by it was a ratification of the ads of the cashier 
 in borrowing it. 
 
 3. That the plaintiff was entitled to recover. 
 —Supreme Ct., (2d Dept.,) Dec., 1879. Fishkill 
 Savings Institute v. Bostwick, 19 Hun 354. 
 
 46. The paying-teller is the proper per- 
 •Bon of whom tc make inquiries in regard to the 
 
 genuineness of a draft purporting to be drawn 
 at the bank, and his statement in regard to the 
 draft, or his failure to give notice of any facts 
 known to the bank impairing its validity, will 
 bind the bank. — Com. Pleas, Jan., 1880. Clews 
 ». Bank of New York, &c., 8 Daly 476. 
 
 47. He is bound to assume that when, in the 
 ordinary coarse of business, a draft drawn on 
 his bank is presented, and inquiries made, re- 
 specting the certification, the party requesting- 
 the information contemplates a business trans- 
 action with the instrument in which he will 
 rely upon the information he receives from the- 
 paying-teller. Ih. 
 
 V. Dissolution, Keceiver, &o. 
 
 48. Payment of debts out of assets, 
 —Laws of 1875, ch. 371, g 48, providing that 
 the assets of any insolvent bank, after payment 
 of its circulating notes, shall be applied to the 
 payment of any sums that may have been depos- 
 ited with it by any savings corporations, applies- 
 to deposits made by savings banks prior to, as 
 well as after the passage of the act. — Supreme 
 Ct., (ith Dept.,) Jan., 1878. Upton v. New York 
 and Erie Bank, 13 Hun 269. 
 
 Whatis deemed a deposit within the act, see lb.. 
 
 49. The C. bank having received from a 
 customer of the M. bank a check upon that 
 bank, sent it to the drawee for payment; thfr 
 M. bank charged the check to the draweiv 
 whose account was then good for the amount, 
 and returned the check to the drawer as paid ; 
 it sent the C. bank a draft on a New York banic 
 for the amount of the check; two days after,, 
 the M. Bank closed its doors, and a receiver of 
 its assets was appointed; the draft was not 
 paid. On appjication by the C. bank for an 
 order requiring the receiver to pay the amount 
 of the check, upon the ground that the assets 
 came to the hands of the receiver impressed 
 with a trust in favor of the C. bank— fleW, that 
 the order was properly denied ; that 'in order to- 
 authorize the relief prayed for, it was necessary 
 to trace into the hands of the receiver money 
 or property which belonged to the C. bank, or 
 which had, before the receivership, been set 
 apai-t and appropriated to the payment of th& 
 check ; that charging said check and returning 
 it to the drawer did not amount to a payment 
 and setting apart of sufficient of the drawer's- 
 deposit to cover it, nor did it impress a special 
 trust on any part of the drawer's assets, but, by 
 the transaction, the drawee simply reduced its- 
 indebtedness to its depositor to the amount of 
 the check, and constituted itself a debtor to the 
 holder to a corresponding amount. — Ct. of App.,. 
 Sept., 1879. People v. Merchants', &c., Bank of 
 Troy, 78 N. Y. 269. . 
 
 VI. Savings Banks. 
 
 50. Interpretation of charter provi- 
 sions. The charter of a savings bank provided, 
 that no director or officer of the corporation 
 should borrow or use any portion of its funds,- 
 and that no loan should be made to any stock- 
 holder owning more than four shares of stock. 
 Held, that these prohibitions did not apply to a 
 case where a loan was made to a firm, corpora- 
 tion, or association in which an officer or stock- 
 holder of the bank was a partner, stockholder, 
 or memher.— Supreme Ct., (1st Dept.,) March,. 
 1878. Fisher v. Murdock, 13 Hun 485. 
 
 51. Loaning money on promissory notes, 
 cashing checks, or permitting a depositor to- 
 overdraw his account, is a violation of the pro- 
 hibition against investing money deposited, ex- 
 cept upon certain specified securities, and against. 
 
€0 
 
 BANKS AND BANKING, VI. 
 
 *he president, vice-president, any trustees, officers 
 ■or servants, directly or indirectly borrowing the 
 funds of the corporation, its deposits, or in any 
 manner using the same, or any part thereof, 
 •except to pay necessary current expenses, under 
 the direction of the board of trustees. — Superior 
 €t., Nov., 1878. Enapp v. Boohe, 44 Superior 
 547. 
 
 52. Rules and by-laws. Where a sav- 
 ings bank is bound by its rules to exercise its 
 "" best efforts " to prevent fraud, it is not pro- 
 tected by a clause in such rules that a payment 
 to one producing a deposit-book shall be deemed 
 good and valid, in case of a payment made by 
 it, merely upon the production of a depositor's 
 book, to one who has wrongfully obtained pos- 
 session of, and produces it under circumstances 
 :such as would necessarily excite suspicion and 
 inquiry — as where the person who presents the 
 ■book is of a different sex from the depositor. 
 —a. ofApp., AprU, 1877. Allen v. Williams- 
 burg Savings Bank, 69 N. Y. 314. 
 
 53. In the absence of any rules assented to 
 by its customers, a savings bank is to be gov- 
 erned by the same legal principles which apply 
 4o other moneyed institutions. Where it has 
 prescribed rules to which a depositor has as- 
 -sented, they are the agreement between them, 
 
 , ^nd each must conform to them, to preserve 
 rights against the other. lb. 
 
 64. Banking powers, g'enerally. A 
 purchase by a savings bank in the city of New 
 York, from a trustee of the bank, of bonds and 
 mortgages owned by him, amounting to $32,000, 
 made by one person, upon unproductive prop- 
 ■ert^ in Brooklyn of uncertain value, not worth 
 twice the amount of the mortgages, is idtra 
 ■Kim. — Supreme Ct., {Sp. T.,) August, 1880. 
 Paine v. Irwin, 59 How. Pr. 316. 
 
 55. Loans. A loan was made by a savings 
 bank to three persons of $20,000, $15,000 and 
 -$15,000 respectively, upon a promissory note 
 jnade by each for the amount he received, with 
 promissory notes of a foreign corporation as 
 ■collateral, which notes were secured by trust 
 ■deeds of such corporation upon unimproved 
 -vacant lots outside of the state, and not worth 
 -over $10,000. One of the trustees of the bank 
 was a large stockholder in said corporation at 
 
 \ *he time the loan was made, and the loans were 
 intended to be, and were, in fact, lo.ins to the 
 ■corporation, which was known to the trustees, 
 -or could, with reasonable diligence, have been 
 learned by them. The loans were intended to 
 be to said trustee, and were made because Of 
 his interest in said corporation, and were, in 
 fact, loans upon the security of the lots. 
 
 Hdd 1. That such transaction was iinauthbr- 
 ized and illegal, under the laws of this state. 
 
 2. That the persons to whom the loans were 
 ■charged to have been made were not necessary 
 parties defendant.— (Supreme Cl., (Sp. T.,) August, 
 1880. Paine v. Barnum, 59 How. Pr. 303. 
 
 56. Deposits in other banks — pri- 
 •ority. The provision of the act of 1875, in 
 relation to savings banks, (Laws of 1875, ch. 371, 
 ^ 48,) providing that savings banks shall have 
 a preference for moneys deposited over other 
 -creditors of an insolvent bank, only applies to 
 ■deposits made in the ordinary course of busi- 
 ness, and subject to the drafts of the depositors, 
 *o an amount not exceeding that authorized by 
 ^ 27 of said act. Loans, whether on time or 
 {>ayable on call, are not deposits within the 
 
 meaning of said provision. — Ct. of App., April, 
 1877. Bosenback v. Manufacturers'^ &c.. Bank, 
 69 N. Y. 368 ; affirming 10 Hun 148. 
 
 57. A loan cannot be changed into a deposit 
 by reason of any want of authority in the man- 
 agers of the savings bank to make the loan, or 
 for the reason that it may have been made in 
 violation of law. lb. 
 
 58. A savings bank had $50,000 on deposit 
 with defendant, the latter applied to the savings 
 bank for a loan on call of $40,000, the loan was 
 agreed upon, a formal agreement prepared, and 
 defendant gave securities for repayment of the 
 loan. The president of the savings bank bor- 
 rowed $65,000 on its own securities, and depos- 
 ited $40,000 to defendant's credit in the C. 
 bank, which was defendant's correspondent, and 
 where its account was overdrawn. The amount 
 bore interest from the time of this deposit ; it 
 was entered in the cash-book of the savings 
 bank as a " deposit," but was thereafter entered 
 in the journal as a call loan, and $5000 paid on 
 the day of such entry was entered as made on 
 account of the loan ; in defendant's books it was 
 entered to the credit of the call-loan accoimt of 
 the savings bank. Hdd, that the transaction 
 was a loan, not a deposit, and that the savings 
 bank was not entitled to a preference, under 
 Laws of 1875, ch. 371, § 48, giving preference to 
 deposits by savings banks over other claims 
 against insolvent banks. lb. 
 
 59. A savings bank agreed with four other 
 banks, subject to the provisions of the laws of 
 the state respecting deposits in banks and trust 
 companies, to deposit one-fourth of all moneys 
 it received with each of said banks, each bank 
 agreeing to pay four per cent, interest on daily 
 balances, and at the end of three years to pay 
 over to the savings bank all money belonging 
 to it, and also to pay, at sight, any checks or 
 drafts drawn upon it. Each of the four banks 
 agreed not to receive deposits of any sum less 
 than $1000 from any other person or corpora- 
 tion, and allow interest thereon. Hdd, that 
 money paid by the savings bank to one of the 
 four banks, in pursuance of said agreement, was 
 a deposit within the meaning of Laws of 1875, 
 ch. 371, § 48, and entitled to the priority thereby 
 given. — Supreme Ct., (3d Dept.,) May, 1879. 
 Matter of Patterson, 18 Hun 221 ; affirmed 78 
 N. Y. 608. 
 
 60. Liability for acts of officers. A 
 transaction entered upon the books of a savings 
 bank, although made by the bank officers, is 
 presumed to have been done with the knowledge 
 and assent of the trustees, and they are respon- 
 sible for the acts of the officers whom they place 
 and retain in position. — Supreme Ct., {Sp. T.,) 
 August, 1880. Paine v. Mead, 59 How. Pr. 318. 
 
 61. — for acts of president. A savings 
 bank resolved that certain shares of stock taken 
 by it to secure a loan be sold by the president 
 for the best interest of the bank. The president 
 sold a part of the stock, and directed a broker 
 to sell the balance, at a price named, which he 
 did, and so advised the president ; whereupon 
 the latter informed him that he himself had 
 previously sold the stock. The broker, being ' 
 unable to deliver the stock, was compelled to 
 pay the purchaser $4110. In an action by the 
 broker against the receiver of the bank, to re- 
 cover the amount so paid — Held, that the bank 
 was liable to plaintiff for the damage occasioned 
 by the act of its president, and that this liability 
 
BANKS AND BANKING, VI.— BILLS OF EXCHANGE, I. 61 
 
 was not affected by the fact that it was forbidden 
 by statute to loan money upon personal security. 
 —Supreme Ct., (Ut Dept.,) Jan., 1879. Sistare 
 1). Best, 16 Hun 611. 
 
 62. — of cashier. Plaintiff intrusted to 
 her husband a bond belonging to her, to be de- 
 posited in the German Savings Bank for safe 
 keeping, which bond he thereupon took to said 
 bank, with plaintiff's bank book, and delivered 
 to the cashier, who placed it in the safe, and 
 wrote the following memorandum and attached 
 it to said bank book, and returned the same to 
 defendant's husband: "Mrs. Anna Zugner, 
 Morrisania Steamboat Co., No. 1, Bond f 1000, 
 August 20th, 1873." Held, that the transac- 
 tion was had with the cashier as an officer of 
 the bank, in the line of his duty, and that the 
 bank recognized, and was charged with notice 
 of plaintifiTs title to the bond. — Supei-ior Ot., 
 Jan., 1879. Zugner v. Best, 4t Superior 393. 
 
 63. Illegal dividends. When directors 
 of savings banks are liable for declaration of il- 
 legal dividends, see Van Dyke v. McQuade, 45 
 Superior 620 ; S. C, 57 How. Pr. 62. 
 
 64. Winding up. A depositor in a sav- 
 ings bank to which he is indebted on a bond 
 and mortgage is entitled, on the failure of the 
 bank, to have the amount of his deposit at the 
 time of the failure credited .on his bond in the 
 hands of the receiver. — Supreme Ot., (1st Dept.,) 
 July, 1877. New Amsterdam Savings Bank v. 
 Tartter, 4 Abb. N. Cas. 215. 
 
 65. What are proper allowances on settle- 
 ment of the accounts of a receiver of an in- 
 solvent savings bank, see Matter of Guardian 
 Savings Inst., 78 N. Y. 408. 
 
 BASTARDY. 
 
 1. Recognizance. A bond from the puta- 
 tive father to the people, with only one surety, 
 if accepted by the magistrate, is not void under 
 2 Eev. Stat. 286, § 59, and may be enforced 
 against both principal and surety. — Oommon 
 Meas, April; 1877. People, ex rel. Commis- 
 sioners, &c, V. Lyons, 7 Daly 182. 
 
 2. Bond for maintenance of child. 
 An undertaking upon the part of a putative 
 father of an illegitimate cmld, to pay to the 
 mother a sum of money for the support of the 
 child, is not illegal ; and the obligation may be 
 taken by the mother, payable to herself in her 
 own right, or for the benefit of the child. — Ct. 
 ofApp., Oct., 1879. Hook v. Pratt, 78 N. Y. 371. 
 
 As to the Legal.staius and Rights of illegiti- 
 mate children, see Descent, 7. 
 
 BENEVOLENT SOCIETIES. 
 
 Societies and Associations, 3, 4, 
 
 BEQUESTS. 
 
 As to the Interpretation and Validity of be- 
 quests, generally, see Legacies ; WrLLS. 
 As to beqaesis in Liev, of dower, see Doweb, 9. 
 As to Payment of bequests, see Executobs 
 
 AND A UMDHBTBATOBS, 65, 66 ; LEGACIES, III. 
 
 BIGAMY. 
 
 1. Foreign divorce, 'when no defence. 
 
 An adjudication of a court of another state dis- 
 solving the marital relations of a citizen of thi» 
 state, domiciled and actually residing here- 
 during the pendency of the judicial proceed- 
 ings in such state, without a voluntary appear- 
 ance on his part therein, and with no sfttual 
 notice to him thereof, is not a defence to an in- 
 dictment against him for bigamy. — Ot. of Am., 
 Jan., 1879. People o. Baker, 76 N. Y. 78; 
 reversing 15 Hun 256. 
 
 2. Instructions to the jury. Upon the- 
 trial of an indictment for bigamy, the prisoner 
 gave in evidence the record of a judgment ir» 
 another state, in favor of his wife, in an actioi* 
 by her for divorce. The court charged, in sub- 
 stance, that if the divorce had been obtained 
 under the laws of this state, though the prisoner 
 would not have been guilty of the crime of 
 bigamy, yet he would have been guilty of a. 
 misdemeanor. Held, no error ; that as bearing: 
 upon the question of the guilty or innocent 
 purpose of the accused, it was a proper consid- 
 eration for the jury, that a man from whom his- 
 wife has obtained a divorce o vincvlo, does vio- 
 late the laws of this state, which forbid to him 
 another marriage so long as she lives. lb. 
 
 As to .what constitutes a Valid ma/rriage, see- 
 
 HUSBAND AND WiFE, 1-5. 
 
 As to the Prohibition of future marriage of 
 person divorced for his own adultery, se& 
 Divorce, 20. 
 
 BILLS. 
 
 Of Exceptions, see Appeal ; Ebeob ; Excep- 
 tions. 
 
 Of Exchange, see Bills op ExcHAiraE. 
 Of Lading, see Bills op Lading. 
 Of Particulars, see Bills op PAETiCTJLAEa. 
 Of Mevivor, see Abatement, II. 
 
 BILLS OF EXCHANGE. 
 
 [Consult, also, Pbomissory Notes.] 
 
 I. Nature aud Ee(itjisites, Genebally- 
 II. Acceptance. 
 
 III. Tbanspebs. 
 
 IV. Actions on Bills op Exchange. 
 
 I. Natuee and Requisites, Genebally. 
 
 1. "What is a hill of exchange. In a» 
 
 action upon the following instrument : " Roches- 
 ter, July 17th, 1875. Edward L. Hopkins. 
 One month after date, pay to the order of Hol- 
 lister & Co., seven hundred and eighty-two dol- 
 lars and thirty-four cents, and charge the same 
 to me, to apply on contract for your building on 
 South avenue. (Signed) J. R. Flowerday," 
 plaintiff proved the acceptance and indorse- 
 ment and rested. Defendant offered to prove 
 that there was nothing due to the drawer upon 
 his building contract, at the time the instrument 
 was drawn, and that there w?s no consideration 
 for the acceptance, which evidence was excluded: 
 Held, that the instrument was a bill of exchange. 
 
62 
 
 BILLS OF EXCHAGE, II., III., IV. 
 
 and not a mere assignment of a fund, and that 
 the evidence was properly excluded as imma- 
 terial and irrelevant. — Simreme Ot., {4th Dept.,) 
 Jan., 1878. Hollister v. Hopkins, 13 Hun 210. 
 
 2. What is not. H. having entered into 
 a contract with defendant to grade and pave a 
 certain street, and being indebted to plaintiflf, 
 gave to the latter a written order directed to 
 defendant, requesting hira to pay plaintiff $400 
 on account of said work, " as per contract ;" 
 defendant verbally accepted the order, and 
 thereupon plaintiff released certain security 
 which he held. In an action on the order — 
 Beld, that it was not a bill of exchange, but a 
 mere appropriation of so much of the contract 
 price to become due H., and only payable out 
 of that fund ; which appropriation became irre- 
 vocable when assented to by defendant, and he 
 was liable to pay over the amount from the 
 sums, if any, which should become due H. 
 on the contract.— Cu. of App., Dee., 1878. Eh- 
 richs V. De Mill, 75 N. Y. 370. 
 
 3. Non-negotiable orders. A con- 
 tractor to build a school-house, sublet the mason 
 work to B., and drew the following draft upon 
 the person who was to pay for the school-house : 
 " Please pay to B. two hundred and forty-nine 
 dollars ($249,) being the balance due on con- 
 tract for building said school-house, the above 
 amount to be paid on the acceptance of the said 
 school-house." Seld, that the order was an 
 equitable assignment of so much of the fund as 
 was necessary to pay it. — Supreme Ct., (4(A 
 Depl.,) June, 1878. Ballou v. Boland, 14 Hun 
 355. 
 
 11. Acceptance. 
 
 4. Promise to accept. 1 Eev. Stat. 722, 
 ? 8, (Edm. ed.,) providing that "an uncon- 
 ditional promise in writing to accept a bill, be- 
 fore it is drawn, shall be deemed an actual ac- 
 ceptance in favor of every person, who, upon' 
 the faith thereof, shall have received the bill 
 for a valuable consideration," should be reason- 
 ably construed with a view to accomplish the 
 purpose intended by the legislature. — Supreme 
 Ct., (IsJ Dept.,) Oct., 1878. Louisiana Nat. 
 Bank v. Schuchardt, 15 Hun 405. 
 
 5. Where, after a draft has been negotiated, 
 upon condition that it be accepted, the drawer, 
 at the instance of the drawee, writes upon its 
 face " payable through the clearing- house," 
 such alteration amounts to the drawing of a new 
 bill, within the meaning of the section, so that 
 a promise to accept made after such conditional 
 negotiation and just before the alteration, is to 
 be deemed made " before it is drawn." Ih. 
 
 6. Effect of la-w of place. W., who re- 
 sided in Connecticut, drew a draft there upon 
 defendant, who resided in New York, and the 
 draft was accepted by defendant, payable in 
 New York, and returned to W., in Connecticut, 
 with the expectation that it would be negotiated 
 there. The acceptance was solely for W.'s ac- 
 commodation. W. discounted the draft in Con- 
 necticut at the rate df three per cent, per month. 
 The draft was sued on in this state. Held, that 
 as it had no inception as a contract until dis- 
 counted in Connecticut, and as the acceptor un- 
 derstood that it was to be used there, the accept- 
 ance must be regarded as a Connecticut con- 
 tract ; the question of usury and its effect to be 
 governed by the laws of that state and not by 
 
 the laws of New York. — Supreme Ct:, [Xsl Depl:,) 
 March, 1878. Opdyke v. Merwin, 13 Hun 401. 
 
 III. Tbansfees. 
 
 7. Indorsement, and its effect. Where 
 an indorsement of a negotiable bill purports to 
 pass the title thereto from the indorser, and to 
 divest him of all beneficial interest therein, a 
 consideration for the transfer is presumed, and 
 the burden of proving want of consideration 
 rests upon the party alleging ii.~Ct.of App., 
 Oct., 1879. Hook V. Pratt, 78 N. Y. 371. 
 
 8. The restrictive indorsements which are 
 held to negative the presumption of a consider- 
 ation, are such as indicate that they are not in- 
 tended to pass title, but merely to enable the 
 indorsee to collect for the benefit of the indorser. 
 An indorsement to one person for the benefit of 
 another affords no such indication. lb. 
 
 9. H., defendants' testator, drew a draft on 
 the treasurer of the M. R. C. Co., payable to 
 his own order. He indorsed it, "Pay to the 
 order of Mrs. Mary Hook, 35 King, for the 
 benefit of her son Charlie." In an action upon 
 the draft — Hddj that the indorsement imported 
 a consideration, and its effect was simply to give 
 notice of the interest of the beneficiary named. 
 lb. ; affirming, 14 Hun 396. 
 
 10. Rights of bona fide purchaser. 
 An innocent holder of negotiable paper which 
 he has received in the usual course of trade, 
 for a valuable consideration, though from a per- 
 son having, no title, and no authority to trans- 
 fer it, will be protected even against the claim 
 of the true owner. And he may acquire a good 
 title and be protected as the holder of paper, 
 although used for a different purpose from that 
 intended, if there is no restriction as to its use, 
 or the particular use is a matter of indifference 
 to the parties. — Ct. of App., April, 1878. Corn- 
 stock D.Hier, 73 N. Y. 269, 274. 
 
 11. Taking in payment of precedent 
 debt. One who receives a bill or note before 
 due, and without notice or knowledge of any 
 fraud in its inception or transfer, but for a pre- 
 cedent debt, and without parting with value or 
 any valuable consideration, does not acquire a 
 valid title to the note or bill, but takes it sub- 
 ject to all its infirmities, precisely as if he had 
 taken it after dishonor, or with knowledge of all 
 the circumstances affecting its validity. lb. 
 
 12. Bights Of purchaser of accom- 
 modation paper. In the absence of proof 
 of fraud or misappropriation, the presumption 
 is that the indorsee of a negotiable bill or note 
 is a bona fide holder for value, and this pre- 
 sumption is not repelled merely by proof that 
 the bill or note, as between the immediate par- 
 ties, was without consideration, and was made, 
 indorsed, or accepted by one for the sole accom- 
 modation of the other. When no other proof 
 is given the holder is not bound to prove a valu- 
 able consideration. — Ct. of App., April, 1877. 
 Harger v. Worrall, 69 N. Y. 370. 
 
 IV. Actions on Bills op Exchange. 
 
 13. Necessity of demand and notice. 
 
 A draft for $1200, purporting to be drawn by a 
 New Jersey bank upon a New York bank, pay- 
 able to the order of one B., was purchased by 
 plaintiff, and the proceeds paid to B., who, being 
 unkno^vn to plaintiff's officers, was accompanied 
 
BILLS OF EXCHANGE, IV.— BILLS OF LADING. 
 
 63 
 
 by defendant, wlio indorsed the draft, on plain- 
 tiff's request, receiving nothing for so doing. 
 B. had a forged letter of introduction to deftjnd- 
 :ant, and the draft had been altered by changing 
 the payee's name and raising it from $25 to 
 •$1200. The draft having been returned to 
 plaintiff it sued defendant to recover the 
 amount paid on it. Held, that as defendant had 
 received none of the money paid by plaintiff, 
 lie was liable as indorser only, and that the 
 «tep8 necessary to charge him in that capacity 
 not having been taken, the action could not 
 be maintained. — Supreme Ct., {dd Dept.,) Nov., 
 1879. Susquehanna Valley Bank v. Pickering, 
 19 Hun 230. 
 
 14. VAho may sue. A foreign corpora- 
 tion, holding and owning a bill of exchange, 
 «ent it to its agents in New York for the special 
 purpose of suing upon it. Such agents had no 
 interest in the bill or its proceeds. Held, that 
 the agents were not the real parties in interest, 
 -and could not maintain the action in their own 
 names. — Supreme Ct., (Isi Dept.,) Dee., 1878. 
 Bell t>. Tilden, 16 Hun 316. 
 
 15. The biirden of proof. When a bill 
 or note is void in its creation, or has been un- 
 duly obtained, or has been wrongfully diverted 
 from its purpose, and fraudulently negotiated, 
 the party suing on it is bound to show himself 
 a. bima fide possessor. The affirmative is with 
 the plaintiff, in an action upon such a note, to 
 prove a clear legal title valid as against the 
 parties to the instrument. — Ct. of App., April, 
 1878. Ctomstock v. Hier, 73 N. Y. 269, 273. 
 
 16. Where, in an action by an indorsee be- 
 fore maturity against tlie acceptors of a bill, the 
 •defence was that the acceptance was without 
 consideration, and solely for the accommodation 
 ■of the drawer, and that it was discounted by 
 plaintiffs for the drawer at a usurious rate of in- 
 terest — Held, that the burden was upon defend- 
 ants to show the amount paid by plaintiffs for 
 the bill, and in the absence of any evidence 
 upon the subject, that plaintifis were entitled 
 to recover. — Ct. of App., April, 1877. Harger 
 V. Worrall, 69 N. Y. 370. 
 
 17. Possession as evidence of title. 
 Possession and production in court by an as- 
 signee in bankruptcy, of a draft sued upon, 
 given to a firm of which the bankrupt was a 
 partner, establishes, prima fade, plaintiff's title. 
 — Ct. of App., Jan., 1878. Kidder v. Horrobin, 
 72 N. Y. 159. 
 
 18. The possessor of negotiable paper has no 
 letter or other title to the proceeds arising from 
 the sale thereof than to the paper itself; and 
 If he has no title to the latter, he can be com- 
 pelled to account to the true owner for the pro- 
 ceeds. It is immaterial whether the paper is 
 the obligation of the party entitled thereto, and 
 of no validity in the hands of the wrong-doer, 
 or the obligation of a third person. — Ct. q/' App., 
 April, 1878. Comstock v. Hier, 73 N. Y. 269. 
 
 BILLS OF LADING. 
 
 1. How construed, generally. A clause 
 in a bill of lading exempting the slup from lia- 
 bility for loss arising from " theft on land or 
 afloat, barratry of master or mariners, any act, 
 neglect or default of the pilot, master, mariners, 
 engineers, servants or agents of the company " 
 
 — Held,- not to exempt the company from lia- 
 bility for the value of goods stolen by the pur- 
 ser. — Supreme Ct., April, 1878. Spinnette v. 
 Atlas Steamship Co.,* 14 Hun 100. 
 
 2. Under a bill of lading containing, in sub- 
 stance, the. following clause : " Goods to be taken 
 by consignee immediately, otherwise they will 
 be landed by the master and deposited in the 
 warehouse provided for that purpose," &c., &o., 
 leaving the goods on the dock will not shield 
 the ship-owner from liability for non-delivery 
 in case of loss by theft, after notice to consignee 
 to remove the goods. — Superior Ct., Jan., 1879. 
 Thomson v. Liverpool, &c.. Steamship Co., 44 
 Superior 407. 
 
 3. How far conclusive. Where goods 
 are delivered to a carrier for transportation, and 
 before the goods are ship;ped a bill of lading or 
 receipt is delivered by him to the shipper, the 
 latter is bound to examine it and ascertain its 
 contents, and if he accepts it without objection, 
 he is bound by its terms; he cannot set up 
 ignorance of its contents, and resort cannot be 
 had to prior parol negotiations to vary it. — 
 Ct. of App., Jan., 1878. Germania Fire Ins Co. 
 „. Memphis, Ac, R. E. Co., 72 N. Y. 90. S. P. 
 AprU, 1878, Hill v. Syracuse, &o., K. E. Co., 73 
 N. Y. 351 ; reoersing 8 Hun 296. 
 
 4. To take a case out of this general rule, it 
 must appear that before the delivery of the bill 
 of lading the goods have been shipped, so that 
 the shipper con Id not have reclaimed them had 
 he objected to the contents of the bill of lading. 
 lb., lb. 
 
 5. When a bill of lading contains a clause 
 exempting the carrier from loss by fire, there is 
 no liability for such loss, unless it appears that 
 it occurred through his negligence. lb., lb. 
 
 6. The agent of the "Eed Line" made a 
 verbal contract with plaintifis to transport cer- 
 tain goods from New York to St. Joseph in a 
 refrigerator car. The bill of lading was not 
 received by plaintifife until between five and six 
 o'clock in the afternoon of the day the contract 
 was made, when it was too late to retake the 
 goods, as the train had started. The bill of lad- 
 ing omitted to state " refrigerator car, through," 
 but the agent, when spoken to, said that it did 
 not make any difference ; that the car would go 
 through all right. Held, that the verbal agree- 
 ment was not merged in the bill of lading. — 
 Sujn-eme Ct., {Ut Dept.,). Dee., 1878. Shiff v. 
 New York Cential, &c., E. E. Co., 16 Hun 278. 
 
 7. Rights of holder. Under the code, 
 the transferee of a bill of lading, being the 
 real party in interest, may bring an action 
 thereon in his own name against the carrier. — 
 Ct. of App., April, 1877. Merchante' Bank of 
 Canada v. Union E. R. and Transp. Co., 69 N. 
 Y. 373, 380. 
 
 8. Effect of delivery of the bill to 
 pass title to goods. Goods shipped under 
 bill of lading drawn to order of the shipper 
 may be transferred by delivery of the bill of 
 lading without indorsement. lb. 
 
 9. The bill of lading confers upon the person 
 in whose favor it is issued, or to whom it is 
 transferred, the title to the goods ; and this, 
 although the transaction is not intended to give 
 the permanent ownership, but to furnish se- 
 curity for advances of money or discount of 
 
 • Said to have been reversed In the Court of Ap- 
 peals, February 24th, 1880. 
 
64 
 
 BILLS OF LADING— BILLS OF PARTICULARS. 
 
 commercial paper made upon the faith of it. 
 Third persons dealing with property shipped 
 under a bill of lading which shows on its fiice 
 that the shippers retain the power of control 
 and disposition of the property, though acting 
 in good faith, in the regular course of business, 
 and paying value, are affected by and charge- 
 able with constructive notice of the contents of 
 the bill of lading.— a. 0/ App., Nov., 1878. 
 Farmers', &c., Nat. Bank v. Logan, 74 N. Y. 
 568. 
 
 10. Instances. The firm of R. G. Gt. & Co. 
 arranged with plaintiff for a credit of £10,000 
 sterling, in favor of their agents, T. & Co., at 
 Yotahama, to be availed of by the drafts of T. 
 & Co., on plaintiff's London agents, who were 
 to accept the drafts upon the hypothecation, by 
 the drawers, of bills of lading of teas purchased 
 by them for, E. G. G. & Co. T. & Co. shipped 
 to New York six hundred and seventy-two pack- 
 ages of tea, which were, by the bill of lading, 
 deliverable to order of shippers. Plaintiff paid 
 a draft accepted by its London agent, on receipt 
 from it of the bill of lading, invoice, and con- 
 sular certificate. The bill of lading was not 
 indorsed by T. & Co. In an action upon the 
 bill of lading — Held, that the evidence author- 
 ized a finding that the bill of lading was deliv- 
 ered with intent to pass the title. — Ct. of App., 
 April, 1877. Merchants' Bank of Canada v. 
 Union R. K. & Transp. Co., 69 N. Y. 373. 
 
 11. Defendant delivered the teas to R. & Co. 
 upon a written guaranty that they would deliver 
 " the regular bill of lading indorsed," as soon 
 as the same reached them. It appeared by the 
 bill of lading held by the plaintiff, that five of 
 the same tenor were signed, one whereof being 
 accomplished, the others were to be void. De- 
 fendant had possession of one of them. Held, 
 that in the absence of evidence of any title in R. 
 & Co., or that they had lawful possession of a 
 regular bill of lading, the delivery was unau- 
 thorized ; that R. & Co. could acquire no right 
 under the bill of lading in defendant's posses- 
 sion ; that it was the duty of defendant, before 
 delivery, to have required evidence that R. & 
 Co. had a bill of lading, and that it was no de- 
 fence that defendant acted in good faith. lb. 
 
 12. S. & D., correspondents and agents, at 
 Buffalo, of B., of New York,- to fill an order 
 from B., purchased in their own name a boat- 
 load of wheat, which was delivered on board a 
 canal-boat. S. & D. were not furnished by B. 
 with money or credit wherewith to make the 
 purchase, but, in accordance with their under- 
 standing and course of business, they raised the 
 funds by procuring plaintiff to discount a draft 
 drawn by them on B., on delivery, as collateral, 
 of a bill of lading of the wheat, wherein it 
 stated that the wheat was shipped to New York 
 to account and order of plaintiff. Plaintiff, 
 upon acceptance of the draft, delivered the biU 
 of lading to B., with an indorsement thereon, 
 to the eflect that the wheat was pledged to it for 
 the payment of the draft, and was placed in B.'s 
 custody, " in trust for that purpose," and not to 
 be diverted to any other purpose until the draft 
 was paid. The wheat, on arrival, was delivered 
 by the carrier, on the order of B., to defendants, 
 who were warehousemen, in store. B. sold the 
 wheat to A., to whom defendants made advances 
 thereon, to pay therefor, and subsequently de- 
 livered the wheat to him, on B.'s order. Before 
 such advances and delivery, defendants had seen 
 
 a copy of the bill of lading and of the indorse- 
 ment thereon. In an action fqr a conversion 
 of the wheat — Held, that such delivery of the 
 bill of lading did not vest in B. a title to the 
 wheat, or confer upon him authority to sell, but 
 simply vested him with the possession to hold 
 in trust for plaintiff— that plaintiff's title could 
 not be divested by any act of B. until payment 
 of his acceptance; therefore, that defendant» 
 were liable. — Ct. of App,, Sept., 1879. Farmers', 
 &c., Nat. Bank v. Hazeltine, 78 N. Y. 104. 
 
 BILLS OF PARTICULARS. 
 
 1. In Tvliat cases granted. The com- 
 plaint alleged that about a time named, plain- 
 tiff was the lawful owner o^ and entitled to the 
 quiet and peaceable possession of certain goods,, 
 chattels, and personal property, of the value of 
 $5000, and that the same were wrongfully taken, 
 and carried away by defendant, and converted 
 to his own use. Held, a proper action in which 
 to order a bill of particulars. — Supreme Gt., {2d 
 Dept.,} Feb., 1878. Robinson v. Comer, 13 Huti 
 291; 
 
 2. When an executor will be required to fur- 
 nish a bill of particulars of amounts claimed to 
 have been expended by him for plaintiff's use 
 while a minor, in an action by a legatee, under 
 the will, for her share in the proceeds of a 
 policy on the testator's life, see Eberhardt v. 
 Schuster, 6 Abb. N. Cas. 141. 
 
 3. "When refused. Where the conbract 
 sued on is express and entire, and where, per- 
 formance on plaintiff's part being proved, he 
 will be entitled to a fixed compensation — no 
 more, no less — and if not proved, to nothing, 
 plaintiff will not be compelled to furnish a bill 
 of particulars. The only purpose to be served 
 by a bill of particulars, in such a case, would 
 be a disclosure of the evidence of the alleged 
 facts, which is not allowable in a pleading. — 
 Com. Pleas, Feb., 1878. Stilwell v. Hernandez, 
 7 Daly 485. 
 
 4. When the plaintiff in an action for the 
 removal of a trustee, and an accounting, will 
 not be required to furnish a bill of particulars 
 showing the specific irregularities complained 
 of, see Wigand v. Dejonge, 18 Hun 405. 
 
 5. A demand for a bill of particulars is only 
 authorized where an account is set out in the 
 pleading ; in all other cases a motion is neces- 
 sary. When motion for bill of particulars of a 
 counter-claim, and not motion to make answer 
 more definite and certain, is the proper remedy. — 
 Supreme Gt., (1st JJepi.,) Oct., 1879. Clegg i>. 
 Amer. Newspaper Union, 7 Abb. N. Cas. 59. 
 
 BOARDS. 
 
 COBPORATIONS; COUNTIES; MtTNICIPAL COB- 
 
 poBATioNS, IV. ; New York City, III. ; Offi- 
 cers. 
 
 BONDS. 
 
 I. Form, Construction, and Validity. 
 II. Actions on Bonds. 
 
BONDS, I., ir. 
 
 65 
 
 I, Form, Construction and Validity. 
 
 1. Negotiable bonds— rights of hold- 
 ers. A bona fide purchaser of negotiable bonds, 
 wrongfully put in circulation, may enforce pay- 
 ment of the whole amount secured thereby, and 
 is not limited to the amount paid by him upon 
 the purchase of the bonds. — Supreme 01., {1st 
 Dept.,) May, 1879. Grand Eapids, &c., E. E. 
 Co., V. Sanders, 17 Hun 552. 
 
 2. A Yiurehaser for value of stolen negotiable 
 bonds will be protected unless the circumstances 
 are such that an inference can fairly and legiti- 
 mately be drawn tliat the purchase was made in 
 bad faith or with notice of defective title in the 
 seller ; to defeat his title it is not sufficient to show 
 that a prudent man would have been put upon 
 inquiry, or that he was negligent, or did not 
 exert a proper degree of caution. — Ct. of App., 
 AprU, 1878. Dutchess Co. Mut. Ins. Co. v. 
 Hachfleld, 73 N. Y. 226. 
 
 3. A railroad company will be compelled to 
 issue new bonds to the administrator of a de- 
 ceased holder of registered coupon bonds of the 
 company which were destroyed at the same time 
 that deceased lost his life by the burning of a 
 steamer on which he had taken passage. — Sitr 
 preme Ct., {2d Dept.,) July, 1878. Eogers v. 
 Chicago, &c., E. E. Co., 6 Abb. N. Cas. 253. 
 
 4. Coupons. In the case of a mortgage to 
 secure the payment of bonds, with coupons at- 
 tached, when an agreement on the part of the 
 mortgagor to take up the coupons with borrowed 
 money, and transfer them to the lender, amounts 
 to a payment of the coupons as to the bond- 
 holders ; and when such bonds, after being paid 
 by the mortgagor and re-issued, are void in the 
 hands of a bona fide purchaser, see Bocks v. Ha- 
 thorn, 20 Hun 503. 
 
 5. After the Mississippi Central Eailroad 
 Company had issued its mortgage bonds, with 
 coupons attached, it became consolidated with 
 another corporation, payment of the bonds 
 being assumed by the consolidated company. 
 Thereafter the treasurer of the new company 
 deposited with defendants $25,000, defendants 
 signing a receipt, stating that they had received 
 it " in trust, to apply the same to the payment 
 of an equal amount of the coupons of the first 
 mortgage bonds and consolidated mortgage 
 bonds of the Mississippi Eailroad Company, * 
 
 * * the said money not to be subject to the 
 control of the said company, otherwise than for 
 the payment of said coupons, as above de- 
 scribed." Held, that such deposit created a 
 trast for the benefit of the holders of the cou- 
 pons, and that the fund was not liable to be at- 
 tached in favor of a creditor of (he consolidated 
 company, to enforce a debt due from it to him. — 
 Supreme Ct., (1st Dept.,) Dec., 1879. Eogers 
 Locomotive Works v. Kelly, 19 Hun 399. 
 
 6. HoTW construed, generally. While 
 the general rule is that where the condition of 
 an obligation is in the disjunctive, it may be 
 discharged- by the performance of either of the 
 designated acts, at the election of the obligor, 
 when the language of the instrument gives the 
 right of election to the obligee, such effect will 
 be given to it. — Ct. of App., Nov., 1879. Huid 
 V. Kelly, 78 N. Y. 588. 
 
 7. Defendant and others executed a bond, by 
 the terras of which each one severally obligated 
 himself to pay a separate and specified sura to 
 the Third Avenue Savings Bank, on the 1st day 
 
 of January, 1883, "or six months after a de- 
 mand therefor." When the bond wag given the 
 assets of the bank had become impaired, and the 
 bond was executed for the purpose of being ex- 
 hibited to the bank department as an asset, so 
 that the bank might pass examination and be 
 enabled to continue its business. In an action 
 by a receiver of the bank upon the bond — Held, 
 that the intent to be gleaned from the language 
 of the bond was to fix the day specified as the 
 date when the obligation should mature, in the 
 absence of any prior demand, and to enable the 
 bank to accelerate the time of payment by a six 
 months' demand ; that the circumstances, under 
 which the bond was given, confirm this con- 
 struction ; and that, therefore, an action brought 
 before the day specified, but six months after 
 demand, was not premature. lb. ; affirming 8. 
 C.J snbjMin. Ilurd v. Green, 17 Hun 327. 
 
 8. Consideration. The consideration ex- 
 pressed in the bond was that said bank, upon 
 the request of each of the obligors, continues its 
 business after January 15th, 1873, and of the 
 mutual covenants contained therein. The bank 
 did continue in business after the time specified 
 and until December, 1875, when plaintiff was 
 appointed receiver. 
 
 Meld, 1. That the continuance in business, 
 and the incurring of new obligations incident 
 thereto, was a good consideration. 
 
 2. That the transaction was not in violation 
 of public policy, and even if it was vUra vires, 
 that objection could not prevail as against the 
 claims of depositors who were represented by 
 the receiver. -lb. 
 
 II. Actions on Bonds. 
 
 O. Matters of defence. In an action on 
 a bond executed by several obligors, defendant 
 offered to prove that the bond was delivered 
 upon the consideration that certain other per- 
 sons should execute it, who did not. It ap- 
 peared that whatever was said upon this subject, 
 was prior to the time the bond was executed, 
 and the bond itself was complete and perfect, 
 the whole sum pi-oposed to be guaranteed by it 
 being covered by the several sums assumed by 
 the obligors who executed it — Hdd, that it was 
 to be inferred that if it was oiiginally contem- 
 plated that others should execute it, that pur- 
 pose was abandoned. — Ct. of App., Nov., 1879. 
 Hurd V. Kelly, 78 N. Y. 588. 
 
 10. Defendant claimed that there was a 
 fraudulent suppression and concealment by the 
 persons who solicited him to sign. It appeared 
 that defendant was informed, when he executed 
 the bond, that it was to be used to give credit to 
 a bank with the banking department, and with 
 the public, so that it would be enabled to con- 
 tinue its business. 
 
 Hdd, 1. That this was a suflicient notice that 
 the bank was in a precarious condition, and 
 that, under the circumstances, the fact that its 
 exact condition was not disclosed was no de- 
 fence. 
 
 2. That as defendant had allowed the bond 
 to be treated as an asset for three years, and the 
 public to deal with the bank on that assump- 
 tion until it became insolvent, he was estopped 
 from setting up such defence. lb. 
 
 11. Amount of recovery. In an action 
 against a surety upon a bond, for the breacTi of 
 a condition other than for the payment of money, 
 
66 
 
 BONDS, II.— BRIDGES. 
 
 the statute requires (2 Eev. Stat. 378, § 5, el seq.,) 
 that there should be proof of, and a finding of, 
 the actual damages sustained, and though judg- 
 ment be entered for the penalty, that there 
 should be further judgment for execution for 
 the damages assessed ; the penalty is the limit 
 beyond which the liability of the surety will 
 not go if he is prompt to pay it, and actual 
 damages only, up to the amount of the penalty 
 and interest thereon, can in any case be re- 
 covered.— Cl!. of App., April, 1878. Beers v. 
 , Shannon, 73 N. Y. 292 ; reversiny 12 Hun 161. 
 
 12. As to what is the qnanium of damages in 
 such case, whether the value of the piece of 
 land sold at time of sale, or the amount of con- 
 sideration paid therefor and interest ; and as to 
 whether a delay on the part of plaintiff to 
 prosecute will affect the amount which he may 
 recover, see Id. 304. • 
 
 13. The mortgage referred to in the bond was 
 also upon other lands than those conveyed to 
 plaintm) and tfie principal obligor was only 
 bound to pay a portion — how much did not ap- 
 pear. The mortgage was foreclosed, and a part 
 of the land conveyed to plaintiff sold at fore- 
 closure sale — how much, or what was its value, 
 did not appear. Damages were assessed by 
 casting interest on the amount named as the 
 penalty. Hdd, error ; that there should have 
 been proof of the amount of the actual dam- 
 ages, lb. 
 
 14. Judgment. In an action against the 
 surety, upon a bond conditioned that the prin- 
 cipal would, within two years, cause all liens 
 and incumbrances upon certain premises granted 
 by him to the obligee, including a certain mort- 
 gage thereon, to be discharged of record, and 
 would indemnify and save plaintiff harmless 
 therefrom, the complaint alleged default in pay- 
 ment of the mortgage, but did not state any sum 
 which the obligors ought to have paid, but neg- 
 lected to pay. 
 
 Held, 1. That as the action was upon a bond 
 conditioned for the performance of a covenant — 
 the doing of an act by the principal ; not for 
 the payment of money ; that the case was within 
 the provisions of the Kevised Statutes (2 Kev. 
 Stat. 378, § 5 e« $eq.) 
 
 2. That it was necessary that plaintiff should 
 assign in his complaint specific breaches for 
 which action was brought, that the court should 
 assess the damages thereby, and that judgment 
 should be for the penalty, with a farther direc- 
 tion that plaintiff have execution for the dama- 
 ges so assessed, but that simply for a failure so 
 to enter judgment an appeal would not lie ; it 
 was an irregularity to be corrected by motion. 
 — Ot. of App., April, 1878. Beers v. Shannon, 
 73 N. Y. 292. 
 
 As to bonds on Appeal or Error, see those 
 titles. 
 
 As to the security required on granting either 
 of the Provisional remediea, see their titles, 
 chiefly Arrest ; Attachment ; Injunction ; 
 Mandamtts; Keceivees; Eeplevxn. 
 
 As to Official bonds, see OrnCERS ; and the 
 titles of various officers there referred to. 
 
 As to town and city bonds In aid of railroads, 
 see Municipal Corporations, 33-58. 
 
 BOUNDARIES. 
 
 1. How proved, generally. Grants of 
 land may be by fixed and permanent monu- 
 ments, or by shifting boundaries. Boundary 
 lines are generally certain, and fixed by circum- 
 stances or monuments existing at the time, but 
 they are not necessarily so, and whether fixed 
 or shifting depends upon the construction of the 
 deeds and the intention of the parties. — Ot. of 
 App., March, 1878. Matter of City of Brooklyn, 
 73 N. Y. 179, 184. 
 
 2. The rule that the boundaries of land con- 
 veyed must be determined by the calls in the 
 deed, when definite and distinct, applied. Law- 
 rence V. Palmer, 71 N. Y. 607. 
 
 3. Effect of long possession, acquies- 
 cence, &c. In order to establish the practical 
 location of a boundary line, it is not necessary 
 to prove an actual agreement; acquiescence in 
 its location, even if erroneous, coupled with oc- 
 cupation fur a sufficient length of time to bar an 
 entry, is enough.^i'apreme Ct.,{4th Dept.,) June, 
 1879. Swettenham v. Leary, 18 Hun 284. 
 
 4. Agreements fixing lines. Where a 
 boundary line is uncertain, vague and disputed, 
 the adjoining owners may establish a line, by 
 parol agreement, which neither can afterwards 
 dispute. — Supreme Ot., (2d Dept.,) Feb., 1878. 
 Ambler v. Cox, 13 Hun 295. Nm., 1878. Wil- 
 liams V. Montgomery, 16 Id. 50. 
 
 5. Boundary between New York 
 and New Jersey. Under the compact made 
 in 1833 between this state and New Jeniey, fix- 
 ing the boundary line between the two states, by 
 which the boundary soutli of Staten Island is 
 defined as a line passing through the middle of 
 tlie waters "of Raritan hay to the main sea," 
 the whole body of water from the mouth of the 
 Raritan river to the ocean, including what is 
 •now known as the lower bay, and Raritan bay, 
 was designated as " Raritan bay." The middle 
 of Rariian bay, as thus designated, where it joins 
 the main ocean, is the centre of a line from 
 Sandy Hook to Coney Island ; at any other 
 point it is the shortest line between the New 
 Jersey coast and Siaten Island. Therefore, 
 where » vessel was sunk in the waters of the 
 lower bay, at a point one thousand and eighty 
 feet southerly of the centre of a line drawn fi'om 
 the northerly end of Sandy Hook, the nearest 
 land on the New Jersey shore, to the nearest 
 land on the Staten Island shore — Held, that the 
 wreck was within the territorial limits of New 
 Jersey, and that the expense of removing the 
 same was not chargeable upon the county of 
 Richmond, under the act (Laws of 1860, eh. 622,) 
 providing for the removal of obstructions to 
 navigation in the harbor of New York. — Ct. of 
 App., April, 1878. People, ex rel. Morris, v. 
 Supersrisors of Richmond Co., 73 N. Y. 393. 
 
 BREACH OF PROMISE. 
 
 Liability of Infan^toi, see Infants, 7. 
 
 BOTTOMRY. 
 Shipping, 8, O. 
 
 BRIDGES. 
 
 1. Congress may authorize the con- 
 struction of a bridge over a public navigable 
 river, although it will, to some extent, interfere 
 
BRIDGES. 
 
 67 
 
 Nvith navigation ; and its determination as to the 
 ■extent of the interference which will be per- 
 anitted, is conclusive. — Ol!. of App., March, 1879. 
 People, ex rel. Murphy v. Kelly, 76 N. Y. 475, 
 482; S. C., 5 Abb. N. Cas. 383. 
 
 2. Congress may devolve upon the secretary 
 •of war the power to approve or prescribe the 
 plan for the bridge in such a case. Id. 482. 
 
 3. Power of to'W'n to contract, for 
 ■building bridges. A town has no power, in 
 the absence of express Statutory authority, to 
 «nier into a contract for the building of a bridge. 
 —Supreme Ot., (2d Dept.,) July, 1879. Donnelly 
 *. Town of Ossining, 18 Hun 352. 
 
 4. The duty to keep them in repair, 
 and liability for defects. The statute, (1 
 Eev. Stat. 501, § 1,) requiring highway commis- 
 sioners to keep the highways and bridges in 
 repair, imposes upon them the duty of active 
 oversight and constant vigilance, and involves the 
 «xercise of a reasonable degree of watchfulness 
 in ascertaining the condition of the highways 
 and bridges, from time to time, and in prevent- 
 ing them from becoming dilapidated or danger- 
 ous. The mere fact of want of notice of the ex- 
 istence of a defect in a bridge, does not neces- 
 sarily relieve them from liability to a person 
 injured by reason of their failure to repair the 
 bridge. — Supreme Cl., (2d Dept.,) May, 1878. 
 Bostwick V. Barlow, 14 Hun 177. 
 
 5. In June, 1875, the defendants, who were 
 <!ominissioners of highways, were informed of 
 the unsafe condition of a bridge, but no par- 
 iticulsir defect was pointed out. Within a week, 
 defendants, in company with an experienced 
 faidge-builder, examined the bridge carefully, 
 from above and below, taking off the planks 
 and testing the timber, but they could not dis- 
 ■cover any defect. Shortly after, they caused 
 another experienced bridge-builder to examine 
 it, and to replace old planks by new ones where 
 necessary. The following month the bridge feli 
 and plaintiff was injured. The fall was caused 
 by one of the timbers being rotten at the centre, 
 which defect could only be discovered by sawing 
 .the timber in two. Hdd, that the defendants 
 were guilty of no negligence, and that the plain- 
 tiff cbuld not recover. — Supreme Gt., (2d Dept.,) 
 Feb., 1878. Hicks v. Chaffee, 13 Hun 293. 
 
 6. While crossing the defendant's bridge, 
 about eight o'clock on a winter morning, plain- 
 iiff slipped and fell. Bain had fallen the pre- 
 vious night, and had frozen on the planks of the 
 ■bridge and rendered them slippery. Hdd, that 
 the failure to remove the ice. Within the few 
 hours which elapsed between the time of its 
 formation and the time of the accident, was not 
 ■sach negligence on the part of defendant, as ren- 
 ■dered it liable for the injury sustained by plain- 
 tiff. — Sitpceme Ct., (3d Dept.,) May, 1879. 
 Eveis V. Hudson Eiver Bridge Co., 18 Hun 
 144. 
 
 7. Respective liabilities of adjoining 
 towns. Whether, where two towns are di- 
 vided by a stream, a bridge over which would 
 connect a highway existing in each of the towns, 
 an implied liability upon the towns to erect the 
 bridge at joint expense is created, see Beck- 
 with V. Whalen, 70 N. Y. 430. 
 
 8. No such joint liability exists unless there 
 is at the time a lawful highway in each town, 
 which would be connected by, and of which the 
 bridge would form a part. The mere fact that 
 ■a, highway has been laid out is not sufficient; 
 
 there must be an existing thoroughfare, suitable 
 for travel. Ih., affirmmg 9 Hun 408. 
 
 9. The New York and Brooklyn 
 Bridge. The provisions of the act of congress 
 passed March 3d, 1869, declaring the bridge to be 
 constructed " across the East river, between the 
 cities of New York and Brooklyn," under the act 
 of the legislature of this state incorporating " The 
 New York Bridge Company," (Laws of 1867, ch. 
 399, as amended by Laws of 1869, ch. 26,) to be a 
 lawful structure, requiring the bridge company 
 to submit a plan of the bridge to the secretary 
 of war, and authorizing said company, on re- 
 ceiving a notification from the secretary that he 
 approved the plan, to proceed to the erection of 
 the bridge, were within the power of congress ; 
 and the secretary could convey such notification 
 in any way which would be effectual. A notice 
 through one of his subordinates was sufficient. — 
 Ct. ofA,pp., March, 1879. People, ex rel. Murphy, 
 V. Kelly, 76 N. Y. 475; S. C, 5 Abb. N. Cas. 
 383, 
 
 10. Inasmuch as, at the time of the passage 
 of said act of 1875, a plan of the bridge approved 
 under said act of congress had been adopted and 
 acted upon and the bridge pa^ially constructed, 
 it was no longer necessary so to construct the 
 bridge as in no degree to obstruct the navigation 
 of the river, as required by the charter of said 
 bridge company ; said act was a legislative ap- 
 proval and sanction of the bridge as then being 
 constructed, according to the prescribed plan, 
 and thereafter it was only required to conform 
 to the plan. So long as there was no departure 
 from the plan, the structure cannot be assailed 
 as an obstruction to navigation, and was not a 
 nuisance. Id. 490. 
 
 11. The secretary of war approved of the 
 plan for the bridge, subject to this, among other 
 conditions : " That no guys or stays shall ever 
 be attached to the main span of the bridge 
 which shall hang below the bottom chords 
 thereof." In proceedings to compel by manda- 
 
 ^mus the payment by the comptroller of the city 
 of New York to the trustees of moneys, as pre- 
 scribed by said act of 1875, it was claimed by 
 defendant that this condition had been violated. 
 Held,, that if there was such a departure from 
 the approved plan, it did not justify the defend- 
 ant in withholding payment of the money, 
 id. 491. 
 
 12. The facts that the trustees were extrava- 
 gant in the expenditure of moneys, and that the 
 bridge, when completed upon the plan so 
 adopted, will be useless and unsafe, did not 
 justify defendant's refusal, lb. 
 
 13. The proviso in said act of 1875, " that 
 the whole amount to be paid by both cities shall 
 not exceed eight millions of dollars," does not 
 prohibit a further prosecution of the work, 
 although it cannot be completed for the sum 
 named; nor does it prevent the trustees from 
 calling upon the two cities for that sum, or the 
 cities from paying it. Id. 492. 
 
 Consult also Highways ; Plaiik Boad Com- 
 panies; Turnpike Companies. 
 
 BROKERS. 
 
 Pbincipai and Aoent, IV. 
 
68 
 
 BROOKLYN, I., II. 
 
 BROOKLYN. 
 
 1. Municipal Opmcers. 
 U. Local Impbovements, aito Assessments 
 
 THEREFOB. 
 
 III. Taxes; Fibe-Escapes ; Sbwbks. 
 
 ' I. Municipal Ofpioebs. 
 
 1. The aldermen. A representative in 
 congress holds a " public office," within the 
 meaning of the provision of the charter of the 
 city, (Laws of 1873, ch. 863, tit. 2, ? 5,) which 
 prohibits an alderman from holding " any other 
 public office," save as excepted, and declares 
 that by an election to and acceptance of "such 
 public office" during his term as alderman, 
 " his office as such alderman shall immediately 
 become vacant." — Ct. of App., June, 1879. Peo- 
 ple, ex rel. Kelly, v. Common Council of Brook- 
 lyn, 77 N. Y. 503, 507. 
 
 2. When the president of the board of alder- 
 men acts as mayor in the latter's absence, he is 
 not entitled to additional compensation for so 
 doing. People, ef rel. Bay, v. Burrill, 14 Hun 
 224. 
 
 3. Approval of ordinance by mayor. 
 Under the amended charter of 1873, (ch. 863,) 
 a resolution of the common council confirming 
 an appointment, made by a justice of the peace, 
 of a clerk of his court, must be approved by the 
 mayor, or passed over his veto. — Gt. of App., 
 Feb., 1879. People, ex rel. Ennis, v. Schroeder, 
 76 «. Y. 160 ; affirming 12 Hun 413. 
 
 4. The provision of the charter, title 2, § 10, 
 requiring every ordinance or resolution of the 
 common council to be approved by the mayor 
 or returned with his objections, extends to all 
 acts of that body, whether legislative or other- 
 wise, lb. 
 
 5. Liability on contracts •with •water 
 board. The provision of the act, (Laws of 1871, 
 ch. 47, J 6,) in reference to providing the city 
 with a further supply of water, which makes it 
 the duty of the permanent board of water and 
 sewerage commissioners to proceed to carry into 
 effect the plan for that purpose, " provided the 
 whole expense thereof shall not exceed the sum 
 of $1,400,000," limits the liability of the citjr to 
 the amount specified. Therefore, in an action 
 against the city for work done under a contract, 
 made in pursuance of said act — Held, that the 
 recovery was properly limited to the unexpended 
 balance of the sum so appropriated — Ct. of App., 
 Sept., 1879. Kingsley v. City of Brooklyn, 78 
 N. Y. 200. 
 
 Q. It appearing, however, that certain expen- 
 ditures had been improperly made and charged 
 against the fund — Held, that in ascertaining such 
 balance these charges were properly rejected. lb. 
 
 7. Laws of 1875, ch. 258, amendatory of said 
 act of 1871, authorizing the board of city works, 
 upon approval by the common council, of the 
 plans, specifications and estimates therefor, to 
 complete the reservior begun under the original 
 act, and to issue bonds therefor not exceeding 
 $500,000, was not a ratification of former illegal 
 expenditures made beyond the amount first 
 limited. lb. 
 
 8. The police. To justify the removal of a 
 member of the police force of the city, under 
 the provisions of the charter of 1873, (Laws of 
 1873, ch. 863, ? 14,) conferring power upon the 
 
 police board to remove any member of the force- 
 for incapacity, etc., it is sufficient if the evidence- 
 establishes a defect of capacity in such member 
 for the particular office ; it is not necessary to- 
 establish a defect of general capacity. — &. of 
 App., April, 1877. People, ex rel. Folk, v. 
 Board of Police, &c., 69 N. Y. 408. 
 
 9. Departmental clerks. Under the 
 charter of 1873, (Laws of 1873, ch. 863, tit. 19,. 
 ?J 8, 28,) the heads of departments were authori- 
 zed to employ necessary clerks and fix their 
 salaries. Laws of 1877, ch. 459, authorizes the 
 common council to fix and regulate the salaries 
 of the various officers, clerks and subordinates. 
 Held, that the last-mentioned act imposed no 
 duty, but merely authorized the common council 
 to fix and regulate salaries, and that until they 
 acted in the matter, the heads of departments 
 were authorized to fix the compensation of their 
 clerks.— Supreme Ot., {2d JDept.,) Dec., 1879. 
 Norris v. City of Brooklyn, 19 Hun 296. 
 
 II. Local Impbovements, and Assessments 
 
 THEEBFOE. 
 
 10. Opening streets. Laws of 1871, ch. 
 833, and Laws of 1873, ch. 334, construed, a» 
 respects proceedings under the first-mentioned 
 act, to open and continue North Thirteenth street, 
 from First street " to the East river, and to the 
 permanent bulk-head lines ; " and the act of 1871 
 — Held, not repealed by implication by that of 
 1873.— C*. of App., March, 1878. Matter of City 
 of Brooklyn, 73 N. Y. 179. 
 
 As to damages to land-owners in such pro 
 ceeding, see lb. 
 
 U. Confirmation of assessments. 
 The provision of the act of 1874 amending the 
 charter of the city (Laws of 1874, ch. 589, § 36), 
 which confirmed all assessments for local im- 
 provements theretofore laid in said city, does 
 not embrace invalid assessments laid without 
 any authority or jurisdiction. — Ct. of App., Dec.,. 
 1877. People, ex rd. Hays, v. City of Brooklyn, 
 71 N. Y. 495. 
 
 12. Where, therefore, an assessment was laid 
 prior to the passage of said act, for digging- 
 down and filling in lots, in proceedings, where 
 no petiton of a majority of the land-owners was 
 presented, and where the common council did 
 not act as a board of health — Held, that the 
 assessment was illegal and void, and was not 
 validated by said act. lb. 
 
 13. Vacating and reducing assess- 
 men'is. The provisions of Laws of 1861, ch. 
 169, § 5, directing that "no assessments on 
 any piece or parcel of land shall exceed in 
 amount one-half of the value thereof," were 
 repealed by Laws of 1875, ch. 663, ? 13.— 
 Supreme Ot., (2d Dept.,) Feb., 1878. Matter of 
 Adams, 13 Hun 355. 
 
 14. A petition to vacate an assessment for 
 repaving Atlantic avenue, alleged among other 
 things that the proceedings appeared regular on- 
 their face ; that the petition was not in fact 
 signed by a majority of the abutting owners, but 
 was fraudulently made up by appending thereto 
 a large number of names taken from another 
 petition ; that the whole of the southerly part 
 of said avenue was owned by individuals, and 
 had never been taken for a public highway, and 
 the persons who signed as owners fronting on 
 said south side were not o-wners ; and that, 
 without such signatures, a majority of the 
 owners did not have their names appended to- 
 
BROOKLYN, II., III.— BUFFALO. 
 
 69 
 
 the petition — SM, that the petition was good 
 ■on demurrer.— (S. of App., Oct., 1877. Boyle v. 
 City of Brooklyn, 71 N. Y. 1 ; ' reversing 8 
 Hun 32. 
 
 15. The power of the courts to vacate or 
 reduce assessments for local improvements, 
 nnder the amendment to the city charter (Laws 
 of 1875, ch. 633, ^3,) determined; andthecou- 
 struction of the provision explained. — Gt. of 
 App., June, 1878. Matter of Mead, 74 N. Y. 
 216 ; affirming 13 Hun 349. 
 
 III. Taxes; Firb-Escapes ; Seweks. 
 
 16. Municipal taxes. The charter requires 
 the board of assessors to deliver to the board of 
 supervisors copies of the assessment rolls, " duly 
 «worn to by at least two of the assessors, accord- 
 ing to the oath provided by law in regard to 
 assessment rolls in the different towns in this 
 state; and, further, to the effect that they have 
 together personally examined, within the year 
 past, each and every lot and parcel of land, 
 house, building, or other assessable property." 
 Seld, that the omission from the oath, attached 
 to the rolls, of the statements relating to the 
 personal examination of the property assessed, 
 ■did not vitiate the tax-rolls, or invalidate the 
 tax levied by the supervisors upon the property 
 mentioned in them. — Supreme Gt.,(2d Dept.,) 
 Jidy, 1879. Brevoort i/. City of Brooklyn, 18 
 Hun 383. 
 
 17. Under Laws of 1869, ch. 383, to correct cer- 
 tain tajtes relating to the improvement of Third 
 street, an apportionment was made against a lot 
 belonging to the plaintiff. One-nineteenth wasj 
 by virtue of said act, assessed upon the premises 
 in 1871, and added to the annu^ tax, and for the 
 non-payment of the sum the lot was sold and 
 bid off by defendant, M. This action was 
 brought to set aside the sale, to restrain the giv- 
 ing or receiving a deed, and to have the assess- 
 ment declared void because of alleged defects 
 in the proceedings prior to the sale. M. did 
 not appear, and judgment was taken against him 
 iby default. Hdd, that the action was not main- 
 tainable against the city ; that it did not come 
 ■within either of the exceptions to the rule pro- 
 hibiting an action to prevent an apprehended 
 injury.— Ci. of App., May, 1877. Guest v. City 
 •of Brooklyn, 69 N. Y. 506 ; affirming 8 Hun 97. 
 
 18. Fire-escapes. By the city charter of 
 1863 (Laws of 1863, ch. 863, tit. 13, i 37,) an abso- 
 lute duty is imposed upon the owners of tene- 
 ment-houses to have places of egress to the 
 Toofs, and also to have fire-escapes upon such 
 houses ; this duty is for the benefit of the ten- 
 ants, and for a breach thereof, causing damage, 
 a, tenant may maintain an action against his 
 landlord. The landlord is not permitted to 
 wait until directed by the commissioners of the 
 ^department of fire and buildings to provide a 
 fire-escape ; he is bound to provide such a one 
 ^3 they shall direct and approve, and it is for 
 Jiim to procure their direction and approval. — 
 a. of App., Sept., 1879. Willy v. Mulledy, 78 
 N. Y. 310 ; affii-ming 6 Abb. N. Cas. 97. 
 
 19. Where a tenant took rooms in a house 
 unprovided with a fire escape, which rooms he 
 occupied for three days before the occurrence of 
 :& fire — Beld, that he was not debarred by such 
 occupancy from recovering his damages, in the 
 nbsenee of any express stipulation against, or 
 ■waiver by the tenant, of the performance of this 
 
 duty, or of proof of an intention on his part to 
 take and occupy the rooms without a fire-escape, 
 or of evidence that he knew that there was 
 none ; that he owed no duty to his landlord to 
 examine to see if there was a fire-escape, but 
 had the right to assume that the statutory duty 
 had been performed. lb. 
 
 20. Sewers. Liability of the city for error 
 of judgment in planning a sewer, and for dam- 
 ages to land caused by departure from the plan 
 by the waterboard, explained. — Oity Cl. of 
 Brooklyn, July, 1879. Hardy v. City of Brook- 
 lyn, 7 Abb. N. Cas. 403. 
 
 BUFFALO. 
 
 1. Power of city to take lands for 
 public purposes. The city charter provides 
 that in proceedings to take land, after a certain 
 notice has been given, the common council 
 "may declare, by resolution, to be adopted by a 
 vote of two-ihirds of its members," that tlie dty 
 has determined to take it. Also, that when, by 
 the terms of the charter, " a vote of more than 
 a majority is required it shall be taken by the 
 yeas and nays, which shall be entered on the 
 journal." Held, that to render a resolution to 
 take land, valid, it must appear from the journal 
 itself that it was adopted by a two-thirds vote, 
 and that such fact could not be proved by evi- 
 dence aliunde. — Supreme Ot., {ith Dept.,) Jan., 
 1879. Matter of Carlton Street, 16 Hun 497 ; 
 affirmed 78 N. Y. 362. 
 
 2. What is a sufficient publication of notice 
 of application for the appointment of commis- 
 sioners of appraisement of land taken under 
 such resolution, see lb. 
 
 3. An action of ejectment cannot be main- 
 tained, by a former owner of land taken by the 
 city, under Laws of 1864, ch. 547, for the purpose 
 of a sea wall or breakwater along the shore of 
 Lake Erie, against a railroad company laying 
 its tracks upon the land so taken. The fee was 
 vested in the city, and the land could never re- 
 vert to the former owners, who have no better 
 right to complain of the use it is put to than 
 other citizens. — Supreme Ot. (ith Dept.,) April, 
 1878. Sweet v. Buffalo, &c., E.E. Co.,* 13 Hun 643. 
 
 4. — to destroy building' to stop con- 
 flagration. The charter of the city (Laws of 
 1853, ch. 230, J 9,) authorizes certain officers 
 named to direct any building on fire, or other 
 buildings which they may deem hazardous, etc., 
 to he blown up, and gives the right to any per- 
 son interested in any such buildings so destroyed 
 or injured, " to apply to the common council to 
 assess and pay the damages." The officers 
 named, for the purpose of arresting a conflagra- 
 tion, ordered a certain building to be blown up ; 
 this was done, and plaintiffs' building, situate on 
 the opposite side of the street from the one 
 blown up, was injured. In mAindamus to com- 
 pel the common council to assess and pay the 
 damages, it was found that the injury was the 
 natural and probable result of the explosion. 
 Held, that the case was not within the provision 
 of the charter ; that the relator was not entitled 
 to the remedy therein prescribed, and hence the 
 writ would not lie. — Ot. of App., April, 1879. 
 People, ex rel. Brisbane, v. Common Council, 7ft 
 N. Y. 558. 
 
 *Said to have been affirmed in the Court of Appeals, 
 December 16th, 1879 
 
70 
 
 BURGLARY— CANALS. 
 
 6. — to compromise with defaulting 
 Offlcer. The city has power, under its charter, 
 (Laws of 1870, ch. 519, § 1,) to receive from its 
 defauUuig treasurer, promissory notes, as secur- 
 ity for such indebtedness, and may sue upon 
 such notes.— Ci. of App., March, 1879. City of 
 Buffalo V. Bettinger, 76 N. Y. 393. 
 
 6. City ■warrants. The provision in the 
 amendment of 1872 to the city charter, (Laws 
 of 1872, ch. 828, § 9,) authorizing it to stop inter- 
 est upon warrants, payable out of moneys real- 
 ized from tax sales, by giving notice in the offi- 
 cial paper, is prospective and only applies to 
 warrants issued after its passage.— Qs. of App., Oct., 
 1878. Bead v. City of Buffalo, 74 N. Y. 463. 
 
 7. Assessments for local improve- 
 ments. How objections should be interposed 
 in local improvement proceedings under the 
 city charter (Laws of 1870, ch. 519, § 14,) see 
 Grangers. City of Buffalo, 6 Abb. N. Cas. 238. 
 
 BUILDING CONTRACTS. 
 
 CoNTBACTS, 29, 34, 57. 
 
 BURDEN OF PROOF. 
 
 EyxDEircE, 53-74. 
 
 BURGLARY. 
 
 1. "What building' is a " d-welling- 
 house." The provision of 2 Rev. Stat. 668, 
 2 16, declaring that no building shall be deemed 
 a dwelling-house within the meaning of the 
 provisions relating to burglary, unless the same 
 be found to be joined to, immediately connected 
 ■with, and part of a dwelling-house, was in- 
 
 tended to mean no structure, itself a building 
 separate from, and independent of the dwelling- 
 house of the owner, i. e., uninhabited out-houses, 
 isolated from the dwelling. — Ot. of App., Jan.^ 
 1878. Quinn v. People, 71 N. Y. 561, 570 p 
 affii-ming 11 Hun 336. 
 
 The authorities defining burglary at commoiv 
 law and under the statute, collated and dis- 
 cussed. I b. 
 
 2. Averment of ownersliip in indict- 
 ment. In an indictment under 2 Kev. Stat, 
 668, ? 10, subd. 1, for burglary in the first de- 
 gree, it is proper to aver the ownership of the- 
 dwelling-house in a partnership, where the facte 
 in the case warrant it. lb. 
 
 3. An indictment for burglary in the first de- 
 gree charged a breaking and entering into the 
 dwelling-house of F. K. and J. F. L., who, it 
 was stated, were partners in business, under the- 
 firm name of K. & L. It appeared on the trial 
 that the persons named in the indictment were 
 co-partners, and as such, held and occupied two^ 
 adjoining buildings, the lower stories of which 
 opened into each other, and weie used as store;*- 
 for their business. In the upper rooms one of 
 the partners and other persons lived, and were- 
 present upon the night of the burglary. There 
 was no internal communication between the- 
 stores and the upper rooms, but to reach the- 
 latter it was necessary to go into a yard fenced 
 in, and thence up stairs. The prisoner broke 
 into one of the stores. Seld, that the ownership, 
 of the property was properly charged in the in- 
 dictment ; and that the entry was into a " dwell- 
 ing-house," within the meaning of the statute. 
 lb. 
 
 BY-LAWS. 
 
 Corporations,' 38; Municipal Corpora- 
 tions, 7, 8 ; Ne-w York City, 9-11. 
 
 CALENDAR. 
 
 Preference on, see Trial, 17, 18. 
 
 CANALS. 
 
 1. Acquisition of lands. The provision 
 of 1 Bev. Stat. 221, ? 23, authorizing and re- 
 quiring the canal commissioners, whenever the 
 navigation of any of the canal^ " shall be inter- 
 rupted and endangered," to enter upon and use 
 contiguous premises, and to procure materials 
 therefrom to make the necessary repairs, applies 
 not only where extraordinary repairs are .re- 
 quired, but where, from the want of ordinary 
 repairs, navigation is endangered. — Ct. of App., 
 Nov., 1877. Ten Broeck v. Sherrill 71 N. Y. 276. 
 
 2. The authority given to the commissioners 
 by i 18, to take lands for ordinary repairs, is 
 not impaired by the fact that the state intends 
 
 to or has let the work by contract ; nor where- 
 the work is under contract and land is required 
 for the purpose of procuring materials there- 
 from needed for the work, by the fact that the- 
 contractor is to furnish the materials ; this is a 
 question between the contractor and the state, 
 and does not affect the power of appropriation, 
 lb. 
 
 3. Where it appears that an engineer in the- 
 employ of the state, under and by the direction, 
 of a canal commissioner, laid out a parcel of 
 land for the use of the state, made and filed a 
 map designating the same, and such land wa* 
 taken possession of by the state and used by it* 
 direction, this is sufficient to establish an appro- 
 priation. Jb. 
 
 _ 4. Contracts for repairs. As to the 
 right of action by the state to recover damages- 
 alleged to have been sustained by reason of ai> 
 illegal combination of contractors, for the pur- 
 pose of preventing competition at a letting of 
 contracts for canal repairs, whereby the stale- 
 
CANALS— CARRIERS, I. 
 
 71 
 
 •was induced to contract for the work at excess- 
 ive prices ; and how waived by legislative en- 
 actment ratifying the contract, accompanied 
 with acts on the part of the state officers, en-_ 
 couraging the contractors to proceed with the 
 work, see People v. Stephens, 71 N. Y. 527. 
 
 5. Validity of awards of canal ap- 
 praisers. The award of canal appraisers,* 
 while they keep within their jurisdiction, can- 
 not be attacked collaterally for mere errors of 
 judgment ; but they are officers of very special 
 and limited' jurisdiction, and where they have 
 acted without or in excess of their jurisdiction, 
 this may be shown in avoidance of the award 
 in proceedings by mandamus to enforce it. — Q. 
 of App., April, 1877. People, ex rel. Wasson, v. 
 Schuyler, 69 N. Y. 242. 
 
 6. Under Laws of 1869, ch. 520, author- 
 izing the canal appraisers to hear the claim of 
 P. V. and another, " for damages sustained in 
 the draining of Cayuga marshes * * * by 
 the appropriation of their land to deposit 
 the rock and shale taken from Seneca river," 
 said P. V. presented a claim for land so appro- 
 priated, and, in a separate item, a claim for 
 " damages done by fire." The appraisers 
 awarded a sum for damages to the land, and 
 also two items " for destruction of rails and 
 fences," and "for destruction of timber." In 
 proceedings by mandamus to compel the auditor 
 to draw his warrant for the amount of tlie award, 
 it appeared that the timbers, fences and rails 
 destroyed were not upon the land appropriated, 
 but upon other portions of the claimant's farm; 
 the timber, however, was destroyed by fire neg- 
 ligently set by men employed upon the work. 
 
 HM, 1. That when the appraisers had de- 
 termined the amount to be awarded for the ap- 
 propriation of the land, all their power under 
 the act was exercised, and their award as to the 
 other items was void. 
 
 2. That the fact that the legislature, after the 
 making of the award, had made appropriations 
 to pay awards in general, in the absence of evi- 
 dence that this award was in tlie legislative in- 
 tent, or that all the facts were made known to 
 it, did not validate the award. lb. And see, 
 also. People, ex rel. Sage, v. Schuyler, 17 Hun 
 106. 
 
 7. Their amenability to mandamus. 
 Where a mandamus was asked for to compel the 
 canal appraisers to make return to an appeal — 
 
 Hdd, 1. That the only question presented 
 to the court, or to the canal appraisers, was 
 whether the relator had a right to appeal, or to 
 have a return made ; that this did not depend 
 upon his right to ultimate success ; and that, 
 therefore, the question wliether he had a right 
 to a reversal, or even to a review of the deci- 
 sion of the appraisers, could not be considered, 
 but was to be determined by the appellate tribu- 
 nal. 
 
 2. That it appearing that the relator had a 
 right to take an appeal, and that he served 
 notice of appeal in due time, a peremptory writ 
 was properly granted. — Ct. of App.,- April, 1878. 
 People, ex rel. Freer, v. Canal Appraisers, 73 
 N. Y. 443 ; affirming 13 Hun 64. 
 
 8. Sale of canal lands. Under Laws of 
 1849, ch. 852, § 8, authorizing the commission- 
 ers of the state land office to convey "lands 
 taken for canal purposes," when the canal board 
 shall determine that they may be sold benefi- 
 cially, and Laws of 1857, ch. 267, authorizing 
 
 them to convey any " lands taken for the pur- 
 poses of the canals of this state," when the canal 
 board shall determine that the same have been 
 abandoned, a conveyance may be made of lands 
 taken for the bed of the canal itself, when that 
 portion of the canal has fallen into decav, and 
 ceased to be used as a canal. — Supreme Ct., (2d 
 Beat.,) Jan., 1878. People v. Stephens, 13 Hun 
 17. 
 
 9. The state constitution of 1846, art. VII., 
 § 6, providing that " the legislature shall not 
 sell, lease, or otherwise dispose of any of the 
 canals of this state, but they shall remain the 
 property of the state, and under its management 
 forever," only applies to the canals while they 
 continue to be used as canals, and not to such 
 as cease to be used as canals, and are of no fur- 
 ther use to the people of the state. lb. 
 
 CARRIERS. 
 
 I. Carriers of Merchandise. 
 II. Carriers of Passengers. 
 III. Effect op Notices and Spbciaii Con- 
 tracts. 
 
 I. Carriers of Merchandise. 
 
 1. Liability for loss or damage, gen- 
 erally. As to the liability of a common car- 
 rier for negligent issue of a bill of lading to one 
 not entitled thereto, see Farmers' and Mechan- 
 ics' Bank v. Erie Eailway Co., 72 N. Y. 188. 
 
 2. The fact that the shipper of goods is doing 
 business in a fictitious name, is no defence to an 
 action by him against the carrier for loss or 
 damage. — Ct. of App., Jan., 1878. Wood v. Erie 
 Eailway Co., 72 N. Y. 196. 
 
 3. When the consignee's receipt for the goods 
 is not binding upon him, in an action brought 
 for damages because of the damaged condition 
 of the goods at the time of their delivery to him 
 by the carrier, see Monell v. Northern Central 
 Bail way Co., 16 Hun 585. 
 
 4. Act of God, or of the public enemy. 
 While a common carrier is relieved from abso- 
 lute liability for an injury to goods occasioned 
 by the act of God or public enemies, yet, in 
 order to claim such exemption, he must be able 
 to show that he was himself free from fault; 
 and when the injury is occasioned by such 
 causes, if his own default, in failing to forward 
 the goods as required by his contract, contrib- 
 utes thereto, he is not relieved from liability. 
 —Bupreme Ct, (2d Dept.,) Sept., 1878. Heyl v. 
 Inman Steamship Co., 14 Hun 564. 
 
 5. Duty of shipper as to stating 
 value. Where a carrier, by his contract, 
 limits his liability to a specified amount in case 
 the value of goods delivered for carriage is not 
 stated by the shipper, if goods of greater value 
 are so delivered, silence on the part of the ship- 
 per as to the real value, although there is no 
 inquiry by the carrier, and no artifice to conceal 
 the value or to deceive, is a legal fraud, which 
 discharges the carrier from liability for ordinary 
 negligence for an amount exceeding the limi- 
 tation of the contract. — Ct. of App., Sept., 1877. 
 Magnin v. Dinsmore, 70 N. Y. 410 ; reaffirming 
 62 N. Y. 35 ; and affirming 42 Superior 16. 
 
72 
 
 CARRIERS, I. 
 
 3. The disclosnre of value, in such case, is a 
 condition precedent to liability on the part of 
 the carrier for mere ordinary negligence unac- 
 companied with any misfeasance or willful act. 
 An omission upon the part of the carrier to 
 make inquiry as to the value is not a waiver of 
 the limitation in the contract. lb. 416. 
 
 v. If the shipper conceals from the carrier, 
 or fails to notify him, that in a package of mean 
 appearance is placed an article of great value, 
 the ordinary negligence of the carrier may sus- 
 tain a judgment for what a passenger usually 
 carries, but will not warrant a recovery by the 
 shipper of the worth of his property of great 
 price. — Gt. of App., Jan., 1878. Weeks v. New 
 York, New Haven, &c., K. K. Co., 72 N. Y. 
 50, 59. 
 
 8. Where a common carrier, without inquiry 
 as to the value of a package delivered for trans- 
 portation, agrees to carry it for a stipulated' 
 sum, and there is no misrepresentation, deceit or 
 artifice on the part of the shipper to mislead the 
 carrier, or notice on the part of the latter of a 
 limited liability based upon value, froni which 
 an implied representation of value might arise, 
 the carrier is bound by his contract, and cannot 
 claim an additional compensation for transpor- 
 tation or for risk incurred, although the pack- 
 age prove to be of greater value than he sup- 
 posed; it is not the duty of the shipper, in such 
 case, to state the quality or value. — Ct. of App., 
 June, 1878. Baldwin v. Liverpool, &c., S. S. 
 Co., 74 N. Y. 125 ; affirming 11 Hun 496. 
 
 9. Where a carrier, under such circumstances, 
 refuses to deliver the property to the consignee, 
 without the payment of an additional sum, 
 which is accordingly paid, an action may be 
 maintained to recover it back as having been 
 paid under duress of goods, lb. 
 
 10. Duty as to transporting perisli- 
 able freight. That where two kinds of prop- 
 erty, one perishable and the other not, are de- 
 livered to a carrier at the same time by differ- 
 ent owners for transportation, and he is unable 
 to carry all, he may, and it is his duty, to give 
 preference to thai which is perishable, see Cf. of 
 App., March, 1879. Tierney v. New York Cen- 
 tral, &c., E. K. Co , 76 N. Y. 305. 
 
 li. That where freight has so accumulated as 
 to require the carrier to give priority to ,one 
 kind over another, it is his duty to give the 
 priority to perishable freight over non-perish- 
 able, although the latter was first received, see 
 lb. 
 
 12. Notice to consignee of arrival. 
 What acts or statements on the part of the com- 
 mon carrier, tending to apprise the consignee 
 of the arrival of the goods in question, and 
 readiness to deliver the same, are sufficient to 
 induce the consignee, believing the same, to 
 make entry at the custom-house and pay duties 
 on the same, so that afterwards, the carrier be- 
 ing unable to deliver said goods or account for 
 the same, he would be deprived of the benefit 
 of the rule limiting damages to invoice price, 
 and be compelled to pay the invoice price of 
 the goods with the duty and interest on the 
 same added thereto, see Victor v. International 
 Nav. Co., 45 Superior 129. 
 
 13. Effect of' law of place, or usage, 
 on delivery by carrier. Where the ship- 
 per must be deemed to know the usage of the 
 carrier in delivering freight at the place of des- 
 tination, and the law of that place in respect to 
 
 it, and the inference from the .evidence is in 
 conformity with the view that the original con- 
 tract called for, and the shipper contemplated a 
 delivery in accordance with the usage and law 
 prevailing at that place, the facts are not of a 
 character to appeal very stronglyto the court to 
 give the parties a remedy in conflict with the 
 ■law of that place, as defined by its courts. — 
 Supei-ior Ot.,' March, 1879. Faulkner v. Hart, 
 44 Superior 471. 
 
 14. By the general commercial usag^ the 
 consignee of a portion of a cargo of grain com- 
 ing from the lakes to Buffalo, has a right to 
 select the elevator into which the carriers shall 
 discharge his portion. — Suff. Superior CI., 
 
 , March, 1880. Bichmond v. Union Steamboat 
 Co., 8 Abb. N. Cas. 66. 
 
 15. The rule that general ships may deliver 
 upon their own wharf, with notice to the con- 
 signee, does not apply in the case of grain car- 
 ried in inland navigation. lb. 
 
 16. Mis-delivery. Where the bill of 
 lading of goods shipped on account of and to 
 order of the owner, directs the carrier to notify 
 a third person of arrival, this does not author- 
 ize delivery of the goods to the third person, 
 and if the owner authorizes no one to receive 
 the property, it is the duty of the carrier to 
 store it— Ci!. of App., Feb., 1878. Bank of Com- 
 merce V. Bissell, 72 N. Y. 615. 
 
 17. Evidence of custom will not subvert the 
 positive contract contained in the bill of lading. 
 lb. 
 
 18. Delivery a prerequisite to right 
 to freight. To entitle a carrier, who has con- 
 tracted to transport goods and to deliver them 
 to the consignee, to freight, a complete delivery 
 must be made ; a carriage of the goods in safety 
 to the place of delivery is not sufficient. — (k. 
 of App., April, 1877. Western Transportation 
 Co. V. Hoyt, 69 N. Y. 230 ; S. P., New York 
 Central, &c., R. E. Co. v. Standard Oil Co., 20 
 Hun 39. .... 
 
 19. Where a carrier, in violation of his con- 
 tract, upon arrival of the goods at the place of 
 delivery, stores instead of delivering them, the 
 fact that the consignee obtains possession thereof 
 from the warehouseman does not entitle him to 
 the freight contracted for ; nor where the con- 
 signee so obtains the goods under claim of right 
 to possession discharged from all claim for 
 freight, is such a receipt an acceptance which 
 will entitle the carrier to pro rata freight. 
 Western Transp. Co. v. Hoyt, supra. 
 
 20. Pro rata freight. To justify a claim 
 for pro rata freight there must have been a volun- 
 tary acceptance at an intermediate port, such as 
 will raise a fair inference that a further carriage 
 of the goods was intentionally dispensed witlvi 
 the taking possession from necessity to save the 
 property from destruction, or in consequence of 
 the wrongful act of the carrier, or of his refusal 
 to perform his contract, will not entitle him to 
 any freight. So where the carrier, after a de- 
 livery of a portion of the goods, stores the 
 residue, he cannot recover freight upon the por- 
 tion delivered. lb. 
 
 21. Where, however, the carrier has ad- 
 vanced the charges of an antecedent carrier, 
 who transported the goods under an independ- 
 ent contract, he becomes subrogated to the rights 
 of the latter, and may recover such advances, 
 although he fails to perform his own contract ; 
 and the fact that his bill of lading is for trans- 
 
CARRRIERS, I., II. 
 
 78 
 
 portation and delivery upon payment of freights 
 and ciiarges, does not deprive him of such right, 
 ii. 
 
 22. Conversion by carrier. To consti- 
 tute a conversion of goods by a carrier, there 
 must be a wrongful disposition or withholding 
 thereof; a mere non-delivery will not suffice, 
 nor will a refusal to deliver on demand, if the 
 goods have been lost through negligence or 
 have been stolen. — Ct. of App., Sept., 1877. 
 Magnin v. Dinsmore, 70 N. Y. 410, 417. 
 
 23. Connecting lines. "When the carrier 
 ■gives a receipt by which he engages to forward 
 goods beyond his own route, he is not liable for 
 loss beyond his own route, unless by special 
 agreement. — Com. Pleas, Fd>., 1878. Weil v. 
 Merchants' Despatch Transp. Co., 7 Daly 
 456. 
 
 24. A contract made by one carrier for the 
 transportation of goods over his own and con- 
 necting lines, adopted and acted upon by the 
 other carriers, enures to the benefit of all thus 
 ratifying it, e. g., one containing a clause ex- 
 onerating the carrier and the connecting lines 
 from liability from loss by fire, &c. — Swperior 
 Ct., May, 1879. Whitworth v. Erie Eailway 
 Co., 45 Superior 602. 
 
 25. Such exoneration will not extend to a 
 case of loss by fire, resulting from defendant's 
 negligence ; but proof of the destruction by fire, 
 does not, of itself, warrant any inference that 
 such fire resulted from the negligence of the 
 defendants, and the burden is upon the plaintiff 
 to establish the fact of such negligence by a 
 clear preponderance of credible testimony. lb. 
 
 26. The "Ked Line" consisted of several 
 connecting common carriers, of which defend- 
 ant was one. The bill of lading provided that 
 the responsibility of each company should 
 terminate on the delivery of the freight, in ac- 
 cordance with its terms, to the connecting com- 
 pany. The freight was carried by defendant 
 and delivered to the connecting company, as 
 required by the contract. Hdd, that it was not 
 liable for any subsequent injury to the goods. — 
 Supreme Ct., (1st Depi.,) Dee., 1878. Shiff v. 
 New York Central E. E. Co., 16 Hun 278. 
 
 27. Carrying goods C. O. D. PlaintiflT 
 shipped certain goods by defendant marked C. 
 O. JD. Defendant accepted of the consignee his 
 check, payable to plaintiffs' order; this was de- 
 livered to and accepted by plaintifis, who trans- 
 mitted it for collection; it was returned pro- 
 tested. In an action to recover damages for 
 alleged failure to collect — Hdd, that the un- 
 conditional acceptance of the check by plain- 
 tiffi was a waiver of the requirement to collect 
 the money, and a ratification and adoption of 
 ■defendants' act in receiving it ; and that, there- 
 fore, plaintiffs were not entitled to recover; 
 also, that it was immaterial whether or not the 
 <lrawer had funds in the bank at the time of ac- 
 cepting the check, or whether funds had been 
 "Withdrawn, intermediale the drawing and ac- 
 ceptance of it ; that the plaintiffs, by accepting, 
 took that risk.— ft of App., March, 1879. Eath- 
 bun V. Citizens'- Steamboat Co., 76 N. Y. 376 ; 
 S. C, 57 How. Pr. 191. 
 
 28. Carriers of animals. The com- 
 mon law liabilities of carriers attach to the 
 carriers of animals, modified only so far as the 
 <;ause of damage for which recompense is 
 sought, is a consequence of the conduct or pro- 
 pensities of the animals undertaken to be 
 
 carried. — Ct. of App., Nov., 1877. Mvnard v. 
 Syracuse, &c., B. E. 63., 71 N. Y. 180, 186. 
 
 29. Rules of pleading and evidence 
 in actions by or against carriers of 
 freight. In an action by a carrier to recover 
 freight, de-fendant, under the general issue, may 
 prove loss of the goods caused by failure of the 
 carrier to perform his contract. — Ct. of App., 
 April, 1879. Dunham v. Bower, 77 N. Y. 76. 
 
 30. In an action against a carrier to recover 
 for goods alleged to have been abstracted from 
 packages delivered to him for transportation, 
 which packages are duly delivered to the con- 
 signee, the burden is upon plaintiff to show that 
 the goods were abstracted while the packages 
 were in the possession of defendant, and before 
 delivery; it is not sufficient to show a state of 
 facts as consistent with the occurrence of the loss 
 after as before the delivery. — OS. of App., Nov., 
 1878. Canfield v. Baltimore &c., E. E. Co, 75 
 N. Y. 144 ; reversing 43 Superior 562. 
 
 II. CABBIEBS of PASSEKaEBS. 
 
 31. G-eneral duty of the carrier to- 
 •ward the passenger. While a carrier of 
 passengers is bound to exercise the utmost vigi- 
 lance in protecting his passengers from violence 
 of strangers, yet, for a neglect to perform this 
 duty, his liability is no more extensive than in 
 cases of negligence by which injury comes to the 
 person or property of the passenger from other 
 causes. — Ct. of App., Jan., 1878. Weeks v. New 
 York, New Haven, &c, B. E. Co., 72 N. Y. 50; 
 affirming 9 Hun 669. 
 
 32. The liability in such case arises on con- 
 tract, and is limited to such damage as is within 
 the contemplation of the contract between, the 
 carrier and the passenger, or within the scope 
 of the duty of the former. lb. 
 
 33. Liability for loss of baggage. A 
 common carrier of passengers, e. g., a steam- 
 boat company, who receives a person's trunk 
 properly labeled to be delivered at a place on 
 the carrier's route, is responsible for the loss of 
 the trunk, notwithstanding the fact that the 
 owner does not purchase a ticket or take passage 
 on the carrier's conveyance, unless the presump- 
 tion of negligence applicable to such cases is re- 
 butted.— Com. Pleas, Feb., 1878. Flaherty v. 
 Greenman, 7 Daly 481. 
 
 34. In an action against a carrier of passen- 
 gers for loss of baggage, the biu-den of showing 
 delivery of the baggage is upon defendant; 
 transportation of the baggage to the place of 
 destination is not sufficient to discharge from re- 
 sponsibility. — Ct. of App., March, 1879. Matteson 
 V. New York Central, &c., E. E. Co., 76 N. Y. 
 381. 
 
 35. If the passenger does not call for his 
 baggage on arrival, the carrier cannot leave it 
 uncared for or abandon it ; but his strict respon- 
 sibility as carrier ceases after a reasonable time 
 has elapsed to enable the owner to claim it, and 
 a modified liability, like that of a warehouse- 
 man, supervenes. lb. 
 
 36. — for loss of articles carried 
 upon the person. Under the ordinary con- 
 tract of carriage, a carrier of passengers makes 
 no contract and enters into no duty as to articles 
 of property of great value, forming no part of 
 a passenger's ordinary baggage or personal 
 equipment. Where, therefore, a passenger car- 
 ries such articles upon his person, without notice 
 to, or knowledge of, the carrier, and they are 
 
74 
 
 CARRIERS, III.— CERTIORARI, I. 
 
 violently taken from him by robbers, in the ab- 
 sence of gross negligence or fraud, the carrier is 
 not liable, although negligent in the exercise of 
 his duty of protecting his passengers from vio- 
 lence.— Qi. of App., Jan., 1878. Weeks v. New 
 York, New Haven, &c., K. K. Co., 72 N. Y. 50; 
 affirming 9 Hun 669. 
 
 ni. Effect of Notices and Special Con- 
 tracts. 
 
 37. Exemption of liability for negli- 
 gence. Where general words in the contract 
 of a common carrier, limiting his liability, may 
 operate without including the negligence of the 
 carrier or his servants, it will not be presumed 
 that they were intended to include it ; every 
 presumption is against such an intention, and 
 the contract will not be construed as exempting 
 from liability for negligence, unless it is ex- 
 
 Eressed in unequivocal terms. Therefore, where, 
 y contract of shipment, the carrier, a railroad 
 corporation, in consideration of a reduced rate, 
 was released from all claims for any damage or 
 injury " from whatsoever cause arising " — Held, 
 that the exemption did not include a loss arising 
 from the carrier's negligence ; and that for such 
 a loss it was liable. — Ol. of App., Nov., 1877. 
 Mynard v. Syracuse, &c., E. R. Co., 71 N. Y. 
 180. 
 
 38. That the rule in this state that a common 
 carrier may, by express stipulation, exempt him- 
 self from liability for negligence, will not be 
 considered as overthrown or affected by the de- 
 cision of the United States Supreme Court in 
 Lockwood V. B. E. Co., 17 Wall. 357, to the con- 
 trary, see lb. 
 
 39. What will deprive the carrier of 
 benefit of limited liability. The act 
 which will deprive the carrier of the benefit of 
 a contract for limited liability fairly made, must 
 be an aflirmative, but not necessarily an inten- 
 tional, act of wrong-doing; and the onvs of 
 proving this is upon the party claiming it. 
 Negligence alone is not misfeasance or an 
 abandonment of the character of carrier, which 
 will deprive him of the benefit of the limita- 
 tion.— Ct. of App., Sept., 1877. Magnin v. Dins- 
 more, 70 N. Y. 410, 418 ; re-affirming 62 N. Y. 
 35 ; and affirming 42 Superior 16. 
 
 As to the interpretation, validity and effect of 
 BiiU of lading, see that title. 
 
 As to the Meiimre of damages, in actions to en- 
 force the carrier's liability, see Damages, 13. 
 
 For fiirther decisions illustrating the law of 
 common carriers, see Express Companies; 
 Eauboad Companies; Shipping. 
 
 of ChteZ(«to,'see Cbiminai- Law, 8-11 ; dam- 
 ages for Killing an raUroddtraek, see Railboao' 
 Companies, 82-84. 
 
 CASE. 
 
 As to making and serving a Case on appeal, 
 see Appeal, 66-69, 216. 
 
 CASES AFFIRMED, REVERSED, &c. 
 
 See Table op Cases CEmciSED, page 467, 
 infra. 
 
 CATTLE. 
 
 Eight of Property in, see Animals; offence 
 
 CAUSE OF ACTION. 
 
 For decisions as to any particular cause of 
 action, see its Tide, or that of the Bemedy by 
 which it is enforced. 
 
 For causes of action against Officers, Corpora- 
 tions, Trustees, &c., see those titles. 
 
 For rights of action arising out of the varioii<i 
 Personal and Legal relations, see such titles a"*- 
 AccouNTiNG ; Attoeney and Client ; Debt- 
 or AND Creditob; Divorce; Dower; Ex- 
 ecutors AND Administrators; Guardian: 
 AND Ward ; Husband and Wipe ; Infants ;■ 
 Landlord and Tenant ; Master and Ser- 
 vant ; Paeent and Child ; Partnership p 
 Principal and Agent; Principal ani> 
 SuEETT ; Vendor and Purchaser. 
 
 CAVEAT EMPTOR. 
 
 Execution, 21, 22; Sales, III.; Vendor 
 
 AND PUECHASER, 7, 8. 
 
 CERTIFICATE. 
 
 Of Acknowledgment, see Deeds, 7. 
 
 Of Deposit, see Banks, 19. 
 
 Of Stock, see Banks, 4, 5 ; Corporations, 
 3-11. 
 
 As to the admissibility and effect of Offieiai 
 certificates and Certified copies of written instru- 
 ments, as evidence, see Evidence, 144, 145. 
 
 CERTIORARI. 
 
 I In Civil Actions, generally. 
 II. To Justices' Courts. 
 III. In Criminal Cases. 
 
 I. In Civil Actions, geneeallt. 
 
 1. "When the Twrit "will lie. The actioi* 
 of tlie mayor of the city of New York in the re- 
 moval of a police commissioner is 8ubje(;t to re-> 
 view on certioraj-i. — Supreme Ot., {Sp. T.,) Feb.^ 
 1880. People, ex rel. Mayor, v. Nichols, 58 How. 
 Pr. 358 ; See also Same v. Same, Id. 200, reversing' 
 57 Id. 467, and 18 Hun 530 ; Same v. Same, 57 
 How. Pr. 463; Matter of Nichols, Id. 395; 
 People, ex rel. Wlis^'^'' "• Cooper, Id. 416. 
 
 2. Where assessors for a local improvement 
 adopt the correct legal rule, i. e] that allprop- 
 erty benefited must be assessed, an error in de- 
 termining what property is in fact benefited 
 must be reviewed and corrected by certiorari, not 
 by suit. — Ct. of App., June, 1879. Kennedy ». 
 City of Troy, 77 N. Y. 493; reversing 14 Hua 
 308. 
 
 3. The Supreme Court has the power, in it* 
 
CERTIORAKI, I., II., Ill, 
 
 19 
 
 discretion, to allow a writ of eerliorari, even in 
 cases where an appeal will lie. — Supreme Ct., 
 (1st Dep*.,) Oct., 1878. People, ex rel. Lowen- 
 Dein, V. Donohue, 15 Hun 418. 
 
 4. "Wlien it -will not. Certiorari will not 
 issue to a village to review alleged irregularities 
 in the proceedings by which the village is 
 claimed to have heen incorporated. — Supreme 
 Gt., {3d Depl.,) May, 1879. People, ex rel. Smith, 
 V. Village of Nelliston, 18 Hun 175. 
 
 6. Time to apply for the -writ. The 
 Kmitation to writs of certiorari, in the absence of 
 special circumstances, is two years. — Supreme 
 Ct., (ith Dept.,) Jan., 1879. People, ex rel. Van 
 Allen, V. Perry, 16 Hun 461. 
 
 Q. A certiorari will not be issued until a final 
 order is made. A final order is that which ends 
 the proceeding sought to be reviewed, and not 
 one made during its progress. — Supreme Ct., 
 {Ulster Sp. T.,) Dec., 1879. Matter of Hamil- 
 ton, 58 How. Pr. 290. 
 
 V. A certiorari, to review summary proceed- 
 ings in forcible entry may be issued after de- 
 fendant has traversed the inquisition, and be- 
 fore the proceedings upon the traverse have 
 terminated.— Sttpi-eine Q., (3d Dept.,) April, 1880. 
 People, ex rel. Pierce, v. Covill, 20 Hun 460. 
 
 8. An unreasonable delay in applying for the 
 writ of certiorari may be a ground for refusing 
 it, and for quashing it, even after a hearing on 
 the return thereto. — Gi. of App., AprU, 1879. 
 People, ex rel. Hudson, v. Fire Commissioners 
 ofNew York, 77N. Y. 605. 
 
 0. Direction of the -writ. A writ of cer- 
 tiorari wiU not lie to the mayor and commonalty 
 of the city of New York to correct alleged errors 
 of the board of assessors, or of the board of re- 
 vision and correction of assessments. The writ 
 should be directed to the board having the mat- 
 ter in charge at the time it issues. — Supreme Ct., 
 (IstDept.,) Jan., 1880. People, ex rel. Robbins, 
 V. Mayor, &c., of New York, 20 Hun 73. 
 
 10. Where returnable. It is the (rffice 
 of the writ of certiorari to correct errors of a ju- 
 dicial character committed by an inferior tri- 
 bunal or body, and the writ brings the record 
 before the court for examination and review. 
 It should be returnable before the General Term. 
 In cases of this kind a circuit judge, in the Cir- 
 cuit Court, cannot sit as an appellate tribunal 
 to review the judgment and decision of an in- 
 ferior tribunal. — (Supreme Ct:, {dr.,) Oct, 1879. 
 People, ex rel. Hatzel, v. Hall, 58 How. Pr. 147. 
 
 11. A certiorari to review summary proceed- 
 ings may be properly made returnable at Special 
 Term. — Supreme Ct., {ith Dept.^ Jan., 1879. 
 People, ex rel. Van Allen, v. Perry, 16 Hun 461. 
 
 12. Service. When a certiorari is issued it 
 is not necessary to serve a copy of the affidavit 
 on which it was allowed, on the respondent. lb. 
 
 13. The return to a writ of certiorari must 
 be taken as conclusive and acted upon as true ; 
 if false in fact, the remedy is by action for a 
 false return ; if insufficient in fcarm, by compel- 
 ling a further and more specific return. — Ot. of 
 Appeals, AprU, 1878. People, ex rel. Sims, v. 
 Fire Commissioners of New York, 73 N. Y. 437. 
 
 14. What questions may be re- 
 vie'wed.. Where a writ of certiorari is issued, 
 requiring the common council of a city to 
 return its proceedings relating to levying and 
 asspssing a tax for interest on its water bonds, 
 no question, as to the validity or regularity of 
 the bonds, can properly arise in the proceedings. 
 
 — Gt. of App., Jan., 1879. People, ex rel, 
 Woolsey, v. Common CouncU, 76 N. Y. 20. 
 
 15. Reviewing the evidence. Upon 
 the review of proceedings by a common law 
 eertiora/ri, only errors in law affecting materially 
 the rights of the parties may be corrected. The 
 evidence may be examined to determine- 
 whether there is any competent proof to justify 
 the adjudication made ; but questions of fact as- 
 to which there is conflicting evidence, or when 
 conflicting inferences may be drawn from the 
 facts, or in matters of judgment or discretion, in 
 a case justifying their exercise, cannot be 
 reviewed. — CJ. of App., AprU, 1877. People, ex 
 rel. Folk, v. Board of Police, &c., of Brooklyn, 
 69 N. Y. 408, 411 ; Supreme Ct., {2d Depl.,} 
 Sept., 1878. People, ex rel. Bancroft, v. Weigant, 
 14 Hun 546. 
 
 16. On common law certiorari to review the- 
 judicial action of a board of commissioners or 
 an inferior officer, the court is not confined to 
 the mere question of jurisdiction, but will look 
 into the proceedings, and if the adjudication! 
 made is unsupported' by any evidence it will be 
 reversed — Ct. of App., Feb., 1878. People, ex 
 rel. Clapp, v. Board of Police of New York, 72: 
 N. Y. 415 ; reversing 5 Hun 457. 
 
 lY. Costs. Upon a common law certiorari,. 
 posts are not allowable. — Ct. of App., April, 1877. 
 People, ex rel. Kilmer, v. McDonald, 69 N. Y. 
 362, 369. 
 
 18. On appeal to the Court of Appeals, in a. 
 proceeding brought into the Supreme Court by 
 a common law certiorari, directed to an officer or 
 tribunal other than a court, the successful party 
 is not entitled to costs as of course; whether or 
 not to award costs rests in the discretion of the 
 court. — Supreme Ct., { Uh Dept., ) Jan., 1878. 
 People, ex rel. Green, v. Smith, 13 Hun 227. 
 
 19. In proceedings by certioran, to review an 
 assessment made by the board of commissioners 
 of taxes and assessments for the city and county 
 of New York, wherein the board is successful, 
 costs may be properly allowed, upon the ground, 
 that the writ is authorized by statute (Laws of 
 1859, ch. 302,), to review and correct the action 
 of the commissioners "on the merits," which 
 entitles it to be denominated a "special pro- 
 ceeding." — (X. of App., Jan., 1879. People, ex 
 rel. Manhattan Fire Ins., Co. v. Commissioners 
 of Taxes, 76 N. Y. 64. 
 
 II. To Justices' Cottrts. 
 
 20. Election between appeal and. 
 certiorari. The provision of 2 Kev. Stat., p. 
 391, § 15, providing that "no certiorari shall be- 
 allowed to remove into the Supreme Court any 
 matter which may be brought before the county 
 court by appeal from a justice, until after a final 
 determination thereon by such court," appUes 
 to those cases only in which an appeal has been 
 taken, and not to those in which an appeal 
 might have been but was not taken. The writ 
 will issue to review summaiy proceedings 
 before a justice, although no appeal has been 
 taken, and the party may resort to appeal or 
 certioran, at his election. — Supreme Ct., (4(A 
 Dept.,) Jan., 1879. People, ex rel. Van Allen,. 
 V. Perry, 16 Hun 461 
 
 III. In Criminal Cases. 
 
 21. Effect as a stay of proceedings- 
 
 A writ of certiorari, granted by the Oyer and Ter- 
 
76 
 
 CERTIORARI, III.— CHATTEL MORTGAGES, I. 
 
 miner at the time of making an order forfeiting 
 a recognizance, stays all proceedings thereon; 
 and on the papers being filed with the county 
 •clerk, his proceedings are stayed, and a judgment 
 -on the recognizance entered by him on the 
 ■docket, at that time, will be discharged by the 
 •Oeneral Term. — Cbmmon Pleas, Feb., 1877. 
 People V. "Devlin, 7 Daly 47. 
 
 22. Necessity of objections belo-w. 
 "When the prosecutor fails to prove some fact, on 
 the trial, which is essential to justify a convic- 
 tion, his failure so to do must be then pointed 
 ■out ; if not, it cannot be subsequently taken ad- 
 vantage of on certiorari. But where there is 
 in fact no legal proof of the ofience charged in 
 ■the indictment, it is the duty of the court to 
 •direct a verdict in favor of tlie accused, and on 
 its failure to direct such verdict, it is the duty 
 ■of the appellate court to reverse the judgment, 
 •even though the point was not raised upon the 
 trial.— Supreme Ct., (ith Dept.,) Oct., 1878. Bab- 
 ■cock V. People, 15 Hun 347 
 
 CESTUI QUE TRUST. 
 
 Tbusts, III. 
 
 CHAMPERTY. 
 
 Advebsb Possession, 6-8 ; ATTOENur and 
 •<Jlient, 4, 5 ; Deeds, 17, 18. 
 
 CHARGE. 
 
 As to Iiixtrwctions to the jury, see Trial, 44- 
 •C6 ; and the titles of the various causes of ac- 
 tion, civil and criminal. 
 
 As to Charging legacies upon land, see Devisb, 
 14-17; Legacies, 17-19; Wills, 52. 
 
 CHARTER. 
 
 Cokporations, I. ; and the titles of the va- 
 .-rions corporate bodies. 
 
 CHATTEL MORTGAGES. 
 
 I. What mat be Mobtgaged, and what 
 Debts Secitred. 
 
 1. Valiiity and construcii/m, generally. 
 
 2. Filing. 
 
 II. Eights of the Parties. 
 .'III. Eights of Creditors, and Purchasers 
 IN Good Faith. 
 
 ;I. What mat be Mortgaged, and what 
 Debts Secured. 
 
 1. VaUdiby and construction, generally. 
 
 1. "Wliat is a chattel mortgagre. When 
 
 an instrument amounts to a pledge, not a chat- 
 tel mortgage, see Wilson v. Knapp, .70 N. Y. 
 596. 
 
 2. Plaintifl^s testator, K.,' procured a policy 
 upon his life, and assigned the same to defend- 
 ant, under an oral agreement that defendant 
 was to pay the premiums and have the benefits 
 of the policy, K., however, to have the privilege 
 of redeeming at any time by paying the pre- 
 miums advanced by defendant, with interest. 
 K. thereafter oflTeied to pay the amount so ad- 
 vanced, which defendant refused to accept. 
 After K.'s death, defendant received the 
 amount of the insurance. In an action to re- 
 cover the same — Seld, that an absolute promise 
 on the part of K. to pay the advances was not 
 essential in order to give the transaction the 
 character of a mortgage, and that plaintiff was 
 entitled to recover the amount, less the ad- 
 vances made by defendant, with interest. — CS. 
 of App., May, 1877. Matthews ». Sheehan, 69 
 N. Y. 585. 
 
 3. Validity, generally. The fact that 
 at the time a chattel mortgage is executed, an- 
 other agreement in relation to the property is 
 made, will not, of itself, bring the transaction 
 within the rule that equity will not allow a 
 mortgagee to clog the equity of redemption -vrith 
 a bye-agreement. — Supreme CS., (lit Dept.,) 
 March, 1878. Hall v. Ditson, 5 Abb. N. Cas. 
 198 ; S. C, 55 How. Pr. 19. 
 
 4. G-iving a mortgage of future-ac- 
 quired property. A chattel mortgage cov- 
 ering future-acquired property is valid as be- 
 tween the original parties. — Supreme Ol., (2d 
 Dept.,) Feb., 1880. Ludwig v. Kipp, 20 Hun 
 265. 
 
 5. Plaintiff's testator executed a chattel 
 mortgage upon a team of horses, "three acres 
 of wheat, four acres of potatoes, twenty acres 
 of oats." At the time of giving the mortgage, 
 the potatoes were not in existence. Two monthi 
 subsequently, about two and a half acres of po- 
 tatoes were planted by plaintiff's testator, who 
 died shortly afterwards. Three months later, 
 the plaintiir, his widow and executrix, with 
 knowledge of the mortgage, sold the potatoes 
 to defendant. In an action by her for the price 
 — Seld, that the mortgage conveyed no title to 
 the potatoes, and that the fact that the mortgagee 
 claimed them from defendant, and forbade him 
 to pay plaintiff, was no defence. — Supreme Cl., 
 (3d Dept.,) Jan., 1879. Creesey v. Sabre, 17 
 Hun 120. 
 
 6. ^or to secure future indebted- 
 ness. A chattel mortgage, given as continu- 
 ing security to cover present and future indebt- 
 edness, is valid not only between the parties, 
 but, when free from fraud, as to creditors. — Ct. 
 of App., Dee., 1877. Brown v. Kiefer, 71 N. Y. 
 610. 
 
 7. Necessity of actual possession by 
 mortgagee. Constructive possession cannot be 
 taken under a chattel mortgage ; actual posses- 
 sion in fact must be taken, to be effectual. — Sur 
 preme Ct., {3d Dept.,) Sept., 1879. Crandall v. 
 Brown, 18 Hun 461. 
 
 2. FUing. 
 
 8. Necessity of filing. A chattel mort- 
 gage, valid in other respects, is not invalid as 
 against one purchasing of the mortgagor with 
 knowledge of its existence, although not filed 
 
CHATTEL MORTGAGES, I., II., III. 
 
 77 
 
 or renewed. — Gl. of App., April, 1878. Gilder- 
 sleeve V. LandoDj 73 N. Y. 609. 
 
 O. One not having a judgment and execution, 
 is not a creditor within the meaning of the pro- 
 vision of Laws of 1833, ch. 279, ? 1, declaring 
 that the omission to file a chattel mortgage ren- 
 ders it void as against creditors of the mort- 
 |;agee, and subsequent pHrchaseis or mortgagees 
 in good faith. Nor is a person a mortgagee in 
 good faith, within the meaning of said statute, 
 whose mortgage was given for a pre-existing in- 
 debtedness, without any new consideration. — Ct. 
 of App., June, 1879. Jones v. Graham, 77 N. Y. 
 628. 
 
 10. A chattel mortgage provided for the pay- 
 ment of the debt as follows : " The said princi- 
 pal sum and interest to be paid immediately at 
 the expiration of five years from date, except 
 in case default should be made in the perform- 
 ance of the conditions of a certain agreement 
 this day executed by," &c. This . agreement 
 provided that the debt should be paid in 
 monthly installments of fifty dollars each. 
 Seld, that the failure to record or file the 
 agreement referred to did not invalidate the 
 mortgage. — Supreme GL, (3tJ Dept.,) May, 1879, 
 Shuler ». Boutwell, 18 Hun 171. 
 
 11. Place of filing. A chattel mortgage 
 executed by a joint stock company should be 
 filed in the office of the town clerk of the town 
 where the principal office of the company is 
 located, or its business principally conducted. — 
 Supreme Gt., (ith Dept.,) Oct., 1878. Nelson v. 
 Neil, 15 Hun 383. 
 
 12. Priority among mortgages si- 
 multaneously filed. In the case of two 
 mortgages executed by the same person upon 
 the same property, but to different persons, 
 dated the same day and filed the same minute, 
 where it was the agreement and intention of the 
 parties that one should have a preference and 
 priority over the other as a lien upon the prop- 
 erty, that agreement will be sustained. — Superior 
 Ct., Feb., 1878. Wray v. Fedderke, 43 Superior 
 335. 
 
 13. This priority of lien of the mortgage and 
 the respective rights of parties having been es- 
 tablished, they cannot be affected nor changed 
 by the neglect of the owner of the mortgage 
 that has -the prior lien to re-file it within the 
 year, nor by the diligence of the owner of the 
 other mortgage to re-file his in due time. lb. 
 
 14. The fact that the prior mortgagee took 
 subsequent mortgages upon the same property 
 from the mortgagor, to secure in part his origi- 
 nal debt, did not affeet his then existing rights 
 under the first mortgage. lb, 
 
 II. Eights or the Parties. 
 
 15. Mortgagor's right to redeem. It 
 
 is not necessary that a chattel mortgage shall 
 declare that the defeasible title of the mortgagee 
 will l)ecome absolute on failure of the mort- 
 gagor to pay the sum secured, or any part 
 thereof, wfien it becomes due ; this result fol- 
 lows as an incident to the relation of the 
 parties. If the mortgagor fails to pay according 
 to the terms of his undertaking, his rights at 
 law are terminated, but there remains to him an 
 equity of redemption liable to be extinguished 
 J by a valid sale of the property by the mortgagee. 
 — Gt. of App., March, 1877. Bragelman jj.Daue, 
 69 N. Y, 69. 
 
 16. Sale by mortg'agee, and rights- 
 of purchasers. A sale of property under a 
 chattel mortgage, is notice to the public that 
 the mortgagee is selling, not his own title to the- 
 property, but' that which he has acquired by 
 virtue of the mortgjpge ; and no warranty of 
 title is to be implied against the mortgagee. — 
 Swpreme Ct., (4(A Dept.,) April, 1878. Sheppard 
 V. Earles, 13 Hun 651. 
 
 l"?. Extinguishment. Cancellation. 
 The giving of a second chattel mortgage upon 
 property covered by a prior one, to secure the- 
 same debt, is not of itself a cancellation of such 
 prior mortgage. — Supreme Ct., (Sd Dept.,) May, 
 1879. Shuler v. Boutwell, 18 Hun 171. 
 
 III. BiaHTS OF Creditoes, and Purchaser* 
 IN Good Faith. 
 
 18. "WTien fraudulent, as against 
 crediiMrs, generally. Respective rights 
 acquired under two rival chattel mortgage* 
 executed by officers of the Rochester Towing 
 Company, determined ; and the rule that on& 
 who is neither a judgment creditor, or pur- 
 chaser in good faith, cannot attack the mortgage 
 as invalid in its inception, applied. — Supreme 
 Gt , June, 1878. Nelson v. Drake, 14 Hun 465. 
 
 19. Effect of provision permitting 
 mortgagor to sell. Where, at the time of 
 the execution of a chattel mortgage upon a 
 stock of merchandise, it is understood and 
 agreed between the parties that the mortgagor 
 may go on and sell the stock and use the pro- 
 ceeds, generally, in his business, and the agree- 
 ment is carried out by permitted sales, the tran- 
 saction is fraudulent in law as against the cred- 
 itors of the mortgagor. Such an agreement, 
 outside of the mortgage and proved by parol, is 
 equally fatal to the instrument, as if it had been 
 made a part thereof; and it may be inferred 
 from the fact that the mortgagee has permitted 
 sales to be made as alleged. — Ct. of App., Feb., 
 1878: Southard v. Benner, 72 N. Y. 424; 
 affirming 7 Daly 40 ; 5 Abb. N. Cas. 184. S. P., 
 Wagner v. Jones, 7 Daly 375; Dutcher v. 
 Swartwood, 15 Hun 31; City Bank v. West- 
 bury, 16 Hun 458. 
 
 20. Protection of bona fide pur- 
 chasers from mortgagor. Certain horses 
 were mortgaged to plaintifl^ and subsequently 
 removed by the mortgagor to Canada, after de- 
 fault in a payment of an installment. In course 
 of time they were purchased in Canada by de- 
 fendant, who had notice of plaintifi& claim. 
 The man from whom defendant purchased, 
 bought the horses " from a trader dealing in 
 similar articles" which fact would have en- 
 titled him, by the Canada law, to reimburse- 
 ment before being compelled to surrender the 
 horses to the mortgagee. In an action by th& 
 mortgagee for the conversion of the horses — 
 
 Held, 1. That default having been made in the 
 payment provided in the mortgage to be made, 
 plaintiff was to be regarded as the legal owner 
 of the horses at the time of their removal to 
 Canada. 
 
 2. That the validity of the title acquired by 
 defendant's grantor was to be determined by 
 the laws of Canada. 
 
 3. That by those laws he having purchased 
 " from a trader dealing in similar articles," 
 plaintiff could not reclaim them without reim- 
 bursing him. 
 
78 
 
 CHECKS. 
 
 4. That defendant could rely upon the title 
 acquired by his grantor, even though he had 
 nottce of plaintiff's claim. — Supreme Ct., {3d 
 Dept.,) Nov., 1878. Edgerly v. Bush, 16 Hun 
 «0. 
 
 Ab to mortgages of Land, see Mobtga&es. 
 
 Of Vessels, see Shipping, 6, 7. 
 
 CHATTELS. 
 
 Bailment; Execution; Sales; Teotbb. 
 
 CHEATS. 
 
 False Pretences. 
 
 CHECKS. 
 
 1. Rights of holder in good faith and 
 for value. A check given to carry out an 
 agreement made in contravention of the pro- 
 ■vision of the bankrupt act, (§ 45,) prohibiting 
 officeis of courts in bankruptcy from taking 
 anything other than the fees allowed by the act 
 for acts done under it, is not absolutely void ; 
 notwithstanding the illegality of the consider- 
 ation, it is valid in the hands of a bona fide 
 holder for value, taking it before it is dishon- 
 ored, without notice of its illegality. — Ot. of 
 App., Dec., 1877. Cowing v. Altman, 71 N. Y. 
 435. 
 
 2. The dale of a check is prima facie evidence 
 of the time it was made and had its inception ; 
 and if found in the hands of the payee or a 
 third pereon for a considerable time (in this 
 <sise fourteen months) after its date, it will be 
 deemed to be discredited, a party taking it is 
 put upon inquiry, anil, in the absence of ex- 
 planation, takes subject to any defence existing 
 as between the payee and drawer. lb. 
 
 3. When, however, a check is delivered by 
 Ike drawer to the payee long after its date, and 
 is upon the same day transferred by the latter to 
 a bona fide purchaser for value, without notice 
 ■of any defence, it is valid in his hands, notwith- 
 standing a defect or illegality in the considera- 
 tion which woidd be a good defence as between 
 the drawer and payee. lb. 
 
 4. Therefore, where, in pursuance of an ar- 
 rangement between an assignee in bankruptcy 
 and creditors, a check for additional compensa-- 
 tion over and above his fees, dated on the day 
 it was made, was deposited with a third person, 
 to be delivered to the payee when he was dis- 
 ■charged from his position as assignee, which 
 check remained in the hands of the depositary 
 for fourteen months, and was then delivered 
 upon the order of the payee, on the day the 
 latter was discharged as assignee, to a bona fide 
 purchaser front him for value — Held, that the 
 ■check had inception only on delivery, and that, 
 in the absence of evidence of notice to the pur- 
 chaser of any defence, he or his transferee 
 could, upon its being presented for payment and 
 dishonored, enforce it against the drawer. lb. 
 
 5. Defendant lent his post-dated check to M^, 
 and it was agreed that M. should furnish money 
 to pay it before it became payable, or else de- 
 fendant would notify the bank not to pay it. 
 
 M. transferred the check before it was due to 
 plaintiff, in payment of an existing debt, plain- 
 tiff knowing nothing of the agreement. In an 
 action on the cheek — Held, that the agreement 
 between defendant and M. furnished no defence. 
 — Supreme Ct., {1st Dept.,) May, 1878. Mayer v. 
 Mode, 14 Hun 155. 
 
 6. Transfers without indorsement. 
 A check, payable to order, may be transferred 
 by the payee by parol, with manual delivery, 
 without indorsement. But the transferee, in 
 such, case, acquires only the rights he would 
 have had had the check been originally non- 
 negotiable, i. e., the right which the payee had 
 in it at the time of the transfer. — Ct. of App., 
 March, 1879. Freund v. Importers', &c., Nat. 
 Bank, 76 N. Y. 352 ; affirming 12 Hun 537. 
 
 7. Forged checks. The drawer of a 
 check made payable to the payee's order is not 
 bound by a payment thereof by the bank upon 
 a forged indorsement of the payee's name. The 
 bank was bound before payment to ascertain 
 the genuineness of the indorsement. — Ct.ofApp., 
 Apnl, 1878. Welsh v. German- American Bank, 
 73 N. Y. 424 ; affirming 42 Superior 462. 
 
 8. Lost and destroyed checks — in- 
 demnity. Defendant, being indebted to plain- 
 tiff on a promissory note, mailed to him his 
 check for the amount, on receipt of which plain- 
 tiff returned and surrendered the note to defend- 
 ant. The next morning after the check was re- 
 ceived it was accidentally destroyed by fire. 
 Defendant, on being so informed, promised 
 plaintiff to pay him, but subsequently refused 
 to do so. Plaintiff sued to recover the amount 
 due to him. 
 
 Held 1. That he was not required to tender 
 to defendant a bond of indemnity, as the statute 
 requiring such bond applies only to lost, and 
 not to destroyed, checks or notes. 
 
 2. That as the destruction of the check ren- 
 dered it impossible for plaintiff to present it for 
 payment, he was excused from doing so. 
 
 3. That the subsequent promise of defendant 
 to pay the check when informed of its destruc- 
 tion, was a waiver of any defence arising from 
 plaintiff's failure to present it for payment. 
 
 4. That as the check did not discharge the 
 ^ebt evidenced by the note until it was paid, 
 laches of plaintiff in presenting it for payment 
 would not discharge defendant from liability for 
 the debt, in the absence of proof that defendant 
 was injured by such laches. — Supreme ft., (3d 
 Dep(.,) Jan., 1880. Scott v. Meeker, 20 Hun 161. 
 
 For decisions upon the liability of the Bank 
 upon which a cheek is drawn, see Banes and 
 Banejng 20-29. 
 
 CHILD. 
 
 As to Personal and Property rights of children, 
 see Infants. 
 
 As to Illegitimate children, see B.ASI.AIIDT; 
 Descent, 7. 
 
 For some decisions respecting Cruelly to ekH- 
 dren, see Cbimlnal Law, 12. 
 
 CIRCUMSTANTIAL EVIDENCE. 
 
 Evidence, I. 
 
, CITIZENS— CLERKS. 
 
 79 
 
 CITIES. 
 
 Fol- decisions of a local character, affecting 
 Homel Partieidar eity, milage or tomn only, see 
 Municipal Coepobations, V. 
 
 CITIZENS. 
 
 1. Wives of citizens are citizens. 
 There is nothing in the general policy of the 
 naturalization laws which will exclude the wife 
 of a citizen from citizenship, either, because at 
 the time of the marjiage she was an alien, or 
 because her husband was an alien, if he subse- 
 quently became a citizen, or because she had 
 not resided five years within the United States, 
 or was under twenty-one years of age. All that 
 is necessary is a valid marriage with a citizen, 
 or one who subsequently becomes such, and that 
 presupposes lawful capacity to contract it.— 
 Superior Ct., (8p. T.,) Feb., 1879. Benner v. 
 Jluller, 57 How Pr. 229. 
 
 5. Qualifications for naturalization 
 — residence. An alien minor residing in this 
 ■country was sent by his parents to a foreign 
 ■country to be educated. Before attaining his 
 majority, he returned and again resided with 
 his parents here. Hdd, that by going abroad 
 for such a purpose he did not change his resi- 
 dence, and that the years spent by him abroad 
 were to be computed as years of residence here 
 in determining whether he was entitled to be 
 inaturalized. — Com. Pleas, Oct., 1875. Matter of 
 Rice, 7 Daly 22. 
 
 3. Proceedings in state courts. State 
 ■courts, when acting under the naturalization 
 laws, are quoad hoc United States coui'ta. The 
 act of admission is judicial and constitutes a 
 judgment.— -S«pmor Gl., Sp. T., Oct., 1878. 
 Matter of Christern, 43 Superior 523 ; S. C, 56 
 How. Pr. 5. 
 
 4. The preliminary proofe; having thereon 
 the initials of the presiding judge, on 'being 
 filed in tlie clerk's office, with the oath of 
 allegiance, constitute a recprd or roll of the 
 judgment admitting to citizenship. lb. 
 
 6. Entry in a book is not necessary. But if 
 it were, an entry made in alphabetical order, in 
 a book entitled "Naturalizations" or "Nat- 
 luralization Index," or " Naturalization Record," 
 ikept in the clerk's office as part of the records 
 •of the office, showing tlie date of the admission, 
 the name of the applicant, his nationality, the 
 name and residence of the witness, and — if the 
 admission was ordered without a previous 
 ■declaration of intentions, (either on a discharge 
 from the army or on the ground that the appli- 
 ■cant had arrived in this country during his 
 minority^) — specially alluding to such fact, is 
 sufficient. Such a book constitutes a special 
 minute-book. It is not necessary an entry 
 should be made in the general minute-book. 
 lb. 
 
 Q. State courts have general power to amend 
 their records, both at common law and under the 
 United States statute. In exercising the power 
 they act as United States courts. The record 
 ■of admission to citizenship may therefore, if 
 necessary, be amended by directing an entry in 
 the minute-book of the fact of such admission 
 ^uiu! pro tunc. lb, 
 
 1. Certificates of naturalization. 
 
 The act of congress of July 14th, 1870, against 
 use, and possession with intent to use, of cer- 
 tificates, applies, as to those issued prior to the 
 act, to but four classes — 1. Certificates which 
 are forged or counterfeit. 2. Certificates wliich, 
 though genuine in all respects, and issued pur- 
 suant to the direction of the court, were pro- 
 cured by or for the applicants therein named, 
 by means of some imposition or fraud practiced 
 on the court. 3. Certificates issued by the clerk 
 or other officers of the coUrt, without lawful 
 authority, in cases in which there was no ap- 
 pearance and hearing of the applicant in court. 
 4. Certificates issued to a person other than the 
 one who uses or attempts to use it. , lb. 
 
 8. A claim by the supei-visor-in-chlef of 
 elections that a certificate of admission to 
 citizenship by this court, issued by the clerk 
 thereof, and the admission itself, are invalid, on 
 the mere ground that as the clerk of the court 
 did not write out an entry in the general min- 
 ute-book of the court reciting the proceedings, 
 and showing the adjudication made, there is no 
 legal record of the judgment of admission, and 
 that consequently the person to whom such cer- 
 tificate was issued would be subject to criminal 
 prosecution if he should attempt to vote, is un- 
 tenable and unwarranted. Ih. 
 
 As to the rights and disabilities of Alieng, see 
 that title. 
 
 CIVIL DAMAGE ACT. 
 
 Liciuoa Selunq, II. 
 
 CIVIL RIGHTS. 
 
 As to the right to Trial by jury, see Trial, 
 1-13, 78-82 ; right not to be Imee put m jeo- 
 pardy, see Judgment, 47; right to Vote, see 
 Elections. 
 
 CLAIM AND DELIVERY. 
 
 Eeplbvin. 
 
 CLERKS, (of Courts.) 
 
 1. Of surrogate. What is sufficient proof 
 of employment by a surrogate, of an assistant, 
 to record papers left unrecorded by the outgoing 
 surrogate, to justify auditing a claim for such 
 services as a county qbarge, (Laws of 1828, ch. 
 134,) see Donnelly v. Mayor, &c., of New York, 
 7 Daly 334. 
 
 2. Of District Courts in Ne-w York 
 city. In March, 1873, defendant was duly 
 appointed assistant clerk of one of the District 
 Courts of New York city for the full term of 
 six years ; he was removed by the justice of 
 that court, and in January, 1875, the relator 
 was appointed by the justice. In January, 1876, 
 the relator was removed, and one M. appointed. 
 Thereupon an action in the nature of a quo 
 warramto was brought on the relation of the re- 
 lator herein against M. A judgment was ren- 
 dered therein, deciding that the relator was en- 
 tilled to the office, and that M. be ousted. A 
 
80 
 
 CLERKS— CLOUD ON TITLE. 
 
 few days prior to the entry of judgment, de- 
 fendant, with the consent of M., resumed pos- 
 session under his original appointment. Held, 
 that the justice had no power to remove de- 
 fendant, who was entitled to the office for the 
 full term ; that the judgment against M. was 
 neither conclusive nor any evidence against 
 him. — Ct. of App., May, 1878. People, ex rel. 
 Gilchrist, v. Murray, 73 N. Y. 535. 
 
 "3. The office of assistant clerk of a District 
 Court is not a city or county office, within the 
 meaning of the provision of the charter of 1873, 
 (Laws of 1873, ch. 345, i 114,) providing that 
 every person holding such an office, who shall 
 accept any other office specified, shall be deemed 
 to have vacated the former. Therefore, defend- 
 ant did not lose his office as assistant clerk by 
 heing elected member of assembly, and by en- 
 ■ tering upon the duties of that office after his 
 removal, or by accepting clerical positions in 
 departments of the city government, in the ab- 
 sence of proof justifying an inference that he 
 intended to or did resign his office as assistant 
 clerk. lb. 542. 
 
 4. Of police court. As to the salary of a 
 clerk in a police court in New York city, and 
 when a judgment in a former action for salary 
 will bar a second action for increased salary, see 
 Drake v. Mayor, &c., of New York, 77 N. Y. 611. 
 
 CLOUD ON TITLE. 
 
 1. 'What constitutes a cloud, gener- 
 ally. Equity will not enterl;ain a bill to can- 
 cel an instrument invalid on its face, nor where 
 its invalidity will appear upon the proofe of the 
 party claiming under it, even where it affects 
 the title to land.— C*. of App., Dec., 1878. Town 
 of Springport v. Teutonia Savings Bank, 75 N. 
 Y. 397, 402 ; Sept., 1879, Townsend v. Mayor, 
 &c., of New York, 77 N. Y. 542. 
 
 2. It is only where there is an instrument or 
 proceeding which on its face purports to create 
 or convey a title paramount to that of the party 
 seeking relief, or an encumbrance thereon, that 
 an action will lie to set aside such instrument 
 or proceeding, as a cloud on title. — Ct. of 
 App., Sept., 1878. Bockes v. Lansing, 74 N. Y. 
 437. 
 
 3. Irregular or unla-wfvil assess- 
 ments. To authorize the court to intervene 
 to remove the lien of an assessment, or to set 
 aside an assessment sale as a cloud on title, it 
 must appear that the record or conveyance is 
 not void upon its face, and that the claimant 
 under it would not develop the defects render- 
 ing it invalid by the proof which he would . be 
 obliged to produce in proceedings to enforce his 
 claim. The court will not entertain jurisdiction 
 upon the ground that documentary evidence in 
 the custody of public officers will be mutilated 
 or destroyed. — Ct. of App., May, 1877. Guest v. 
 City of Brooklyn, 69 N. Y. 506, 513. S. P., 
 Stuart V. Palmer, 74 N. Y. 183. 
 
 4. Where a complaint, in an action to vacate 
 an assessment, as a cloud upon title, alleges two 
 grounds upon which relief is claimed, one of 
 which is good and sufficient, the complaint is 
 not demurrable because of the insufficiency of 
 the other ; the allegations as to the latter will 
 not vitiate or detract from the effect of the al- 
 legations as to the former. — Cl: of App., Oct., 
 
 1877. Boyle «. City of Brooklyn, 71 N. Y. If 
 reversing 8 Hun 32. 
 
 5. Deeds. The complaint alleged, in sub- 
 stance, that one G. W., being the owner of cer- 
 tain premises described in the complaint, made- 
 a general assignment of all his property, fur 
 the benefit of his creditors, to R., who conveyed 
 said premises to S. D. W., to whose rights plain- 
 tiff had succeeded; that subsequently a receiver 
 appointed in supplementary proceedings, insti- 
 tuted by a judgment creditor of G. W., sold the 
 premises to one H., through whom defendants 
 claim title. The complaint asked to have th& 
 receivei''s deed set aside and canceled, and for 
 an accounting as to rents and profits. Hdd,. 
 that the action could not be maintained as one 
 to remove a cloud on^plaintiff's title, as the re- 
 ceiver's deed did not, on its face, convey any 
 title as against plaintiffs, it being subsequent to 
 the title under which they claim, and to estab- 
 lish title, defendants would be obliged to show, 
 by extrinsic evidence, that the assignment was 
 void. — Ct. of App., Sept., 1878. Bockes, ». Lan- 
 sing, 74 N. Y. 437 ; affirming 13 Hun 38. 
 
 6. The grantor conveyed the same premises 
 first to plaintiff and then to defendant, but de- 
 fendant's deed was first recorded. In an action 
 by plaintiff to set aside the deed to defendant 
 as a cloud on his title — Hdd, that defendant 
 might set up and prove, as a counter-claim, that 
 plaintiff's deed was procured by fraud, and ask 
 to have it set aside. — Supreme Ct., {2d Dept.,) 
 Dec., 1878. Moody v. Moody, 16 Hun 189. 
 
 V. Leases. A lease of piers, bulk-heads 
 and rights of wharfage, granted by the depart- 
 ment of docks of a city, when set aside as a 
 cloud on title, because not made at auction to the 
 highest bidder, see Mayor, &c., of New York 
 V. North Shore Staten Island Ferry Co., 55 How. 
 Pr. 154. 
 
 S. P., as to lease of ferries. Mayor, &c., of 
 New York v. Union Ferry Co., Id. 138. 
 
 8. Judgments, and sales thereunder. 
 The rule that resort may be had to a court of 
 equity to set aside, as a cloud on title, an apparent 
 lien or encumbrance, when its invalidity can 
 only be established by extrinsic evidence which 
 will not necessarily appear in any proceeding 
 by a claimant to enforce the lien, is more par- 
 ticularly applicable where the extrinsic evi- 
 dence is parol ; it does not apply when the 
 evidence is a deed, on record in the same county 
 clerk's office where a judgment is docketed un- 
 der which a claim is made hostile to plaintiff's 
 title. Therefore, where plaintiff claimed title 
 under a deed which was unrecorded at the time 
 of entry of judgment against the grantor, and 
 of a sale thereunder, but which was subsequently 
 recorded — 3dd, that an action could not her 
 maintained by him to set aside the sheriff's cer- 
 tificate of sale as a cloud upon his title. — Ct. of 
 App., April, 1878. Schroeder v. Gurney, 73 N. 
 Y. 430, 436. 
 
 9. A lis pendens asserting a right in land» 
 hostile to that claimed by plaintiff, and a judg- 
 ment determining that defendant has the right 
 asserted in the lis pendens, are a cloud upon 
 plaintiff's title, if he has a title, as claimed by 
 him, and an action is maintainable to remove 
 such cloud. Until, however, plaintiff shows a 
 right to the lands, he cannot question the claim 
 of any other person thereto. — Ct. of App., Dec.,. 
 
 1878. Brown v. Goodwin, 75 N. Y. 409 ; S. C.,. 
 56 How. Pr. 301. 
 
COLLECTOR— CX)MPEOMISE 
 
 81 
 
 CODICILS. 
 
 Wills, 10, 30, 31. 
 
 COHOES. 
 
 MraflCIPAL CORPOEATIONS, 108, 109. 
 
 COLLATERAL SECURITY. 
 Bailment, 6-13 ; Debtor and Creditor, IV, 
 
 COLLECTOR. 
 
 As to collectors as AgenU, generally, seePBlN- 
 ciPAi AND Agent. 
 
 As to the CoUection of taxes, and the powers 
 and liabilities of the collector and his sureties, 
 see Taxes, III. Of Assessments, see Mtjotoipal 
 Corporations, II. ; New York City, II. 
 
 As to collection of moneys due to JDeeedenUf 
 estates, see Executors and Administrators, 
 27-36. 
 
 COLLEGES. 
 
 Schools. 
 
 COLLISION. 
 
 Shipping, V. 
 
 COMMERCE. 
 
 As_ to the Jwrisdiction of the state over its do- 
 mestic vessels on the high seas, see State, 1-3. 
 
 As to the Ownership and Employment of ves- 
 sda engaged in commerce, see Shipping, I., II. 
 
 COMMISSION. 
 
 To take DeposUums, see Depositions. Of 
 various Oncers and Agents, as compensation for 
 their services see Officers ; Principal and 
 Agent ; and the titles of the various distinct 
 classes of officers. 
 
 COMMON CARRIERS. 
 
 Carriers. 
 
 COMMON PLEAS. 
 
 Appeal, IV.; Cotibts, II. 
 
 COMMON SCHOOLS. 
 
 Schools. 
 
 COMPENSATION. 
 
 Canals; Eminent Domain; Highways;- 
 Municipal Corporations, II. ; New York, 
 City, II. ; Eailroad Companies, II. 
 
 COMPLAINT. 
 
 Amendmbnt,_ 7-11 ; Pleading ; and the 
 titles of the various forms of action and causes 
 of action 
 
 COMPROMISE. 
 
 1. Right to compromise disputed 
 claims. It is not necessary, in order to up- 
 hold a promise based upon the surrender or 
 compromise of a claim, to show that the claim 
 was valid or enforceable at law. The settlement 
 of a doubtful claim is a good consideration. — Ct. 
 of App., May, 1878. White v. Hoyt, 73 N. Y. 
 505, 514. 
 
 2. "What amounts to a compromise. 
 An agreement of creditors to sell to third per- 
 sons their claims against a failing debtor, in the 
 absence of proof that such third person is agent 
 of the debtor, is to be considered as a purchase 
 and sale, not a compromise. — Ct. of App., April, 
 1877. Qoldenbergh v. Hoffman, 69 N. Y. 322. 
 
 _ 3. Conclusiveness. When parties to a 
 litigation come to a settlement thereof, and one, 
 pursuant to the settlement, and to carry it into 
 effect, gives to the other his promissory notes 
 (such other complying with the terms of settle- 
 ment on his part), he cannot, in an action on 
 the notes, set up that his adversaiy in the litiga- 
 tion so settled had no legal cause of action 
 against him, without showing fraudulent con- 
 cealment of material facts which were not with- 
 in his know[edge when he gave the notes. — Su- 
 perior Ct., Nov., 1878. Peeter v. Weber, 44 Su- 
 perior 255. 
 
 4. Especially is this the case where the defend- 
 ant in an action on the notes himself proves the 
 settlement and compromise, lb. 
 
 5. Defendants were guarantors of a letter of 
 credit, issued by E. & Co. to P. & Co., to be 
 used in the purchase of merchandise, the bills 
 of lading to be made out to the order of P. & Co./ 
 the agents of R. & Co. By the terms of the 
 guaranty, it was . agreed that the property pur- 
 chased with the bills of lading should be 
 pledged to R. & Co. as collateral, with authority 
 to sell, etc. Bills of lading of property pur- 
 chased with funds procured by the letter of 
 credit were sent to P. & Co., who delivered 
 them to F. & Co. ; the latter sold the property 
 and made payments to P. & Co., who applied 
 them upon the general indebtedness of P. & Co. 
 to them. E,. & Co. brought an action in Mas- 
 sachusetts against defendants upon the guaranty, 
 and procured an order of arrest. Defendants were 
 arrested, gave bail, and subsequently settled the 
 suit, giving drafts for amount of the advances ; 
 they knew at the time that the bills of lading 
 and the property had been delivered to F, & 
 Co., but did not know of the payment to and 
 application of the proceeds by P. & Co. In an 
 action upon a draft given in renewal of one of 
 those given on settlement — Held, that, no fraud 
 or mistake being shown, defendants were pre- 
 
82 
 
 COMPROMISE— CONS riTUTIONAL LAW. 
 
 eluded by the settlement from any defence based 
 upon the use made by P. & Co. of the bills of 
 lading, and proceeds of the property ; that de- 
 fendants having knowledge of the fact that P. 
 & Co. had parted with the bills of lading were 
 put upon inquiry as to the use made of the pro- 
 ceeds.— Ot. ofApp., Jan., 1878. Kidder v. Hor- 
 robin, 72 N. Y. 159 ; and see Id. 600. 
 
 6. "When relieved against. Where 
 facts out of which a defense arises are known to 
 the party making the claim, and fraudulently 
 concealed from, and unknown to the other 
 party at the time of the compromise, such fraud 
 "may be shown ; but in the absence of any such 
 fraud, evidence of the mere fact that a defence 
 existed, is not admissible. — Ot. of Amp., Oct., 
 1879. Feeter v. Weber, 78 N. Y. 334, 337; 
 ■affirming 44 Superior 255. 
 
 As to the Attomeifa authoriiy to compromise a 
 pending litigation, see Attorney and Client, 
 
 As to the Power of a partner to compromise 
 debts of the firm, see Partnership, II. 
 
 Effecif of an Account stated, see Accounts, 
 2-4. 
 
 What is an Accord and satisfactvm, see Debtor 
 ANB Creditor, III. 
 
 CONCEALMENT. 
 
 Attachment, 1.; Insurance, II., III., IV.; 
 Limitations of Actions, IV. 
 
 CONDITIONS. 
 
 Bonds, 6, 7 ; Contracts, 32-36 ; Deeds, 
 29, 30; Insurance, 2-5, 20-53, 88-91, 
 125, 126; Saxes, 19, 20. 
 
 CONFESSION. 
 
 Of Orime, see Evidence, 126-129. 
 Of Judgment, see Judgment, "74-77. 
 
 CONFLICTING CLAIMS TO REAL PROP- 
 ERTY. 
 
 Ejectment, 12, 13. 
 
 CONSOLIDATION OF ACTIONS. 
 
 Action, 34, 35 
 
 CONSPIRACY. 
 
 1. The civU action. Where it appears 
 that a debtor and others have joined in a cou- 
 fipiracy to defraud the creditors of the former 
 by a fraudulent disposition of his property, the 
 acts and declarations of the debtor, made in the 
 absence of the others, but in execution of the 
 common purpose, and in aid of its fulfillment, 
 are admissible against them, — Ct. of App., Jan., 
 1878. Dewey v. Moyer, 72 N. Y. 70, 80. S. P., 
 
 Nov., 1879, New York Guaranty, &c., Co. v. 
 Gleason, 78N. Y. 503._ 
 
 2. Plaintiffs' complaint alleged that defend- 
 ants " in concert did, by connivance, conspiracy 
 and combination, cheat and defraud the plain-< 
 tiffs out of certain goods of" a value specified. 
 Held, that the complaint did not state facts suffi- 
 cient to constitute a cause of action. — Ot. of App., 
 Feb., 1879. Cohn v. Goldman, 76 N. Y. 284 ; 
 reversing 43 Superior 436. 
 
 3. The criminal prosecution. Upon 
 the trial of several defendants for a conspiracy 
 to cheat and defraud, depositions of one of 
 them, taken upon his preliminary examination 
 before a justice after his arrest, and several 
 months after the defendants had ceased to act 
 together in furtherance of the conspiracy, are 
 inadmissible against a co-conspirator. — Supreme 
 Ot., {ith Bept.i) Jan., 1878. Stone v. People, 13 
 Hun 263. 
 
 4. To render the acts and declai'atJons of one 
 conspirator admissible against the others, they 
 must have been made during the pendency of 
 tlie conspiracy, and in furtherance of the com- 
 mon design.— Sttpreme Ot., {3d Depl.,) Nov., 1878. 
 People V. Gorham, 16 Hun 93. 
 
 CONSTABLE. 
 
 1. Power to levy execution. Where a 
 sheriff has made a valid levy and taken pos- 
 session of property under an execution, a con- 
 stable, to whom executions agiiinst the same de- 
 fendant are subsequently issued by a justice of 
 the peace, cannot levy on such property, nor 
 sell it subject to the sheriff's levy.— (Sit/jreme Ct., 
 (3d Bept.,) Jan., 1879. Seymour i'. Newton, 17 
 Hun 30. 
 
 2. Liability for false return. The re- 
 versal of the judgment on which an execution 
 was delivered to a constable, is a good defence 
 to an action against hitn for a false return of 
 nulla bona. — Supreme Ot., [Oirc.,) Feb., 1879. 
 Inman v. McNeil, 57 How. Pr. 151.- 
 
 3. — for failure to make return. Un- 
 der Laws of 1857, ch. 344, § 57, providing that 
 a constable shall be liable to a parly in whose 
 favor an execution is issued to him, for the 
 amount thereof, "when he suffers the twenty 
 days to elapse witliout making a true return 
 thereof, and filing the same with the clerk of the 
 court, and paying to him or to the party entitled 
 thereto the money collected thereon," he does 
 not incur the statutory penalty by failure to 
 make and file a return within the twenty days 
 if he has not collected any money under the 
 execution.— Cbm. Pleas, March, 1879. Curry *. 
 Farley, 8 Daly 228. 
 
 For further decisions illustrating the nature 
 of the office, and the duties and liabilities at- 
 tendant upon it, see Shbriits: also Execu- 
 tion; Justice of the Peace; kARSH4^. 
 
 CONSTITUTIONAL LAW. 
 
 Embraces only those decisions which have for then- 
 subject matter either the Federal or State ComtituUon, 
 for purposes of interpretation ; or, which declare the 
 power of courts to enforce such. constitutions by pro- 
 nouncing void and setting aside state statutes in con- 
 flict with them. 
 
 Decisions upon many other matters usually treated 
 under this title will be found under the titles of the 
 
CONSTITUTIONAL LAW. 
 
 83 
 
 subjects to which Jhe rules of constitutional law were 
 respectively applied. 
 
 The following titles should be consulted for matters 
 intentionally omitted here : Bankruptcy ; Banks ; 
 -Citizens ; Corpoeations ; Counties ; Courts ; 
 Elections ; Eminent Domain ; Judgment ; Liquor 
 Selling; Shippins; Statutes; Taxes. 
 
 1. Conflict betTveen constitution and 
 statute not to be implied. Every pre- 
 sumption is in favor of the validity of an enact- 
 *nent of the state legislature, within the pro- 
 vision of legislative powers; and in order to 
 successfully challenge its constitutionality, it is 
 necessary to find some constitutional provision 
 ■which either restricts or prohibits the exercise 
 ■of that power in the particular case. — Oi. of 
 App., Oct., 1879. People, ex rel. Hatfield, v. 
 Comstock; 78 N. Y. 356; S. P., Sept., 1877. 
 Matter of New York Elevated R. E. Co., 70 
 N. Y. 327 ; S. C, 3 Abb. N. Cas. 401 ; Matter 
 ■of Gilbert Elevated Ey. Co., 70 N. Y. 361, 367 ; 
 S. C, 3 Abb. N. Cas. 434. 
 
 2. There is a distinction in this respect be- 
 tween the state and federal constitutions. The 
 former grants to the senale and assembly all 
 legislative power not prohibited by the latter, or 
 excepted by the instrument itself; the latter 
 grants to congress specific powers only. Hence 
 '.the exercise of a legislative power by the state 
 legislature will be presumed constitutional nn- 
 ■der the general grant of power, and will be 
 ■sustained unless brought clearly within some of 
 the exceptions, while a similar exercise of 
 spower by congress can only be justified by an 
 affirmative grant embracing the specific power 
 ■exercised. Matter of Gilbert Elevated Ey Co., 
 «ipra. ' 
 
 3. The courts cannot take proof of facts 
 •flKttnde for the purpose of showing a statute, 
 valid and regular upon its face, to be unconsti- 
 tutional. Matter of New York Elevated E. E. 
 Oo., supra. 
 
 4. Provision in tJ. S. Const, that 
 judgments of otber states have " full 
 ^aith and credit." The provision of the 
 United States constitution declaring that full 
 faith and credit shall be given to the records of 
 •other states, (art. IV., j 1,) does not require 
 that personal disabilities imposed upon a per- 
 son convicted of crime in one state, should fol- 
 low him and be enforced in other states. — Ot. of 
 App., Bee., 1878. Sims v. Sims, 75 N. Y. 466. 
 
 5. Due process of la-w. The constitu- 
 tional provision declaring that no person shall 
 be deprived of life, liberty or property, without 
 "" due process of law," is not limited to judicial 
 proceedings, but extends to every proceeding 
 which may interfere with those rights, whether 
 judicial, administrative or executive. — Ct. of 
 App., June, 1878. Stuart v. Palmer, 74 N. Y. 
 183. _ - 
 
 6. Due process of law simply requires that a 
 party shall be properly brought into court and 
 shall there have an opportunity to prove any 
 fact which, according to the constitution and the 
 usages of the common law, would be a protection 
 to him or his property. The legislature has the 
 right to take away a particular form of remedy, 
 and to give a new one. — Ct. of App., June, 1877. 
 People, ex rel. Witherbee, v. Supervisors of 
 Essex Co., 70 N. Y. 228, 234. 
 
 "7. Right to be heard. The constitutional 
 right to be heard in one's defence involves, 
 necessarily, a definite and specific statement of 
 the charge, a reasonable time to answer it, the 
 
 right to hear and examine the evidence by 
 which it is attempted to be sustained, to produce 
 testimony to show its falsity, and the aid and 
 advice of counsel in the conduct of the exami- 
 nation. — Supreme Ct., (3d Dept ,) 1879. Matter 
 of Nichols, 6 Abb. N. Cas. 474, 484. 
 
 8. Various provisions of the consti- 
 tution judicially interpreted. Art. 3, 
 ? 17, which provides that no act shall be passed, 
 providing that any existing law shall be made 
 or deemed a part thereof, or that any existing 
 law shall be applicable thereto, except by insert- 
 ing it therein, does not require that an act 
 •which merely amends a prior one, shall contain 
 
 the whole of such prior act. — Supreme Ct., (4<A 
 Bept.,) June, 1878. Wells v. City of Bufialo, 14 
 Hun 438. 
 
 9. Art. 1, § 18— providing that nothing con- 
 tained in the constitution "shall annul any 
 charters to bodies politic and corporate, made or 
 granted by or under the king of Great Britain 
 prior to October 14th, 1875" — is not a restraint 
 upon legislative power, its object simply being 
 to leave the charters referred to intact, 'so far as 
 the constitution itself is concerned. — Ct. of App., 
 June, 1878. Demarest v. Mayor, &c., of New > 
 York, 74 N. Y. 161 ; affirming 11 Hun 19. 
 
 10. The amendment of 1875. East 
 river bridge. The act of 1875 (Laws. of 1875, 
 ch. 300,) providingfor the acquiring by the two 
 cities of New York and Brooklyn of the stock 
 in the Brooklyn Bridge Company in the hands 
 of individuals, for dissolving the corporation, 
 and for the completion of the bridge by said 
 cities as a public work, is not in conflict with the 
 constitutional amendment of 1875, (art. 8, § 11,) 
 prohibiting any city from giving money or 
 property, or loaning its credit to or in aid of, or 
 from becoming the, owner of stock in or bonds 
 of, any association or corporation, or from in- 
 curring any indebtedness, except for city pur- 
 poses ; as it is the purpose of the act to extin- 
 guish the corporation, and to vest all its prop- 
 erty in the two cities. — Ct. of App., March, 1879. 
 People, ex rel. Murphy, v. Kelly, 76 N. Y. 475, 
 486 ; S. C, 5 Abb. N. Cas. 383. 
 
 11. The indebtedness ' authorized to be in- 
 curred by said act for the completion of the 
 construction of the bridge is for a city purpose ; 
 and the two cities could be authorized to take 
 the bridge for such purpose. lb. 
 
 12. A city purpose, within the meaning of 
 said constitutional provision, includes not simply 
 some work or expenditure within the city limits, 
 but a public improvement which may be re- 
 garded as for the common benefit and enjoyment 
 of all the citizens. lb. 487. 
 
 13. The legislative determination as to what 
 is a municipal purpose will not be annulled by 
 the courts in any doubtful case, but only where 
 it appears to be clearly erroneous. lb. 489. 
 
 14. The clause in the amendment of 1875 
 prohibiting the grant by private or local bill, 
 of a right to lay down railroad tracks, was de- 
 signed to prohibit an original and independent 
 grant of such right, including the powers inci- 
 dent thereto. This right cannot be granted un- 
 der the guise of an amendment to an existing 
 charter, any more than by original grant. But 
 an act restricting and regulating an existing 
 right to lay down railroad tracks, is not a grant 
 of that right, within the meaning of said pro- 
 vision.— Ci!. of App., Sept., 1877. Matter of Gil- 
 bert Elevated Ky. Co., 70 N. Y. 361 ; S. C, 3 
 
84 
 
 CONTEMPT OF COURT.' 
 
 Abb. N. Cas. 434; affirming 9 Hun 303. S. P., 
 Matter of New York Elevated R. R. Co., 70 N. 
 Y. 327 ; S. C, 3 Abb. N. Cas. 401. 
 
 CONSTRUCTIVE DELIVERY. 
 
 Sales, 17, 18. 
 
 CONSTRUCTIVE NOTICE. 
 
 Debus, 15 ; Moet&ages, 45 ; NoncB, 2, 3. 
 
 CONTEMPT OF COURT. 
 
 1., POTver to punish contempts. Sur- 
 rogates' courts, being courts of limited jurisdic- 
 tion,' in proceedings to punish for contempt, are 
 oonfineid to the powers expressly conferred by 
 statute; and not being courts of record, the 
 provisions of the Revised Statutes in regard to 
 the powers of courts of record in such proceed- 
 ings! to enforce civil remedies, have no applica-: 
 tidn to them, save so far as applied by express 
 statutory enactment. — Ct. of App., May, 1877. 
 Matter of Watson v. Nelson, 69 N. Y. 536, 541. 
 
 2. For the enforcement of their orders and 
 decrees directing the payment of money, the 
 only proceedings against the person which can 
 be taken by surrogates' courts are those authori- 
 zed to be taken in the late Court of Chancery in 
 analogous cases, i. c, if a final decree, an execu- 
 tion against the person; if an interlocutory 
 order, a precept of commitment ; in both cases 
 the party is entitled to the benefit of the jail 
 liberties. lb. 
 
 3. The provision of Laws of 1837, ch. 460, 
 ? 67, concerning executors, etc., which makes 
 certain provisions of the Revised Statutes appli- 
 cable to attachments issued by surrogates, does 
 not enlarge the powers of surrogates in regard 
 to the cases in which they may punish for con- 
 tempts, lb. 
 
 4. As to the power of a surrogate to punish, 
 by; proceedings in contempt, an executor or ad- 
 ministrator who disobeys a decree requiring 
 him to pay over a fund shown to be in his pos- 
 session, see People v. Marshall, 7 Abb. N. das. 
 380 ; Estate of Sherry, Id. 390. 
 
 - 5. wnat contempts are punishable, 
 generally. Where a party in a proceeding 
 agrees; in open court to pay the expenses of a 
 reference in a certain event, and the event on 
 which his liability depends occurs and he is or- 
 dered to pay and refuses, giving no reason, he 
 may , be punished for a contempt under Code of 
 Civ. Pro., ? 14, subd. 3. — Com. Pleas, Nov., 
 1878. Fischer v. Raab, 56 How. Pr. 218 ; af- 
 firmed, 58 Id. 221. S. P., People, ex rel. Fischer, 
 V. Eeilly, 56 How. Pr. 223. 
 
 6. wiiat are not punishable. Disobe- 
 dience of a surrogate's decree or order directing 
 the payment of money, generally, not out of a 
 specific fund^ by an executor, to the persons in- 
 terested in the estate, is not a contempt for 
 which a fine c^n be imposed and the party com- 
 mitted to close custody, as for a criminal con-, 
 temipt. — Ct.of App., May, 1877. Matter of 
 Watspn V. Neilson, 69 N. Y. 536, 544. 
 
 Y. A dirt^ction fpr the restitution of .moneys, 
 pai4 upon a judgnjent, which has been set aside 
 upon motion pr reversed upon appeal, as 
 
 authorized by Code of Civ. Pro., U 1292, 132? 
 is in effect a judgment " for a sum of money,' 
 {? 1240), and is enforceable by execution; 
 Therefore an order punishing a party, as for a 
 contempt in not complying with such a direor 
 tion, is unauthorized. — Ot. of App., May, 1879. 
 CGara v. Kearney, 77 N. Y. 423. 
 
 8. Violations of injunctions. In an 
 action by the firm of " Devlin & Co.," to restrain 
 defendant from using their firm name, an in.- 
 junction order was granted restraining defend- 
 ant from displaying upon signs, etc., said firmi 
 name, and confining him to the use of his own 
 " proper Christian and surname conjoined," 
 withont devices which may tend " to mislead or 
 induce the public to believe or suppose that he 
 is the plaintiffs." Defendant thereafter put out 
 a sign, upon which was " Devlin's clothing ;" 
 over the word "Devlin's," were defendant* 
 initials, " J. S.," with the number of his store; 
 " 826," on each side of the initials. Held, that 
 the facts justified a finding that the words and 
 letters were so arranged as to deceive, and werei 
 so intended ; and that an order adjudging de4 
 fendant guilty of contempt was proper. — CX. of. 
 App., April, 1877. Devlin v. Devlin, 69 N. Y* 
 212. See also Injunction. 
 
 9. Disobedience of mandamus. The 
 provision of the Revised Statutes, in relation t6 
 contempts, (2 Rev. Stat. 534, j 1, subd. 3,)> 
 which provides for the punishment as for a coni 
 tempt of "disobedience to any lawful order, 
 decree or process of a court of record," embraceat 
 disobedience of a peremptory rrumdamvx ; tha 
 writ is to be regarded as an order of the court,, 
 within the meaning of the statute. — Ct. of App-i 
 March, 1879. People, ex rel. Garbutt, v. Kochts- 
 ter, &c., Ry. Co., 76 N. Y. 294. And see People^ 
 ex rel. Kelly, v. Aitken, 19 Hun 327. 
 
 10. Oontempts in supplementary 
 proceedings. When an order in supplemen- 
 tary proceedings is issued by a judge having 
 jurisdiction, the person upon whom it is seived 
 has only two paths to pursue, if he desires to 
 avoid. proceedings for contempt. He must 
 obey it, or procure it to be set aside. Even if 
 erroneous he has no right to disregard it. — 
 Munroe County Ct., Jvly, 1880. Wilcox v. Har- 
 ris, 59 How. Pr. 262. 
 
 11. On an application to punish for contempt 
 in disobeying a third party order in supplemen- 
 tary proceedings, it is no excuse that the party 
 appeared and objected that no legal service of 
 the order had been made upon her. Plaintiff 
 having proof of service sufficient on its face, the 
 respondent can avoid the service only by the- 
 same application that would avoid the order 
 itself. She has no right to meet that proof' of 
 service by a counter-affidavit before the referee^ 
 nor ask that she be examined there or before the 
 judge who granted the order, personally, on that 
 subject. lb. 
 
 12. Oontempts by receivers. The- 
 willful refusal of a receiver to obey an order of 
 the court, requiring a payment by him out ol 
 funds in his hands as receiver, is a disobedience: 
 
 \ by a person " appointed to perform * * * 
 ministerial services," of a lawful order of the 
 court, and a misdemeanor in his office, and 
 willful neglect of duty therein within the 
 meaning of § 1 of that portion of the Revised 
 Statutes relating to "proceedings as for con- 
 tempt" (2 Rev. Stat. 534, ? 1, subd. 1) ; it does 
 not come within the fourth section (2 Rev. Stat. 
 
CONTEMPT OF COURT. 
 
 85 
 
 $35, I 4,) authorizing the issuing of a precept 
 "witUQut notice to commit a person disobeying 
 an order "made for the payment of costs or any 
 ■other sum of money." It is, therefore, proper 
 practice in such case for the court to grant an 
 ■order for the receiver to show cause why he 
 should not be punished for the alleged misoon- 
 -duct." (2 Key. Stat. 535, § 5.) Tlie receiver 
 must have an opportunity to be heard, and 
 there must be an adjudication that he was guilty 
 ■of the misconduct, before he can be punished. — 
 Ct. of App., Dee., 1878. Clark v. Bininger, 75 
 N. Y. 344 ; modifying 43 Superior 126. 
 
 13. Where it appears that a receiver has 
 funds in his Iiands sufficient to satisfy a lien 
 thereon, and willfully refuses ou demand to obey 
 an Order of the court directing him to pay such 
 lien, it is justifiable inference that such conduct 
 impedes, impairs and defeats the rights and 
 remedies of the lienor to the extent of the lien ; 
 and upon an adjudication to that effect a fine 
 anay be imposed upon the receiver to tlie amount 
 of the lien (2 Kev. Stat. 538, U 20, 21) ; and 
 •the power of the court is not limited to a 
 £ne of $250 with " costs and expenses " {? 22.) 
 lb. 
 
 1'4. It is not necessary that the order impos- 
 ing the fine should in form adjudge tliat actual 
 loss or injury has been sustained to the amount 
 •of the fine; it is sufficient if it appears that 
 «uch loss has been suifered. Nor is it essential 
 to show that the loss or injury is irremediable 
 and hopeless. lb. 
 
 15. After the granting of an order fining B., 
 a receiver, the amount of a lien upon the fund 
 in his hands, because of willful disobedience of 
 an order requiring him to pay such lien, and 
 directing his imprisonment until he paid it, an 
 ■order was granted forbidding K., the receiver of 
 a savings bank, in which bank B. had deposited 
 a portion of the fund, from paying over to B. 
 any part of said fund so deposited by him, and 
 ■directing K. to pay all dividends thereon to T. 
 the lienor — Beld, that the order should be 
 anodified by inserting a clause that all moneys 
 paid by K. to T. should be applied in reduction 
 ■of the fine imposed upon B., and that B. upon 
 -showing any sura in the hands of K. as such 
 sreceiver,' belonging to the fund and payable to 
 B., may have that sum applied to the reduction 
 ■of his fine. lb. 
 
 16. — by assignee for creditors. 
 Where it is not shown that the money has come 
 into- the hands of an assignee for creditors, a 
 £nal decree ordering him to pay over such 
 money, is not enforceable by proceedings in con- 
 tempt.— Cbm. Pleas, {Sp. T.,) Nov., 1879. Stock- 
 bridge's Assignment, 7 Abb. N. Cas. 395. 
 
 17. Preliminary proceedings to bring 
 ,a, party into contempt. It is sufficient if 
 the party charged with contempt had reasonable 
 notice of the application to punish him, and 
 was served with copies of the affidavits upon 
 •which it was based. The law does not contem- 
 plate an idle ceremony in serving papers that 
 have already been served, and which are in the 
 ■possession of the party accused, and are re- 
 ferred to in the order to show cause, served on 
 him.~Supmor Ct., Jan., 1878. Clark v. Binin- 
 ger, 43 Superior 126. 
 
 18. To punish a party for contempt, in fail- 
 ing to appear and be examined as a witness be- 
 fore trial, a copy of the order requiring him so 
 4o do must have been personally served upon 
 
 him. — Supreme Ot'., {1st Dept.,) ,' May\ 187f9. 
 Loop V. Gould, 17 Hun 585. 
 
 19. Order to show cause, and how 
 served. Service of an order requiring a 
 party to pay or to show cause, in default thereof, 
 why he should not be punished for contempt, is 
 properly made on him personally. If he can- 
 not oe found it may be served on his attorney^ 
 — Com. Pleae, Nov., 1878. Fischer v. Eaab, 56 
 How. Pr. 218 ; affii-med, 58 How. Pr. 221. 
 
 20. A failure to exhibit to the party the 
 original order, when serving him with ^ copy, 
 is a mere irregularity, and is waived by his ap- 
 pearing, without objection, before the referee 
 and submitting to examination.- -Supreme Ct., 
 (ith Dept.,) Oct., 1879. Newell v. Cutler, 19 
 Hun 74. 
 
 21. Time of service. Service of an order 
 to show cause, granted on the 8th of the 
 month, on the defendants at Athens, about noon 
 on the 9th, the order being returnable at teta 
 A. M. on the 10th, at Kingston— ifeZd, not giv- 
 ing defendants " a reasonable time." — Supreme 
 Ct., {3d Dept.,) Nov., 1879. Power v. Village of 
 Athens, 19 Hun 165. 
 
 22. WTiat may be shown in defence. 
 Before a party can be punished for allegefl con- 
 tempt, in violating an injunction ordir, ' ihere 
 must be proof tending to establish his conaiebkion 
 with the act complained of. Suspicious circum- 
 stances merely may, if unexplained, be in sbme 
 cases sufficient, but are insufficient when they 
 are met by positive and explicit testimony ex- 
 plaining them and fully clearing the' party from 
 'all complicity with the persons doing the act, 
 and from prior knowledge of intent to cpipmit 
 it.— Ct. of App., Nov., 1878. Slater v. Mqrritt, 
 75K Y. 268. _ 
 
 23. Where it appeai-s that the party?s failure 
 to coipply with an order directing the payment 
 of money arises from his not having the money, 
 and it does not appear that he disabled himself 
 from paying, with intent to avoid obedience to 
 the order, the attachment should not issue. — 
 Supreme Ct., (2d Dept.,) Feb., 1878. Cochrah v. 
 Ingersoll, 13 Hun 368. 
 
 24. The fine. An appeal from an ordter 
 granting a temporary injunction does not auth6r- 
 ize defendants to disobey it. But where defend- 
 ants, in disobeying the injunction, act under the 
 advice of counsel that it is superseded by in 
 appeal, the fine should not exceed- plaintiff's 
 actual damages, with costs and expenses to be 
 taxed under Laws of 1874, ch. 270. — Supreme 
 Ct., (3d Dept.,) Nov., 1879. Power v. Village of 
 Athens, 19 Hun 165. 
 
 25. In imposing a fine for disobedience of a 
 mandamus, the court may include, as an expense, 
 a fair compensation to the relator's attorney fdr 
 his services in the proceedings — Ct. of App., 
 March, 1879. People, ex rel. Garbutt, v. 
 Kochester, &c.. By. Co., 76 N. Y. 294. 
 
 26. What is taxable as costs. Beason- 
 able counsel fees incurred in the proceedings 
 under an attachment for contempt, under 2 Eev. 
 Stat. (6th ed.) 841, U 20, 21, are taxable as costs 
 in such proceedings, but not counsel fees in- 
 curred in the previous supplementary proceed- 
 ings upon which the proceedings in contempt 
 are based. Fees in contempt proceedings, dis- 
 cussed, generally.— (Spireme Ct,, (Igi Dept.,) 
 Chamb., 1877. Van Valkenburgh v. Doolittle, 
 4 Abb. N. Cas. 72. 
 
 27. Where the party proceeded against acted 
 
86 
 
 CONTRACTS, I., II. 
 
 in good faith, and in accordance with what he 
 believed to be his duty, only motion fees and 
 disbursements can be taxed as costs. — Supreme 
 a., (3d Bepi.,) Ap-U. 1880. People, ex rel. 
 Seudder, v. Cooper, 20 Hun 486. 
 
 28. Review. A final order adjudging a 
 party guilty of contempt, and sentencing him to 
 fine and imprisonment, terminates the proceed- 
 ings for the purposes of review in an appellate 
 court.— (Supreme Ct., {1st Dept.,) Sept,, 1880. 
 People, ex rel. Gilmore, e. Donohue, 59 How. 
 Pr. 417. 
 
 CONTINGENT REMAINDERS. 
 
 Devise, 9 ; Wilm, 36. 
 
 CONTINUANCE. 
 
 ASA.TEMENT AND EeVTVAL, II. J TBIAI., 85, 
 
 86. 
 
 CONTRACTS. 
 
 I. General Principles. 
 II. Consideration. 
 
 III. Ee(JTjirements of the Statute of 
 
 Frauds. 
 
 IV. Intekpretation and Effect. Con- 
 
 ditions. 
 v. Validity. 
 
 1. In general. 
 
 2. Illegalily. • 
 VI. Performance. Breach. 
 
 VII. Modification. 
 VIII. Rescission. 
 IX. Law op Place. 
 X. Actions for Breach op Contract. 
 
 I. General Principles. 
 
 1. Necessity of assent or acceptance. 
 Plaintiff filled up and delivered to defendant a 
 blank application furnished by defendant for an 
 allotment of space in the exhibition building of 
 the latter, and paid the stipulated entrance fee ; 
 by the conditions annexed to the applica- 
 tion payment was to precede the approval of the 
 application, and defendant had the right to re- 
 ject it. Plaintiff offered his goods on the day 
 before the exhibition opened, but they were re- 
 jected, for the alleged reason that there was no 
 space for them. In an action for damages — 
 Held, that the application and payment did not 
 constitute a contract to award the desired space ; 
 that the right of rejeciion continued until de- 
 fendant had received the goods, or in some way 
 indicated its assent to tlie application ; and that 
 whether the rreason given for the rejection was 
 true or not was immaterial. — Q. of App., Dec., 
 1878. Demuth v, American Institute, 75 N. Y. 
 502 ; aMrming 42 Superior 336. 
 
 2. One of the conditions provided that " ap- 
 plications not accepted will have returned by 
 mail the amount of enlranc* fee paid, if so re- 
 quested." When the goods were rejected plain- 
 tiff was informed that the entrance fee would be 
 returned, and a few days afterward a check for 
 the amount was sent to him, which he refused 
 to accept. Held, that the retention of the 
 entrance fee until after the opening of the exhi- 
 
 bition did not alone authorize the inference tha* 
 the application was accepted, that it was plain- 
 tiff's duty to ascertain if the application ha<J 
 been accepted, and if not, to demand the entrance 
 fee ; and that the refusal to receive the ^oods waa- 
 equivalent to a rejection of the application. lb. 
 
 3. Contracts by letter. A correspond- 
 ence embracing several letters on both sides, 
 construed, the question being whether it consti- 
 tuted a valid contract of purchase and sale. — Ct. 
 of App., March, 1879. Batterman v. Morford^ 
 76 K.Y. 622. 
 
 II. Consideration. 
 
 4. Benefit to promisor, or loss to 
 promisee. Where one, acting on the faith of 
 a promise, performs the condition upon which 
 the promise was made, the promise attaches to 
 the consideration so performed and renders the- 
 promisor iiable.— Os. of App., Nov., 1877. White- 
 V. Baxter, 71 N. Y. 254. 
 
 5. Where a party engaged in a business 
 transaction with another, is induced to resist a. 
 demand supposed to be unjust, made by the op- 
 posite party, by a. .promise to indemnify him. 
 against any loss, made by a third person who 
 conceives himself interested, under circumstan- 
 ces where a compliance would involve no per- 
 manent loss, while the resistance entails great 
 damage, the promise is for a good consideration,. 
 
 ' and may be enforced. lb. 
 
 6. The fact that the promisor has no actual 
 interest, and is not in fact benefited by such re- 
 sistance, does not make the promise void; in- 
 jury to the promisee is a good consideration. J6_ 
 
 7. Mutual promises. In a contract for 
 services between two private persons, the prom- 
 ise of one to accept the office and render the- 
 services is a good consideration for the promise- 
 of the other to appoint him. — Supremi Ct., [Sd 
 Dept, ) Sept., 1 879. Hager v. Catlin, 18 Hun 448.. 
 
 8. Plaintiff and defendant owned, respectively, 
 two pieces of property each of which adjoined 
 another lot, which they feared would be so used, 
 as to injure their property. It was agreed that 
 plaintiff should buy the lot for $2500, and that 
 defendant should pay him $100 for so doings 
 Plaintiff »having bought the lot, sued for the 
 $100. Held, that there was a good consideration 
 to support the contract. — Supreme Ct., (2d Dept,,) 
 Feb., 1878. Reynolds v. Guilbert, 13 Hun 301_ 
 
 9. Promise for benefit of third per- 
 son. A mere stranger cannot claim the benefit 
 of a contract between other parties ; to entitle a 
 third person to such a benefit there must be- 
 eitlier a new consideration or some prior right 
 or claim against one of the contracting parties, 
 by which he has a legal interest in the perform- 
 ance of the agreement. — Ct. of App., Api"ily. 
 1877. Vrooman v. Turner, 69 N. Y. 280. See 
 also Eaplee v. Arnot, 69 N. Y. 616; Miller v. 
 Winchell, 70 Id. 437. 
 
 10. Defendant wrote to H., offering to con- 
 tribute the cost of boxes for B.'s election, with a 
 promise to [lay on presentation of the bill at de- 
 fendant's office. Held, that the letter authorized 
 H. to employ any carpenter to make the boxes ; 
 and plaintiff having been so employed, and hav- 
 ing done the work relying upon the letter, had 
 a right to look to defendant for payment. — Com^ 
 Pleas, Nov., 1878. Egan v. Thomson, 57 How_ 
 Pr. 324. Compare Mel vain v. Tomes, 14 Hun Si- 
 ll. A subscription of a sum named to ». 
 
CONTRACTS, II., III. 
 
 87 
 
 proposed railroad company, conditioned that the 
 road should be located in a manner described in 
 the subscription paper, and payable when the 
 road should be graded — Held, not enforceable in 
 the hands of a new company formed by con- 
 solidating the company subscribed to with others ; 
 and also void as against public policy, as the 
 route most advantageous to the public should 
 have been selected, not that preferred by de- 
 fendant. — Supreme Ol., {4th Dept.,) Jwae, 1878. 
 Dix V. Shaver, 14 Hun 392. 
 
 12. Failure of consideration. Defend- 
 ant leased to plaintiff a bakery which had been 
 for a long time carried on, and sold to plaintiff 
 the good-will of the business. Plaintiff went 
 into possession and continued the business with- 
 out interference. In an action to recover the 
 sum paid for the good-will, because of alleged 
 failure of consideration through the wrongful 
 acts of defendant — Meld, that a vacating of the 
 premises by the previous tenant and a discon- 
 tinuance of the business for a week or two before 
 the commencement of plaintiff's term, and a, 
 removal of the fixtures, requiring the employ- 
 ment of workmen by the plaintiff for " nearly a 
 week" after she took possession in refitting, was 
 not evidence of failure of consideration, in the 
 absence of any proof that the value of the good- 
 will was thereby diminished. — Ct. of App., Sept., 
 
 1878. Lewis v. Seabury, 74 N. Y. 409. 
 
 III. Eequibements op the Statute op 
 Fbatjds. 
 
 13. Contracts not to be performed 
 ■within a year. The rule that to render an 
 oral contract void under the statute of frauds, as 
 a contract not to be performed within a year, it 
 must affirmatively appear tiiat the contract can- 
 not be performed within a year, applied where 
 A agreed to take charge of an orphan boy and 
 support him until he came of age, and — Held, 
 that the contract was not void, as the boy might 
 die within a year. — Com. Pleas, April, 1878. 
 McKinney v. McKinney, 8 Daly 368. 
 
 14. A verbal contract with the trustees of a 
 school district to teach for a year, lacking a few 
 days, at a fixed salary, and for a further term 
 of one year, at the same salary, if no notice 
 should be given by either party, at least two 
 weeks prior to the termination of the first-men- 
 tioned period, that the services should then 
 cease, is not void as to the second year, as one 
 which, by its terms, could not be fully performed 
 within one year. — Supreme Ct., (3d Dept ,) Nov., 
 
 1879. Smith V. Cbnlin, 19 Hun 234. 
 
 15. Contracts for labor and mate- 
 rials. Defendant employed plaintiff to manu- 
 facture for him a set of circus tents, within a 
 specified time, material to be furnished by 
 plaintiff. No place of delivery or price was 
 specified. Plaintiff performed, and thereafter 
 was requested, by letter, to ship the tents to de- 
 fendant at L. Plaintiff shipped them C; O. D., 
 and they were destroyed by fire en route. In an 
 a,ction to recover their value — Held, that de- 
 fendant was liable; that the contract, being for 
 labor and' materials, was not within the statute 
 of frauds ; that defendant's liability did not de- 
 pend upon the question as to where the technical 
 title was, but was complete when the request to 
 ship was made; that plaintiff had a lien upon 
 the tents for the value of his labor and mate- 
 rials, and his retaining the lien, by shipping 
 
 them C. 0. D. was not inconsistent with, and did 
 not affect, his right to enforce such liability. — 
 Cf. of App., April, 1878. Higgins v. Murray, 73 
 N. Y. 252. 
 
 16. Plaintiff forwarded the tents, marked to 
 defendant at L , by steamboat to P. It did not 
 appear but that was the usual mode of shipment 
 to L. Hdd, that it could not be presumed that 
 there was no connecting route ; that the obliga- 
 (ftion was imposed upon the consignee at P. to 
 forward by a connecting carrier ; and that, as it 
 did not appear that the loss was occasioned by 
 plaintiff's negligence or fault in not properly 
 shipping the goods, it was no defence. lb. 
 
 Y7. Guaranties', and promises to pay 
 debts of anotber. Defendant, being a 
 creditor of W. & M., who were engaged in run- 
 ning a sawmill, agreed with that firm, in sub- 
 stance, to take their mill, saw up the logs, m:u- 
 ket the lumber, and apply the net proceeds to 
 the payment of his own and other debts, amon,.; 
 them a debt due from said firm to plaintiff for 
 work. In an action to recover said debt, plain- 
 tiff's evidence was to the effect that defendant 
 told him to keep on working at the mill and he 
 would pay him at the same rate W. & M. had 
 been paying ; that he had bought the stock and 
 had agreed to pay him (plaintiff) what was due 
 him, and if he would keep on working for him 
 (defendant) he would pay him for his work, 
 and in a day or two would pay $1000 upon the 
 amount due; that plaintiff went on and worked 
 for defendant, but the latter had failed to pay 
 the indebtedness of W. & M. At the tiuie of the 
 commencement of the action defendant had dis- 
 posed -of about half of the lumber. Hdd, that 
 plaintiff was not eniitled to recover ; that the 
 promise to work at what appeared to be a full 
 compensation furnished no consideration for the 
 promise to pay the debt of W.' & M., and that 
 said promise was void under the statute of 
 frauds.— C(. of App., Dec., 1878. Belknap v. 
 Bender, 75 N. Y. 446. 
 
 18. The judge charged that if the jury were 
 satisfied that defendant agreed to pay the $1000, 
 as testified to by plaintiff, he could recover upon 
 the theory that the property having been put in 
 defendant's hands for sale to pay the debts 
 specified, he would be liable to pay plaintiff after 
 he had disposed of it, and hence coiild waive 
 delay and be bound by his promise to pay be- 
 fore he had realized the proceeds. Hdd, error ; 
 that there was no consideration to uphold such a 
 promise, which, if valid, imposed an entirely new 
 obligation, as it bound defendant to pay, whether 
 he realized sufficient from the sale or not. 76. 
 
 19. That even if the promise had been made 
 after defendant had converted the proceeds of 
 the property, it could have been enforced against 
 him only to the extent of the share of such pro- 
 ceeds applicable to plaintiff's debt, see lb. 
 
 20. Contracts for sale of land. While 
 a contract by parol, to convey lands in payment 
 for services rendered, is void under the statute 
 of frauds, yet it is only where the defendant re- 
 fuses to convey that plaintiff may sue and re- 
 cover for the value of his services. — Com. Pleas, 
 Jan., 1879. Bailey v. Gardner, 6 Abb. N. Cas. 
 147, 149. 
 
 21. Where the vendee, induced by fraudulent 
 representations, that the description covers lands 
 not actually included therein, accepts a convey- 
 ance, not including all the lands orally agreed to 
 be conveyed, and pays the consideration and en- 
 
88 
 
 CONTRACTS, III., IV. 
 
 ters into possession, the statute of frauds is not a 
 bar to an action tocompel a specific performance 
 of the oral agreement; and, although no im- 
 provements have been made by him upon the 
 lands not included in the deed, he is not confined 
 to relief in damages, but may have specific per- 
 formance. — Ot. ofApp., May, 1877. Beardsley v. 
 Duntley, 69 N. Y. 577. See, also, Vendob and 
 
 PUECHASER, I. 
 
 22. Leases. Although a parol lease for* 
 more than a year is void under the statute of 
 frauds, (2 Rev. Stat., 135, § 68,) if the tenant en- 
 ters and occupies, the agreement regulates the 
 terms on which the tenancy exists in all respects 
 save as to the duration of the term. — Ct. of App., 
 Nov. 1878. Laughran .,. Smith, 75 N. Y. 205 ; 
 affirming 11 Hun 311. 
 
 23. Other contracts relative to 
 realty. The rule that where the effect of the 
 parol contract is to create an easement in land, 
 it is void under the statute of frauds, applied 
 when a lessee, having a five years' lease agreed 
 by parol to permit a railroad company to lay 
 and use, during the term of the lease, a side 
 track to a stone quarry on the leased land, and 
 and take loose dirt and stone therefrom for their 
 road. — Supreme Ct., {ith Dept.,) Jan., 1878. 
 Cayuga Railway Co. v. Niles, 13 Hun 170. 
 
 24. Effect of part -payment. A pay- 
 ment by check which is afterwards presented to 
 the bank and paid, is a sufficient payment to 
 take a contract out of the statute of frauds. — 
 Siwreme Ct., {3d Dept.,) Jan., 1879. Hunter v. 
 "Wetsell, 17 Hun 135. 
 
 25. Who is estopped from invoking 
 the statute. One who brings an action upon 
 a bond given pursuant to an oral agreement, 
 will not be permitted to deny the validity of such 
 oral agreement under the statute of frauds. — 
 Supreme Ct., {3d Dept.,) Nov., 1878. Supervisors 
 of Schenectady Co. v. McQaeen, 15 Hun 551. 
 
 IV. Interpretation and Effect. Con- 
 ditions. 
 
 26. General principles of construc- 
 tion. It is a cardinal principle that every 
 agreement or covenant must be interpreted ac- 
 cording to its peculiar terms, and so as to carry 
 out the intent of the parties, and il follows that 
 the ruling upon, and the interpretation of, one 
 agreement will seldom aid in the construction 
 of another, except as it may illustrate some gen- 
 eral rule of interpretation applicable to both. — 
 Ci!. of App., May, 1878. Booth v. Cleveland Mill 
 Co., 74N. Y. 15. 
 
 2*7. Where the terras of a promise admit of 
 more senses than one, it is to be interpreted in 
 the sense in which the promisor had reason to 
 suppose it was understood by the promisee. — Ct. 
 of App., May, 1878. White v. Hoyt, 73 1^. Y. 
 505, 511. 
 
 28. Written and printed -words. 
 Where a contract is partly printed and partly in 
 writing, the written matter must prevail over 
 the printed, in case of conflict between them. — 
 a. of App., Jan., 1879. Hill v. Miller, 76 N. 
 Y. 32. 
 
 29. What may be implied or pre- 
 sumed. Where a written contract to erect a, 
 building upon premise^ already covered by 
 houses, does not mention them nor the use of the 
 materials in them, the contractor becomes the 
 owner of the materials upon taking possession 
 
 and removing them, and can use them whenever 
 and wherever he chooses. — Oom. Pleas, Jime, 
 1878. Morgan v. Stevens, 6 Abb. N. Cas. 356. 
 
 30. Construction of particular terms 
 and phrases. A contract to dig a reservoir 
 provided a fixed price for " earth " excavation. — 
 Seld, that this included "hard-pan;" that to 
 limit or vary the ordinary general meaning of 
 the word by proof of usage, if it could be done 
 at all, it devolved upon the contractor to show a 
 usage uniform, general and presumably known 
 to the parties, not a usage local, partial, or per- 
 sonal. — Ct. of App., Nov., 1878. Dickinson v. City 
 of Poughkeepsif, 75 N. Y. 65, 77. 
 
 31. Two contracts entered into by a whole- 
 sale dealer in ice with a retail dealer, construed 
 ■With reference to the jneaning of particular 
 terms and phrases contained in them, and the 
 rights of the parties determined with respect to 
 the amount to be delivered, payment of price, 
 &c.—Ct. of App., March, 1877. Kemp v. Knick- 
 erbocker Ice Co., 69 N. Y. 45. 
 
 32. Conditions ; how construed, gen- 
 erally. No precise technical words are re- 
 quired _to constitute a condition precedent or 
 subsequent, and the construction of such a con- 
 dition must always be founded upon the inten- 
 tion of the parties. — Ct. of App., Sept., 1877. 
 Towle V. Eemsen, 70 N. Y. 303, 311. 
 
 33. Conditions precedent. When by 
 contract, notes are to be, and are given payable 
 absolutely at a time specified, other conditions of 
 the contract cannot be construed as conditions 
 precedent.— Ct. of App., Feb., 1878. Bruce v. 
 Carter, 72 N. Y. 616. 
 
 34. Where in a building contract the certifi- 
 cate of the architect that the building has been 
 done in compliance with the contract, is made a 
 prerequisite of payment for such building, the 
 architect is accepted by the contracting parties 
 as an umpire, and neither party can avoid the 
 affect of his certificate, or refusal to give a certi- 
 ficate, by the mere allegation that his certificate 
 or refusal is unreasonable ; nor can the parties 
 litigate the matters thus submitted to him, 
 until he is divested of his powers as umpire by 
 death, incapacity, resignation, or refusal to act. 
 — Com. Pleas, June, 1877. Schenke v. Rowell, 
 7 Daly 286, 
 
 35. Plaintifl^ learning that defendant was 
 negotiating with a religious society for a contract 
 to do slonecutters' work upon a church, wrote him, 
 proposing to furnish detailed bills of quantities 
 for a percentage on the amount of defendant's 
 tender, to be paid only by the party who might 
 get the work. Defendant accepted the offer, the 
 bills were furnished ; defendant made a tender, 
 which was rejected by the society, who accepted 
 the offer of another. Defendant and others there- 
 after took a sub-contract from the successful 
 bidder for this and other work. Held, that 
 plaintiff was not entitled to recover: that 
 although defendant had the benefit of the use 
 of the bills of quantities so furnished, yet that 
 this did not answer the proviso of the contract 
 upon which alone he was under express legal 
 obligation to pay ; that when defendant's tender 
 was rejected and that of a third person accepted, 
 the contract was abandoned, and it was not 
 revived because of the sub-contract. — Ct. of App., 
 Nov., 1878. Taylor v. Philip, 75 N. Y. 58S. 
 
 36. Instances of the interpretation of 
 contracts containing peculiar and unusual pro- 
 Tisions, or complicated circumstances affecting 
 
CONTRACTS, V., VI. 
 
 89 
 
 the_ rights of the parties, but not involTin^ in 
 their construction any new or important princi- 
 ples of law. Booth V. Cleveland Mill Co., 74 
 N.Y. 15; 11 Hun 278; Clark b. Dickinson, 74 
 N. Y. 47 ; Kellogg v. Norman, Id. 596 ; High- 
 lands Chemical, &c., Co. v. Matthews, 76 Id. 145 ; 
 43 Superior 39; Hurd v. Cook, 75 N. Y. 
 454 ; Brown v. Curran, 14 Hun 260 ; Burr v. 
 American Spiral Spring Butt Co., 17 Id. 188 ; 
 Wintermute v. Cooke 73 N. Y. 107; 7 iBfc 
 476. 
 
 V. Valtdity. 
 1. In general. 
 
 37. wnat agreexnents are valid, 
 generally. The law does not require that 
 the parties to a contract should stand upon the 
 ■same footing as to knowledge or information ; 
 where one has full and equal opportunity with 
 the other to ascertain the facts and no fraud is 
 practiced he must'abideby the contract, although 
 he ignorantly or negligently makes a bad bar- 
 gain : each is entitled to the benefit of his own 
 Bagacity. — Ot. of App., Nov., 1878. Stettheimer 
 w.Killip, 75N. Y. 282. 
 
 38. An alleged agreement by parol, between 
 axi aged man, (ninety-six years,) and the family 
 <)f his brother, to the effect that if they took care 
 ■of him until his death they might have his prop- 
 erty — Beld, void, under the circumstances of 
 the case, for uncertainty as to its terms and as 
 to the parties.— a. of App., Feb., 1878. Shake- 
 speare V. Markham, 72 N. Y. 400. 
 
 39. Contracts made in foreign state. 
 Where the essentials of a contract made in a 
 foreign state, under and in pursuance of its laws, 
 are not hostile to the law and policy of this 
 state, the contract may be relied upon and 
 
 availed of in the courts of this stale. — Q. 
 
 ■App., March, 1877. King v. Sarria, 69 
 
 a. of 
 
 N.Y. 
 
 40. Contracts ■with aged or inflrln 
 persons. Contracts claimed to have been 
 entered into with aged and infirm persons, to be 
 ■enforced after their death to the detriment of 
 those who would otherwise be entitled to their 
 •estates, are regarded with grave suspicion by 
 the courts, and will only be sustained when 
 established by the clearest evidence ; especially 
 is this so when the alleged contract is oral, and is 
 •directly in conflict with a will executed by the 
 party prior to the time when the contract is 
 alleged to have been made, and remaining un- 
 revoked at the time of his decease. — Cl. of App., 
 Feb., 1878. Shakespeare v. Markham, 72 N. Y. 
 400. 
 
 41. Fraud and deceit. While parties to 
 a written agreement should look out for them- 
 ■selves, and ordinarily the written contract is 
 presumed to express their common intention, 
 yet, when one occupies a confidential relation- 
 ship to the other, and was intrusted with reduc- 
 ing it to writing, and it is clearly made to appear 
 that the written contract is untrue, and mis- 
 represents and misstates the real intention as 
 understood and agreed upon, it cannot stand. 
 More especially is this rule applicable when 
 undue advantage has been taken, and a fraud 
 peirpetrated. — &. of App., Nov., 1877. Pierce v. 
 Pierce, 71 N. Y. 154. 
 
 ; 42. One who has been induced by fraud or 
 misrepresentation to enter into a contract, may, 
 after the discovery of the alleged fraud and 
 
 ^-^ 
 
 with full knowledge of the facts, affirm the con- 
 tract and waive the fraud. — Supreme Ot., (Sp. T.,) 
 Jan., 1878. Balheimer v. Beichardt, 65 How. 
 Pr. A14, 416. 
 
 2. Illegality. 
 
 43. Contracts in nature of 'wagers. 
 Where an optional contract for the sale of la I /i 
 property is made, and there is no intention on ' 7 UX4 ^ J f" 
 the one side to sell or deliver the property, or 3i"V / r-^ 
 on the other to buy or take it, but merely that r^r^' ^f^ 
 the difference should be paid according to the ^^ ■ / At.,;, 
 fluctuation in market values, the contract is 3,A/iji ^^ 
 wager within the statute. — Gt. of App., Jvme, * 
 1877. Bigelow v. Benedict, 70 N. Y. 202; 
 
 affirming 9 Hun 429. 
 
 But an illegal intent will not be presumed ; 
 and in the-absence of proof that the parties were 
 merely speculating upon the fluctuations in the 
 price of the property, without any intent that 
 the party having the option should deliver or 
 accept, but simply should pay differences, the y ■u / «> <~ 
 contract is valid and maybe enforced. lb. ^.ffhod^^^ 
 P., Dee., 1877. Story ». Salomon, 71 N. Y. 
 420, 422 ; May, 1879. Kingsbury v. Kirwan, . 
 77 N. Y. 612; affirming 43 Superior 451. "7 f^icij i2/{) yi<? 
 
 44. A purchase of an interest in a ^jargo, L.A i^.' 
 with a proviso that the seller shall control and ' 
 sell the goods, profit or loss to be settled on ren- 
 dering accounts, is not a wagering contract. — 
 Gt. of App., April, 1878. Lawrence v. Gallagher, 
 73 N. Y. 613 ; affirming 42 Superior 309. 
 
 45. Contracts contrary to public 
 policy. A promise by a sheri^ having power 
 to appoint deputies, to appoint a certain person 
 as deputy, is void as against public policy. — 
 Supreme Gt. (3d Dept.,) Sept., 1879. Hager v. 
 Catlin, 18 Hun 448. 
 
 46. A contract by a proposed executor, made 
 prior to the death of the testator, and contrary 
 to his expressed wishes, to renounce the office, is 
 void as against public policy. — Supreme Gt., (4iA 
 Dept.,) Oct., 1879. Staunton v. Parker, 19 Hun 
 55. 
 
 VI. Peepgrilauce. Bbeach. 
 
 47. Obligation to perform or sho'w 
 ■waiver. When a plaintiff seeks to enforce a 
 contract by an action, he is not entitled to 
 recover where its true interpretation depends 
 upon the condition of performance by him, un- 
 less performance is shown, or unless actual 
 waiver is proved, with full knowledge of the 
 facts.— CK. of App., April, 1878. People's Bank 
 of New York v. Mitchell, 73 N. Y. 406, 413. 
 
 48. Time ■witbin ■which to perform. 
 Where in a contract to collect a claim arising 
 out of a wrongful capture during the civil war, 
 " in the shortest practicable time," there is no 
 express limitation of time within which the 
 claim is to be collected, a reasonable time, under 
 the contract, for eacli party must be allowed ; 
 that is, a period to be fixed according to the cir- 
 cumstances, for the agents to collect the claim 
 and the principals to forbear the employment 
 of other agents, and after the expiration of that 
 period the latter have the right to employ other 
 agents and proceed in the collection of the 
 claims. — Superior Gt., Jan., 1879. Lawson e. 
 Bachman, 44 Superior 396. 
 
 What is a reasonable time in such a case, 
 see lb. 
 
90 
 
 CONTRACTS, VI., VII., VIII. 
 
 44). 'What is a sufficient perform- 
 ance. Plaintiff contracted to furnish and put 
 up on defendant's premises at L., a completed 
 machine of a specified kind, " all ready to make 
 gas." Defendant agreed to pay freight on the 
 machine from New York, to furnish tank and 
 house, and to pay $1500 "when the works are 
 on that ground." Plaintiff shipped the castings 
 and materials for the machine, which defendant 
 received and paid freight thereon, but did not 
 permit plaintiff to put «ip the machine. Held, 
 that an action to recover the contract price was 
 not maintainable ; that as the contract was en- 
 tire and had not been performed, and as the 
 contract price was not divisible, no recovery 
 could be had for any portion of it. — Ct. of App., 
 June, 1879. Butler v. Butler, 77 N. Y. 472. 
 
 50. "What -will excuse performance, 
 generally. When one of the parties to an 
 executory contract announces to the other tliat 
 he will not perform, and does not, before the 
 time fixed for the performance of a condition 
 precedent by the other, withdraw his declara- 
 tion, such other party is excused from perform- 
 ance, or an offer to perform upon his part, and 
 may, when the day has passed for performance 
 by the one who has so declared his purpose, 
 maintain an action for a breach of the con- 
 tract. — Gt. of App., April, 1877. Shaw v. Ke- 
 public Life Ins. Co., 69 N. Y. 286. 
 
 51. The iTile is the same where, by the con- 
 tract, conditions precedent are many and of pe- 
 riodical recurrence ; the declaration is an excuse 
 for not offering to perform many and successive 
 conditions precedent, as well as one. lb. 
 
 52. Where, by the terms of a contract, if a 
 pay mentis not made by a certain day, a harm wi 11 
 come to one parly and a benefit to another, and 
 the amount of the payment required is, from 
 the course of business of the parties, known only 
 to the latter, who refuses to make known the 
 amount or keeps silence as to it when asked, 
 and in consequence the day goes by without 
 payment being made, he cannot take a benefit 
 from tlie lapse. — Gt. of App., May, 1878. Meyer 
 V. Knickerbocker Life Ins. Co., 73 N. Y. 516, 524. 
 
 53. The rule that where performance by one 
 party. is to precede performance by the other, 
 the latter need not perform before taking advan- 
 tage of failure of the first-mentioned party to 
 perform, applied. — Supreme Ct., (3rf Dept.,) Nov., 
 1878. Supervisors of Schenectady Co. v. Mc- 
 Queen, 15 Hun 551. 
 
 54. Inability to perform. Contracts for 
 personal services, whether of the contracting 
 party or of a third person, requiring skill, and 
 which can only be performed by the particular 
 person named, are not, in their nature, of abso- 
 lute obligation under all circumstances, but are 
 subject to the implied condition that the person 
 named shall be able to perform at the time spe- 
 cified ; and if lie dies, or without fault on the 
 part of the covenantor becomes unable to per- 
 form, the obligation to perform is extinguished. — 
 Ot. of App., Oct., 1877. Spalding o. Kosa, 71 
 N. Y. 40. 
 
 55. Defendants contracted with plaintiffs, 
 who were proprietors of a theatre, to furnish the 
 "Wachtel Opera Troupe" to give a certain 
 number of performances, the parties to divide 
 the receipts in certain specified proportions. 
 The company so styled was well known by its 
 name. Wachtel, from whom it took its name, 
 was the leader and chief attraction. His con- 
 
 nection with the company was the inducement 
 to the plaintiffs to enter into the contract. 
 Wachtel, because of illness, was unable to sing^ 
 and in consequence defendants did not perform. 
 In an action to recover damages for breach of 
 the contract — Held, that the presence of Wach- 
 tel was the principal thing contracted far, and 
 was of the essence of the contract ; that plaintiff 
 would not have been bound to accept the ser- 
 ittes of the troupe without him ; and that the- 
 sickness and disability of Watchtel, it having 
 occurred without the fault of defendants, con- 
 stituted a valid excuse for non-performanctt 
 and a good defence to the action. lb. 
 
 56. Prevention by other party. 
 Where performance by one party to a contract 
 is prevented by the acts of the other party, non- 
 performance is excused. — Ct. of App., Sept., 
 1879. Kiugsley v. City of Brooklyn, 78 N. Y. 
 200, 216; affii-ming 5 Abb. N. Cas. 1. 
 
 57. Instances. Building contracts con- 
 taining peculiar and unusual provisions, but in- 
 volving no new or important legal principles, 
 construed ; and the rights of the parties under 
 them, determined in respect to performance, for- 
 feiture for non-performance, right to rescind, 
 &c. Davison v. Assoc, of the Jersey Co., 71 N. 
 Y. 333 ; 6 Hun 470 ; Haden v. Coleman, 73 N. 
 Y. 567 ; 42 Superior 256 ; Crawford v. Becker, 
 13 Hun 375. 
 
 58. Contracts of sale, containing unusual 
 provisions and many details, construed ; and 
 the rights of the parties as respects delivery, 
 quantity, time of payment, &c., determined. 
 Kellam v. McKinstry, 69 N. Y. 264 ; 6 Hun 
 381 ; Long Island K. E. Co. v. Verree, 69 N. Y- 
 486 ; Per Lee v. Beebe, 13 Hun 89. 
 
 VII. MoDiricATioif. 
 
 59. By subsequent oral contract. A 
 contract or covenant under seal cannot be modi- 
 fied, before breach, by a parol executory con- 
 tract. — Ct. of App., Jan., 1878. Coe v. Hobby, 
 72 N. Y. 141. 
 
 60. By neglect to insist on strict 
 performance. What is a waiver of strict 
 performance in respect to procuring a power of 
 attorney duly acknowledged, &c. Effect of 
 failure to object to defect in the acknowledg- 
 ment, &c., see Edmihster v. Cochrane, 8 Daly 
 138. 
 
 VIII. Bescission. 
 
 61. The right to rescind. An authority 
 to make a contract for another is not sufficiept 
 to authorize its cancellation or surrender. — Ci. 
 of App., Feb., 1878. Stilwell u. Mutual Life 
 Ins. Co., 72 N. Y. 385. 
 
 62. The right of an exhibition company to. 
 rescind a contract for space in their building, 
 because of thfe immoral character of certain cir- 
 culars issued by the purchaser of such space, 
 on her refusal to suppress such circulars, sus- 
 tained, under the facts of ihe particular case. — 
 Com. Pleas, March, 1878. Smith v. American 
 Institute, 7 Daly 526. 
 
 63. Restoration of the consideration. 
 Where an action is brought to set aside a con- 
 tract, on the ground that plaintiff was fraudu- 
 lently induced to enter into it by defendant, the 
 complaint need not contain an offer to restore 
 what has been received under it. It is only 
 when relief against an illegal contract is sought. 
 
CONTRACTS, IX., X.— CORONERS. 
 
 91 
 
 and a statute requires it, that such an offer is 
 necessary. — Supreme Ct., (2d Dept.,) Feb., 1878. 
 Hay V. Hay, 13 Hun 315. 
 
 IX. Law op Place. 
 
 64. Presumptions respecting laws 
 of other states. A contract made in another 
 state will be presumed to have been entered into 
 with reference to tlie laws of that state, but in 
 the absence of any finding on the subject in an 
 action on the contract in this state, it will be as- 
 sumed in favor of the judgment that the lex toei 
 is the same as the lex fori. — Ot. of App., Sept., 
 1879. Chapih v. Dobson, 78 N. Y. 74. 
 _ 65. And how ascertained. When the 
 rights, liabilities, and obligations of parties to a 
 contract made and to be performed in this state, 
 so far as affected by the statute laws of another 
 state, must be determined according to the in- 
 terpretation and construction of the statute as 
 expounded by the courts of that state at the time 
 of the making of contract, although the then 
 exposition has been by subsequent decision re- 
 versed, see Jessup v. Carnegie, 44 Superior 260. 
 
 X. Actions for Breach op Contbact. 
 
 66. Time w^ithin w^hich_to sue. The 
 parties to a contract may provide by express 
 stipulation for a shorter limitation to actions 
 thereon than that fixed by the general law. — QS. 
 of App., Feb., 1878. Wilkinson v. First Nat. 
 Fire Ins. Co., 72 N. Y. 499. 
 
 67. Parties. In an action to recover a con- 
 ditional subscription after breach of the condi- 
 tion, it is not necessary that all tlie subscribers 
 should join as plaintiffi : each one may sue for 
 his own subscription. — Supreme Ct., Jan., 1878. 
 Horton v. Howe, 13 Hun 57. 
 
 68. Plaintiff and S. worked a stone quarry 
 owned by defendant, under a verbal agreement 
 that they might do so as longas there was any 
 stone in a certain direction, on paying a certain 
 royalty to defendant. Plaintiff and S. dug a 
 ditch to drain the quarry and uncovered a portion 
 of the stone, when defendant repudiated the 
 agreement and notified them to quit. S. subse- 
 quently assigned his claim to plaintiff. Held, 
 that plaintiff was entitled to recover the value 
 of the services rendered by himself and S., in 
 digging the ditch and uncovering the stone. — 
 Supreme Ot., (3d Dept.,) Nov., 1878. Eosepaugh 
 V. Vredenburgh, 16 Hun 60. 
 
 69. Evidence as to the value of services lo 
 be rendered — Held, inadmissible where the ques- 
 tion in dispute was whether the services were 
 agreed to be received in payment of the rent 
 sued far.— Supreme Ot., (3d Dept.,) Nov., 1879. 
 Cornell v. Markham, 19 Hun 275. 
 
 For decisions respecting the various contracts 
 by which title to or possession of Property is 
 transferred, see Bailment ; Chattel M obt- 
 GAGES ; Deeds : Mortgages ; Sales ; Vendor 
 AND Purchaser. 
 
 As to tlie power of any particular officer to 
 contract in his Official characler, see Officers, 
 and the titles of the various kinds of ofiicers. 
 
 As to Oontracts with the state, see State, 12-15. 
 
 For the Agent's power to bind the principal by 
 contract, see PrincipaIl and Agent, 44-50. 
 
 As to Contracts by corporations, see Corpora- 
 tions, 39, 40 ; MtnsriciPAL Corporations, 
 4-6, 28-32. 
 
 As to when a court of equity will Enforce the 
 performance of a contract, see Specific Per- 
 formance. 
 
 In what cases equity will Cancel or Reform 
 the contract, see Equity, II. 
 
 As to contracts between Husband and wife, 
 or between Wife and third person, see Husbani> 
 and Wife, V., VII. 
 
 For the effect upon a contract of the Infaney- 
 of the party to it, see Infants. 
 
 As to the contracting powers of Guardians, 
 Personal representatives, and Trustees, see Exec- 
 utors AND Administrators ; GruA,BDiAir ani> 
 Ward; Trusts. 
 
 For rules of Pleading and Fvidence, generally,, 
 see those titles. 
 
 CONTRIBUTION. 
 
 Between Sureties, see Principal and Sure- 
 ty, 6-8; in General average, see Insurance, 
 143-146. 
 
 CONTRIBUTIVE NEGLIGENCE. 
 
 Negligence, II. ; Railroad Companies, IV-. 
 
 CONVERSION. 
 
 As to Equitable conversion of land into person- 
 ality, see Wills, 53-56. 
 
 As to what constitutes a Tortious conversion ot 
 chattels, see Trover, 6-10. 
 
 CONVEYANCES. 
 
 Deeds; Mortgages; Wills. 
 
 COPYRIGHT. 
 
 For decisions respecting injunctions to restraim 
 unauthorized performances of Dramatic or Mu' 
 sieal compositions, see Injunction, 19. 
 
 CORONERS. 
 
 - 1. Powers in respect to ppst-mortem, 
 examinations. When a coroner directs a 
 post-mortem examination to be made, he may, in 
 his discretion, determine whether any, and what 
 persons, may be present besides the surgeons.. 
 Therefore, a person accused or suspected of the 
 murder of the deceased has no right to be pres- 
 ent if the coroner objects.-)Si(j3reme Ct., (4<A Dept.,) 
 Oct., 1878. Crisfieid v. Ferine, 15 Hun 200. 
 
 2. Acting in place of the sheriff. A 
 coroner, to whom a requisition, in proceedings 
 for tlie claim and delivery of personal property, 
 in an action to recover its possession has been 
 issued, stands in a like position as a sheriff, and 
 is protected by his process in taking the prop- 
 erty specified from the possession of the defend- 
 ant named. — Ct. of App., March, 1878. Manning; 
 V. Keenan, 73 N. Y. 45. 
 
-92 
 
 CORPORATIONS, I., II. 
 
 3. The provisions of 2 Eev. Stat. 285, U 55, 
 •66, providing for service of papers upon a sheriff 
 by leaving the same at his office or delivering 
 *heni to any person therein belonging to the 
 -office, apply to coroners when acting in the 
 place of the sheriff in an action wherein the 
 sheriff is a party. lb. 
 
 CORPORATIONS. 
 
 I. How Created ; Incorpobation ; Or- 
 ganization; Charters. 
 n. Corporate Stock. 
 III. Eights and Liabilities oi' Stock- 
 
 H(J(LDEBS. 
 
 1. In general. 
 
 2. Subecriptionsfor stock, 
 
 3. Individual liability. 
 rV. Corporate Powers. 
 
 ' V. Corporate Liabilities. 
 VL Officers and Agents. 
 VIL BlSSOLITTION, Eeceiver, &c. 
 ■yilL Foreign Corporations. 
 
 I. How Created ; Incorporation j Organi- 
 zation; Charters. 
 
 1. Incorporation under general l&'w. 
 Doctrines relating to de fmto by user corpora- 
 -tions, are not applicable where a corporation is 
 sought to be formed under the provisions of a 
 general law. — Superior Ct., Nov., 1878. Jessup 
 V. Carnegie, 44 Superior 260. 
 
 2. Under general statutes existing in Iowa in 
 1871, relating to the formation of corporations 
 
 -other than railroad corporations, the prerequi- 
 sites to a legal corporate existence are recording 
 
 •of articles of incorporation in the office of the 
 
 reoorder-bf deeds of the county where the prin- 
 -cipal place of business is to be, in a proper book 
 kept therefor ; and within three months there- 
 after, filing with the secretary of state a copy of 
 the articles, and publishing a certain prescribed 
 notice for four weeks in succession in some news- 
 •paper as convenient as practicable to the prin- 
 jcipal place of business. lb. 
 
 II. Corporate Stock. 
 
 3. General nature of stock. The capital 
 stock of a corporation is the money or property 
 which is put into a single corporate fund by 
 those who, by subscription therefor, become 
 -members of the corporate body. Such fund be- 
 <!omes the property of tlie aggregate body only. 
 A share of the capital stock is the right to par- 
 take, according to the amount put into the fund, 
 -of the surplus profits ; and ultimately, on disso- 
 lution, of so much of the fund thus created as 
 remains unimpaired, and is not liable for debts 
 of the corporation. A subscriber may become 
 •the owner of a given number of shares, but not 
 in such sense that he may take away those shares 
 -out of the corporate fund ; and the corporation 
 
 has no power and cannot be compelled, while 
 •continuing in legal existence and carrying on 
 -the business for which it was created, to issue 
 •and deliver such shares. All that the corpora- 
 :tioh can do is to issue written evidence of the 
 •existence and ownership of such shares, known 
 
 —a. of A 
 Burrall v. Bushwiok E. E. Co., 75 N. Y. 211. 
 
 4. Dealing's of the corporation in re- 
 spect to stock. Upon the purchase of shares 
 of the stock of a mining corporation, and the 
 issue to the purchaser of the certificate therefor, 
 he acquires a vested right; and any action of 
 tbe corporation which divides the shares of its 
 stock sold, and in the hands of lawful owners, 
 into two classes, and gives to one class a prefer- 
 ence over the o'ther in sharing in the earnings 
 of the corporation, materially and injuriously 
 affects the rights of the owners of the latter 
 class; and, if without their assent or acquies- 
 cence, is illegal. — Ct. o/App., Sept., 1879. Kent 
 ■u. Quicksilver Minmg Co., 78 N. Y. 159. 
 
 5. Transfers, how made and com- 
 pelled. An equitable action will lie to com- 
 pel a transfer upon its books by a manufacturing 
 corporation, of shares of its capital stock, to the 
 owner of the same. Such an action is proper 
 where a recovery of damages, for a refusal to 
 transfer, will furnish an inadequate compensia- 
 tion. — Ct. of App., March, 1879. Cushman v. 
 Thayer Manuf., Ac, Co., 76 N. Y. 365 ; affirm- 
 ing 7 Daly 330. 
 
 0. P., plaintiff's husband,' executed an assign- 
 ment and power of attorney, indorsed upon a 
 certificate of shares of defendant's stock, and de- 
 livered the same to plaintiff, without considera- 
 tion. Subsequently P. executed, for a valuable 
 consideration, an assignment of said stock to B., 
 and caused the same to be transferred to B. upon 
 defendant's books. By the terms of the cer- 
 tificate the stock was only transferable upon the 
 books on surrender of the certificate. B. knew 
 of the assignment to plaintiff, and was a witness 
 thereto ; he was also an officer of the corpora- 
 tion. Plaintiff; after the transfer to B., pre- 
 sented the certificate to defendant and demanded 
 a transfer upon its books, which defendant re- 
 fused. Held, that the previous transfer was not 
 a valid excuse for the refusal, as it was defend- 
 ant's duty to resist any transfer without pro- 
 duction and surrender of the certificate ; that the 
 fact that the assignment to plaintiff was without 
 consideration, was immaterial, as the delivery of 
 the certificate, with the assignment, as between 
 plaintiff and P., passed the entire legal and 
 equitable title to the stock. lb. 
 
 7. The assignment and power of attorney 
 upon, the certificate were executed by P. in 
 blank. Subsequently, the name of plaintiff was 
 inserted as assignee, and the name of one T. was 
 inserted as the attorney. Held, that it was not 
 essential that the demand for a transfer should 
 be made by T. lb. 
 
 8. Pledges of stock. A blank transfer 
 of a certificate of stock with irrevocable power 
 of attorney to transfer, signed by the person 
 who appears by the certificate to be the owner, 
 does not confer upon the holder apparent 
 authority, as agent for $uch owner, to pledge the 
 stock as collateral. — Ct. of App., June, 1878. 
 Merchants' Bank of Canada v. Livingston, 74 
 N. Y. 223. 
 
 9. Dividends. Whfere a corporation hav- 
 ing declared an extra dividend, and issued 
 negotiable certificates payable at a time fixed, 
 or sooner, at the option of tlie company, to its 
 respective shareholders, subsequently determines 
 to redeem the same, before the time fixed, it 
 cannot refiise to pay a stockholder, because he 
 has lost the certificate and is unable to surrender 
 
CORPORATIONS, II., III. 
 
 9a 
 
 it for cancellation. It must, protect itself by ex- 
 acting indemnity, as is done in the case of lost 
 commercial paper. — Supreme Cl., (2d Dept.,) May, 
 1879. Butler v. Glen Cove Starch Co., 18 Hun 47. 
 
 10. When, after a dividend has been declared, 
 a fund deposited with a banking-house for the 
 purpose of, paying such dividend, will be re- 
 garded as speafically appropriated for its pay- 
 ment, so that the stockholders will acquire m 
 equity a lien upon such fund to the extent of the 
 amount to which they are respectively entitled, 
 which lien will follow the fund in the hands of 
 the receiver, see Matter of Le Blanc, 14 Hun 8 ; 
 S. C, 4 Abb. N. Cas. 221 ; affirmed, 75 N. Y. 598. 
 
 11. One claiming to be a shareholder in a 
 corporation, but who is not recognized as such, 
 by the corporation, and who has elected to treat 
 the refusal of the corporation to recognize him 
 as a conversion of his shares, and has brought 
 an actioQ against it for such conversion, cannot, 
 durjlng the pendency of the action, nor can his 
 assignee, sue for dividends. — Ct. of App., Ja/a., 
 1878. Hughes v. Vermont Copper Mining Co.,, 
 72N. Y.207. 
 
 As to whether such a claimant can, under any 
 circumstances, maintain an action against the 
 company for dividends before he has legally 
 established his right to the shares, quosre. lb. 
 
 ill. Rights and Liabilities op Stock- 
 
 ' HOIiDEES. 
 
 1. In general. 
 
 12. Bights of Stockholders, gener- 
 ally. The phrase " the whole capital stock," 
 as used in Laws of 1853, ch. 502, g 2, author- 
 izing « stockholder of any railroad or plank- 
 road company, which has been sold on fore- 
 closure, to acquire the same relative interest in 
 the road so sold as he before had, upon paying 
 to the purchasers a sum equal to such propor- 
 tion of the price paid on such sale, and the costs 
 and expenses thereof, as such stockholder's stock 
 in such company shall bear to the " whole capi- 
 tal stock" in said company, means the capital 
 stock actually subscribed for and issued, and not 
 the amount named in the articles of association. 
 —Supreme a., {4th Dept.,) April, 1879. Pratt 
 u. Munson, 17 Han 475. 
 
 13. Agreements bet^ween stock- 
 hplders. An agreement between several 
 stockjiolders of a corporation, who together own 
 a majority of all the shares of the capital stock,, 
 entered into for the purpose of the election of 
 directors, who would manage the affairs of the 
 company in the interest of the stockholders, and 
 thus improve the value of their stock, is not in 
 conflict with the requirements of law, and in no 
 wise derogates from its policy. There is noth- 
 ing in it that tends to frustrate or interfere with 
 the legal right, of the majority of stockholders 
 to delegate to directors of its own chpice the 
 manageipent of the affairs of the company. — 
 Superior Ct., March, 1878. Havemeyer v. 
 Havemeyer, 43 Superior 506. 
 
 Nor i^ an agreement made between a like 
 number of stockholdeis, in regard to holding 
 their.stock and selling the same together, invalic^ 
 and in contravention of public policy andlaw. lb. 
 
 Fpr the construction of the agreement in 
 question, and the determination of the rights of 
 the respective parties thereto, see a further ap- 
 peal in same case, 45 Superior 464. 
 
 14. For the construction of special and 
 peculiar agreements between stockholders as to 
 
 the use of the corporate ; property, its sale, &c., 
 see Chapman v. Porter, 69 N. Y. 276 ; Hastings* 
 V. Drew, 76 N. Y. 9. 
 
 15. Bight of access to corporatei 
 books. The L. S.'& M. S. R. Co., organized, 
 under Laws of 1869, ch. 917, by the consolidation! 
 of various foreign and domestic railroad com-< 
 panics, is a domestic, not a foreign corporation,, 
 and therefore the provisions of Ljtws of 1842, 
 ch. 165, to compel transfer agents of foreign cor- 
 porations to exhibit lists of their stockholders, 
 have no application to it. Being a domestic 
 corporation, it comes within and is controlled by* 
 the provision of the Revised Statutes (1 Rev.' 
 Stat. 601, ? 1,) requiring the transfer book anf 
 books containing the names of stockholders of 
 any incorporated company to be open for in^pec-i 
 tion for thirty days previous to the election of ' 
 directors. — Cl. of App , June, 1877. Matter of ' 
 Sage V. Lake Shore, &o., Ry. Co., 70 N. Y. 220. 
 
 16. The statute (1 Rev. Stat. 601,J 1,) does, 
 not deprive the stockholders of the right to ex- 
 amine the transfer books of a corporation, for. 
 proper purposes and on proper occasions, af' 
 other times; and a proceeding by handamu^ 
 may be invoked for the purpose of enforcing' 
 such right, lb. 
 
 17. Stockholder's remedy against 
 the corporation. A stockholder of a pri-J 
 vate corporation may restrain issue of preferred' 
 stock, or privileged payment upon such stock. 
 —Ct. of App., Sept., 1879. Kent v. Quicksilver 
 Mining Co., 78 N. Y. 159 ; affirming 17 Hun 169., 
 See also S. C, 12 Hun 53. ■ 
 
 18. A person claiming to be a shareholder of ' 
 a corporation, and whose claim is not recognized"' 
 by the corporation, must establish his claim and' 
 enforce recognition by an action directly against' 
 the corporation itself. Thus, where a dividend 
 has been made and paid by a corporation, among-' 
 those whom it deems to be, and recognizes, as- 
 shareholders, one who claims to be a share-^ 
 holder, but whose claim is not recognized or' 
 admitted by the corporation, cannot maintain an 
 action against one of the recognized share- 
 holders for a portion of such dividend. — Superior' 
 Ct., June, 1879. Peckham v. Van Wagenen,' 
 45 Superior 328. 
 
 > 19. — or its officers. An equitable action 
 against directors of a corporation to recover 
 daniages for waste and loss of the corporate as-i 
 sets caused by the negligence of the defendants, 
 in the discharge of their official duties, should , 
 ordinarily be brought by the corporation ; but, 
 the stockholders may maintain such action,, 
 where the corporation is still under the control 
 of the defendants, in which case the corporation, 
 is a necessary party defendant. — Supreme Ct., 
 (Sp. T.,) Dee., 1877. Hand v. Atlantic Nat., 
 Bank, 55 How. Pr. 231. S. P., Carpenter v.. 
 Roberts, 56 Id. 216. _ , 
 
 20. An action against an officer of a corpora- 
 tion to recover damages for a fi'andulent misap-i 
 propriation and conversion by him of the cor-; 
 porate property, can only be brought by a stock- 
 holder in his own name after appJication to, and, 
 a refiisal upon the part of the corporation to 
 bring the action. — Ct. of App., March, 1877. 
 Greaves v. Gouge, 69 N. Y. 154. 
 
 21. In case of such refusal, the stockholder 
 may bring an action for the benefit of himself 
 and other stockholders, but must make the cor- 
 poration a party defendant, alleging in his com- 
 plaint and proving the refusal, lb. 
 
34 
 
 CORPORATIONS, III. 
 
 22. The fact that the wrongful acts of the 
 ■officer have depreciated the market value of the 
 capital stock held by the stockholder, to an ex- 
 tent greater than its share of the actual loss sus- 
 tained, does not authorize an action by the stock- 
 holder in his own name, without making the 
 ■corporation a party, to recover the difference be- 
 tween the actual loss and the depreciation. lb. 
 
 2. Svhscriptiona for stock, 
 
 23. Validity of the contract. Part 
 payment. An actual payment on account of 
 the stock, as well as a mere subscription, is neces- 
 sary to enable the corporation to maintain any 
 action against the stibscriber. Payment of ten 
 per cent, on the value of the stock by a check, 
 payment of which was subsequently stopped, and 
 which check was never in fact paid, is not 
 enough. — Supreme Gt., (Oir.,) Jan., 1880. Ex- 
 ■celsior Grain Binding Co. v. Staynet, 58 How. 
 Pr. 273. 
 
 24. Liability for interest. A subscriber 
 to the capital stock of a railroad corporation, 
 who has failed to pay for the shares subscribed 
 for, as required by the terms of his subscription, 
 is properly chargeable with interest from the 
 time of the default, and cannot compel the com- 
 pany to issue the stock until not only the prin- 
 ■cipal, but the interest, is paid. — Cl. of App., 
 JVoj)., 1877. Gould v. Town of Oneonta, 71 N. 
 Y. 298; affirming 3 Hun 401. 
 
 25. What will discharge the liability 
 for subscriptions. A subscription to the 
 stock of a corporaion which, by its charter, is 
 compelled to commence and complete a building 
 ■within a given time, or lose its franchise, cannot 
 be enforced against the subscribers where the 
 charter provision has not been complied with, 
 even though the time to ftdfill the charter pro- 
 vision is extended by a subsequent act of the 
 legislature. — Supreme Cl., (ith Dept.,) Oct., 1878. 
 Union Hotel Co. v. Hersee,* 15 Hun 371. 
 
 26. When alteration of subscription for stock 
 as to one subscriber does not affect the liability 
 of another on his subscription, see Wliittlesey v. 
 Frantz, 74 N. Y. 456. 
 
 3. Individual liahUity. 
 
 27. Construing the statute. A statute 
 ■which imposes upon the stockholders of a cor- 
 poration a personal liability for the corporate 
 debts must be construed strictly ; it is in deroga- 
 tion of the common law, and cannot be extended 
 beyond its literal terms. — Of. of App., April, 
 1879. Chase v. Lord, 77 N. Y. 1 ; S. C., 6 Abb. 
 N. Cas. 258. 
 
 28. Under the provisions of the laws of New 
 Jersey imposing a personal liability upon the 
 stockholders of a corporation where the whole 
 capital has not been paid in, there cannot be a 
 recovery by a creditor against a single stock- 
 holder. An equitable action is necessary, bring- 
 ing in all the stockholders. — (ft. of App., April, 
 1878. Griffith v. Mangam, 73 N. Y. 611 ; affirm- 
 ing 42 Superior 369. 
 
 29. General nature of the liability. 
 The property of every corporation is to be re- 
 garded as a trust fund for the payment of its 
 debts ; the creditora of the corporation have a 
 lien thereon and may follow it into the hands 
 of the directors or stockholders. Where, there- 
 
 *Said to have been reversed in the Court of Appeals, 
 January 13th, 1880 
 
 fore, the property of a corporation has been 
 divided among its stockholders, a judgment 
 creditor, after return of an execution against the 
 corporation unsatisfied, may maintain an action, 
 in the nature of a creditor's bill against a stock- 
 holder, to reach whatever was so received by 
 him.^-Ci. of App., Jan., 1879. Hastings v. 
 Drew, 76 N. Y. 9. 
 
 In such an action the judgment against the 
 corporation is at least prima facie evidence of 
 the liability of the corporation. lb. 
 
 30. Who is liable, and -wrhen the 
 liability attaches. When a company com- 
 mences to carry on business before its capital 
 stock is paid up in full, each of the stockhold- 
 ers is jointly and severally liable for all debts 
 contracted by it. — SuprSnie Gt., (IsJ Dept.,) Dec., 
 1878. Chase v. Lord, 16 Hun 369. But see 
 S. C, on appeal, 77 N. Y. 1 ; 6 Abb. N. Cas. 258. 
 
 31. Liability of the stockholders for the debts 
 of an incorporation- formed to navigate the 
 ocean by steamships (2 Rev. Stat., 6th ed., 718,) 
 is incurred the moment the contract of the cred- 
 itor with the company is consummated. — Supe- 
 rior Gt., {Sp. T.,) May, 1878. Mills v. Hicks, 44 
 Superior 527. 
 
 32. Actions to enforce the liability. 
 An action was brought by a creditor of " The 
 People's Safe Deposit and Savings Institution," 
 a corporation organized under Laws of 1868,. 
 ch. 816, in his own' behalf and that of other 
 creditors, against the stockholders of said com- 
 pany, the assignee in bankruptcy, and such cred- 
 itors as had brought suits at law, to collect of 
 said stockholders tlie sums for which they were 
 liable under the provisions of said act (J§ 13, 
 14,) to distribute the same among the creditors, 
 and to restrain the prosecution of said actions at 
 law. 
 
 Bdd, 1. That the action would lie. 
 
 2. That the fact that by said provisions the 
 stockholders were made " severally " liable did 
 not preclude the attaching and exercise of this 
 equitable jurisdiction. 
 
 3. That the court, in such action, could only 
 divide among all the creditors, having legal 
 claims against one or more of the stockholders, 
 the avails of the liabilities of those stockhold- 
 ers; it could not take from one creditor his 
 right against a certiiin stockholder, and give it 
 in whole or in- part to a creditor having no legal 
 right against that stockholder. — Gt. of App., 
 June, 1878. Pfohl v. Simpson, 74 N. Y. 137. 
 
 33. Bules of pleading and evidence. 
 A compliance with the statutes of this state 
 which give a creditor a right of action against 
 the stockholders of a corporation, must be al- 
 leged in the complaint, or it will be demurrable. 
 — Oily Ct. of Brooklyn, May, 1878. Birmingham 
 Nat. Bank v. Keck, 55 How. Pr. 222. 
 
 34. Where the liability is imposed in case 
 of non-compliance with provisions of the stat- 
 ute under which the corporation is organized, it 
 is in&uiubent apon the plaintiff, in an action to 
 enforce such liability, to establish that the pro- 
 visions have not been complied with, — Gt. of 
 App., AprU, 1879. Chase v. Lord, 77 N. Y. 1 ; 
 S. C, 6 Abb. N. Cas. 258. 
 
 35. In an action brought by a creditor of a 
 railroad corporation, under Laws of 1850, ch. 
 140, § 10, as amended by Laws of 18.'54, eh. 282, 
 against a stockholder, to recover the amount 
 unpaid on his subscription, a judgment in favor 
 of plaintiff against the company, is admissible 
 
CORPORATIONS, III., IV., V. 
 
 95 
 
 and is prima Jade, proof that, at the time of its 
 recovery, the plaintiff was a creditor of the 
 company, and of the validity and amount of his 
 •debt. — Supreme Ot., {ith Dept.,) April, 1879. 
 Stephens v. Fox, 17 Hun 435. 
 
 36. Necessity of previous judgment 
 against the corporation. An action in 
 the nature of a creditoi-'s suit cannot be main- 
 tained by a creditor of an extinct corporation, 
 to reach funds of the corporation paid out to 
 stockholders befoie dissolution, without a valid 
 judgment and execution against the corporation 
 or its successors, or without first exhausting the 
 <Teditoi-'s remedies against the property remain- 
 ing in the hands of the corporation or received 
 by its trustees on its dissolution. — Ot. of App., 
 April, 1878. Sturges v. Vanderbilt, 73 N. Y. 
 384, 391. 
 
 37. Where a corporation has been dissolved 
 and a receiver appointed, a creditor seeking to 
 obtain a judgment against the corporation, in 
 order to enforce the liability of the stockholders, 
 <:annot begin an action by service of process on 
 an officer of the corporation. His remedy, in 
 «uch a case, is by a direct action against the 
 stockholders without any preliminary judgment 
 against the corporation or its receiver. — Com. 
 Pleaa, Sept., 1877. Hetzel v. Tannehill Silver 
 Mining Co., 4 Abb. N. Cas. 40. 
 
 IV. COBPORATE POWEBS. 
 
 38. By-la'ws. A private corporation can- 
 not repeal a by-law, so as to impair rights which 
 have been given and become vested by virtue of 
 the by-law ; and this, although the power is re- 
 served by its charter to alter, amend or repeal 
 its by-laws.— Cl!. of App., Sept., 1879. Kent ij. 
 ■Quicksilver Mining Co., 78 N. Y. 159. 
 
 39. Po'wer to make loans, take 
 notes, &c. A corporation has autliority to 
 loan money to be used in aid of a work which 
 is auxiliary to the corporate business, and is not 
 responsible for a misappropriation of money so 
 loaned. — Superior Ct., March, 1878. Cheever v. 
 •Gilbert Elevated Ky. Co., 43 Superior 478. 
 
 40. The power of a fire insurance company 
 <to take negotiable paper, and what acts of its 
 officers in relation to such paper, are not such 
 as to confer title to the paper upon the corpora- 
 tion, determined, in a case depending upon par- 
 ticular facts. Black Eiver Ins. Co. v. New York 
 Loan and Trust Co., 73 N. Y. 282. 
 
 41. Power to sue. Defendant sold to P. 
 4:)iree shares of the capital stock of the plaintiff 
 corporation, agreeing in the assignment not to 
 .engage in the sale or delivery of milk in the 
 ■city of S. or village of G., "to the prejudice or 
 -detriment of the said stock, or the interests of 
 the holder thereof, or the interest and business 
 of" (plaintiff.) The instrument further pro- 
 vided : "And for a violation of this agreement, 
 to the detriment of said P., or the said ( plaintiff) 
 the said P. or the said plaintiff shall be at lib- 
 orty to take such proceeding for restraining me 
 from such violation as shall be deemed proper." 
 Defendant having sold milk in violation of this 
 agreement, plaintiff sought to restrain him from 
 making such sales. Held, that plaintiff was not 
 a party to the agreement, and that an action by 
 it to restrain a violation of the covenant therein 
 -contained would not lie. — Supreme Ct., {ithDept.,) 
 April, 1879. Onondaga Co. Milk Association v. 
 mil, 17 Hun 494. 
 
 42. One oif plaintiffs' by-laws provided, that 
 if a stockholder transferred his stock he should 
 sign an agreement not to sell or deliver milk in 
 S. within five years. Held, that this did not 
 authorize plaintiff to apply for an injunction. 
 
 43. A corporation which desires to be re- 
 ,lieved of the necessity of proving its corporation 
 
 existence on the trial of an action in which it is 
 plaintiff, must allege its incorporation by or 
 under a statute of this state. If it fails so to do, it 
 must make the proof, on a general denial being 
 pleaded, even though defendant contracted with 
 it in its corporate name, as the estoppel in such 
 a case only prevents defendant's denying the in- 
 corporation when properly pleaded. — Com. Pleas, 
 Jan., 1878. Howe Machine Co. v. Robinson, 7 
 Daly 399. 
 
 But a complaint in the corporate name as 
 plaintiff, will sustain the action, provided due 
 proof of incorporation is forthcoming when re- 
 quired, lb. S. P., Canan4arqua Academy v. 
 McKechnie, 19 Hun 62. 
 
 44. The doctrine of ultra vires. Acts 
 of a corporation which are not per se illegal or 
 malum proMbiium, but which are vUra vires, 
 affecting, however, only the interests of the 
 stockholders, may be made good by the assent 
 of the stockholders, so that strangers to them; 
 dealing in good faith with the corporation, will 
 be protected in a reliance on those acts. — Ct. of 
 App., Sept., 1879. Kent v. Quicksilver Mining 
 Co., 78 N. Y. 159. 
 
 45. One who has had the benefit of a corpo- 
 rate act unauthorized by the charter, cannot "set 
 up want of authority in the corporation to do 
 the act. — Superior Ct., March, 1878. Cheever 
 V. Gilbert Elevated Ey. Co., 43 Superior 478. 
 
 46. When the eiercise of an excess of corpo- 
 rate power will not invalidate that portion of 
 the corporate act which falls within the power, 
 because that which is authorized neither depends 
 on nor is a mere incident to, nor flows out of 
 that which is in excess, see Wood v. Mayor, &c., 
 of New York, 44 Superior 321. 
 
 V. Corporate Liabilities. 
 
 47. For acts of ofiloers and agents. A 
 corporation is bound by the acts of its officers, 
 when done in the ordinary discharge of their 
 official duty, though not authorized or executed 
 under its corporate seal. — Superior Ct., March, 
 1878. Cheever v. Gilbert Elevated Ey. Co., 43 
 Superior 478. 
 
 48. Therefore, a treasurer of a corporation 
 who, with the assent of the president and vice- 
 president, but without the authority of a by-law, 
 resolution of the board of directors, or other as- 
 sent of the governing body, loans money of the 
 corporation to aid in a work auxiliary to its 
 main business, the loaning of money being in 
 the ordinary discharge of the official duty of 
 those officers, is not liable to the company for 
 the money loaned, in the event of the borrower 
 not repaying it. lb. 
 
 49. Corporations may enter into and become 
 bound by contracts, expressed or implied, with- 
 out other formalities than are requisite in respect 
 to like contracts made by natural persons, and 
 under the same circumstances and conditions. 
 But corporations, of necessity, must act solely 
 through the instrumentality of their ofiicers or 
 
96 
 
 CORPORATIONS, Y-., VI. 
 
 other duly authorized agents ; and such officers 
 and agents must, like agents of natural persons, 
 be deemed to be clothed with all the poweis and 
 authorities necessary or proper to effectuate the 
 purpose of their creation, in the manner, with 
 the means and appliances, and according to the 
 usages customary in the conduct of the business 
 and affairs intrusted to them. — Buff. Superior 
 Ct., March, 1877. Lee v. Pittsburgh Coal, &c., 
 Co., 56 How. Pr. 373, 375. 
 
 50. Where a person is employed for a corpo- 
 ration, by one assuming to act in its behalf, and 
 goes on and renders the services according to 
 the agreement, with the knowledge of its officers, 
 and without notice that the contract is not re- 
 cognized as valid and binding, such corporation 
 will be held to have sanctioned and ratified the 
 contract, and be compelled to pay for the serv- 
 ices according to the agreement. Having availed 
 itself of the services and received the benefits, 
 il is bound in conscience to pay, and will not be 
 heard to say that the original agreement was not 
 made by a person legally authorized to contract. 
 a. 379. 
 
 51. When it is sought to charge a corporation 
 with notice to, or with acts or omissions of its 
 agents, it must appear that the notice was com- 
 municated to, or the act or omission proceeded 
 from gome one in the employ of the corporation, 
 and charged with some duty in the premises. — 
 Superior Ot., May, J.878. Mut. Life Ins. Co. v. 
 Davies, 56 How Pr. 440. 
 
 52. That a joint action will not lie against 
 several corporations associated in business to- 
 gether, for breach of contract on the part of an 
 agent employed by them in common, see Clegg 
 V. Aikens, 5 Abb. N. Cas. 95. 
 
 53. For ftaud. Where a judgment has 
 been obtained against a corporation for the 
 price of goods sold, an action cannot be main- 
 tained, against it for fraud in obtaining a credit for 
 the goods ; the judgment for the purchase-price 
 is as complete and fall a remedy as would be a 
 judgment for damages because of the fraud, and 
 two judgments cannot be obtained against a cor- 
 poration as an indemnity for the same loss.^-Ci. 
 ofApp., Feb., 1879. Caylus v. New York, Kings- 
 ton, &c., E. E. Co., 76 N. Y. 609 ; affirming 10 
 Hun 295. 
 
 VI. Officers and Agents. 
 
 54. Elections. Where a corporation duly 
 organized has failed to elect trustees for several 
 years, and those formerly elected are not author- 
 ized to hold over until their successors are 
 chosen, and there is no provision requiring the 
 trustees or other officers to preside at or do any 
 act in relation to the election, the corporators 
 themselves may, without any official action, vol- 
 untarily meet at the time designated in the con- 
 stitution for that purpose, and elect a newi board 
 of trustees. — Supreme Ct., (Isi Dept.,) Sept., 1879. 
 People V. Twaddell, 18 Hun 427. 
 
 ,55. A member of a corporation cannot vote 
 by proxy, unless specially authorized by law so 
 to do. lb. 
 
 56. On an application under 1 Eev. Stat. 
 603, J 5, to settle contests arising out of a dis- 
 puted election, the court may go behind the en- 
 tries in the transfer book, and determine whe- 
 ther a transfer was a sale or only a pledge, and 
 whether the pledgor or pledgee was entitled to 
 rote on the shares transferred. — Supreme Ct., 
 
 (4tt Dept.,) Oct., 1878. Strong v. Smith, l* 
 Hun 222. 
 
 57. Po'wers of offlcera, generally. Ar» 
 officer who does not possess the power to create 
 a debt against the corporation directly, cannot 
 do it indirectly by sending an account which 
 shows a balance due to the person to whom it i^ 
 seat.— Supreme Ot., (2d Dept.,) Feb., 1878. Har- 
 vey V. West Side Elevated B. E. Co., 13 Hurv 
 392. 
 
 58. Dealing's bet-ween corporation, 
 and ofHcer. Charging to the debit of an offi- 
 cer of a corporation, on the corporation books, 
 and assigning to him an apparently lost debt 
 due trf the corporation (his credit side of the ac- 
 count being greater than the debt), for which 
 debt he, by reason of want of authority to do, or 
 neglect of duty in doing, the act or transaction 
 out of which the debt arose, is liable to, the cpr- 
 poration as well as the debtor, is a violation of 
 Eev. Stat., part I;, tit. XV., § i, which prohibits- 
 the assigning of property or choseg in action tc> 
 an officer or stockholder for the payment of a,. 
 debt. — Superior Ct., March, 1878. Cheever v,. 
 Gilbert Elevated Ey. Co., 43 Superior 478. 
 
 Such a transaction does not operate to subro^; 
 gate the officer to the company's rights against 
 its debtor. 76. 
 
 Nor will it put the officer in the position of 
 an agent who can sue for money or property of 
 his principal, paid or transferred under such cir- 
 cumstances as that it is recoverable back, and 
 appropriate the proceeds of the suit to his own ' 
 use. lb. , 
 
 59. The directors or truSjtees. Whil& 
 the directors or trustees of a corporation cannot^ 
 as such officers, perform acts which, to all in-r 
 tents and purposes, terminate the existence of 
 the corporation by taking away from it the- 
 power to continue its functions, yet, as it is thpfr 
 duty to pay the corporate debts, they are author- 
 ized to apply the property of the corporation tOr 
 that end, even though in so doing it is exhaust- 
 ed, and the corporation consequently disable4 
 from continuing its business. — Supreme Cl., {Sp;. 
 T.,) Jvly, 1878. Sheldon Hat Blocking Co. i;*. 
 Eickmeyer Hat Blocking Co., 56 How. Pr. 70. 
 
 60. In 1828, the trustee of an incorporated 
 female seminary was a competent witness to a, 
 mortgage, executed by its president, in the ab- 
 sence of evidence that he was a stockholder oi; 
 had any pecuniary interest in the institution. — , 
 Supreme Ot., (ith Dept.,) Oct., 1879. Canandar- 
 qua Academy v. McKechnie, 19 Hun 62. 
 
 61. Where a director of a corporation sol(^ 
 out his stock and ceased thereafter to take any, 
 part in the management of its affairs, or in th^ 
 meetings of its directors — Seld, that he was nol; 
 bound to see that a successor was elected in hi% 
 place or to tender a formal resignation ; ant^ 
 that he was not responsible for the acts of thos^ 
 in its management at the time of its dissolution,, 
 some five years after he thus severed his con-t 
 nection, although no successors to the directors 
 
 then in office were ever elected — Ot. of App., 
 
 -- - ' - TS % 
 
 384, 391. 
 
 April, 1878. Sturges v. Vanderbilt, 73 
 
 62. In an action to recover damages for the 
 alleged fraudulent issuing by defendant of a cer- 
 tificate for fifty shares of plaintiff's stock, he 
 filling up a blank certificate which had been in- 
 trusted to him as plaintiff's treasurer, defendant: 
 testified that the stock was given to him by 
 bondholders of the company, who were entitled 
 
CORPORATIONS, VI., VII. 
 
 97 
 
 thereto. Defendant was also a director of the 
 plaintiff. 
 
 Held, 1. That the jury were not bound by de- 
 fendant's testimony, although undisputed, he 
 being an interested witness, and it not appearing 
 that he disclosed the gift to plaintiff's directors, 
 or claimed that he was equitably entitled to the 
 stock when disputes arose concerning the trans- 
 action. 
 
 2. That even if the creditors of the plaintiff 
 were willing to waive their right, if any, to the 
 stock, he, while acting for plaintiff, must be 
 held to have received the waiver as agent for it 
 and not for his own benefit. — Ct. of App., Nov., 
 1878. Brooklyn Cross-town E. K. Co. v. Strong, 
 75 N. Y. 591. 
 
 63. Defendant was notified soon after the 
 transaction that plaintiff would not acquiesce in 
 the transfer ; he was a large, if not a controlling 
 stockholder, as well as director ; while he re- 
 mained such no action was taken against him, 
 and an adverse report of an investigating com- 
 mittee of the directors was not acted upon ; 
 meanwhile the stock passed into the hands of a 
 bona fide purchaser. Hdd, that the delay to 
 prosecute was not, under the circumstances, a 
 waiver of the right of action, and that plaintiff 
 was not estopped from recovering damages for 
 the fraud. Ibr 
 
 63 a. Where the trustees of a moneyed cor- 
 poration which was at the time substantially 
 insolvent, authorized the purchase of lots worth 
 $74,500, obligating themselves to erect a build- 
 ing on one of such lots at a further expense of 
 $25,000 — Hdd, not a case of mere error or 
 mistake of judgment on the part of the trustees, 
 but one of improvidence, of reckless, unreason- 
 able extravagance, in which the trustees failed 
 in that measure of reasonable prudence, care 
 and skill which the law requires, and that they 
 were personally liable for loss thereby occa- 
 sioned. — Supreme Ct., {1st Dept.,) Jan., 1880. 
 Hun V. Cary, 59 How. Pr. 426 ; affirmed Id. 439. 
 
 64. The president. A purchase by the 
 president of a corporation, of goods required in 
 its business, will not bind the corporation where 
 there is a resolution upon the corporate books 
 forbidding him to make such purchase. — Com. 
 Pleas, Nov., 1877. Westervelt v. Kadde, 55 
 How. Pr. 369. 
 
 VII. DissoLUTiONj Eeceivee, &C. 
 
 65. Grounds of forfeiture, or disso- 
 lution. The legislature, in chartering a cor- 
 poration, has the power to provide that it may 
 lose its corporate existence, without the inter- 
 vention of the courts, by any omission of duty 
 or violation of its charter, or default as to limi- 
 tations imposed. Where the language used 
 shows the legislative intent was to make the 
 continued existence of the corporation depend 
 upon its compliance with some requirement of 
 the charter, in case of non-compliance the 
 powers, rights and franchises granted are for- 
 feited and terminate ; it is not simply a cause of 
 forfeiture to be enforced in an action by the 
 attorney-general. — Ct. of App., Nov., 1879. 
 Brooklyn Steam Transit Co. v. City of Brooklyn, 
 78 N. Y. 524. 
 
 As to the effect of such a requirement it is 
 immaterial whether it is ^contained in, and the 
 corporation is organized under, a general law or 
 special charter. lb. 
 
 66. Proceedings to obtain dissolu- 
 tion. A cause of forfeiture cannot be taken 
 advantage of or enforced against a corporation, 
 coUateridly, or in any other mode than by a di- 
 rect proceeding against the corporation for that 
 purpose. — Ct. of App., Sept., 1877. Matter of 
 New York Elevated E. B. Co., 70 N. Y. 327 f 
 S. C, 3 Abb. N. Cas. 401. 
 
 6*7. The government creating the corporatioD 
 can alone institute the proceedings, and it can 
 waive a forfeiture I this it can do expressly,, or 
 by legislative acts recognizing the continued 
 existence of the corporation. lb. 
 
 68. Parties. Since Laws of 1870, ch. 151, 
 ? 2, an action to dissolve a corporation for fail- 
 ure to pay its notes or other evidences of debt, 
 or for suspending its ordinary and lawful busi- 
 ness for the period of one year, must be brought 
 by the attorney - general. — Supreme Ct., {2d 
 Dept.,) July, 1879. Wilmersdoerffer v. Lake 
 Mahopac Imp. Co., 18 Hun 387. 
 
 69. Where an action is brought by the attor- 
 ney-general to vacate the charter of a railroad 
 corporation, which has leased a portion of its 
 road to another company, the lessee has such an 
 interest in the subject of the action and in the 
 real estate to be affected by the judgment as to 
 entitle it, under Code of Civ. Pro., ^ 452, upon 
 application for that purpose, to be made a party 
 defendant. This is especially so when the in- 
 terests of the lessor are protected by stipulations 
 rendering the judgment innocuous as to it, 
 though fatal to the rights of the lessee, and 
 where there is reason to suppose that the lessor 
 is not unfriendly to such a judgment. — CJ. of 
 App., March, 1879. People v. Albany and Ver- 
 mont E. E. Co., 77 N. Y. 232 ; reversing 15 Hun 
 126. 
 
 70. Appointment of receiver. A pro- 
 ceeding for the appointment of a receiver of a 
 corporation, under the provisions of the Eevised 
 Statutes relating to " proceedings against corpo- 
 rations in equity" (2 Eev. Stat. 463, J 36,) is a 
 proceeding against the corporation ; and, if the 
 appointment of a receiver therein is binding 
 upon the corporation, no one else can question 
 it.— a of App., Oct., 1878. Whittlesey v. 
 Frantz, 74 N. Y. 456. 
 
 "71. The jurisdiction of the court to entertain 
 the proceeding does not depend upon the truth 
 of the facts alleged in the petition ; if it allege 
 sufficient facts, and the court is called upon to 
 decide whether they are established, its deter- 
 mination whether rightful or not does not affect 
 its jurisdiction. lb, 
 
 "72. His right to sue. An action to set 
 aside and vacate a judgment against a corpora- 
 tion, on the ground that it was obtained without 
 consideration, by collusion with the officers of 
 the corporation, and in fraud of creditors, may 
 properly be brought in the name of and by a 
 receiver of the corporation. — Ct. of App., May, 
 1878. Whittlesey v. Delaney, 73 N. Y. 571, 
 574. 
 
 "73. The capacity of a receiver of a corpora- 
 tion to sue, is sufficiently proved by the produc- 
 tion of the petition, the order appointing him 
 receiver, and his official bond. The jurisdic- 
 tional facts authorizing the Supreme Court to 
 appoint, after the return of an unsatisfied execu- 
 tion, need not be proved. Such power, though 
 conferred by statute, is deemed to be within the 
 general jurisdiction of the court. — Com. Pleas, 
 Dec., 1877. Palmer v. Clark, 4 Abb. N. Cas. 26. 
 
98 
 
 CORPORATIONS, VIII.— COSTS, I. 
 
 74. Staying suits against receiver. 
 Where an action by a creditor against the re- 
 ceiver of a corporation which is being wound 
 up, will necessarily hamper the court and the 
 receiver iu the performance of their duties, and 
 increase the expense of the proceeding, the 
 Supreme Court has power to enjoin tlie further 
 prosecution of such action, and to withdraw the 
 leave to sue the receiver. — Supreme Ot., {3d Dept., 
 /Sp. T.,) Oct., 1878. Attorney-General v. North 
 America Life Ins. Co., 56 How. Pr. 160 ; S. C, 
 6 Abb. N. Cas. 293. 
 
 "75. The stay may be granted on motion in 
 the proceedings ; it is not necessary for the re- 
 ceiver to bring an action for that purpose. — Ct. 
 
 of App., May~1879. Attorney-General v. Guar- 
 dian Mat. Life Ins. Co., 77 N. Y. 272, 277. 
 
 Vin. FOBEIGN COBPOBATIONS. 
 
 78. "What are not foreign. A corpora- 
 tion formed under a law of this state by consoli- 
 dation of foreign and domestic railroad corpo- 
 rations, is a domestic corporation. — Ct. of App., 
 June, 1877. Matter of Sage, 70 N. Y. 220. 
 
 77. Liability for acts of agents. The 
 F. S. M. Co., a foreign corporation, had a gen- 
 eral office in New York in charge of B. as 
 agent. He had charge of collections in this 
 state, and employed an attorney to collect a 
 promissory note in his possession, belonging to 
 the company. The attorney obtained judgment 
 and instituted supplementary proceedings there- 
 on, in which plaintiff was appointed receiver. 
 This action was brought by and at the instance 
 of said attorney to set aside as fraudulent a con- 
 veyance by the judgment dAtor to defendants. 
 B. did not authorize and was not informed of 
 tlie commencement of the action; he was, how- 
 ever, advised tliereof before trial, and recognized 
 the action of the attorney as being for the com- 
 pany. Defendants succeeded in their defence, 
 and moved that the company bg compelled to 
 pay the costs. Held, that the facts justified the 
 inference that the company, through B., with a 
 knowledge of all the attorney had done, ratified 
 his acts, and it was bound by them, although 
 the attorney had no authority originally to com- 
 mence the action; and that the company was 
 properly charged with the costs. — Ct. of App., 
 March, 1877. Ward v. Eoy, 69 N. Y. 96. 
 
 78. Suits against them. If, in an action 
 against a foreign corporation whose property is 
 attached under the provisions of the code, the 
 defendant corporation does not appear, an order 
 may be made requiring a third party indebted 
 to or having property of such corporation, and 
 attached in such action, to pay the same to the 
 plaintiff on account of the judgment obtained 
 by default against the corporation. — Supreme Ct., 
 (Sp. T.,) Jan., 1879. Chandler v. City of Fon 
 Du Lao, 56 How. Pr. 449. 
 
 70. Service of process on. Plaintiff 
 made a contract with defendant, a foreign corpo- 
 ration, to enter its service for a term of years, 
 his business being to procure emigrants to pur- 
 chase and settle on defendant's lands in Nebraska. 
 Plaintiff was bound to maintain, during the 
 whole time, an office in the city of New York, 
 and was to go to Europe for two or three months 
 to arrange for emigration. Plaintiff entered 
 upon the employment and kept open an office in 
 said dty until the contract was terminated by 
 
 defendant. In an action for services under the 
 contract and for damages for the breach thereof 
 — Held, that it was to be assumed that the par- 
 ties understood that plaintiff's principal duties 
 under the contract would be discharged in New 
 York city ; that the cause of action arose within 
 this state, and therefore a service of the sum- 
 mons upon one of defendant's directors, while he 
 was temporarily in this state on his own busi- 
 ness, was a good service, and a sufficient com- 
 mencement of the action, although defendant 
 had no property in this state. Also — Held, that 
 the legislature had authority to provide for and 
 authorize such a service. — CS. of App., June, 1877. 
 Hiller v. Burlington, &c., B. E. Co., 70 N. Y. 
 223. 
 
 For decisions relating to Particular corpora- 
 tions and Classes of cot^oorations, see Banes and 
 Banking; Canals; Express Companies; 
 Insukance, VI.; Joint Stock Companies; 
 Manttpacttobing Companies ; - Municipai, 
 CoRPOEATioNS ; New Yobk City; Plank 
 EoAD Companies; Eallboad Companies; 
 Ebi/Igious Societies ; Societies and Associ- 
 ations; Telegbaph Companies; Tdbnpike 
 Companies. 
 
 CORROBORATION, 
 
 Of Witnesses, generally, see Witnesses, 73- 
 80. Of Accomplices, see Witniissbs, 80. 
 
 COSTS. 
 
 I. In Obiginal Civil Suits. 
 II. On Appeal ob Ebbor. 
 
 III. Secubity pob Costs. 
 
 IV. Allowance in Addition to Costs. 
 V. Taxation and Collection. 
 
 I. In Obiginal Civil Stjits 
 
 1. Discretionary po-wers of the court. 
 
 Courts have no right to be liberal to suitors in 
 the matter of costs, at the expense of estates of 
 decedents, or of trust funds. — Ct. of App., June, 
 1877. McLean ». Freeman, 70 N. Y. 81, 89. 
 
 2. Costs are discretionary in actions to obtain 
 construction of wills. — Supreme Ct., {Sp. T.,) Jiily, 
 
 1877. Leonard v. Davenport, 58 How. Pr. 384. 
 
 3. Costs in suits in forma pauperis. 
 A party applying for leave to prosecute in forma 
 pauperis is not exempt from the payment of costs 
 which accrued prior to his application. — Supreme 
 a., {Sp. T.,) Oct., 1877. Lyons v. Murat, 4 Abb. 
 N. Cas. 18. 
 
 4. Leave to prosecute in forma pauperis is 
 discretionary, and will be denied where the 
 cause of action is a tort committed in another 
 state, in which both parties reside, and where 
 the presentation of the petition has been unrea- 
 sonably delayed. — Com. Pleas, {Sp. T.,) Aug., 
 
 1878. Alexander v. Meyers, 8 Daly 112. And 
 see Christian v. Gouge, 58 How. Pr. 445. 
 
 5. Plaintiff's costs on recovery of 
 less than $50. Plaintiff's right to costs is 
 not taken away because he recovers less than 
 $50, provided the action is one the subject mat- 
 ter of which is not within the jurisdiction of a 
 
COSTS, I. 
 
 99 
 
 justice of the peace. — OUy Cl. of JBklyn, May, 
 1879. Whitney v. Daggett, 6 Abb. N. Cas. 434. 
 
 6. Where, in an action for malicious prosecu- 
 tion, plaintiff recovers a verdict for six cents 
 damages, he is only entitled to six cents costs, 
 and no disbursements. — N. Y. Marine Ct., May, 
 1878. Mai-suUo v. Billatto, 55 How. Pr. 375. 
 
 7. — ■where question of title to land 
 arises. When plaintiff recovering less than 
 ^50 is yet entitled to costs on the ground that 
 the title to land is involved, see Kelly v. New 
 York, &c., Ry. Ck)., 19 Hun 363. 
 
 8. The complaint alleged that the defendant 
 broke and entered the plaintiff's close, lore away 
 and destroyed his watering-trough, diverted 
 therefrom a stream of water, and turned it upon 
 ■plaintiff's meadow land. . The answer alleged 
 thai there was a public highway running through 
 (plaintiff's premises ; that defendant, as overseer 
 of highways, and under the direction of the com- 
 missioner, entered and repaired the highway and 
 ■watering- trough, and denied that he diverted the 
 stream from its natural channel. The referee 
 found that the watering-trough was on the side 
 •of a highway, and that defendant was overseer, 
 but that defendant wrongMly diverted the 
 stream from its natural channel, and gave 
 Judgment for plaintiff for $1. Held, that a 
 
 claim of title to real property did not come in 
 question, and that defendant was entitled to 
 •costB.— SiMB-eme Ct., {ith Dept.,) Oct., 1878. 
 Learn v. Currier, 15 Hun 184. 
 
 9. Costs ■where there are several de- 
 I'endants ■who appear separately. 
 Where, in an equity action, there are two de- 
 fendants, not joined in interest, who appear by 
 separate attorneys, put in separate answers, and 
 both succeed, it is in the discretion of the court 
 to allow costs to each defendant. — Gt.ofApp., 
 April, 1879. Hauselt v. Vilmar, 76 N. Y. 630. 
 
 10. Where an action is brought against two 
 •defendants to set aside a sale made by one to the 
 other, on the ground of inadequacy of considera- 
 tion and fraud, and the defendants appear by 
 separate attorneys and are successful, they are 
 ■«ach entitled to tax a smarate bill of costs. — Sur 
 
 preme Ct., (ith Dept,) Jan., 1880. Milligan v. 
 Eobinson, 58 How. Pr. 380. 
 
 11. Costs after offer to allo^w judg- 
 ment. Under Code of Pro., i 385, (Code of 
 ■CSv. Pro., § 738,) relating to costs after offer to 
 rallow judgment, the amount of the judgment, not 
 ■of the verdict, determines plaintiff's right to costs 
 in case he refuses the offer. — Sup'eme Ct., {1st 
 Dept.,) Dec., 1878. Wallace v. American Linen 
 Thread Co., 16 Hun 404. 
 
 12. An offer of judgment signed by defend- 
 ant's attorney, to which no affidavit showing his 
 authority to make it is annexed, as required by 
 ■Code of Civ. Pro., § 740, is invalid; and a notice 
 served upon said attorney by plaintiff's attorney, 
 ■declining the offer, without pointing out such 
 defect, is not a waiver thereof. — G. of App., 
 Nov., 1879. Eiggs v. Waydell, 78 N. Y. 586 ; 
 McFarren v. St. John, 14 Hun 387. 
 
 13. Costs for trial of issue— ■when 
 taxable. When plaintiff is permitted to 
 withdraw a juryman at the trial without costs, 
 ■defendant may tax a trial fee on entering final 
 
 judgment. — Com. Pleas, April, 1879. Mott v. 
 Consumers' Ice Co., 8 Daly 244. 
 
 14. The trial was begun on the 14th, was con- 
 tinued on the 15th, when the plaintiff rested ; 
 -and the complaint was dismissed on the 16th. 
 
 Held, that a fee of $10 for a trial occupying 
 more than two days was properly taxed. lb. 
 
 15. Where an order is made at Special Term 
 sustaining or overruling a demurrer to the 
 whole or a part of a pleading, the successful 
 party is entitled to the full costs of the trial of 
 an issue of law^ and if relief is given to the 
 unsuccessful party, it must be upon the payment 
 of those costs; to grant it upon payment of 
 $10 costs only, is improper. — Supreme Ct., (3d 
 Dept.,) Jan., 1878. Van Gelder v. Van Gelder, 
 13 Hun 118. 
 
 16. After a verdict had been rendered for the 
 jdaintiff, and before entry of judgment it was 
 discovered that the judge who tried the case was 
 disqualified by reason of interest. The action 
 was re- tried before another judge, and plaintiff 
 recovered a second verdict. Held, that he was 
 entitled to costs for two trials. — Svpreme Ct., (2d 
 Dept.,) Dec, 1879. Cregin v. Brooklyn Cross- 
 town E. E. Co., 19 Hun 349. 
 
 17. — ■when not taxable. On the grant- 
 ing or refusal of a new trial moved for on the 
 judge's minutes, without makingva case, only 
 motion costs are allowable under Code of CSv. 
 Pro., ? 999. A trial fee for the trial of an issue 
 of fact is not taxable in such case. — Sapreme Ct., 
 {1st Dept.,) Nov., 1878. Naugatuck Cutlery Co. 
 V. Rowe, 5 Abb. N. Cas. 142. 
 
 18. Costs of motions. Costs should not 
 be allowed on the granting of an ex parte order 
 directing defendant to file his answer. — Svjyreme 
 Ct., {1st Dept.,) July, 1880. Eddleson v. Duryee, 
 59 How. Pr. 326. 
 
 19. Where a motion has been properly 
 noticed by plaintiff's attorney, but prior to its 
 hearing plaintiff's costs are taxed, judgment 
 entered and paid, and a satisfaction piece given, 
 by reason whereof the motion cannot be main- 
 tained, and it does not appear that plaintiff 
 after the payment of the judgment, directed the 
 attorney to proceed with the motion, the non- 
 withdrawal of the motion, by the attorney, upon 
 the payment and satisfaction of the judgment, 
 is cause for imposing on him, personally, in the 
 discretion of the court, the costs of opposing the 
 motion. — Superior Ct., Dec., 1879. Jordan v. 
 Shoe and Leather Bank, 45 Superior 423. 
 
 20. Costs on discontinuance. When 
 an action is discontinued before entry of judg- 
 ment therein, only $30 costs can be imposed 
 under Code of Pro., ? 308. The full amount 
 of $60 allowed by that section is only imposed - 
 where a judgment has been rendered. — Su- 
 preme Ct., {1st Dept.,) Oct., 1878. Bryon v. 
 Durrie, 6 Abb. N. Cas. 135. 
 
 21. Where a defendant, pending the action, 
 has obtained a discharge from his debts in insolv- 
 ency, or in bankruptcy, this court, in the exer- 
 cise of its discretionary power, will permit the 
 plaintiff to discontinue without costs ; but where' 
 the plaintiff, knowing of the defendant's dis- 
 charge, nevertheless goes on with the action, he 
 will be required to pay costs on a discontinuance. 
 — Superiof Cl., Dec., 1879. Ludington v. Bell, 45 
 Superior 513. 
 
 22. The plaintiff, in such case, must come to 
 the court, upon all the facts disclosed, and it 
 must appear equitable and just that he should 
 be relieved, If it conclusively appears that he 
 never had a cause of action, the case does not 
 fall within the general rule, unless the plaintiff 
 also shows that he was misled, by appearances cre- 
 ated by defendant, into bringing the action. lb. 
 
100 
 
 COSTS, II., III., IV. 
 
 II. On Appbai OB Error. 
 
 23. On affirmance. Where both parties 
 appeal from » judgment, and the judgment is 
 afiSrmed, the respondents in each append are en- 
 titled to costs as a matter of right. Proper 
 entry in the judgment in such case, pointed 
 out.— Supreme Ct., (3d Dept.,) Sept., 1879. 
 Board of Supervisors of Tompkins County v. 
 Bristol, 58 How. Pr. 3. 
 
 24. On reversal — ^when limited to 
 costs of appeal. Where an order of the Gen- 
 eral Term affirming an order of Special Term 
 punishing an attorney for contempt, is reversed 
 in the Court of Appeals, and the motion denied 
 by that court '' with costs," on ihe ground that 
 there was no contempt in law, the appellant 
 will only be allowed his costs in the Court of 
 Appeals.— a>m. Pleas, (Sp. T.,) May, 1878. 
 People, ex rel. Morris, v. Randall, 8 Daly 81. 
 
 25. Upon an appeal from a General Term 
 judgment affirming a surrogate's decree, the 
 Court of Appeals affirmed the principle upon 
 which the decree was based, but reversed the 
 judgment on the ground of a defect in the 
 proof; the order of reversal directed that the 
 proceedings be remitted for a re-heariog by the 
 surrogate, " costs in this court to be paid out of 
 the estate." HeM, that, in view of the circum- 
 stances, the true construction of the direction as 
 to costs was, that all the parties were entitled to 
 costs in this court ; not the appellant only.— Oi!. 
 of App., Sept., 1877. Lawrence v. Lindsey, 70 
 N. Y. 566. 
 
 26. — -when not so limited. Where a 
 judgment has been reversed in the Court of 
 Appeals, and a new trial ordered, the party suc- 
 ceeding upon the first trial, and again succeed- 
 ing upon the new trial (or his opponent failing 
 to recover in the second trial enough to cany 
 costs,) may include in his bill of costs as taxable 
 items, the amount adjudged to him for costs by 
 the judgment reversed, and the costs and dis- 
 bursements awarded by the General Term, as 
 well as the costs, &c., of the appeal to the Court 
 of Appeals, and of the second trial. — Superior 
 Ct., Feb., 1878. Isaacs v. New York Plaster 
 Works, 43 Superior 397 ; S. C, 4 Abb. N..Cas. 4. 
 
 27. That when an appellate court grants 
 a new trial with costs to abide the event, it is 
 the costs of the appeal, and not the costs of the 
 action, that are allowed, see lb. 
 
 28. When a new trial is granted with costs 
 to abide the event, the successful party on the 
 new trial may tax the costs of the appeal and 
 of the first trial. — Com. Pleas, April, 1879. 
 Mott V. Consumers' Ice Co., 8 Daly 244. 
 
 20. — -when denied altogether. Where 
 the appellant and his attorney manifest bad 
 faith throughout the proceedings, costs will be 
 denied them on reversal ; and where the reversal 
 is conditioned upon appellant giving a stipulation 
 not to sue, and he refuses to so stipulate, the 
 judgment will be affirmed with costs. — Com. 
 Pleas, Nov., 1879. Fischer v. Baab, 58 How. 
 Pr. 221. 
 
 30. Extra costs on reversal. Where, 
 upon appeal, the Common Pleas reverse a judg- 
 ment rendered against a defendant by a District 
 Court for an amount of damages exceeding 
 t'50, such defendant is entitled to ¥10 extra 
 costs as part of the costs of the District Court. 
 ' — Com. Pleas, March, 1880. Boyd v. Disbrow, 
 58 How. Pr. 399. 
 
 31. "WTien costs on appeal are dis- 
 cretionary. A decree of a surrogate's court 
 is in the nature of a decree in equity, and co8t» 
 on an appeal therefrom are discretionary. — Ct. 
 of App., Sept., 1877. Lawrence v. Lindsey, 70 
 N. Y. 566. 
 
 32. "When neither party should have-- 
 costs. Where the point involved is one of 
 practice, and is a new question presented for the 
 first time, costs will not be awarded to either 
 party on appeal from an order. — Superior Ct., 
 Dec., 1879. Hesse v. Briggs, 45 Superior 417> 
 
 III. Security for Costs. 
 
 33. In -what cases sectirity may be 
 required. Where the defendants appealed 
 from a judgment obtained by a national bank, 
 and the Court of Appeals ordered a new trial 
 with costs to abide the event, and prior to such 
 new trial plaintifi' ceased to exist as a national 
 bank, and was re-organized as a state bank, 
 omitting the word "National" from its corpor- 
 ate name, and afterwards ceased to do business, 
 and took proceedings to wind up its affiiirs — 
 Hdd, that it must give security for costs, or all 
 further proceedings on its behalf should be 
 Bta.jed.— Supreme Ct., [Zd Dept.,) 1877. Nat. 
 Exchange Bank of Lansingburgh v. Silliman, 4 
 Abb. N. Cas. 224. 
 
 34. When it cannot be. A non-resi- 
 dent who begins suit in a justice's court or muni- 
 cipal court, need not fiimish security for costs, 
 although such security could be compelled if 
 suit was commenced in a court of record. — 
 Monroe Cmmty Ct., March, 1880. Mell«n v. 
 Hutchins, 58 How. Pr. 349. 
 
 34 a. A non-resident landlord, owning prop- 
 erty in the city of New York, cannot be re- 
 quired to file security for costs, in summary 
 proceedings to dispossess a tenant of such prop- 
 erty.— Jlfarirae Ct., {Sp. T.,) Sept., 1880. Hasler 
 V. Johnston, 59 How. Pr. 432. 
 
 35. Where an assignee in bankrupted is-- 
 plaintiff, his non-residence is not ground for re- 
 quiring him to file security for costs. He is not 
 a trustee within the meaning of the statute. — 
 Com. Pleas, Jan., 1879. Hall v. Waterbury, 5- 
 Abb. N. Cas. 356. Supreme Ct., (Sp. T.,) Sept.,. 
 1878. Wilbur v. White, 56 How. Pr. 321. 
 
 But see to the contrary, April, 1879. More d> 
 Durr, 45 Superior 154. 
 
 36. Compelling filing of ne-w bond. 
 Laws of 1875, ch. 305, in respect to security for 
 costs should be liberally construed and a non- 
 resident plaintiff may, at any stage of the 
 action, be required to file a new bond where the- 
 penalty of the first one is too small to cover the 
 costs and disbursements already accrued, and 
 those which will probably be incurred. — iSi»- 
 preme Ct., {1st Dept.,) Jan., 1878. Fogg v^ 
 Edwards, 57 How. Pr. 290 
 
 IV. Allowance in Addition to Costs. 
 
 3*7. Po-wer of the court to grant ex- 
 tra allowance. A court of record has in- 
 herent power, irrespective of statutory pro- 
 visions, to modify, or vacate and set aside its 
 own orders, judgments, and proceedings, in its 
 discretion. And this power may be exercised' 
 in behalf of the party by whom and in whose 
 favor the order or judgment was entered, or the- 
 proceeding had. So held where, on motion of 
 
COSTS, IV. 
 
 101 
 
 the party who inadvertently taxed his costs, the 
 «ourt set aside the taxation so as to remove an 
 •objection theretofore made under general rule 
 •56 to a motion made by him for an extra allow- 
 ance. — Su/perior Ct., Nov., 1877. Dietz v. Far- 
 ash, 43 Superior 87. 
 
 38. Under Code of Pro., ? 309, the Successful 
 party can recover only one extra allowance, 
 although the case may have been several times 
 tried.^Supreme Ol., (MDept.,) May, 1879. Flynn 
 v. Equitable Life Assurance Co., 18 Hun 212. 
 
 39. — of surrogates' courts. The pro- 
 vision of Laws of 1870, ch. 359, ? 9, giving to 
 the surrogate of the county of New York author- 
 ity to grant " allowances in lieu of costs," in pro- 
 ■ceedings before him, " in the same manner as 
 are now prescribed by the code of procedure," 
 simply authorizes allowances in cases in which, 
 under 2 Kev. Stat. 223, ? 10, the surrogate has 
 power to award costs. — Ct. of App., Sept., 1877. 
 Noyes v. Children's Aid Soc, 70 N. Y. 481 ; S. 
 ■C., 3 Abb. N. Cas. 36 ; affirming 10 Hun 289. 
 
 40. In giving allowances under said act, the 
 surrogate is confined to the "manner" laid 
 down in §5 308 and 309 of the code — i. e., he 
 cannot exceed the maximum limit of the 
 amount which may be allowed, fixed. by said 
 flections, and must follow the process by which 
 that amount may be arrived at, which is pre- 
 scribed therein. lb. S. P., Hurd v. Warren, 
 16 Hun 622. 
 
 41. The Eevised Statutes (2 Eev. Stat. 223, § 
 10,) confer upon the surrogate a discretionary 
 power to award costs to any party who, in his 
 judgment, is entitled thereto. He is not con- 
 fined to an award to the party who obtains a 
 •decree in his favor upon the question contested ; 
 nor is he prohibited from awarding costs to more 
 than one of the parties. 1 b. ; disapproving opin- 
 ion below on this point. 
 
 42. In -w^tiat cases allovred. An extra 
 allowance may be granted on the dismissal of 
 the complaint for non-appearance of plaintiff 
 when the cause is called for trial. The fact of 
 a trial having taken place is not a necessary 
 element in granting it. — Superior Ct.. March, 
 1879. Mills V. Watson, 45 Superior 591. 
 
 43. Where an action upon the mortgagor's 
 bond, and to foreclose the mortgage, is difficult 
 and extraordinary, and a defende has been in- 
 terposed or a trial had, an allowance may be 
 made under Code of Pro., ? 309, as amended by 
 Laws of 1876, ch. 431, to any party, not exceeding 
 £ve per cent, or $2000. — Supreme Ct., (3d Dept.^ 
 Jan., 1879. Bockes v. Hathom, 17 Hun 87. 
 
 44. Where an appellant obtains a new trial 
 on appeal, " with costs to abide the event," and 
 Ss again unsuccessful on the new trial, the other 
 party may tax costs of both trials, and an extra 
 allowance on the second trial, if the first one 
 was of a difficult and extraordinary character. — 
 Ot. of Am)., June, 1877. Howell v. Van Siclen, 
 4 Abb. S. Cas. 1 ; affirming 8 Hun 524. 
 
 45. In an action to have three thousand five 
 Jiundred and seventy-four railway bonds, in the 
 hands of defendant, declared void, and to have 
 them delivered up and canceled, defendant 
 claimed that the bonds were valid, but offered to 
 surrender two thousand nine hundred and seven- 
 four of them upon receiving $50 each, which he 
 «laimed he had paid for them, and interest from 
 the time of such purchase. The court decided that 
 plaintiff was entitled to the relief demanded in 
 the complaint, and granted him an extra allow- 
 
 ance of $2000. Held, that the order granting the 
 allowance should be affirmed. — Supreme Ct., {1st 
 Dept.,) April, 1878. Sickles v. Eichardson, 14 
 Hun 110. 
 
 46. ■When refused. The bare fact that 
 an action is brought for an accounting between 
 partners, and a division of the partnership as- 
 sets, is no ground for the granting of an extra 
 allowance. In such case the element that the 
 action is difficult and extraordinary, must exist 
 to authorize an allowance. — Superior Ct., Nov., 
 1878. Hinman v. Eyder, 44 Superior 330. 
 
 47- Where, if the action is difficult and ex- 
 traordinary at all, it is so by reason of issues 
 joined on charges of misconduct and bad faith, 
 made by plaintiff against defendant, and those 
 charges are subsequently abandoned, an extra 
 allowance cannot be granted to the plaintiff. , lb. 
 
 48. After a foreclosure suit was at issue and 
 noticed for trial, defendant tendered the amount 
 due on the mortgage, with interest and costs, in 
 accordance with a statement which had been 
 rendered by plaintiff's attorney, and the tender 
 was accepted^ Held, too late thereafter to apply 
 for an extra allowance ; but if the tender had 
 been conditionally received it might be other- 
 wise.— /Sapr-cme Ct., {Sp. T.,) Dee., 1879. Lock- 
 man V. Ellis, 58 How. Pr, 100. 
 
 49. What is a "trial" -within the 
 statute. On the first trial the complaint was 
 dismissed, and exceptions ordered to be heard 
 in the first instance at General Term. The 
 General Term ordered a new trial, " with costs 
 to abide the event." On the second trial a ver- 
 dict was rendered for defendant. On the first 
 trial an extra allowance of $1000 was granted, 
 and on the second trial an extra allowance of 
 $750 was granted. Held, that defendant was 
 entitled to the allowance granted upon the 
 second trial only. — Supreme Ct., (1st Dept.,) 
 May, 1S79. Union Trust Co. ■;;. Whiton, 17 
 Hun 593. 
 
 50. What is a "difficult and extra- 
 ordinary case." — In an action to recover 
 $15,000 damages claimed to have arisen from a 
 malicious interference by defendant, with the 
 enjoyment and occupation of valuable premises 
 held under a long lease, it was charged in the 
 complaint that the defendant so disturbed the 
 tenants and undertenants of the plaintiff that 
 they were obliged to abandon the premises, and 
 that the plaintiff lost his tenants and rents, and 
 the premises became greatly injured for want of 
 occupation, and the unexpired term became 
 valueless. The complaint was dismissed at the 
 Circuit. Held, that the action was a difficult 
 and extraordinary one within Code of Pro., 
 J 309, and that an additional allowance of $250 
 was proper. — Supreme Ct., (Isl Dept.,) Jan., 
 1880. Morrison v. Agate, 20 Hun 23. 
 
 51. Ho^w the allowance should be 
 computed. In an action to restrain the in- 
 terference with an easement, the value of the 
 easement is the proper basis for an extra allow- 
 ance. — Ct. of App., Jan., 1878. Lattimer v. 
 Livermore, 72 N. Y. 174. 
 
 52. In ascertaining whether an additional 
 allowance granted by the surrogate of New 
 York exceeds the limit of $2000 fixed by Code 
 of Pro., § 309, an amount awarded to the court 
 stenographer, should not be considered ; it is a 
 disbursement, and not in the nature of costs. — 
 Supreme Ct., {1st Dept.,) Oct.', 1878. Down v. 
 McGourkey, 15 Hun 444 j affirmed 78 N. Y. 614. 
 
102 
 
 COSTS V. 
 
 53. Where several attorneys represent the 
 interest of one infant in a proceeding before the 
 surrogate, only one allowance should be granted, 
 and the amount properly apportioned among 
 them.— JV. Y. Sarr. a., May, 1878. Matter of 
 Lockman, 4 Abb. N. Cas. 173. 
 
 V. Taxation and Collection. 
 
 54. Adjustment by clerk — argu- 
 ment fees. Upon appeal to the General 
 Term from a Special Term order sustaining or 
 overruling a demurrer to the whole or a part of 
 a pleading, the successful party is entitled to 
 tax, as costs, $20 before, and $40 for argument. 
 —Supreme Ct., {3d Dept.,) Jan., 1878 ; Van Gel- 
 der V. Van Gelder, 13 Hun 118. (2d Dept.,) 
 JiHy, 1879. _ Wright v. Flemming, 18 Hun, 360. 
 
 55. Plaintiff recovered a verdict, and de- 
 fendant moved for a new trial, on a case, at 
 Special Term. _ The justice heard the motion 
 but did not decide it, and ordered a re-argument 
 before another justice, by whom the motion was 
 denied. Plaintiff was allowed to tax two argu- 
 ment fees. Hdd, no error, inasmuch as the 
 necessity of a re-argument was not caused by any 
 act or omission of plaintiff. — Supreme Ct., {4.th 
 Sept.,) Jan., 1879. Guckeuheimer v. Aneeviue 
 16 Hun 453. 
 
 56. Printing fees. What printing fees 
 are taxable as a disbursement in the Court of 
 Appeals, where the cases are printed for that 
 court and the General Term at the same time, 
 Bee Potter v. Carpenter, 56 How. Pr. 89. 
 
 5*7. Stenographer's fees. Fees paid to 
 a stenographer cannot be taxed. — Supreme Ct., 
 CM Dept.,) Feb., 1878. Provost v. Farrell, 13 
 Hun 303; (1st Dept.,) April, 1878. Colton v. 
 Simmons, 14 Hun 75. 
 
 58. Disbursements. As to the right to 
 tax disbursements under a stipulation, and the 
 form and sufficiency of the stipulation to- give 
 the right to tax referee's fees paid by the pre- 
 vailing party, see Bust v. Hauselt, 8 Abb. N. 
 Cas. 148 ; S. C, 59 How. Pr. 389. 
 
 59. Setting aside adjustment; re- 
 adjustment. Where defendant's costs have 
 been adjusted and inserted in the judgment 
 without notice to plaintiff, on motion by the 
 latter, tc^set aside the adjustment and for a re- 
 adjustment, the plaintiff may require a provi- 
 sion to be inserted in the order for the amend- 
 ment of the judgment and docket. But if he 
 neglects to include this provision in the relief 
 sought, a subsequent motion for such purpose 
 will be denied. — Supreme Ct., {Monroe Sp. T.,) 
 Augmt, 1878. McLean v. Hoyt, 56 How. Pr. 351. 
 
 60. Collection — liability of assignee. 
 Code of Pro., § 321, rendering one taking an 
 assignment of a cause of action, after suit brought 
 thereon, liable for costs, was not repealed by 
 Code of Civ. Pro., § 15.— Supreme Ct., (3d Depl.,) 
 Nov., 1878. Morrison v. Lester, 15 Him 538. 
 
 61. An assignment of a cause of action, 
 made simply as collateral to an indebtedness of 
 the assignor to the assignee, is not such a trans- 
 fer as makes the assignee liable for costs under 
 the provision of Code of Pro., § 321, declaring 
 that when, after the commencement of an action, 
 the cause of action, by assignment or otherwise, 
 becomes the property of a person not a party to 
 the action, such person shall be liable for costs ; 
 It is not a transfer of the absolute property 
 within the meaning of said provision. — Ct. of 
 Appi, Dec., 1878. Peck v. Yorks, 75 N. Y. 421. 
 
 62. "What is a suflaoientpayment. 
 Payment of motion costs to a sheriff holding a 
 precept against the party entitled thereto, is suf- 
 ficient.— /Supreme Ct., (1st Dept.,) May, 1879. 
 Brown v. Kahn, 17 Hun 599. 
 
 63. In an action in a District Court in New 
 York City, the costs of a dismissal of a previous 
 action for the same cause, between the same par- 
 ties, may be paid by plaintiff upon the return, 
 day of the summons. Defendant is not entitled 
 to have plaintiff's proceedings stayed, or his- 
 complaint dismissed because of the non-payment 
 thereof, before beginning the second suit. — Com. 
 Pleas, Dec., 1878. Lewis v. Davis, 8 Daly 185. 
 
 64. Enforcing payment. Payment of 
 the costs by an assignee of a cause of action after 
 suit brought, cannot be enforced by a ca. sa. In, 
 such a case a bailable attachment, returnable be- 
 fore the court, should be issued, and upon its re- 
 turn the court should determine whether or not 
 he wrongfully refuses to pay the costs. He can- 
 not be compelled to do more than to apply such 
 property as he has to their payment. — Suipreme 
 Ct., (3d Dept.,) Nov., 1878. Morrison v. Lester^ 
 15 Hun 538. 
 
 65. Staying proceedings for non- 
 payment. Code of Civ. Pro., ? 779, provid- 
 ing that when the costs of a motion are not paid 
 as directed in the order, " all proceedings oh the 
 part of the party required to pay them are 
 stayed without further direction of the court," 
 does not apply to a motion to vacate the order 
 imposing the costs, on the ground of irregular- 
 ity.*— Supreme Ct., {\st Dept.,) Api-a, 1878. 
 Marsh v. Woolsey, 14 Hun 1. 
 
 66. This action was brought upon a guaranty 
 of a promissory note, which note, with guaranty, 
 was assigned to plaintiff after maturity. The- 
 former holder of the note brought an action 
 against flie maker and defendant jointly. De- 
 fendant demurred, and the demurrer was sus- 
 tained, with leave to plaintiff to amend on pay- 
 ment of costs. Held, that the court had power 
 to stay proceedings in this action untU the pay- 
 ment of costs in the former suit,' as plaintiff took 
 the claim subject to existing equities ; that he^ 
 was not relieved from the obligation to pay the- 
 costs by abandoning the former action and com- 
 mencing a new one ; and, that the facts that the 
 former action was still nominally pending, and 
 that the maker of the note was joined therein,, 
 were immaterial. — Ct.ofApp., March, 1878. Bar- 
 ton V. Speis, 73 N. Y. 133. 
 
 For the proper Provisions in jnd^menig, respect- 
 ing costs, see Judgment, 22. 
 
 As to costs in Special proceedings, see that title,. 
 and the titles'^of the various special proceedings. 
 
 As to costs in actions by or against personal 
 representatives, see Exeoutoks and Adminis- 
 trators, 127. 
 
 As to costs in Justice^ courts, see Justice of 
 THE Peace, 23. 
 
 As to costs on irranting new trial, see New 
 Trial, 28. 
 
 As to the Attorney's lien for costs, see Attor- 
 ney AND Client, III. 
 
 CO-TENANTS. 
 
 Tenants in Common. 
 
 * Section 779 has been amended, and is now in ac- 
 cordance with this decision. Laws of 1879, eh, 542, 
 
COUNTIES. 
 
 103 
 
 COUNSELOR. 
 
 Attorney and Client. 
 
 COUNTER-CLAIM. 
 
 Set-oep. 
 
 COUNTIES. 
 
 ♦ 
 
 1. PoTvers and duties of supervisors. 
 The board of supervisors has not power to for- 
 bid the county treasurer to pay, out of the poor 
 funds, any draft drawn by the superintendents 
 of the poor to their own order or that of either 
 of them, or to forbid him to pay any draft in 
 which the object for which the money is to be 
 paid is not specified. — Supreme Ct. (2d Dept.,) 
 Dec., 1878. People, ex rel. Serven, v. Demarest, 
 16 Hun 123. 
 
 2. The board of supervisors, when designat- 
 ing newspapers in which to publish the session 
 laws, under Laws of 1845, ch. 280, as amended by 
 Laws of 1870, ch. 215, acts judicially in delermln- 
 ing whether the two papers receiving the highest 
 and the next highest number of votes are of op- 
 posite politics, and fairly represent the two prin- 
 cipal political parties of the county. The fact 
 that at the general election next preceding the 
 appointment, some of the candidates of a third 
 party received more votes than those of the party 
 represented by the paper having next to the 
 highest number of votes, does not authorize a 
 mandamus compelling the board to designate, as 
 one of such newspapei-s, the one representing 
 such third party. — Supreme Ct., {4th Dept., ) Oct., 
 1879. People, ex rel. McKenzie, v. Supervisors, 
 19 Hun 11. 
 
 3. The county judge. The provision of 
 the state constitution (art. 6, 1 13,) declaring that 
 " no person shall hold the office of judge or jus- 
 tice of any court " after the last day of December 
 next after he reaches seventy years of age, applies 
 to county judges. — Ct. of App., Oct., 1879. Peo- 
 ple, ex rel. Joyce, v. Brundage, 78 N. Y. 403 ; 
 affirming 18 Hun 291. 
 
 4. Said provision creates a limitation of the 
 term of office prescribed, applicable when the 
 incumbent attains the age specified before the 
 expiration of a full term ; in which case his term 
 expires the last day of December succeeding his 
 arrival at that age. lb. 
 
 5. Where, therefore, a county judge who was 
 elected in 1873, and entered upon the duties of 
 his office January 1st, 1874, arrived at seventy 
 years of age in November, 1878 — Seld, that his 
 term expired on the last day of December, 1878 ; 
 and that defendant, wlio was elected county judge 
 at the general election in 1878 was entitled to the 
 office. lb. 
 
 6. The county treasurer— his powers 
 and duties. Where a trust held by a county 
 treasurer terminates during his term of office, he 
 is not bound to transfer securities belonging to 
 the trust to his successor in office, although he 
 has not then paid them over to the beneficiaries. 
 — Supreme Ct., (3d Dept.,) Sept., 1878. Supervi- 
 sors of Tompkins Co. v, Bristol, 15 Hun 116. 
 
 Whether he is bound to pay over to his suc- 
 cessor money belonging to the military fund, 
 
 received by him in pursuance of Laws of' 1870, 
 ch. 80, I 178, see lb. 
 
 7. Under the act of 1864 relating to public 
 instruction (Laws of 1864, ch. 555, J 75,) whicli 
 requires the treasurer of a county to pay to the 
 trustees of a school district, out of any moneys 
 in the county treasury raised for contingent ex- 
 penses, the' amount of taxes upon lands of non- 
 residents returned by said trustees as jmpaid. 
 the authority of the county treasurer is limited 
 to the particular fund specified ; and if no such 
 fund has been raised, or if it has been exhaust- 
 ed, he has no authority, and consequently mi 
 duty is imposed upon him to pay. If, when 
 the claim is presented, there is no contingent 
 fund in his hands, but subsequently moneys be- 
 longing to this fund come to his hands, tlie trus- 
 tees are not entitled to a mandamus to compel 
 the payment. The claim has no preferenc(^ 
 over other claims payable out of the same fund ; 
 and no duty is imposed on the' county treasurer 
 to pay claims, presented before moneys arc 
 received by him applicable to their payment, 
 in the order of their presentation. — Ct. of App., 
 March, 1879. People, ex rel. Biirbank, v. Rob- 
 inson, 76 N. Y. 422 ; affirming 14 Hun 226. 
 
 8. His compensation. A county trea- 
 surer is now a salaried officer, and cannot receive 
 any fees decommissions for collecting and dis- 
 bursing moneys passing through his hands in 
 legal proceedings ; but he' nmst demand and 
 collect the legal commissions and apply the 
 same to the use of the county. — Supreme Ct., 
 {Sp. T.,) Jan., 1880. Matter of New York 
 Central, &c., K. R. Co., 7 Abb. N. Cas., 408. 
 
 9. The provision of the appropriation act of 
 1863 (Laws of 1863, ch. 393, i 5,) providing that 
 county treasurers, upon payment to the state 
 treasurer of the amount of state tax in their 
 hands, may retain the compensation to whicli 
 they may be entiSed, which shall not exceed 
 the amount now authorized by law, and shall 
 nut, in any ease, exceed the sum of $2000, was 
 intended as a new and exclusive rule for the 
 whole state, and any prior local act allowing a 
 county treasurer to retain a greater sum than 
 that specified for receiving and pajdng over the 
 state tax must yield to, and is limited by, said 
 provision ; so that while the rate of compensa- 
 tion may be governed by the local act or by the 
 action of a board of supervisors in pursuance of 
 it, the compensation that the county treasurer 
 may retain or receive either from the state or 
 the county can in no case exceed $2000. There- 
 fore where, under the provisions of Laws of 
 1855, ch. 346, in relation to county treasurer's 
 fees in Westchester county, the board of super- 
 visors fixed the fees at one per cent for receiv- 
 ing and paying out, and the fees upon the state 
 tax at tliis rate exceeded $2000 — Held, that the 
 action of the board was inoperative as to the 
 excess, and the coimty treasurer could not retain 
 that sum out of the state tax and charge the 
 balance to the county. — Ct. of App., March, 
 1878. People, ex rel. Lawi-ence, ». Sapervisors 
 of Weslchcster Co., 73 N. Y. 173. 
 
 . In such case— ifeW, that a mandamua, upon 
 the application of a taxpayer, would lie, requir- 
 ing the board to reconsider, revoke and annul 
 the audit so far as it allowed to the county trea- 
 surer any sum in excess of the $2000. lb, 
 
 10. Liability of county for his acts. 
 A county is not liable to a purchaser at a tax 
 sale held by the county treasurer, for loss which 
 
104 
 
 COUNTIES— COURTS, I. 
 
 such purchaser may sustain by reason of the 
 default or neglect of the county treasurer to 
 serve notices of redemption upon the owners 
 and mortgagees of the lands sold, as required 
 by Laws of 1873, ch. 135. The relation of mas- 
 ter and servant does not exist between the 
 county and its treasurer. — Supreme Gt.,- {2d 
 Dept.,) Feb., 1878. De Grauw v. Supervisors of 
 Queens Co., 13 Hun 381. 
 
 11. Proceedings on his oflBcial bond. 
 In an action on the official bond of a county 
 treasurer, a report made and filed by him, in 
 pursuance of Laws of 1859, ch. 386, is admissi- 
 ble in evidence, to show the amount of monej'S 
 or securities then in his hands belonging to in- 
 fants or other persons. — Supreme Ct., {3d Dept.,) 
 Sept., 1878. Supervisors of Tompkins Co. v. 
 Bristol, 15 Hun 116. 
 
 But statements made by him to his successor 
 in office, after the expiration of his term, are not 
 admissible against his sureties in such action. 
 lb. 
 
 12. What is a proper county charge. 
 Under Laws of 1876, ch. 108, and Laws of 1859, 
 ch. 254, the fees and expenses of constables for 
 conveying prisoners to the Albany penitentiary, 
 and to the house of refuge, are proper county 
 charges. — Supreme Ct., {2d Dept.,) May, 1879. 
 People, ex rel. Bancroft, v. Supervisors of 
 Orange Co., 18 Hun 19. 
 
 13. A stenographer attached to the Surrogate's 
 Court, appointed under the act of 1865, is not 
 litoited in the collection of his salary to the fees 
 paid into the county treasuiy by the surrogate. 
 In ease these fees are inadequate to pay the 
 salary, the excess becomes a county charge. — 
 Supreme Ct., {Sp. T.,) Nov., 1878. Munson v. 
 Mayor, &c , of New Yorlc, 57 How. Pr. 497. 
 
 14. "What is not. Where the court as- 
 signs counsel to defend a prisoner, his claim for 
 services is not a legal county charge. — CJ. of 
 App., Nov., 1879. People, ex rel. Bansom, v. 
 Supervisors of Niagara Co., 78 N. Y. 622. 
 
 COUNTY COURT. 
 
 COTJBTS, 16-18. 
 
 COUPONS. 
 
 Bonds, 4, 5. 
 
 COURT OF APPEALS. 
 
 APPEAI, III. 
 
 COURTS. 
 
 I. General Principles. 
 II. Courts op General Civil Jurisdic- 
 tion. 
 
 nl. SURRQGATE CoURTS. 
 
 IV. Courts op Criminal Jurisdiction. 
 
 I. General PRiNCtPLM. 
 1. Construction of statutes relating 
 
 to courts. Ah intention of Congress to deprive 
 state courts of jurisdiction, will not be inferred 
 from doubtful language ; nor will the words of a 
 statute be extended beyond their strict meaning 
 to accomplish this result. — Ct. of App., Jan., 
 1878. Kidder v. Horrobin, 72 N. Y. 159. 
 
 2. Judges — their election and term 
 of oflQoe. The trial of an action was begun be- 
 fore a Supreme Court justice in October, 1877, and 
 continued until the middle of January, 1878, tes- 
 timony being talcen at divers intermediate times. 
 The justice's term of office expired December 
 31st, 1877, but he was re-elected, and com- 
 menced a new term January 1st, 1878. N« ob- 
 jection was made at any time to proceeding 
 with the trial by any of the parties. Seld, that 
 no objection to the regularity of the proceedings 
 could be raised after judgment. — Sup-erne Ct., 
 {2d Dept.,) Dee., 1878. Kelly v. Christal, 16 
 Hun 242. 
 
 _ 3. Their po'wers and liabilities. A 
 judge of a superior court, or court of general 
 jurisdiction, is not liable for a judicial act in a 
 matter within his jurisdiction, although the act 
 is in excess thereof. — Ct. of App., March, 1878. 
 Lange v. Benedict, 73 N. Y. 12. 
 
 4. "What will disqualify a judge, 
 generally. The provision of the statute (2 
 Eev. Stat. 275, § 7,) declaring that no judge 
 shall sit in a case where he is interested, is as 
 much affected by the necessity existing or cre- 
 ated by the conferment of exclusive jurisdiction 
 by another statute, as is the similar rule of com- 
 mon law. — Ct. of App., Jan., 1878. Matter of 
 Kyers, 72 N. Y. 1 ; affirming 10 Hun 93. 
 
 5. Where a judicial officer has not such an 
 interest in a cause or matter as that the result 
 must necessarily affect his personal or pecuniary 
 interest, or where his interest is minute, and he 
 has so exclusive a jurisdiction, by constitution 
 or statute, that his refusal to act in the cause or 
 matter will prevent any proceeding in it, he 
 may act so far as that there may not be a failure 
 of remedy. lb. 
 
 6. — consanguinity or afflnity. To 
 exclude a judge from sitting in a cause by rea- 
 son of kinship, under the provision of the Ke- 
 vised Statutes (2 Eev.Stat. 275, i 2,) prohibit- 
 ing him from sitting in any cause " in which 
 he is interested, or in which he would be ex- 
 cluded from being a juror by reason of consan- 
 guinity or affinity to either of the parties," such 
 kinship must exist between him and some per- 
 son who is actually a party ; it is not enough 
 that he is related to some person not a party 
 who is, or may be interested in the cause. The 
 fact, therefore, that a stockholder in a corpora- 
 tion, which is a party, is a relative of a judge 
 within the prohibited degree, does not disqualify 
 the judge from sitting; as the stockholder, 
 although interested, is not a party. Consan- 
 guinity was not a disqualification at common 
 law ; the disability rests wholly upon the 
 statute, and cannot be extended beyond its 
 terms.— CS. of App., April, 1879. Matter of 
 Dodge & Stevenson Manuf. Co., 77 N. Y. 101 ; 
 reversing 14 Hun 440. 
 
 7. It seems, that where a judge is interested 
 in any matter brought before him, it will be 
 deemed a "cause" within the intent of the pro- 
 vision of said statute, disqualifying him because 
 of interest. But the provision disqualifying, 
 because of kinship, is only applicable to a case 
 where there are parties adverse to each other, 
 
COURTS, I., II. 
 
 105 
 
 <a where some question is to be determined be- 
 tween two or more parties. lb. 
 
 8. Upon petitions of the trustees and credit- 
 ors of a manufacturing corporation, an order 
 was granted ex parte, appointing a receiver of 
 said company, and on motion of the receiver an 
 order was granted by the same judge, directing 
 an assessment upon the stockholders. These 
 orders were set aside, upon the ground that the 
 judge who granted them was related by mar- 
 riage within the ninth degree to several of the 
 stockholders of the company. Held, error ; that 
 the stockholders were not parties to the pro- 
 •ceedings. lb. 
 
 9. Kules of court. The rules established 
 by the conventions of the judges, have the force 
 and effect of statutes, and cannot be properly 
 departed from ; they are binding upon all courte 
 «xcept the courts of appeal, and courts for the 
 trial of impeachment. — Supreme Ct., {1st Dept.,) 
 Sept., 1879. People, ex rel. Cooper, v. Special 
 Term at Chambers, 57 How. Pr. 467. 
 
 10. Decisions of state courts — how 
 far foUo-wed in federal courts. The 
 ■courts of the United States, in determining 
 Kjuestions of general commercial law, are not 
 controlled by the decisions of a state court, even 
 in an action instituted by a national bank, loca- 
 ted in the state rendering such decision, against 
 one of its own citizens, upon a negotiable note 
 there executed and payable. Such decisions, 
 not based upon local legislative enactments, are 
 not "laws" within the meaning of the federal 
 statute, which provides that "the laws of the 
 several states, except where the constitution, 
 treaties or statutes of the United States other- 
 wise require or provide, shall be regarded as 
 rules of decision in trials at common law in the 
 court of -the United States, in cases where they 
 apply."—?/. S. Supreme Ct., Oct., 1879. Brook- 
 lyn, &c., B. K. Co. V. Nat. Bank of Eepublic, 22 
 Alb. L. J. 189. 
 
 11. COTIBTS OF GrENEEAL GtVIL JtTEISDICTION. 
 
 11. The Supreme Court has not jurisdiction 
 of an action upon a stipulation entered into in a 
 proceeding in admiralty, instituted to obtain pos- 
 session of a vessel for the purpose of prosecuting 
 St particular voyage. The stipulation is but an 
 incident to the proceeding of which, as it is a 
 possessory action in rem, the United States Dis- 
 trict Court has exclusive jurisdiction, and the 
 ■stipulation can only be enforced by and in ac- 
 cordance with the practice of that court. — &. 
 of Apip., Jan., 1879. Bartlett v. Spicer, 75 N. 
 y. 628 ; affirming 12 Hun 398. 
 
 12. Superior Court of the city of 
 iJew York. In proceedings to distribute 
 awards to unknown owners in changing grades 
 ■of streets, the Superior Court of the city of New 
 York, under Laws of 1852, ch. 52, has no juris- 
 diction upon petition, to determine a disputed 
 title, and direct payment to one of the claimants. 
 Such determination can only be by due process 
 of law, at least in this court. The authority 
 given by the phrase " to be secured, disposed of, 
 and improved as the Superior Court shall direct," 
 is simply a supervisory one over the chamber- 
 lain, with respefct to his custody, care, manage- 
 ment, and investment of the fund while it is in 
 his hands, and does not authorize its with- 
 drawal from him. — Superior Ct., Nov., 1877. 
 Matter of Hatch, 43 Superior 89. 
 
 13. Court of Common Pleas for the 
 city and county of New York. Where 
 goods are sold and delivered to the defendant 
 m the city of New York, the Court of Common 
 Pleas has jurisdiction of an action for the price, 
 although the defendant is a resident of Queens 
 county, and is served with the summons there. 
 —Com. Pleas, May, 1877. Gemp v. Pratt, 7 
 Daly 197. 
 
 14. No jurisdiction has been conferred upon 
 or exists in the Court of Common Pleas, to re- 
 view, upon appeal, orders made by the Marine 
 Court, but its appellate jurisdiction, in respect 
 to the determinations of that court, is confined 
 to appeals from judgments only. — Ct. of App., 
 March, 1879. Bamberg v. Stern, 57 How. Tr. 
 262. 
 
 15. An order of the Marine Court, General 
 Term, reversing an order of the trial judge 
 granting a new trial, is a final determination 
 and appealable to the Common Pleas. — Ct. of 
 App., Sept., 1878. Schwartz v. Oppold, 56 How. 
 Pr. 156. 
 
 See this subject more fully treated, ante p. 28. 
 
 16. The county courts. Prior to the 
 passage of Laws of 1871, ch. 303, § 4, amending 
 the drainage act, (Laws of 1869, ch. 888,) by 
 vesting in the county court the powers conferred 
 by the original act upon the county judge, a 
 county judge was not disqualified irom making 
 an order appointing commissioners under said 
 act, although it appeared by the petition that he 
 was interested in the matter as owner of lands 
 to be affected. — Ct. of App., Jan., 1878. Matter 
 ofKyers, 72N. Y. 1. 
 
 17. In such case neither the provision of the 
 constitution, (art. 6, § 15,) providing that the 
 county judge of one county may hold county 
 courts in other counties, nor the provision of the 
 code, (I 30, subd. 13,) providing for certifying 
 actions or proceedings in the county court to 
 the Supreme Court, applies. ' lb. 
 
 18. When an action is called for trial in the 
 county court, and, by consent of both parties, ia 
 sent to a referee to hear and determine, the fact 
 that the county judge was disqualified from sit- 
 ting by reason of kinship to one of the parties, 
 does not render the order of reference void, or 
 invalidate the judgment entered upon the re- 
 port of the referee.— /Siipreme Cl., (3d Dept.,) 
 May, 1879. Bell v. Vernooy, 18 Hun 125. 
 
 19. The Marine Court of the city of 
 New York is a court of record, and one of its 
 justices has power to issue a warrant in pro- 
 ceedings under the act of 1881, to abolish im- 
 prisonment for debt. — Supreme Ct,, (1st Dept.,) 
 Oct., 1878. People, ex rel. Lowenbein, v. 
 Donohue, 15 Hun 418; S. C, 56 How. Pr. 
 152. 
 
 19 a. When the defendant dies, during the 
 pendency of an action in the Marine Court, the 
 court may direct the action to be revived and 
 continued against his personal representatives, 
 notwithstanding the fact that the court has no 
 original jurisdiction against such representatives 
 in the first instance. — Ct. of App., Sept., 1880. 
 People, ex rel. Egan, v. Justices, &c., 59 How. 
 Pr. 413; reversing 18 Him 333. 
 
 20. District Courts in New York 
 city : jurisdiction. Under Laws of 1877, 
 ch. 187, the jurisdiction of the several District 
 Courts in New York city, in dispossess proceed- 
 ings, is limited to premises situated within their 
 respective judicial districts.- (Si^eror Ct., [Sp. 
 
106 
 
 COURTS, II., III. 
 
 T.,) Aug., 1879. People, ex rel. Levy, ti. Third 
 District Court, 57 How. Pr. 443. But see Id. 
 445, note. 
 
 21. A non-resident, having a place of busi- 
 ness in the city, is to be deemed, for purposes 
 of suing, a resident of the district in which his 
 place of business is situated. — Com. Pleas, March, 
 1876. Clarkson v. Millnacht, 56 How. Pr. 
 328. 
 
 22. — procedure. An action in a District 
 Court against a person permanently employed 
 and regularly in attendance as a clerk in a store 
 in the citycf New York, is properly commenced 
 by long summons. — Com. Pleas, Dec., 1878. 
 Lewis V. Davis, 8 Daly 185. 
 
 23. A claim for a jury of twelve, in a district 
 court case, under Laws of 1869, ch. 410, may be 
 made at any time before trial, and any act on the 
 jjart of the opposite party which satisfies the 
 justice that he assents, will justify him in sum- 
 moning such jury. — Com. Pleas, Nov., 1879. 
 Poyer v. New York Central, &c., K. E. Co., 7 
 Abb. N. Cas. 871. 
 
 24. The justice of a District Court in the city 
 of New York must render judgment within eight 
 days from the time when the case is submitted 
 to him, and if he fail to do so within that time, 
 he loses jurisdiction of the cause, and any fur- 
 ther proceeding in it on his part is unauthorized 
 and void. The mere indorsing of a memoran- 
 dum of his decision on the papei-s submitted to 
 him is not in itself rendering judgment. — Cdm. 
 Pleas, {Oen. T ,) June, 1877. Dalton v. Lough- 
 lin, \ Abb. N. Cas. 187, 189. 
 
 25. Jiistloes' ooiirts in Brooklyn. Un- 
 der the provision of the act of 1849, in relation 
 to courts in the city of Brooklyn, (Laws of 1849, 
 ch. 125, 2 15,) providing for the election of jus- 
 tices of the peace, " who shall have the same 
 jurisdiction in said eiiy that justices in towns 
 have by law " in respect to the towns, the juris- 
 diction of said officers is restricted to the limits 
 of the city. The general language of the act of 
 1850, (Laws of 1850, ch. 102, § 16,) giving to said 
 justices, in addition to the jurisdiction given by 
 the former act, "the like jurisdiction in ail civil 
 cases as is now exercised by the justices of the 
 peace of the towns," does not impair the force 
 of such restriction, but refei-s only to the powers 
 and jurisdiction which may be exercised within 
 the city. Therefore, a justice of the peace of 
 said city has no power to send process into ad- 
 joining towns for service ; and he acquires no 
 jurisdiction by the service of a summons out- 
 side of the city limits. — Ot. of App., Sept., 1879. 
 Geraty v. Eeid, 78 N. Y. 64 ; reversing 13 Hun 
 313. 
 
 26. The City Court of Yonkers. Laws 
 1878, ch. 186, § 56, provides that appeals from 
 the City Court of Yonkers may be taken as fol- 
 lows : " From judgments ip actions where a re- 
 covery of less than $200 was demanded in the 
 complaint, * * * the appeal shall be to the 
 County Court of Westchester. From judgments 
 in actions where a recovery of $200 or more was 
 demanded, * * * appeals may be taken to 
 the General Term of the Supreme Court." 
 
 Held, 1. That the word " may " meant " must." 
 2. Tliat in determining the amount claimed, 
 the interest which had accrued, at the time the 
 action was commenced, upon the principal sum 
 sought to be recovered, must be included. — Su- 
 preme a., (2d Dept.,) Feb., 1879. Mitchell v. 
 Pike, 17 Hun 142. 
 
 m. Stjbrogates' Cotjbts. 
 
 27. Statutory regulations concern- 
 ing. The provisions of Laws of 1870, ch. 379,. 
 conferring additional powers on the surrogate 
 of New York county, are constitutional. — N. Y. 
 Surr. Ct., Feb., 1877. Matter of Bernstein, » 
 Eedf. 20. But see Matter of Eosenthal, 59' 
 How. Pr. 327. 
 
 28. The provision of the act of 1870, (Laws of 
 1870, ch. 359, § 1,) in relation to the Surrogate'* 
 Court of the county of New York, giving to the 
 surrogate of tiiat county jurisdiction to issue 
 " all lawful orders and decrees" in proceedings*- 
 in said Surrogate's Court, and declaring that the- 
 objection of want of jurisdiction shall not be 
 taken to said orders and decrees, except- by ap- 
 peal or in a proceeding before the surrogate to 
 set aside, open or modify, was intended to place 
 the orders and decrees of said surrogate, -in re- 
 spect to objections to jurisdiction, upon the same 
 footing as the order of a court of genei-al juris- 
 diction. — Gt. of App., June, 1879. Beams n. 
 Gould, 77 N. Y. 455 ; affirming 8 Daly 384. 
 
 29. By the term, " lawful orders and decrees,"^ 
 was meant orders and decrees in cases where a 
 Surrogate's Court has juiisdiction of the subject 
 matter ; and the statute applies to them the rule- 
 applicable to orders of a court of general juris- 
 diction, that they cannot be questioned collater- 
 ally. Ih. 458. 
 
 30. The effect thus given to such orders and 
 decrees is not confined to cases where they are 
 introduced in evidence in other proceedings be- 
 fore said surrogate. Where, therefore, a com- 
 plaint in an action sets up an order of said sur- 
 rogate in a matter within his jurisdiction, and 
 where a want of jurisdiction does not appear on 
 the face of the order, the existence of the facl& 
 necessary to give j iirisdiction need not be alleged, 
 but will be presumed. lb. 459. 
 
 31. Jurisdiction and poTwers, gener- 
 ally. Surrogate's Courts are courts of limited 
 and special jurisdiction ; and the party (other 
 than a ministerial officer) who relies on the or- 
 ders or decrees of such court, has the burthen 
 of proving the jurisdictional facts. — Superior Cl., 
 Jan., 1878. -Eoderigas v. East Eiver Savings 
 Inst., 43 Superior 217 ; affirmed 76 N. Y. 316. 
 
 32. A surrogate has power to open or vacate 
 a decree obtained from him through mistake, 
 accident or fraud. — Supreme Ct., {1st Dait.,) 
 April, 1878. Bailey v. Hilton, 14 Hun 3. S. P.,. 
 Matter of Cohen, 58 How. Pr. 496. 
 
 33. The Surrogates' Courts, having common 
 law powers, being courts of record, possessing a 
 clerk and a seal, have power to grant certificates- 
 of naturalization. — Westc. Surr. Ct., Oct., 1879> 
 Matter of Hartslrom, 7 Abb. N. Cas. 391. 
 
 34. As to the power of the surrogate of New 
 York county to direct the payment of debts by 
 a collector, see Matter of Haskett, 3 Eedf. 165. 
 
 35. Completing' -work of predeces- 
 sor. The power of the surrogate to complete 
 the work of his predecessor is limited by Laws 
 of 1874, ch. 9, to the unfinished records of wills, 
 proofs and examinations, and of letters testa- 
 mentary, administration and guardianship. — Sur- 
 premx Ct., {1st Dept.,) Dec., 1876. McNaughtoti 
 V. Chave, 5 Abb. N. Cas, 22.5, 229. 
 
 36. Po'wers in respect to probate of 
 ■wills. The provision of the act of 1870, re- 
 lating to proceedings in the Surrogate's Ctiiirt 
 of the county of New York, (Laws of 187©,ch 
 
COURTS, III., IV. 
 
 lor 
 
 359, 1 11,) giving to the surrogate of that county, 
 in any proceeding before him to prove a vnU, the 
 same juHsdiction to determine its true construc- 
 tion or validity as is vested in the Supreme 
 Court, applies only and is expressly restricted 
 to proceedings to prove a will. — Gt. of -4pp., Jan., 
 1878. Bevan v. Cooper, 72 N. Y. 317, 327. See, 
 alsOjDanser v. Jeremiah, 3 Eedf. 130. 
 
 9y. PoTver to determine claims 
 against estates. Under the provisions of 
 2 Rev. Stat. 88, J 33, providing for the proving 
 and allowing of an executor's claim against the 
 estate, the surrogate has jurisdiction to hear and 
 determine any and all claims in which the ex- 
 ecutor is interested. The fact that others are 
 jointly interested with him, or that he acquired 
 an additional inleiest by assignment after he be- 
 came executor, does not affect the authority of 
 the surrogate to adjudicate in regard to it. — Ct. 
 of Am)., Feb., 1878. Shakespeare o. Markham, 
 72 F. Y. 400, 407 ; Oct., 1878. Boughton v. 
 FUnt, 74 N. Y. 476 ; S. C, 5 Abb. N. Cas. 215 ; 
 remrsing 13 Hun 206. 
 
 38. M., upon her final accounting as execu- 
 trix of her deceased husband, claimed the pro- 
 ceeds of certain notes, and a bond and mortgage, 
 received by the testator on sale of real estate be- 
 longing to her, and which were paid to the tes- 
 tator.in his lifetime. It appeared that the hus- 
 band recognized the right of his wife to tlie 
 fund, and offered to pay it to her, but assented 
 to her request that he should keep it until she 
 called for it. Seld, that her claim was a legal, 
 not an equitable one, and was within the juris- 
 diction of the surrogate to determine. Bough- 
 ton V. Flint, supra. 
 
 39. That wliere the executor claims only the 
 right to retain out of the assets of the estate a 
 sum of money, as belonging or due to him, so 
 far as the question of jurisdiction is concerned, 
 it is immaterial whether such right depends 
 upon legal or equitable principles, see lb. 
 
 40. Po-wer to appoint referees. Un- 
 der the act of 1870, (Laws of 1870, ch. 359, § 6,) 
 in relation to proceedings in the Surrogate's 
 Court of the county of New York, the surrogate 
 of said county may appoint a referee and refer 
 to him an account rendered against an estate ; 
 and the fact that in the order of reference the 
 referee is termed an auditor, does not vitiate the 
 order. The misnomer is but a matter of iform, 
 and the order will be held to operate to appoint 
 a referee. — &. of App., May, 1877. Buchan v. 
 Eintoul, 70 N. Y. 1. 
 
 41. When disqualified. A surrogate 
 who, while in office, acted as counsel for the 
 plaintiff in an action against the executor of an 
 estate— J3eW, disqualified thereafter to grant an 
 order to sell lands of the estate for the payment 
 of the judgment rendered in such action. — Svr 
 preme Ct., (3d Dept.,) Nov., 1878. Darling o. 
 Pierce, 15 Hun 542. 
 
 42. Appointment of surrogate quoad 
 boc. The issuing of a commission to a person, 
 empowering him to act as surrogate in a par- 
 ticular case, as authorized by the amendment to 
 the Revised Statutes enacted in 1830, (Laws of 
 1830, ch. 320, ? 20,) where, by reason of statu- 
 tory disqualification, neither of the officers desig- 
 nated can act, is not an appointment to a " pub- 
 lic office" within the meaning of the provision 
 of the judiciary article of the state constitution 
 of 1846, (art. VI.; ^ 8,) prohibiting the judges 
 of the Court of Appeals and justices of the 
 
 Supreme Court from exercising '' any power of 
 appointment to public office." — Gt. of App., Nov,, 
 1877, Matter of Hathaway, 71 N. Y. 238. 
 
 43. The term " public office" as used in the- 
 constitution, has respect to » permanent public- 
 trust or employment, to be exercised generally 
 and in all proper cases ; it does not include tlie- 
 appointment, to meet special exigencies, of an 
 individual to perform transient, occasional or 
 incidental duties, such as are ordinarily per- 
 formed by public officers ; as to such appoint- 
 ments, the legislature is left untrammeled, and 
 at liberty to invest the courts with power to- 
 make them. lb. 
 
 44. The power, therefore, to issue such a 
 commission, conferred by said act upon the 
 Chancellor, was, by the provision of the judici- 
 ary act of 1847, (Laws of 1847, ch. 280, | 16,) 
 which invested the Supreme Court and its jus- 
 tices with the poweiB and jurisdiction formerly" 
 exercised by the Court of Chancery and the 
 Chancellor, transferred to and vested in the Su- 
 preme Court and the justices thereof. lb. 
 
 45. The said provision of the act of 1830- 
 has not been repealed or affected by any of the 
 various revisions of the law since the adoption 
 of the constitution of 1846, and a Special Term 
 order appointing a person to act as surrogate, 
 and directing a commission, to issue to him in 
 the matter of the probate of a will, in a case^ 
 where a surrogate, county judge and district 
 attorney were disqualified from acting, is valid ;. 
 and the parties by proceeding with the hearing 
 before the commissioner and awaiting the result 
 of Ms action, waived any objection to the juris- 
 diction of the court to appoint without notice 
 to the parties interested. 1 b. 
 
 IV. Courts of Cbiminal Jubisdiction. 
 
 46. Oyer and Terminer. A justice- 
 designated by the convention of justices to pre- 
 side at a terra of Oyer and Terminer appointed 
 by them, cannot by his order, made out of court, 
 and by the intervention of the sherifi^ adjourn 
 said term to another time. — Gt. of Sessions,. 
 {Ghautauqua Go.,) March, 1878. People ». 
 Clews, 4 Abb. N. Cas, 256, 259. 
 
 47. Courts of Sessions. Since the pas- 
 sage of Laws of 1865, ch. 212, the Court of Ses- 
 sions has jurisdiction to try and convict a person 
 indicted for robbery in the first degree. — Su- 
 preme Ct., (4<A Dept.,) June, 1878. Myers v~ 
 People, 14 Hun 416. 
 
 48. Under Laws of 1857, ch. 769, Courts of 
 Sessions have power to grant new trijils in cases- 
 tried before them. — Supreme Ct., (2d Dept.,) July, 
 ld79. McFall v. People, 18 Hun 382. 
 
 49. The Court of Sessions is a court of origi- 
 nal jurisdiction, within the meaning of Code of 
 Civ. Pro., il 1340, 1357, authorizing appeals to 
 the Supreme Court from final judgments and. 
 orders affecting substantial rights, of courts of 
 record possessing original jurisdiction. — Svupreme 
 Gt., (ith. Dept.,) Oct., 1878. People, ex rel.. 
 Board of Charities, v. Davis, 15 Hun 209. 
 
 50. Courts of Special Sessions. Laws- 
 of 1879, ch. 390, conferring upon Courts of 
 Special Sessions exclusive jurisdiction to hear- 
 and determine, in the first instance, certain of- 
 fences tlierein mentioned, is constitutional and 
 valid. — Supreme Gt., (3d Dept.,) Jan., 1880^ 
 Devine v. People, 20 Hun 98 ; (2d Dept.,) Feb.j. 
 1880. People, ex rel. Comaford, v. Dutcher, Id_ 
 241. 
 
ao8 
 
 COURTS, IV.— COVENANTS, I., II. 
 
 But that statute did not deprive a Court of 
 ■General Sessions of jurisdiction to try an indict- 
 ment for one of said offences, pending in it at 
 the time of the passage of the said act. — Supreme 
 ^., (3d Dept.,) Nov., 1879. Byan v. People * 19 
 Hun 188. 
 
 For further decisions upon the Jurisdiction of 
 courts, see Jtjbkdiction. 
 
 As to the principles governing the exercise of 
 Equitahle jurisdiction, see EftOTTT, and the titles 
 there referred to. 
 
 As to courts of Appellate jurisdiction, see Ap- 
 peal ; Cebtiobabi ; Eebob ; New Trial. 
 
 COVENANTS. 
 
 I. General Principles. 
 II. Varioits Kinds op Covenants. 
 IIL Actions itpon Covenants. 
 
 I. General Principles. 
 
 L Implied covenants. An agreement to 
 tissign a municipal corporation lease constitutes 
 an agreement to grant and assign an estate in 
 the demised land for the remainder of the term. 
 When it contains a clause " with all and singu- 
 lar the premises therein mentioned and de- 
 scribed, and the buildings thereon, with the 
 appurtenances, to have and to hold the same for 
 -and during all the rest, residue and remainder 
 yet to come of and in the term of years men- 
 tioned in said indenture of lease," with a cove- 
 nant that the assigned premises are free from 
 ■encumbrances, a covenant that the vendors have 
 a good title to the premises described in the 
 lease, for the residue of the demised term, is to 
 be implied. A covenant that the corporation 
 liad the right and power to grant the estate and 
 term in manner and form as in the lease ex- 
 j)res8ed, is also to be implied. — Superior Gt., Nov., 
 1878. Bensel v. Gray, 44 Superior 372. 
 
 The burden of proof is on the vendors, to 
 show the regularity and validity of the lease in 
 the above case. lb. 
 
 2. Mutual covenants. Adjoining own- 
 .ers of land in a city may, by grant, impose 
 ^mutual and corresponding restrictions upon the 
 lands belonging to each, to secure uniformity in 
 the structure and position of buildings upon the 
 •entire premises, or to reserve the lands for, and 
 ■confine their use to certain purposes, as for 
 private residences. — Ot. of App., Sept., 1877. 
 Trustees of Columbia College v. Lynch, 70 N. 
 Y. 440, 446. 
 
 3. The mutuality of the covenants in such 
 case furnishes a good consideration, and the 
 agreement itself is not void, as in restraint of 
 trade, or as imposing undue restrictions upon 
 the use of property. lb. 
 
 4. Mutual covenants imposing such restric- 
 .tions in perpetuity, and by their terms binding 
 the heirs and assigns of the respective cove- 
 .nantors, are, in effect, grants of reciprocal ease- 
 ments, the right to the enjoyment of which will 
 pass as appurtenant to the premises, in respect 
 of which they were created ; and in equity the 
 premises are charged with the observance of the 
 
 *Sald to have been affirmed in the Court of Appeals, 
 January 27tll, 1880. 
 
 covenant in the hands of all subsequent grantees 
 taking title with notice of its existence, lb. 447, 
 
 5. Plaintiff covenanted that she was seized 
 in fee simple, and would convey to defendant, 
 free of encumbrances and by fiill covenant deed. 
 Defendant covenanted in the same writing to 
 purchase at a fixed price, erect buildings, &c. 
 Plaintiff deeded the land to a third party. JSeld, 
 that the covenants were mutual and dependent, 
 and the breach by plaintiff justified defendant 
 in refusing to perform. — Com. Pleas, March, 
 1878. James v. Burchell, 7 Daly 531. 
 
 6. "When a covenant runs "with the 
 land. The criterion for determining whether 
 a covenant runs with the land, is the intention 
 of both parties, and if the covenants be of such 
 a nature that they can run with the land, and 
 the deed expresses such an intent, they bind, not 
 only the original parties, but the subsequent 
 owners of the respective premises.-^Sitperior &., 
 Jan., 1878. Mohr v. Parmelee, 43 Superior 320. 
 
 "7. A covenant to contribute to the construc- 
 tion of a party wall, when he shall use the same, 
 entered into by an owner of land, for himself, 
 his heirs and assigns, does not run with the 
 land, and is not enforceable against a subsequent 
 grantee of the land ; and this, although his deed 
 IS by its terms subject to the covenant. Such a 
 stipulalion in a deed imposes no personal 
 liability.— Ci!. of App., Jan., 1879. Scott v. Mc- 
 Millan, 76 N._ Y. 141 ; affirming 8 Daly 320. 
 
 8. "What is a breach of a covenant against 
 erecting a building within a certain distance of 
 the front line of the premises, and against erect- 
 ing certain specified buildings, among them a 
 livery stable or private stable, determined. — 
 Superior Ct., March, 1879. Du Bois v. Darling, 
 44 Superior 436. 
 
 9. Defendant's intestate made an agreement, 
 founded on a valuable consideration, to procure 
 the discontinuance of pending foreclosure suits, 
 and to purchase certain mortgages and hold 
 them until the expiration of plaintiff's lease of 
 the mortgaged premises. He failed to purchase, 
 the mortgages were foreclosed, and as the premi- 
 ses were about to be sold plaintiff sold her lease 
 at a loss. In plaintiff's suit for a breach of the 
 agreement — 
 
 Hdd, 1. That she was not bound to wait for 
 an actual eviction, the agreement being broken 
 as soon as plaintiff's intestate failed to purchase 
 and hold the mortgages. 
 
 2. That she was entitled to recover the actual 
 value of the premises for the unexpired term, 
 after deducting the rent to be paid. 
 
 3. That in determining such value the referee 
 was not confined to the receipts from and the 
 expenditures upon the premises. — Supreme Ct., 
 {4ih Sept.,) April, 1878. Hawkins v. Mosher, 
 13 Hun 563. 
 
 II. Various Kinds or Covenants. 
 
 10. A covenant against encum- 
 brances, in a deed, is assignable when broken 
 at the time the deed is delivered. The contrary 
 rule is no longer law in this state. — O^. Pleas, 
 {Sp. T.,) 1880. Boyd v. Belmont, 58 How. Pr. 
 513. 
 
 U. Covenant of indemnity. The dis- 
 tinction between a covenant of indemnity and a 
 covenant to do a specific act, discussed. — Su- 
 preme Ct., [Uh Dept.^ April, 1878. Hawkins v. 
 Mosher, 13 Hun 563. 
 
COVENANTS, II., III.— CREDITOR'S SUIT, I., II. 
 
 10* 
 
 12. Covenant of general warranty. 
 Defendant conveyed a house and lot, " with the 
 appurtenances," to plaintiff, hj deed containing 
 ii covenant of warranty. There was a water- 
 closet in the house, which connected with a 
 sewer leading to and upon adjoining lands 
 owned by one A. A. recovered judgment per- 
 petually enjoining plaintiff from using the 
 sewer. In plaintiff's suit to recover damages 
 for a breach of the covenant of warranty — Held, 
 that she was entitled to recover. — Supreme Ct., 
 (Zd Sept.,) April, 1880. Green v. CoUins, 20 
 Hun 474. 
 
 III. Actions itpon Covenants. 
 
 13. 'When the right to sue ariBes. 
 Upon an obligation to do a particular thing, or 
 to pay a debt for which the covenantee is liable, 
 or to indemnify against liability, the right of 
 action is complete on the defendant's failure to 
 do the particular thing he agreed to perform, or 
 to pay the debt or discharge the liability. The 
 distinction is clearly defined between such an 
 obligation and an indemnity against loss or 
 damage by reason of a liability. In the former 
 case the covenantee is to be saved from the thing 
 specified, and in the latter from the consequences 
 of it.— Ct. 0/ App., Jan., 1878. Kohler v. Mat- 
 lage, 72 N. Y. 259, 266 ; affirming 42 Superior 
 247. 
 
 14. Who may sue. Where a deed of a 
 city lot, in whicli the grantor and grantee join, 
 contains a covenant on the part of the latter, 
 that neither he nor any person claiming under 
 or through the conveyance shall buUd upon the 
 lot any building of more than a specified depth, 
 which covenant is declared continuing and for 
 the benefit of owners of other lots then owned 
 by the grantor, so that said lots may have "free- 
 dom of air, light and vision," one to whom one 
 of the other lots has been conveyed by deed 
 granting the easements, covenants, privileges, 
 &c., belonging thereto, may enforce said cove- 
 nant so long as it is of any value to his lot. — 
 Ct. of App., Jan., 1878. Lattimer v. Livermore, 
 72 N. Y. 174. 
 
 15. The right to enforce such covenant is not 
 affected by acquiescence in the violation of 
 another and distinct covenant, as to the use of 
 the lot, contained in the deed. lb. 
 
 16. Bequlsites of complaint. _ In an 
 action for breach of a covenant of seizin, the 
 complaint must point out the defect complained 
 of, and tender an issue of fact to be sustained, 
 and to be met by proof. — Com. Pleas, March, 
 1880. WooUey v. Newcomb, 58 How. Pr. 480. 
 
 As to the effect of covenants to Pass tide by 
 eettaipel, see Estoppel. 
 
 As to the interpretation of sealed instruments, 
 generally, see Deeds, III. ; Leases ; Mobt- 
 OAOES, II. 
 
 CREDITOR'S SUIT 
 
 [Consult, also, FraudtUent 0(mveyancea.} 
 
 I. The Eight of Action. 
 II. What Property may be Beached, 
 III. Procedure. 
 
 COVERTURE. 
 
 As to the Disabilities of coverture, and the 
 Bights of married women, generally, see Hus- 
 band AND Wipe, IV., V. 
 
 For the effect of coverture to suspend the 
 running of the Statute of limitations, see Limi- 
 tation OP Actions, 24. 
 
 I. The Rmht op Action. 
 
 1. How far the legal remedy must 
 be exhausted. A court of equity does not 
 intervene to enforce the payment of debts. It 
 is only after the creditor has exhausted all the 
 means in his power at law, that he is entitled to- 
 the aid of a court of equity to discover and 
 apply the debtor's property to satisfy his claim.. 
 —Supreme C*., {Sp. T.,) Feb., 1878. Sloan v. 
 Waring, 55 How. Pr. 62. S. P., (4«A Dept.,) 
 April, 1878. Ballon v. Jones, 13 Hun 629. 
 
 2. A creditor of a firm must recover judg- 
 ment against the firm, and have an execution 
 returned unsatisfied thereon, before he can file » 
 creditor's bill. A judgment against one mem- 
 her of tlie firm, upon his guaranty of the firm 
 debt, and an unsatisfied .execution thereon, is 
 not enough. — Supreme Ot.,. {1st Dept.,) Oct., 1878, 
 Lewishon^t). Drew, 15 Hun 467. 
 
 3. A sliowing that the debtor is a non-resi- 
 dent, and has no property in this state, ma^es- 
 no difference, so long as it appears that he may 
 be proceeded against by the ordinary forms of 
 law existing in the state in which he lives. lb.. 
 
 4. "When an execution is unneces- 
 sary. An outstanding execution is hot a pre- 
 requisite to a judgment creditor's bill to set aside 
 as fraudulent a conveyance of real estate or chat- 
 tels real ; otherwise of a conveyance of personal 
 property. In the former case the judgment gives- 
 the necessary lien, in the latter the execution 
 gives it, but only while outstanding. — Com. Pleas,. 
 Jan., 1880. Buswell v. Linelis, 8 Daly 518. See,, 
 also, Gillett v. Staples, 16 Hun 587. 
 
 5. No execution is necessary to enable a 
 creditor of an intestate debtor to file a bill to. 
 reach assets fraudulently transferred by the ad- 
 ministrator, in order that they may be applied 
 in due course of administration. — Supreme Cl.y 
 {1st Dept.,) Oct., 1877. Malloy v. Vanderbilt, 4 
 Abb. N. Cas. 127. S. P., Southard v. Pinckney,. 
 5 Abb. N. Cas. 184. 
 
 II. What Property may be Beached. 
 
 6. Property held in trust. Where a 
 judgment debtor is the beneficiary of a trust 
 under and by which the trustees are required t» 
 receive and pay over to him the income of the 
 trust estate, an action may be maintained by a 
 judgment creditor, after the return of an ex- 
 ecution unsatisfied, to reach the surplus income 
 beyond what is necessary for the suitable sup- 
 port and maintenance of the cestui que trust and 
 those dependent upon him. — Ct. of App., Sept., 
 1877. Williams v. Thorn, 70 N. Y. 270. 
 
 "7. The right of the creditor to maintain such 
 an action exists as well where the trust estate is 
 personal as where it is real property. lb. 
 
 8. The remedy of the creditor is not confined 
 to a surplus which has accrued and accumulated 
 in the hands of the trustees ; provision may be 
 made in the judgment determining what will be 
 a reasonable allowance for the cestui que trusty 
 
110 CREDITOR'S SUIT, II., III.— CRIMINAL LAW, I., II. 
 
 and directing the application toward the pay- 
 ment of the judgment of any future surplus, 
 until the same is fully paid. lb. 
 
 9. The provisions of 2 Rev. Stat. 173, §j 38, 
 •39, exempting from the operation of creditors' 
 bills trust funds, when the trust hag been created, 
 or the trust fund has proceeded from some per- 
 son other than the defendant, is not in conflict 
 with the provision of the statute of uses and 
 trusts, (1 Kev. Stat. 729, ? 57,) providing that 
 the surplus income of a trust estate shall be 
 liable in equity to the claims of the creditors of 
 the cestui que trust, and the former provisions do 
 not exempt absolutely the whole income ; they 
 ■were intended to exempt the principal fund, 
 and the beneficial interest of the cestui que trust 
 in the income only to the extent of a fair sup- 
 port out of the trust estate. lb. 
 
 III. Eroceduee. 
 
 10. "Who may file a creditor's bill. 
 A simple contract creditor cannot file a bill to 
 set aside, as fraudulent, a conveyance made by 
 his debtor ; nor can a judgment creditor do so 
 more than ten years after the docketing of his 
 judgment, where no new lien upon the land has 
 been acquired by the levy of an execution. — 
 ■Swpreme Ot., (3d Dept.,) Sept., 1879. Evana ii. 
 Hill, 18 Hun 464. 
 
 11. One who sells goods to a party, after a 
 conveyance by him presumptively void as 
 against creditors, but before actual change of 
 possession, is a creditor within the meaning of 
 the statute. — Superior Ot., Jan., 1879. Arrow- 
 smith V. O'Sullivan, 44 Superior 573. 
 
 12. Parties defendant. Where some of 
 the creditors sue in behalf of themselves, and 
 all others similarly situated who shall come in 
 and contribute to the expenses of the action, 
 none but the plaintiflS acquire any vested inter- 
 ■est in the action, or are bound thereby, until the 
 «ntry of final judgment. — Supreme Ot., (4(A 
 Dept.,) Jan., 1878. Derby v. Yale, 13 Hun 273. 
 
 13. Evidence. In an action by a receiver 
 •of McGr., to have a judgment against him de- 
 clared a lien upon a lot conveyed by his father 
 to defendant, McG.'s wife, on the ground that 
 the consideration for the lot had moved from 
 McG., the latter was examined on the trial, and 
 testified that the money had been paid by him 
 as agent for his father. A referee before whom 
 he had been examined in supplementary pro- 
 ceedings was then called as a witnesss, and al- 
 lowed, against defendant's objection, to testify 
 that Mc&. swore on such examination that the 
 money was loaned to him by his father, and that 
 he gave the deed to his wife as a present. 
 Sdd, that this evidence was inadmissible as 
 against the wife. — Supreme Ot., {3d Dept.,) Sept., 
 1878. Kennedy v. McGuire, 15 Hun 70. 
 
 For the rules of Equity pleading, generally, see 
 Pleading. 
 
 As to the remedy introduced by the code as a 
 substitute for the creditor's bill, by an examina- 
 tion of the debtor in Supplementary proceedings, 
 see Execution, V. 
 
 CRIMINAL LAW. 
 
 [Comprises elementary rules of criminal law appli- 
 cable generally ; also decisions relating to some par- 
 tioular ofifeaces wMoh are of minor importance or of 
 
 infrequent occurrence. These are arranged alpha- 
 betically, by the recognized name of the ofibhce. 
 For decisions relating to Indictments, Evidence, and 
 competency of Wibnesaes in criminal cases, and TH(d 
 of such cases, see Indictment; Evidenob; Wit- 
 nesses ; Trial. Decisions respecting offences of 
 common occurrence, and hence more frequently sub- 
 jects of judicial investigation, are treated under the 
 title of the offence in question.] 
 
 I. Genebal Peinciples op Ceiminai Law. 
 II. Decisions Relatin& to Paeticulab Of- 
 fences. 
 
 I. Genebal Peinciples of CRiMiNAt Law. 
 
 1. Criminal responsibility. Excuses 
 for crime. When the law imposes the per- 
 formance of a duty, the proper performance 
 thereof is not dispensed with simply because 
 the person thinks that in doing it in an un- 
 authorized manner, or alter his own fashion, he 
 has done the best under the circumstances, in 
 his judgment. The question is whether he has 
 been guilty of willful neglect, irrespective of 
 motive or intent to violate the law. — Supreme 
 Ot., (\st Dept.,) May, 1880. Cowley v. People, 
 8 Abb. N. Gas. 1, 37. 
 
 2. Merger of lesser into greater 
 crime. Offences arising out of the same facts 
 are not identical, unless so in law as well as in 
 fact.— -Supreme Ot., (3d Dept.,) Sept., 1879. Buel 
 I'. People, 18 Hun 487 ; afii-med 78 N. Y. 492. 
 
 3. Accessories and accomplices. An 
 accessory before the fact must be indicted in the 
 county where the oflTence was committed. — Oyer 
 and T., (3d Dep*.,) July, 1879. People o. Hall, 
 57 How. Pr. 342. 
 
 4. Upon the trial of an indictment charging' 
 J. with being an accessory to the crime of 
 forgery, the principal was Called as a witness, 
 and it appeared on his examination that he had 
 never been convicted. The court then permitted 
 him to be arraigned upon the indictment, and 
 he. pleaded guilty, after which the record of his 
 conviction was offered by the people and re- 
 ceived in evidence. HeW, no error. — Supreme 
 Ot., (1st Dept.,) April, 1880. Jones v. People, 20 
 Hun. 545. 
 
 II. Decisions Relating to Paeticuiab 
 Offences. 
 
 5. Abortion. Upon a trial under Laws of 
 1872, ch. 181, for causing the death of a woman 
 by using an instrument upon her with intent to 
 produce a miscarriage, it is not necessary for 
 the prosecution to show that the use of the in- 
 strument was not necessary to preserve the 
 woman's life or that of tlie child ; the burden 
 of proving that such necessity for its use existed 
 rests upon the accused. — Supreme Ot., (1st Dept.,) 
 Mairck, 1880. Bradford v. People, 20 Hun 309. 
 
 In any event the absence of such necessity 
 need not be established by direct proof, but may 
 be shown by circumstantial evidence bearing 
 upon the subject, and calculated to demonstrate 
 that the instrument was not necessarily em- 
 ployed, lb. 
 
 6. Adulteration of mUk. An indict- 
 ment for keeping and exposing for sale impure 
 milk alleged that the prisoner unlawfully held, 
 kept and offered for sale impure milk "against 
 and in violation of the provisions of the sani- 
 
CRIMINAL LAW, II.— CUSTOM. 
 
 Ill 
 
 tary code.'" Upon a writ of error — Hdd, that 
 it was not necessary to set out tlie particular or- 
 ■dinance alleged to have been violated, especially 
 as the objection was not taken until after judg- 
 ment. — Supreme Ct , (1st Dept.,) April, 1878. 
 Schrumpf «. People, 14 Hun 10. 
 
 *7. What is a proper sentence upon plea of 
 guilty under, an indictment for bringing adult- 
 erated milk into New York city, see Polinsky v. 
 People, 73 N. Y. 65. 
 
 7 a. Conveyance ■with intent to de- 
 fraud creditors. As to the sufficiency of 
 the description of the creditors defrauded, and 
 the amount of their debts, in an indictment for 
 conveying property with intent to defraud credi- 
 tors ; and what debts of defendant may be proved 
 •on the trial, see Loomis v. People, 19 Hun 601. 
 8. Cruelty to animals. Under the pro- 
 visions of the act of 1867 "for the more effectual 
 prevention of cnielty to animals," (Laws of 1867, 
 <;h. 37 5, ) an officer of the American Society for the 
 Prevention of Cruelty to Animals, designated by 
 the sheriff of a county, as prescribed by said act 
 (^ 7), has authority to execute the law by the ar- 
 rest qf all offenders found violating it, and this 
 he can do without first obtaining a warrant for 
 *he arrest from a magistrate. — Ot. of App., Dec, 
 1878. Davis v. Amer. Soc. for Prevention of 
 Cruelty to Animals, 75 N. Y. 362. 
 
 &. The statute does not require a special ap- 
 pointment from the sheriff for each arrest ; the 
 agent designated is authorized to act under a 
 general appointment until it is revoked ; and is 
 clothed with authority to execute the law by the 
 arrest of all offenders found violating it. lb. 
 
 10. Where a warrant is first obtained, the 
 person executing it will be protected whether 
 the one arrested be proved guilty or innocent ; 
 but if the statute alone is relied upon, the per- 
 son making the arrest can have protection only 
 bj establishing that the person arrested was 
 found violating the law. lb. 
 
 11. A complaint which states that deponent 
 ■" saw a man on a peddlei-'s cart, in said town, 
 «hoot at a dog of, and belonging to said Squire 
 Perry, in said town ; that the said dog was hit 
 in the neck, and he believes the said dog will 
 die," is insufficient to authorize the granting of 
 a warrant. It contains no allegation from which 
 the justice may infer that the act was maiieious 
 «r needless, and alleges no offence under the acts 
 relating to cruelty to animals. — Supreme Cl., 
 (4«A Dept.,) Jtme, 1878. Warner v. Perry, 14 
 Hun 337. 
 
 12. Cruelty to children. One having 
 the custody and care of children, who willfully 
 neglects to furnish them with such proper food, 
 -clothing, care and medical attendance as is 
 jeasonably necessary and proper, is guilty of 
 a violation of Laws of 1876, oh. 122, ? 4, to pre- 
 vent and punish wrongs to children. — Supreme 
 •a., {1st Dept.,) May, 1880. Cowley v. People, 
 8 Abb. N. Gas. 1. 
 
 13. Disorderly persons. As to the form 
 -of commitment of a disorderly person, and the 
 ■contents of the record of his conviction as such, 
 «ee -Matter of Travis, 55 How. Pr. 347. 
 
 14. Sabbath breaking. The legislature 
 Jias authority to protect the Christian Sabbath 
 from desecration, by such laws as it may deem 
 necessary; and it is the sole judge of the acts 
 j>roper to be prohibited, with a view to the pub- 
 lic peace on that day. — Ct. of App., May, 1877. 
 Neuendorff J). Duryea, 69 N. Y. 557. 
 
 As'to proceedings against a Husband as a dis- 
 orderly person, for refusal to support his wife, see 
 Husband and Wife, 18-24. 
 
 CROPS. 
 
 Landlord and Tenant, 22-24. 
 
 CRUELTY. 
 
 Criminal Law, 8-12 ; Divokoe, III. 
 
 CURTESY. 
 
 Necessary seizin in wife._ What facts 
 are insufficient to show such a seizin in the wife 
 as will entitle the husband to curtesy initiate, 
 see Graham v. Luddington, 19 Hun 246. 
 
 As to the respective rights of the husband or 
 wife, in respect to property owned by the other, 
 or jointly, see Husband and Wipe, VI. As 
 to the wife's Sight of dower, see Doweb. 
 
 CUSTOM: USAGE. 
 
 1. "What customs are invalid. A cus- 
 tom releasing an employee from the duty of 
 giving his entire and exclusive attention to the 
 business of his employer, and permitting him to 
 carry on business in competition with him, is - 
 unreasonable and void. — Svipreme Ct., (IsJ X)epJ.,) 
 May, 1879. Stoney v. Farmers' Transp. Co., 17 
 Hun 579. 
 
 2. Ho-w a custom may be proved. To 
 prove a valid usage or custom, it is not essential 
 that all the witnesses should agree ; if they differ 
 as to its existence in the same places or in all 
 places, this presents a question for a jury ; but, 
 where the witnesses upon one side show the ex- 
 istence of the custom in some localities and as to 
 some contracts, and those of the other side, that 
 no such custom exists in other localities or as to 
 other contracts, the proof fails to establish a cus- 
 tom uniform and universal. — Ck. of App., Nov., 
 1878. Dickinson v. City of Poughkeepsie, 75 
 N. Y. 65, 77. 
 
 3. What is not sufficient evidence of a custom 
 in a particular city, as to the proper persons to 
 whom bills of lading may be issued, determined 
 in an action against a common carrier for dam- 
 ages resulting from delivery of such a bill to a 
 person not entitled thereto. — Ct. of App., Jan., 
 1878. Farmers' and Mechanics' Bank v. Erie 
 Eailway Co., 72 N. Y. 188. 
 
 4. The distinction between the proof of a 
 usage and proof by experts of the meaning of 
 a technical term or phrase, pointed out — Ct. of 
 App., Dec., 1877. Nelson v. Sun Mut. Ins. Co., 
 71 N. Y. 453, 459. 
 
 5. "When proof of custom ■will con- 
 trol a contract. Usage is sometimes admis- 
 sible to add to or explain, but never to vary or 
 contradict, expressly or by implication, the 
 terms of a written instrument, or the fair and 
 legal import of a contract. — Supreme Ct., [let 
 Dept.,) March, 1879. Fellows v. Mayor, &c., of 
 
112 
 
 CUSTOM— DAMAGES, I., II. 
 
 New York, 17 Hun 249, 254. S. P., Morgan v. 
 Stevens, 6 Abb. N. CaB. 356; Van Alstyne v. 
 .Etna Ins. Co., 14 Hun 360 ; Bank of Commerce 
 V. Biasell, 72 N. Y. 615. 
 
 6. Effect of custom upon rules of 
 law. General usage, long continued and un- 
 
 questioned, among public officers, in matters- 
 pertaining to the discharge of their duties, is of 
 great force, and the practical construction so 
 given to the law has much of the weight of judi- 
 cial decision. — Supreme Ct., (Oir.,) March, 1877. 
 Brown V. Mayor, &c., of New York, 55 How. Pr. 8. 
 
 D. 
 
 DAMAGES. 
 
 I. Genebal Pbinciples. 
 n. Measttre of Damaqes. 
 
 1. In actions on anUracl. 
 
 2. In actions for wrongg. 
 in. Assessment of Bauaoes. 
 
 pe 
 
 I. Genebax Pbinciplbs. 
 
 1. The right to damages, generally. 
 Damages are recoverable in an equitable action, 
 even though plaintiff fails to establish his right 
 to the equitable relief demanded. — Supreme Ct., 
 (3d Dept.,) April, 1880. Matthews v. Delaware 
 and Hudson Canal Co., 20 Hun 427. 
 
 2. "When prospective or contingent 
 damages are recoverable. In actions 
 for breach of contract, such damages only are 
 recoverable as the parties either actually con- 
 templated, or may be fairly supposed to have 
 contemplated, as flowing from the breach. — Sur 
 
 lerior Ct., March, 1879. McColl v. Western 
 'nion Teleg. Co., 44 Superior 487. 
 
 3. Where the damage claimed is a loss of 
 that which might have been obtained, depend- 
 ing on the contingency of a certain expected 
 action of a third party in the event of the con- 
 tract being carried out, it is too remote to be re- 
 garded as within the contemplation of the party 
 breaking the contract. lb. 
 
 4. Loss of profits. Gains prevented, as 
 well as losses sustained, may be recovered as 
 damages for a breach of contract, where they 
 can be rendered reasonably certain by evidence, 
 and have naturally resulted from the breach. — 
 a. of App., Nov., 1877. White v. Miller, 71 N. 
 Y. 118, 133. 
 
 6. When, in an action for breach of an agree- 
 ment to combine or pool corporate stock, an in- 
 struction to the jury "that in estimating dam- 
 ages the jury cannot take into account any 
 mere chance of making uncertain profits, nor 
 any speculative value arising from or depend- 
 ing upon the possibility of the plaintiff com- 
 bining her stock with thii of other persons," is 
 wrongfully refused, see Havemeyer v. Have- 
 meyer, 45 Superior 464, 486, 488. 
 
 6. In actions for conversion of goods, or for 
 non-delivery of goods or chattels upon contract, 
 unearned and speculative profits will not be al- 
 lowed in computing damages. — Ct. of App., April, 
 1877. Wehle v. Haviland; 69 N. Y. 448, 451. 
 
 T. "WTien punitive or vindictive dam- 
 ages will be granted. The jury may 
 
 award punitive damages in an action for an as- 
 sault and battery, committed in removing plain- 
 ti^ who was a trespasser, from defendant's 
 premises, where an excess of force was used,, 
 and defendant's acts are found to have been 
 wanton and malicious. — Supreme Ct, (3d Dept.,) 
 Jan., 1880. Kiff v. Youmans, 20 Hun 123. 
 
 8. On the trial of an action against a rail- 
 road company to recover damages for the ex- 
 pulsion of the plaintil^ wio held a ticket, from 
 a train, without unnecessary force, the court 
 charged the jury that the evidence was not suf- 
 ficient to give punitive damages against the con- 
 ductor, but that plaintiff was entitled to have 
 the railroad company punished to such an ex- 
 tent as the jury should, in their discretion, say 
 the facts authorized and demanded. Held, that 
 the instruction was erroneous. — Supreme Ct.^ 
 (2d Dept.,) Feb., 1878. Parker v. Long Island 
 E. E. Co., 13 Hun 319. 
 
 9. "WTien nominal damages only are 
 recoverable. Where a vendor enters into a 
 contract to sell and convey real estate under a 
 belief that he has a. good title, and that the 
 same is free from encumbrances, with covenants 
 of warranty and against such encumbrances, 
 and he fails to perform for the reason that the- 
 title is defective, or an encumbrance, unknown 
 to him previously, is discovered, which prevents 
 a fulfilhnent of the contract, in an action by the 
 vendee against him for a breaxih of the contract, 
 the latter is only liable for nominal damages. — 
 Ct. of App., April, 1877. Cockcroft v. New 
 York and Harlem E. E. Co., 69 N. Y. 201, 203. 
 
 10. When the allowance of nominal damages 
 is proper, for lands taken for a city street, see- 
 Matter of City of Brooklyn, 73 N. Y. 179. 
 
 11. Liquidated damage's. An agree- 
 ment between a horse car company and an em- 
 ployee provided that if the latter should receive 
 any fare from any passenger he should be liable- 
 to a " fine " of $15. Seld, that the $15 were in- 
 tended as liquidated damages and not as a. 
 penalty.— Cbm Pleas, Nov., 1879. Birdsall «. 
 Twentyrthird St. Ey. Co., 8 Daly 419. 
 
 n. MeASUBE of D-AUAQES. 
 
 1. In actions on contract. 
 
 12. G-enerally. The measure of damages 
 for a breach of an agreement among stockholders 
 in a corporation, to pool their stock, is the 
 amount of any depreciation in the fair cash 
 market value of the stock occasioned by such 
 breach. _ A charge by the judge that sabstan- 
 tially withdraws from the jury anydiscretion as 
 to the determination of that depreciation in 
 their assessment of damages, is error. — Superior 
 
DAMAGES, II. 
 
 113 
 
 Ct., March, 1878. Havemeyer v. Havemeyer, 
 43 Superior 506. And see a further appeal, 
 45 Id. 464. 
 
 13. Actions against carriers. What 
 are proper items of damage in an action against 
 a railroad company for loss of baggage improp- 
 erly delivered to it by another carrier, see Fair- 
 fax V. New York Central, &k., E. R. Co., 73 N. , 
 Y. 167. 
 
 14. Action on charter-party. In an 
 action by the charterer of an excursion steam- 
 boat, against the owners, for a wrongful retaking 
 of the boat, thus breaking the charter-party, 
 unearned and speculative profits cannot be in- 
 cluded in the damages. What is the true 
 measure of damages in such a case, pointed out. 
 — Superior Q-., Jan., 1879. Michell v. Cornell, 
 44 Superior 401. 
 
 15. Action on covenant against en- 
 cumbrances. More than nominal damages 
 are recoverable in an action for breach of a cove- 
 nant against encumbrances, where the breach 
 consists in an outstanding grant of the use of a 
 party-wall standing wholly on premises con- 
 veyed to plaintiff by defendant's deed contain- 
 ing the covenant sued on. — Superior Cl., Jan, 
 1878. Mohr v. Parmelee, 43 Superior 320. 
 
 16. Actions between landlord and 
 tenant. Defendant hired rooms and board in 
 plaintiff's hotel for a specified period, at $150 
 per week ; he left the rooms before the expira- 
 tion of the time, and plaintiff let them to another 
 for $125 per week. In an action to recover 
 damages for breach of contract — Hdd, that plain- 
 tiff was properly allowed the difference between 
 the amount defendant agreed to pay and what 
 plaintiff received, with interest from the expi- 
 ration of the term for which defendant hired the 
 rooms ; that as the sum then due plaintiff was 
 ascertainable by mere computation, it was not a 
 case where the amount due was unliquidated and 
 u ncertain in the sense to prevent the accruing 
 of interest thereon. — Ot. of App., Jan., 1879. De 
 Lavallette v. Wendt, 75 N. Y. 579. 
 
 That, in such case, the allowance of interest, as 
 damages, is not a matter of discretion with the 
 jury, but plaintiff is entitled thereto as matter 
 of law, see lb. 
 
 17. When by contract between S. and M. it 
 was agreed that M., for a certain specified period, 
 should occupy a certain part of a building of S., 
 and carry on therein a certain business in con- 
 nection with a certain other business carried on 
 by S. in the rest of the house, and that M. should 
 receive all the profits of his business, in an ac- 
 tion by M. against S. for a breach of the contract 
 in ousting him from his part of the building — 
 
 Held, 1. That evidence of the profits made by 
 him prior to the breach was admissible on the 
 subject of damages. 
 
 2. That the tendency of the evidence to form 
 a basis for an improper allowance of subsequent 
 profits must be guarded against by the charge. — 
 Superior Ct., March, 1879. Menard v. Stevens, 
 44 Superior 515. 
 
 18. Actions on contracts for services. 
 Plaintiff rendered certain services, extending 
 over a few days, in and about the custody and 
 safekeeping of certain securities, &c., of defend- 
 ant's intestate after his decease, the same being 
 of the value of $1,200,000. Held, that a verdict 
 for plaintiff of $10,414.72 was excessive. — Sur 
 perior Ct., April, 1878. Eoss v. Harden, 44 Su- 
 perior 26, 
 
 10. Actions between vendor and 
 purchaser of real property. The gen- 
 eral rule in this state in the case of executory 
 contracts for the sale of land, is that, in the case 
 of breach by the vendor, the vendee can recover 
 only nominal damages, unless he has paid part 
 of the purchase money, in which case he can 
 also recover such purchase money and interest. 
 — Supreme Ct., {ith Dept.,) June, 1878. Stanton 
 V. Miller,* 14 Hun 383, 385. 
 
 20. Where a vendor has sold lands to which 
 he has not a perfect title, undertaking to com- 
 plete and perfect it, the vendee's proper measure 
 of damages on eviction is the value of the land 
 at the time of the eviction, with interest. The 
 rule limiting the damages in actions for breaches 
 of covenants of seizin, and of quiet enjoyment, 
 to the purchase money paid and interest, does 
 not apply in such a case. — 61!. of App., April, 
 1877. Taylor v. Barnes, 69 N. Y. 430. 
 
 21. In an action by a vendee to recover dama- 
 ges for a breach, upon the part of the vendor, of 
 a contract to convey lands, the expenses incurred 
 by plaintiff in examining the title are a proper 
 item of damages. — Ct. of App., May, 1879. Big- 
 ler V. Morgan, 77 N. Y. 312, 320. 
 
 22. — of personal property : Seller 
 against buyer. The measure of damages in 
 an action by the seller against the buyer of chat- 
 tels, for refusal to accept the same, where plain- 
 tiff had resold the goods for account of defend- 
 ant at less than the contract price, determined. — 
 a. of App., May, 1877. Smith v. Pettee, 70 K. 
 Y. 13 ; reversing 7 Hun 334. 
 
 23. Plaintiff, at New York, contracted to sell 
 to defendants a quantity of glass, to be delivered 
 at 'Antwerp, and to be paid for in New York on 
 receipt of invoice and bills of lading. After de- 
 livery and acceptance of a portion, defendants 
 notified plaintiff not to ship, and refused to take 
 the residue. In an action upon the contract — 
 Held, that the proper measure of damages was 
 the difference between the contract price and the 
 market price at the time and place of delivery. 
 —a. of App., April, 1877. Cahen v. Piatt, 69 
 N. Y. 348. 
 
 24. The evidence in such case is not confined 
 to the market price at the precise time and place 
 of delivery ; but where it is impracticable to 
 show this, evidence of the price for a brief period 
 before or after that time, and at places not dis- 
 tant, or in other controlling markets, is compe- 
 tent, not for the purpose of establishing a mar- 
 ket price at another time and place, but for the 
 purpose of showing the market price at the time 
 and place of delivery. Where, therefore, there 
 is no difficulty in making the proof, and the 
 market price at the time and place of deliveiy 
 is shown, it must control. lb. 
 
 25. Buyer against seller. In an action 
 to recover damages for a breach of warranty in 
 the sale of cabbage seed, the proper measure of 
 damages is the difference in value between the 
 crop raised from the defective seed and a crop of 
 the kind of seed represented, such as would ordi- 
 narily have been produced that year ; but plain- 
 tiff is not entitled to any interest on the amount 
 so found.— Ci!. of App., Oct., 1879. White v. 
 Miller, 78 N. Y. 393. 
 
 26. The differences between the contract 
 price and the lowest market price of the articles 
 
 * Said to have been afBrmed in the Court of Ap- 
 peals, December 9th, 1879 
 
114 
 
 DAMAGES, II. 
 
 that were not delivered as contracted' for, con- 
 stitute the damages for non-delivery. — Saperwr 
 Cl., June, 1877. Highland Chemical, &o., Co., v. 
 Matthews, 43 Superior 39. S. P., Wintermute 
 V. Cooke, 73 N. Y. 107. 
 
 2. In mAw-mfm wrongs. 
 
 27. Injuries to the person. In an ac- 
 tion for injuries sustained by plaintiflF by reason 
 of an obstruction in the highway, placed there 
 by defendant, plaintiff may recover the expen- 
 ses of his cure, the value of his tiioae lost, a fair 
 compensation for his physical and mental suf- 
 fering, and for any permanent reduction of his 
 power to earn money. — Supreme Cl., (2d i)ept.,) 
 Dee., 1878. Drinkwater v. Diusmore, 16 Hun 
 250. 
 
 28. The fact that plaintiff's employer paid 
 him his wages regularly during his sickness does 
 not relieve defendant from liability to compen- 
 sate him for the loss of the time during which 
 he was unable to work. lb. 
 
 29. In an action for injuries sustained by 
 plaintiff by reason of defendant's negligence in 
 leaving a coal-hole in the sidewalk uncovered, 
 into which plaintiff fell, the jury may take into 
 consideration the nature of plaintiff's business, 
 its extent, and the time he was prevented from 
 attending to the same. — Superior Qt., Jan., 1879. 
 Clifford V. Dam, 44 Superior 391. 
 
 30. Fraud, and frandulent represen- 
 tations. In an action against defendants for 
 having, by false and fraudulent representations, 
 induced plaintiff to purchase certain railroad 
 bonds, brought on his discovery of the fraud 
 some three years after the purchase, the measure 
 of damages is the difference between the actual 
 value of the bonds at the time of the sale and 
 their value as they were represented to be. — Sw- 
 preme'Ct., {2d Dept.,) Feb., 1878. Wyeth v. Mor- 
 ris, 13 Hun 338. 
 
 31. Plaintiff subscribed $5000 towards the. 
 formation of a corporation to operate an oil 
 well, being induced so to do by the fake and 
 fraudulent representation of defendant, that 
 |i500,000 had been paid for the land to be con- 
 veyed to the corporation, while in fact the land 
 had cost but 1255,000. After the formation of 
 the corporation she received one thousand shares 
 of the stock at $5 per share ; while if the stock 
 had been issued to her according to the actual 
 price paid for the property, she would have had 
 nineteen hundred and sixty shares. She sued 
 to recover damages for the fraud. 
 
 Held, 1. That she was entitled to recover the 
 value of the shares so withheld, or the money 
 paid by her as their purchase price. 
 
 2. That her right to recover such damages 
 was not affected by the fact that she had re- 
 tained her own shares until they became worth- 
 less. — Supreme Ct., (lei Dept.,) April, 1878. 
 Cowles V. Watson, 14 Hun 41. 
 
 32. Libel. In an action for libel, where 
 injury to character has been proved, plaintiff's 
 suffering by reason of wounded feelings, as well 
 as any injury to his character and standing, 
 either in his professional, public or private 
 station in life, may be considered by the jury on 
 the question of damages. — Supreme Ul., (Isi 
 Dept.,) Jan., 1879. Hamilton v. Eno, 16 Hun 
 599. 
 
 33. Replevin. Plaintiff was the owner of 
 a machine, the principle of which he had in- 
 
 vented, and which he had constructed at great 
 expense for the purpose of exhibiting it at two 
 fairs. Defendants wrongfully took the machine 
 from plaintiff to prevent him from exhibiting it 
 at the fairs, where they themselves intended to 
 exhibit a rival machine. Plaintiff subsequently 
 constructed another machine at a much less 
 cost, but as it was not completed in time, he was 
 unable to exhibit it at one of the fairs. In his 
 action to recover the first machine and damages 
 for its detention, it appeared that it had so de- 
 preciated in value as to be worth only the cost 
 of the materials used in its construction ; and 
 he was allowed as damages for the. detention 
 thereof, the expense incurred in constructing 
 the second machine, with interest thereon. 
 Seld, that the allowance of damages was as 
 favorable to the defendants as they had u, right 
 to ask. — Supreme Ct., (3(i Dept.,) May, 1878. 
 Scattergood v. "Wood,* 14 Hun 269. 
 
 34. Trover: Conversion of goods, 
 generally. In an action for a wrongful taking 
 and conversion of goods, where there is no 
 question of malice or claim to recover exemj'lary 
 damages, the proper measure of damages is the 
 market value of the goods at the time of the 
 tortious taking, with interest thereon. The 
 market value is the price at which the goods 
 can be replaced for money in the market ; not 
 the retail value or price for which they are sold 
 at retail.— OS. of App., April, 1877. Wehle v. 
 Haveland, 69 N. Y. 448. March, 1877. Prince 
 V. Conner, Id. 608. 
 
 35. In trover, the price obtained at auction 
 is not conclusive upon eitherparty on the ques- 
 tion of damages. — Supreme Cl., (M Dept.,) Jviy, 
 1879. PhUbrook v. Kellogg, 18 Hun 399. 
 
 36. Conversion of promissory note. 
 In an action for the conversion of a promissory 
 note the measure of damages is the face of the 
 note and interest, unless it appear that it is of 
 less value because of something which legiti- 
 mately impairs or diminishes its value or affects 
 its validity. The rule is the same whether the 
 note is that of the plaintiff or of a third person. 
 — Cl. of App., April, 1878. Thaver v. Manley, 
 73 N. Y. 305 ; ■modifying?, Hun 5"50. 
 
 3'7. Where, in an action for the conversion 
 of three notes made by plaintiff, it appeared 
 that defendant refused to deliver up the notes 
 on demand ; that after the action was com- 
 menced, but before trial, one of the notes be- 
 came due, and that all of them were still in the 
 possession of defendant — Held, that as when 
 the action was brought defendant had it in bis 
 power to dispose of the notes to a bona fide 
 holder in whose hands they would have been 
 valid, and plaintiff was then entitled to recover 
 the actual damage which might accrue to him, 
 this right was not impaired by the subsequent 
 maturity of one of the notes before a transfer ; 
 also that as the judgment and a satisfaction 
 thereof would transfer title to the notes to de- 
 fendant, plaintiff was entitled to recover the full 
 value ; but that to avoid circuity of action » 
 provision should be incorporated in the judg- 
 ment giving to defendant the right to cancel 
 and return the notes as a satisfaction of the 
 damages. lb. 
 
 38. Although in such case the plaintiff has 
 a remedy by an equitable action to restrain de- 
 
 ♦ Said to have been affirmed in the Court of Ap- 
 peals, December 19th, 1879. 
 
DAMAGES, U., III.— DEBTOR AND CREDITOR, I., II. 115 
 
 jTendant from transferring, and to compel the 
 ■cancellation and surrender of the notes, he is 
 not obliged to resort to this remedy, but may 
 -sue for the conversion. lb. 
 
 39. The measure of damages for the conver- 
 •sion of a note not due and not bearing interest, 
 is its present value. — Ct. of 'App., Oct., 1877. 
 Powell V. Powell, 71 N. Y. 71. 
 
 ni. Assessment of Damages. 
 
 40. In general. As to the proper course 
 on assessment of special damages, after the 
 affirmance by the Court of Appeals of an order 
 granting a new trial, and an award of judgment 
 absolute in favor of plaintiff, in an action of 
 tort, gee Thompson v. Lumley, 7 Daly 74. 
 
 _ 41. Double and treble damages. The 
 ■right to recover treble damages in actions cor- 
 responding with the old action of waste, still ex- 
 ists under the code. — Ct. of App., June, 1877. 
 Kobinson v. Kime, 70 N. Y. 147, 155. 
 
 42. In an action under the statute against lot- 
 teries (1 Kev. Stat. 667, ? 32,) by a purchaser 
 ■of lottery tickets, against the vendor, the rule of 
 recovery is double the amount paid, with double 
 ■costs. — Ct. of App., May, 1878. Grover v. Mor- 
 ris, 73 N. Y. 473, 479. 
 
 As to obtaining a new trial on the ground of 
 Excessive or InadeqiuUe damages, see Kew 
 Teial, U-14. 
 
 As to the amount of damages recoverable in 
 actions upon Inmranoe policies, see Insttbaitce, 
 147. 
 
 As to the measure of a land-owner's compen- 
 sation for Land taken for public iise, see Emi- 
 nent Domain, 12, 13. 
 
 As to damages in civil actions for Oaming 
 •death, see Homicide, II. 
 
 DAMS. 
 
 EiPABiAN BiOHTs; Wateecoxjbses. 
 
 DEATH. 
 
 Death of a party as Oround of abatement, see 
 Abatement, 1, 2. 
 
 Proof o^ in actions on policies of Life insur- 
 ■ance, see Insurance, 118. 
 
 When Presumed, from long absence, &c., see 
 Evidence, 41, 42. 
 
 As to the statutory Civil action for causing 
 ■ death, see Homicide, II. 
 
 DEBTOR AND CREDITOR. 
 
 I. The Eelation, Generally Considered. 
 II. Payment and Discharge op Debts. 
 in. Accord and Satisfaction, Compromises, 
 
 Extensions, &c. 
 iCV. Collateral Securities. 
 
 V. Composition Deeds. 
 'VI. Conflicting Eights of Creditors. 
 
 1. The Eelation, Generally Considered. 
 1. Rights and remedies of the cred- 
 
 itor, generally. A debtor prevailed upon 
 his creditor to surrender a note held by him, 
 and take a mortgage on land in place thereof, 
 such mortgage containing no covenant to pay 
 the debt represented by the note. Before this 
 mortgage was recorded, the debtor made and 
 procured to be recorded a second mortgage, with 
 intent to defeat the lien of the prior one. Held, 
 that the creditor could maintain an action for 
 damages against the debtor. — Supreme Ct., (4<A 
 Dept. Sp. T.,) Nov., 1878. Graves v. Briggs, 6 
 Abb. N. Cas. 38. 
 
 2. Joinder of causes of action by cred- 
 itor. As to the right of the creditor, where an 
 assignment of the debt for less than its face is 
 procured from him by the fraud of the debtor 
 and the assignee, to set aside such assignment, 
 credit on the debt the amount paid for it, and 
 recover the balance of the debt, all in the same 
 action, see Nichols v. Drew, 19 Hun 490. 
 
 II. Payment and Discharge of Debts. 
 
 [Consult, also, title Payment.] 
 
 3. "What amounts to a payment, 
 generally. A transfer of property is pre- 
 sumed to be given in payment only when made 
 at the time the debt is created. If made after 
 that time, no such presumption arises. — Superior 
 Ct., Nov., 1878. Sweeney v. Prior, 44 Superior 
 337. 
 
 4._ "What does not. After the original 
 creditor has assigned the debt, the debtor is no 
 longer indebted to him ; therefore, a payment 
 thereafter made by such debtor to a sheriff hold- 
 ing an execution issued on a judgment recovered 
 against his original creditor is not a'discharge 
 of the debt, even though he had no notice of the 
 assignment before such payment. — Superior Ct., 
 Nov., 1877. Adams v. Welsh, 43 Superior 52. 
 
 5. Taking a note in payment. The 
 taking by a creditor, of the debtor's note, for an 
 existing indebtedness, does not merge or ex- 
 tinguish the indebtedness; the note is simply 
 evidence of the debt, and its operation is only 
 to extend the time of payment. When default 
 is made in payment, the creditor may sue upon 
 the original demand, and bring the note into 
 court to be delivered up on trial. And so, suc- 
 cessive renewal notes are simply extensions from 
 date to date of the time of payment. — Ct. of 
 App., March, 1879. Jagger Iron Co. v. Walker, 
 76 N. Y. 521 ; affirming 43 Superior 275. S. P., 
 Maier v. Canavan, 8 Daly 272. 
 
 6. This rule is not changed by the facts that 
 the first of a series of notes so given was in- 
 dorsed and procured to be discounted by the 
 creditor, and the succeeding ones were each dis- 
 counted to raise money to take up the preceding 
 one. No note in the series is a payment of the 
 preceding one, unless there has been a discharge 
 of the creditor as indorser, or unless by the 
 transaction he has obtained a claim against 
 another party, lb. 
 
 Y. When, however, the creditor receives from 
 the debtor the note of a third person, the pre- 
 sumption is that it was received as payment. — 
 Ct. of App., April, 1877. Shaw v. Eepublic 
 Life Ins. Co., 69 N. Y. 286. 
 
 8. Application -of payments, liy the 
 creditor. The right of a creditor, having two 
 demands against his debtor, to apply a payment 
 received from the latter to either, provided no 
 
116 
 
 DEBTOR AND CREDITOR, II., III., IV., V. 
 
 direction is given, is not affected by equities ex- 
 isting between the debtor and a third person of 
 which the creditor had no notice. Therefore 
 the mere fact that there is a surety for one of 
 the debts does not preclude the creditor from 
 applying a payment so received to the debt for 
 which he has no security. — Ct. of App., Bee., 
 1878. Harding i;.Tifft, 75 NY. 461 And see, 
 also, Feldman v. Beier, 78 N. Y. 293. 
 
 9. — by the court. Where a general pay- 
 ment is made upon a note, it is to be applied 
 first to the extinguishment of the interest, and 
 the balance to the reduction of the principal. — 
 Supreme Ot., (4<A Bept , ) Oct., 1 878. Merchants' 
 Bank v. Freeman, 15 Hun 359. 
 
 10. That where two or more persons are in- 
 debted, some of whom are indemnified from lia- 
 bility for such indebtedness, the property of one 
 not so indemnified will not be applied so as to 
 relieve the others from the liability against 
 which they are indemnified, see Jones v. Bene- 
 dict, 17 Hun 128. 
 
 11. Application once made, final. The 
 rule that where the party having the right has 
 once made an application of a payment, his elec- 
 tion is final, and he cannot thereafter change the 
 application and apply the payment upon a differ- 
 ent indebtedness, recognized and applied. — Ct. 
 of App., Jan., 1878. Wright v. Wright, 72 N. 
 Y. 149. 
 
 in. AccoBD AND Satisfaction, Compbo- 
 MisES, Extensions, &c. 
 
 12. 'What amounts to an accord and 
 satisfaction. When the holder of promis- 
 sory notes* accepts from the maker less than 
 
 ■ their face, and surrenders the notes to the maker, 
 there is a complete accord and satisfaction, and 
 the maker is discharged from all liability on the 
 notes and on the indebtedness for which they 
 were given. — Superior Ct., Nov., 1878. Babcock 
 V. Bonnell, 44 Superior, 568. 
 
 13. What Will not. An accord must be 
 completely executed to sustain a plea of accord 
 and satisfaction ; a part execution, and tender of 
 performance of the residue, is insufficient. — Ct. 
 of App., Jan., 1879. Kromer v. Heim, 75 N. Y. 
 574 ; affirming 44 Superior 237. 
 
 14. Plaintiff recovered a judgment herein for 
 $4334.08 ; pending a stay of execution thereon, 
 plaintiff's attorney executed and delivered a 
 stipulation agreeing to accept $3000 in cash and 
 the assignment of certain patent interests in 
 settlement of the judgment, or to accept $1000 
 in cash and merchandise sufficient to reduce the 
 judgment to $1000, and for that balance to ac- 
 cept an assignment of the patent interests. De- 
 fendant elected the latter alternative, paid the 
 cash, delivered the merchandise, and then ten- 
 dered an assignment of the patent interests, 
 which plaintifi refused to accept. Held, that a 
 motion to set aside an execution issued to collect 
 the balance of the judgment was properly de- 
 nied ; that the case was one of an accord partly 
 executed ; that plaintiff was under no legal ob- 
 ligation to accept the assignment, but could en- 
 force thejudgmentforthe balance unpaid. lb. 
 
 15. The doctrine that mutual promises which 
 give a right of action may operate and are good, 
 as an accord and satisfaction of a prior obliga- 
 tion, must be taken with the qualification that 
 tlie intent was to accept the new promise, as a sat- 
 isfactim, of the prior obligation. Where the 
 
 performance of the new promise was the thing to- 
 be received in satisfaction, then, until perform- 
 ance, there is not complete accord, and the- 
 original obligation remains in force. lb. 
 
 16. Effect of compromises, exten- 
 sions, &c. Where the creditors of a failing: 
 debtor contract with a third person to sell and 
 assign to him their claims at a certain percent- 
 age, in the absence of proof that such third per- 
 son was acting merely as agent of the debtor,, 
 the transaction is to be considered as a purchase- 
 and Bale, not a compromise ; and a creditor who- 
 has received the percentage agreed upon, and 
 has assigned his claim, cannot enforce the bal- 
 ance of the indebtedness upon proof simply that 
 some of the creditors" received more than th& 
 stipulated per cent, for their claims. — Gt. ofApp.y 
 AprU, 1877. Goldenburgh v. Hoffman, 69 N. Y. 
 322 ; affirming 7 Hun 324. 
 
 VJ. A promise ou the one side to accept, and 
 on the other to pay, a given sum in compromise- 
 of a debt, in installments, is a single agreement 
 to pay a specified sum in installments, and upoa 
 a failure to make one payment the whole con- 
 tract is broken by the debtor, and the creditor 
 can again enforce the original debt. — Supreme 
 a., (Bensa. Cir.,) Nov., 1879. Foxell v. Fletcher,. 
 59 How. Pr. 88. 
 
 18. But where time is given for the whole 
 debt, and there is no promise to pay in install- 
 ments, but only a declaration by the plainti£& 
 that they will accept monthly payments if the- 
 defendant sees fit to make them, until the de- 
 fendant fails to pay according to the terms of 
 the agreement, the plaintiffs have no cause of 
 action which they can enforce. lb. 
 
 IV. COLLATEBAL SeCUBITIES. 
 
 19. Bights of creditor holding secu- 
 rity. As to th/s rights of a pledgee of stocks 
 wrongfully hypothecated by a broker, as against 
 the true owners, in respect to the sale of the^ 
 stocks to satisfy his loan, see Grould v. Central 
 Trust Co., 6 Abb. N. Cas 381 ; Chamberlain v. 
 Greenleaf, 4 Id. 178; Merchants' Bank of 
 Canada v. Livingston, 17 Hun 321. 
 
 20. His liability for negligence. Ab- 
 sence of all supervision and care on the part of 
 a creditor holding collateral security, in respect 
 to the collaterals deposited with him, is such 
 negligence as will render him liable for their loss- 
 through the wrongful acts of his agents and 
 servants. — Supreme Ct., Jan., 1879. Cutting v. 
 Marlor, 57 How. Pr. 56 ; S. C, 6 Abb. N. Cas.. 
 388 ; 17 Hun 573 ; affirmed, 78 N. Y. 454. 
 
 V. Composition Deeds. 
 
 21. How construed. A composition deetf 
 recited that " whereas, C. Gt. H. & Son, bankers, 
 are indebted to the undersigned, their seoeral 
 creditors, in divers amounts, but, by reason of 
 sundry losses and disappointments, are unable 
 to pay and satisfy our demands in full, now," &c, 
 
 ildd. 1. That the words " their several cred- 
 itors" were not synonymous with "all their 
 creditors," and did not imply that the compro- 
 mise was not to become binding until all the- 
 creditors should sign it. 
 
 2. That there being no ambiguity in the deed, 
 evidence of the attending circumstances was in- 
 admissible to show that it was intended to be 
 inoperative until signed by all the creditors. — 
 
DEBTOR AND CEEDITOR, V., VI.— DEEDS, I. 
 
 117 
 
 ■Supreme Ot., {ilh Dept.,) Jan., 1879. Strickland 
 «. Harger, 16 Hun 465. 
 
 22. Effect of fraud, preferences, &o. 
 An indorser of certain promissory notes, liaving 
 ■consented that the holder might compromise 
 with the maker, and agreed to still remain liable 
 as indorser for the full value of the notes, and 
 >the holder, with other creditors, having signed 
 a composition deed agreeing to take fifty per 
 cent, of their claims, which was the compromise 
 to which the indorser consented, and the holder 
 afterwards, in violation of said agreement, hav- 
 ing demanded and received, in lieu of the 
 original notes, without the indorser's knowledge 
 or assent, notes for the full amount of his claim, 
 such notes are void as being in fraud of cred- 
 itors, and the indorser is released from his 
 agreement. — Superior Ct., Jan., 1878. Germania 
 Bank v. Frost, 43 Superior 117. S. P., Supreme 
 €1., (1st Dept.,) April, 1878. Williams v. Schrei- 
 *er, 14 Hun 38. 
 
 23. T- of duress. The refusal of some of 
 the creditors to sign a composition deed re- 
 leasing the debtor, except upon condition that 
 the plaintiff (the debtor's brother-in-law) should 
 .give his note for a certain sum over and above 
 .that mentioned in the deed, the note to be held 
 till other creditors should sign the composition 
 4}eed, does not amount to duress or compulsion, 
 though such refusing creditors were aware of 
 •the iiffinity of plaintiff to the debtor. — Superior 
 •Ct., March, 1879. Solinger v. Earle, 45 Superior 
 80. 
 
 24. By the said deed of composition, thirty 
 <!ents on the dollar were to have been paid the 
 ■defendants, among other creditors, in plaintiff's 
 motes, with the debtor's indorsement. Seld, that 
 ithe above transaction, by which defendants, with- 
 out the knowledge of the other creditors, re- 
 ceived a further note of plaintiff, was illegal, 
 .and a fraud upon the said creditors ; and that 
 all the parties thereto were equally in the 
 ■wrong ; wherefore the court would not interfere 
 to aid plaintiff to recover the amount of said 
 .note paid by him. lb. 
 
 VI. Conflicting Eights op Ceeditoes. 
 
 25. Priority of creditor accepting 
 offer of judgment. That where a debtor, 
 against whom actions have been commenced by 
 <iifferent creditors, serves an offer of judgment 
 imder the code (Old Code, § 385; New Code, 
 J 738,) in the action last commenced, and thus 
 
 enables the plaintiff therein, by accepting the 
 same, to perfect his judgment in advance of the 
 creditor who first brought suit, and to obtain a 
 preference in the payment of his debt, this is 
 not such a fraud as will authorize the setting 
 aside of the judgment so obtained, see Ot. of 
 App., Feb., 1879. Beards v. Wheeler, 76 N. Y. 
 ^13; S. C, 11 Hun 539. 
 
 As to the effect of a Lega/yy to a creditor, or a 
 ^lebtor, to extinguish an indebtedness existing 
 between the testator and the legatee, see Lbq- 
 
 ACIES, 12-14. 
 
 As to what debts carry Interest, see Interest. 
 As to the effect of Usury, and the right to Set 
 It up as a defence, see Usuby. 
 
 DECLARATIONS. 
 
 As to the admissibility and effect of declara- 
 tions and admissions, As emdence, see Evidence, 
 III. 
 
 As to Dying dedaratiom, see Homicide, 4, 5. 
 
 As to Dedaratiom of truet, see Trusts, 7-9. 
 
 DECREE. 
 
 Judgment. 
 
 DECEIT. 
 
 False Pbetences ; Fbaub. 
 
 DEDICATION. 
 
 1. Wliat amounts to a dedication. 
 
 When the owner of a tract of land lays it out 
 into village lots, intersected with streets and 
 alleys and with public squares, such streets, - 
 alleys and squares aie thereby dedicated to pub- 
 lic use to the extent and as designated on the 
 map, where conveyances are made with reference 
 to such designation. — Supreme Ot., (3d Dept.,) 
 Nov., 1878. De Witt «. Village of Ithaca, 15 Hun 
 668. 
 
 2. As between the parties, the dedication is 
 complete on the delivery of the conveyance. As 
 to the public, there must be an acceptance, which 
 may be shown by an adoption and user of the 
 lands so dedicated, by the public authorities. lb. 
 
 DEEDS. 
 
 I. Common Law Requibements. 
 II. Acknowledgment. Eecobdino. 
 III. How Construed. Validity 
 
 I. Common Law Eeciuirbments. 
 
 1. "What ■will operate as a deed. When 
 a receipt for the purchase money of land, from 
 the terms of which the land sold can be exactly 
 located, and under which the purchaser has 
 taken possession, may, as against the grantor, be 
 treated as a deed, see Copper's Case, 7 Abb. N. 
 Cas. 121. 
 
 2. Necessity of actual delivery. Al- 
 though the grantor retains the custody of the 
 deed, yet, if the usual formalities of execution 
 take place, and the instrument is to all appear- 
 ances consummated without any condition or 
 qualification annexed, and the acts of the par- 
 ties clearly evince their intention to be bound 
 without a formal delivery, it is a complete and 
 valid deed. — Superior Ot., Nov., 1878. Dietz v. 
 Farish, 44 Superior 190. 
 
 3. Proof of delivery, and ■when pre- 
 sumed. The presumption of delivery of a 
 deed, arising from the fact of its being recorded, 
 is repelled where it appears that the grantee 
 never was in possession, and no claim was made 
 under the deed ; that the land was improved 
 and valuable only for its use and occupation ; 
 and that the grantor, his heirs and representa- 
 tives, have remained in undisturbed possession 
 for a period of more than forty years without 
 recognizing any rights under the deed. In such 
 case a contrary presumption arises, either that 
 the deed was never delivered, or that there was 
 
118 
 
 DEEDS, I., II., III. 
 
 a re-eonveyance. — Ot. of App., Dec., 1877. Knolls 
 V. Bamhart, 71 N. Y. 474. 
 
 4. Effect of possession by grantee. 
 "Where a deed is delivered by the grantor, with 
 the intent that the grantee shall not take it as 
 the deed of the grantor, nor receive it as grantee, 
 but as the agent of the grantor for a special pur- 
 pose, it is no delivery ; but where a delivery is 
 made by the grantor, with the intent that the 
 grantee shall take it as the deed of the grantor, 
 and receive it as grantee, it is a good delivery, 
 although there are conditions attached to the de- 
 livery. — Superior Ct., Nov., 1878. Dietz v. Parish, 
 44 Superior 190. S. P., Supreme Ct., (2d Dept.,) 
 Feb^ 1879. Lawrence v. Conklin, 17 Hun 228. 
 
 6. Possession of an instrument under seal is 
 not conclusive evidence of its delivery ; nor is 
 the certificate of a commissioner of deeds or 
 notary public, of proof of execution and de- 
 livery by a subscribing witness ; nor is the con- 
 junction of possession and certificate. The in- 
 ference of delivery arising from such possession, 
 or certificate, or both, may be rebutted. Ih. 
 
 n. Acknowledgment. EEcoEDiNa. 
 
 6. PoTwer to take an ackno^wledg- 
 ment. A mortgage under seal is a deed, and 
 a commissioner authorized to take acknowledg- 
 ment of deeds may take proof of its execution. 
 —Supreme Ct., {ith Dept.,) Oct., 1879. Cauan- 
 darqua Academy v. McKechnie, 19 Hun 62. 
 
 7. A certificate of proof or acknowl- 
 edgement in due form proves itself, and no 
 proof of its genuineness is required. Such cer- 
 tificate need not follow the precise language of 
 the statute ; if it shows a substantial compliance 
 therewith it is sufficient. lb. 
 
 8. The recording acts. Necessity of 
 recording. An unrecorded deed has a prefer- 
 ence, under the recording act, over a subsequent 
 judgment against tlie grantor, although he re- 
 mains in possession. — Ct. of App., April, 1878. 
 Schroeder v. Gurney, 73 N. Y. 430, 485 ; affirm- 
 ing 10 Hun 413. 
 
 9. Effect of recording. Priority 
 among deeds. Where, in a controversy as 
 to title to lands, both parties claim from a com- 
 mon source, the one claiming under a deed to 
 A, first executed, but not recorded until after 
 the record of a deed to B, under which the 
 other party claims, the fact that a conveyance 
 from A was recorded before the deed to B, is 
 immaterial ; if the deed to B has the priority 
 over A's (Jeed, by reason of its earlier record, 
 no title valid as against it could be derived 
 from A. — Ct. of App., March, 1879. Page v. 
 Waring, 76 N. Y. 463, 469. 
 
 10. So, also, it is immaterial that the deed to 
 A was recorded prior to a conveyance from B 
 or from his grantee, as, if B had good title un- 
 der the recording act, those taking title under 
 him are also protected. Jb. 
 
 11. The priority, under the recording act, be- 
 tween a deed given in pursuance of a sale 
 by order of a surrogate, to pay debts of the es- 
 tate, and a sheriff's deed of the same lands, on 
 execution, determined. Barto v. Tompkins Co. 
 Nat. Bank, 15 Hun 11. 
 
 12. Rights of bona fide purchaser, 
 under the recording acts. E. devised 
 certain real estate to her husband and two 
 daughters, one-third to each, the husband being 
 made trustee for the daughters until they 
 
 reached the age of twenty-five years. In Feb- 
 ruary, 1869, the husband conveyed the one- 
 third devised to him, to plaintiff, by deed which 
 was not recorded until December, 1871. The- 
 premises were sold in January, 1870, upon ex- 
 ecution against the husband, and in pursuanee- 
 thereof, defendant, who was a purchaser in good 
 faith, for a valuable consideration, without no- 
 tice of the prior conveyance, received the- 
 sheriff's deed April 17th, 1871, which was re- 
 corded on that day. In an action of ejectment 
 — Seld, that defendant was entitled to the one- 
 third.— Ct. of App., March, 1877. Hetzel v^ 
 Barber, 69 N. Y. 1 ; affirming, as to this point, 6- 
 Hun 534. 
 
 13. In April, 1870, the husband, by a deei 
 purporting to be in execution of the power con- 
 tained in the will, and without reference to the 
 former deed, conveyed the whole of the prem- 
 ises to plaintiff, which deed was recorded prior- 
 to the giving and recording of defendant's deed. 
 Held, that as to the one-third previously con- 
 veyed, the deed had no validity ; that the first 
 deed to plaintiff was valid and effectual as be- 
 tween him and the grantor, and the latter had 
 nothing left to convey to plaintiff or to any on& 
 save to a purchaser in good faith, for value, 
 whose deed sliould be first recorded; that the- 
 power gave no force to the second deed, and 
 that, therefore, the record of it did not affect 
 defendant's rights. lb. 
 
 14. In April, 1869, the husband leased the- 
 premises to defendant, who entered and occu- 
 pied under the lease until he acquired title by 
 deed from the two daughtei's after they came of 
 age, but before they reached the age of twenty- 
 five. Held, that defendant was not thereby de- 
 prived of the right of setting up his title as a 
 bar to the action. lb. 
 
 15. Notice of unrecorded deed. The 
 possession which will constitute constructive no- 
 tice of an unrecorded deed, to a subsequent pur- 
 chaser, must be under the deed, and actual, open 
 and visible, so that the subsequent purchaser 
 could have gone upon the land and obtained, by 
 inquiry, information of such deed. — Ct. of App.y 
 March, 1869. Page v. Waring, 76 N. Y. 463, 
 470. 
 
 III. How Construed. Validity. 
 
 16. The consideration clause. Aa 
 
 acknowledgment of payment in the considera- 
 tion clause of a deed does not conclude the 
 grantor. In an action to recover the purchase 
 price, he may show the actual consideration j 
 that it was not paid, and the time when and man- 
 ner in which it was to be paid. — Ct. of App., June,. 
 1877. Hebbard v. Haughian, 70 N. Y. 54, 58. 
 
 17. "What deeds are void because- 
 premises conveyed are held adversely^ 
 A possession under a deed procured through 
 fraud is not adverse within the meaning of the- 
 act against champerty. — Supreme Ct., (2d Depl.,) 
 Dec., 1878. Moody v. Moody 16 Hun 189. 
 
 18. What possession of water lots in New 
 York city is adverse, so as to avoid a deed from 
 a grantor claiming under a grant from the city^ 
 see Towle v. Eemsen, 70 N. Y. 303. 
 
 19. Description of premises con- 
 veyed. — A general clause of description in a 
 deed is sufficient ; e. g., " also all other lands con- 
 tained within the limits of said commons, as de- 
 scribed on said map, &c., not heretofore conveyed 
 
DEEDS, III. 
 
 119 
 
 by the parties of the hrst part," &c. — Superior 
 CL, May, 1878. Scully v. Sanders, 44 Superior 
 89. Compare Augustine v. Britt, 15 Hun 395. 
 
 20. Where the closing clause in the descrip- 
 tion in a deed sums up the intention of the 
 parties as to the particular premises conveyed, 
 it has a controlling effect upon all the prior 
 phrases used in the description. — Cl. of App., 
 May., 1878. Ousby v. Jones, 73 N. Y. 621. 
 
 21. Quantity controlled by metes 
 and. bounds. A conveyance is to be con- 
 strued in reference to its visible location calls, 
 as marked or appearing upon the land, in pref- 
 erence to quantity, course or distance ; and any 
 particuTar may be rejected, if inconsistent with 
 the other parts of the description, and sufficient 
 remains to locate the land_ intended to be con- 
 veyed. — Ot. of App., June, 1877. Robinson v. 
 Kime, 70 N. Y. 147, 154. 
 
 22. Where monuments existing at the time 
 of a conveyance are referred to therein, which 
 have since disappeared, parol evidence of their 
 location is competent, lb. 
 
 23. Where a deed contains an accurate de- 
 scription, by permanent boundaries capable of 
 being ascertained, a general reference, in addi- 
 tion, to the premises as in the possession of the 
 grantor or grantee, will not pass title to lands 
 outside of the boundaries given ; the more cer- 
 tain and permanent portions of the description 
 will control.— Of. of App., April, 1878. Jones v. 
 Smith, 73 N. Y. 205. 
 
 24. Courses and distances must 
 yield to landmarks and monuments. — 
 The rule that in the construction of' a deed, 
 courses, distances and quantities must yield to 
 natural or artificial monuments called for by the 
 grant, is not inflexible ; it applies with less force 
 to artificial than to natural monuments, and 
 where there is anything in the description show- 
 ing that the courses and distances are right, they 
 will prevail. — Ct. of App., Jan., 1878. Higin- 
 botham v. Stoddard, 72 N. Y. 94. 
 
 25. So, where it is apparent from the face of 
 the deed tliat the intention was to convey a spe- 
 cific quantity of land, and the courses and dis- 
 tances include that precise quantity, while the 
 description by monuments embraces more or 
 less, the former will control. lb. 
 
 20. Where, also, the lines are so short as to 
 admit of entire accuracy, they are to be re- 
 garded with great confidence as a means of as- 
 certaining the intention of the parties. lb. 
 
 27. In ejectment, defendant claimed under a 
 deed conveying to him a lot in the village of O., 
 " on the southerly side of M. street, * * * 
 being ten feet on M. street, thirty-two feet in 
 rear on the northerly side of the mill-race, and one 
 hundred feet in depth from front to rear, con* 
 taining twenty-one hundred square feet of 
 ground." The distances given included just 
 twenty-one hundred square feet. The northerly 
 side of the mill-race viaii more than one hundred 
 feet from M. street. The land in question was 
 the strip lying between the mill-race and a line 
 one hundred feet from M. street. 
 
 Held, 1. That it was not included in the deed, 
 and that defendant was not entitled thereto. 
 
 2. That the fact that defendant was in posses- 
 sion thereof at the time plaintiff received his 
 deed, did not render such deed void. lb. 
 
 28. "What easements ■will pass. D. 
 owned and had built houses upon lots 31, 33, 35 
 and 37, the drainage from lots 31 and 33 being 
 
 conducted, by means of a pipe, through lots 35 
 and 37. D., by a deed containing covenants of 
 warranty and for quiet enjoyment, conveyed 
 lots 31 and 33 to M., "to have and to hold the 
 same, with the appurtenances." Subsequently 
 he conveyed lots 35 and 37 to H., " as the same 
 are now enclosed, built upon and occupied." H. 
 had no actual knowledge of the position of the 
 drain-pipe, and the same was not observable 
 upon ordinary inspection, Held, that the prem- 
 ises conveyed to H. were subject to an easement 
 in favor of M., to use the drain-pipe. — Supreme 
 a., {1st Dept.,) March, 1878. Flint v. Bacon, 13 
 Hun 454. 
 
 29. Conditions. S. conveyed to the trus- 
 tees of a church, their successors and assigns, 
 certain premises "for church purposes." The 
 deed contained a condition, in substance, that it 
 the seats of any church erected on the premises 
 shall be " rented or sold," the premises shall re- 
 vert to the grantor or her heirs. In an action 
 of ejectment brought by plaintiff as heir-at-law 
 of S. — Held, that a sale of the premises to an in - 
 dividual, under order of the court, for the pur- 
 pose of paying the debts of the church society, 
 and a conveyance by deed, containing the same 
 condition, was not a breach of the condition, and 
 did not forfeit the title; that, in the absence of 
 express terms in the grant, limiting the use of 
 the premises to the , grantees, or to any particu- 
 lar denomination of Christians, no such limita- 
 tion could be implied, and so long as they were 
 not used for other than church purposes, and the 
 seats in the church were not rented or sold, there 
 was no forfeiture; that a conveyance of the 
 premises was not a sale or renting of the pews ■ 
 within the meaning of the condition, as an inter- 
 est in a pew was separate from the fee of the 
 land, and a conveyance of the latter did not 
 necessarily interfere with the former. — Ct. of 
 App., June, 1878. Woodworth v. Payne, 74 N. 
 Y; 196. 
 
 30. When a condition in a deed will be con- 
 strued to be a subsequent, not precedent condi- 
 tion, see Towle v. Remsen, 70 N. Y. 303. 
 
 31. Reservations. P. and wife conveyed 
 to a railroad company the fee of a strip of land 
 through the farm of P. The deed contained the 
 following reservation : ." Said parties of the first 
 part also to have the privilege of mowing and 
 cultivating the surplus ground of said strip of 
 land not required for railroad purposes." At 
 the lime of the conveyance there was a mortgage 
 on the farm, which was subsequently foreclosed. 
 The deed given upon the foreclosure sale ex- 
 cepted the sirip of land so conveyed, stating that 
 it "is reserved as conveyed to said" company. 
 Defendant, who succeeded to the title of the pur- 
 chaser, entered upon the railroad land and cut 
 and removed wheat growing thereon. In an ac- 
 tion of trespass — Held, that the reservation in the 
 deed to the railroad company was not an ease- 
 ment appurtenant to the remaining portion of the 
 farm, but a right to profits in the land conveyed 
 reserved to the grantors personally, not as owners 
 of or for the benefit of the farm ; that such 
 right, therefore, did not pass by the deed on 
 foreclosure sale ; and that defendant was liable. 
 — Cl. of App., Sept., 1877. Pierce v, Keator, 
 70 N. Y. 419; affirming 9 Hun 532. 
 
 32. Land was conveyed to a railroad company 
 by a deed containing a provision " excepting and 
 
 , reserving from the above-described premises the 
 spring issuing from said land, Avith the privilege, 
 
120 
 
 DEEDS, III.— DEFINITIONS. 
 
 as now held by the parties of the first part, in the 
 use and occupation of said spring, with access to 
 and from said spring to repair, re-lay with logs 
 or otherwise, without any damage whatever to 
 said spring, in consequence of the construction of 
 said railroad." Hdd, that the grantee was en- 
 titled to use and enjoy the land in all lawful 
 ways not inconsistent with the right reserved, 
 and that it might lay its tracks over the spring 
 on protecting its waters from injury, so as not 
 unnecessarily to interfere with the enjoyment 
 of the easement. — Swpreme Cl., (M Dept.,) April, 
 1880. Matthews v. Delaware and Hudson Canal 
 Co., 20 Hun 427. 
 
 33. Exceptions. An esuxiption is some- 
 thing taken out of that which is before granted, 
 by which means it does not pass by the grant, 
 but is severed from the estate granted ; and a 
 reservation is something issued out of the thing 
 granted, and not a part of the thing granted. — 
 Supreme Ct., (IstDept.,) May, 1878. Langdon v. 
 Mayor, &c., of New York, 6 Abb. N. Cas. 314. 
 ^ As to the power of equity to Oanael, Reform, 
 or Set aside a deed, see Cloud on Title ; Ceed- 
 itor'b Suit ; Equiiy ; Mistake. 
 
 As to Composition Deeds, see Debtor and 
 Ckeditoe, V. 
 
 As to deeds to Mamed women, or between hus- 
 band and wife, see Husband and Wife, VI., 
 VII. 
 
 As to the admissibility and effect of a deed as a 
 Means of evidence, and how far it is open to Ex- 
 planation by parol, see Evidence, 89, 155, 156. 
 
 As to the doctrine of Estoppel by deed, see 
 Estoppel, III. 
 
 When a deed absolute in form will be deemed 
 to be a Mortgage, see Moktqages, 3-5. 
 
 As to deeds creating Trusts, see Trusts, 4-6. 
 
 DEFAMATION. 
 
 Libel; Slander. 
 
 DEFINITIONS. 
 
 1. Accord. Blackstone's and Bacon's defi- 
 nitions of this word, stated. — Ct. of App., Jan., 
 1879. Kiomer v. Heim, 75 N. Y. 574, 576. 
 
 2. Act of God. Something which oper- 
 ates without any aid or interference from man. 
 — &. of App., Nov., 1877. Mynard v. Syracuse, 
 &c., K. B. Co , 71 N. Y. 180, 187. 
 
 3. Adjacent O'VTner, as xised in the act to 
 designate the persons entitled to purchase lands 
 under water in the city of New York, is not 
 limited to the owner of the land lying next 
 to it, e. g., the owner of the land between 
 high and low-water lines, but means the owner 
 of the upland which Is bounded by the river. — 
 Supreme Ct., (1st Dept.,) Dec., 1878. Mayor, &c., 
 of New York v. Hart, 16 Hun 380. 
 
 4. Adverse party, as used in Code of 
 Pro., I 348, requiring notice of the entry of 
 judgment, affirming the judgment appealed 
 from, to be served upon the "adverse partv " at 
 least ten days before commencing an action 
 upon the undertaking, means tlie parties to the 
 original judgment by whom the appeal was 
 taken. Supreme Ct., [ith Dept.,) April, 1878. 
 Yates V. Burch, 13 Hun 622. 
 
 5. Afflnitv means the tie which arises from 
 
 the marriage between the husband and the 
 blood relations of his wife, and between the 
 wife and the blood relations of the husband. — 
 Superior Ct., March, 1879. Solinger v. Earle, 45 
 Superior 80, 84. 
 
 6. Annual income, as used in a will be- 
 queathing the annual income of a portion of 
 testator's property, means the annual receipts, 
 not the annual value of the property. — Supreme 
 Ct., (Xst Dept.,) July, 1878. Betts v. Betto, 4 
 Abb. N. Cas. 317. 
 
 T. Beneficial, as used in 1 Bev. Stat. 732, 
 5 79, relating to beneficial powers in trust, has a 
 technical signification — a power may be a " ben- 
 eficial " one although no benefit, in a legal sense, 
 results to the donee. — Supreme Ct., (Isi Dept.,) 
 March, 1880. Cutting v. Cutting, 20^ Hun 360, 
 363. 
 
 8. Bona fl.de mortgagee, as used in Code 
 of Pro., § 282, providing that, under certain con- 
 ditions, a judgment, pending an appeal there- 
 from, shall cease to be a lien as against a mort- 
 gagee in good faith, means one who has taken 
 his mortgage without any design to defraud the 
 plaintifls in the judgment, or anybody else, and 
 upon some bona fide consideration, either present 
 or past. — Supreme Ct., (ith Dept.,) April, 1879. 
 Bronner v. Loomis, 17 Hun 439. 
 
 9. Borrower, as used in the usury laws of 
 the state, inchides any person who is a party to 
 the original contract, or in any way liable to 
 pay the loan.— Oi. of App., Dec., 1878. National 
 Bank of Auburn v. Lewis, 75 N. Y. 516. 
 
 10. Borrowing. There can be no borrow- 
 ing unless there is in the agreement a promise 
 or understanding that what is borrowed wiU be 
 repaid or returned — ^the thing itself, or some- 
 thing like it of equal value — with or without com- 
 pensation for the use of it in the meantime. To 
 borrow is the reciprocal action with to lend; 
 and to lend or to loan is the parting with a 
 thing of value to another for a time, fixed or in- 
 definite, yet some time to have an ending, to be 
 used or enjoyed by that other, the thing itself, 
 or the equivalent of it, to be given back at the 
 time fixed, or when lawfully asked for, with or 
 without compensation for the use, as may be' 
 agreed upon. — Ct. of App., Sept , 1879. Kent v. 
 Quicksilver Mining Co., 78 N. Y. 159, 177. 
 
 11. Builder. Who is a "builder," within 
 the meaning of the acts of 1862 and 1863, pro- 
 viding for the collection of demands agamst 
 ships and vessels, determined. — Ct. of App., 
 Dec., 1877. King v. Greenway, 71 N. Y. 413, 
 416. 
 
 12. Capital stock, as used in Laws of 
 1853, ch. 502, § 2, protecting the rights of stock- 
 holders in railroad or plank-road companies 
 which are sold on foreclosure, means the capital 
 stock actually subscribed for and issued, and 
 not the amount named in the articles of associ- 
 ation. — Supreme Ct., (ith Dept.,) April, 1879. 
 Pratt V. Munson, 17 Hun 475, 476. 
 
 13. Ciaildren. Prima facie, the word "chil- 
 dren" in a will means legitimate children. But 
 when it appears from the will itself, by express 
 designation or by necessary implication, that the 
 intended objects of' the testator's bounty are il- 
 legitimate children, they will take under the de- 
 scription of "children."— /Supreme Ci!., (2d X>ep(.,) 
 Dee., 1878. Gelslon v. Shields, 16 Hun 143, 151. 
 
 Includes grand-children only when there are 
 no children to take. — Supreme Cl., {\sl Dept.,) 
 Jan., 1880. Palmer v. Horn, 20 Hun 70, 71. 
 
DEFINITIONS. 
 
 121 
 
 14. Clerk, as used in the proviaion of the 
 :New York city charter of 1873, (Lawa of 1873, 
 ■ch. 335, § 28,) providing for appointment to 
 and removal from officej &c., means a person 
 «mployed in one of the departments to keep the 
 records and accounts. — Ct. of App., April, 1878. 
 People, ex rel. Sims, v. Fire Commissioners of 
 New York, 73 N. Y. 437, 4S2. 
 
 15. Closing out, as used in cotton brokers' 
 contracts, defined. — Superior Ct., March, 1878. 
 Kingsbury v. Kirwin, 43 Superior 451. 
 
 16. Coercion by law is where a court, 
 having jurisdiction of the person and the subject- 
 matter^ has rendered a judgment which is col- 
 lectible in due course. — Ct. of App., Sept., 1877. 
 Peyser v. Mayor, &c., of New York, 70 N. Y. 
 497, 501. 
 
 17. Coercion in fact is that duress of per- 
 son or goods, where present liberty of person, 
 or immediate possession of goods is so needful 
 and desirable, as that an action or proceeding 
 at law to recover them will not at all answer the 
 pressing purpose. lb. 
 
 18. Contiguous, as used in a policy of flre 
 insurance, in reference to a building, means in 
 •close proximity, in actual close contact. — Ct. of 
 App., AprU, 1877. Arkell v. Commerce Ins. Co., 
 ■69N. Y. 191, 193. 
 
 10. Conveyance, as used in the statute 
 relative to the recording of conveyances, (§ 1,) 
 embraces every instrument in writing, by which 
 any estate, or interest in real estate, is created, 
 ^iened, mortgaged or assigned, or by which the 
 title to any real estate may be affected, in law or 
 •equity ; except last wills and testaments, leases 
 for a term not exceeding three years, and execu- 
 tory contracts for the sale or purchase of lands. 
 T-Superior Ct., Nov., 1879. Bank for Savings v. 
 Frank, 45 Superior, 404, 410. 
 
 20. Conviction. In ordinary phrase the 
 meaning of the word conmction is the finding by 
 the jury of a verdict that the accused is guilty. 
 But in legal parlance it often denotes the final 
 judgment of the court. Thus, in 2 Kev. Stat. 
 ■681, i 1, disqualifying as witnesses persons con- 
 victed of perjury. — Ct. of App., March, 1877. 
 Blaiifus V. People, 69 N. Y. 107, 109. 
 
 21. Creditors, as used in 2 Bev. Stat. 136, 
 ^2 5, 6, includes all persons who are creditors of 
 the vendor or assignor at any time whilst the 
 goods remain in his possession or under his con- 
 trol.— Cl. of App., Feb., 1878. Southard v. Ben- 
 ner, 72 N. Y. 424. 
 
 22. Cruel and inhuman treatment. 
 To found a right to a limited divorce on this 
 ground there must be either actual violence com- 
 mitted, with danger to life, limb or health, or 
 there must be a reasonable apprehension of such 
 violence. — Cl. of App , April, 1878. Kennedy 
 V. Kennedy, 73 N. Y. 369, 374. 
 
 23. Debts, as used in Laws of 1848, ch. 40, 
 ^ 12, rendering trustees of manufacturing com- 
 panies liable, under certain conditions, for the 
 ■debts of the company, does not cover claims for 
 torts committed by the corporation. — Supreme 
 Cl., (3d Dept.,) Nov., 1878. Esmond ». Bullard, 
 16 Hun 65. 
 
 24. De facto contract. By a de/acto con- 
 tract of sale is meant one which has purported 
 to pass the property from the owner to another. — 
 Ct. of App., Nov., 1878. Farmers', &c , Nat. Bank 
 0. Logan, 74 N. Y. 568, 575. 
 
 25. Drafts, as used in a by-law of a savings 
 bank, providing that "drafts" might be made 
 
 personally or by order in writing by the depos- 
 itor, does not mean the instruments in writing 
 commonly known as such, viz., bills of exchange 
 or orders for money, but the acts or fact of draw- 
 ing money by the depositor irom the funds of 
 the bank. — Ct. of App., April, 1877. Allen v. 
 Williamsburgh Savings Bank, 69 N. Y. 314, 317. 
 
 26. Due process of law. A hearing 
 and an opportunity to be heard. We cannot 
 conceive of due process of law without this. 
 [Collating many authorities.] — Ct of App., June, 
 1878. Stuart v. Palmer, 74 N. Y. 183. S. P., 
 People, ex rel. Witherbee, v. Supervisors of 
 Essex Co., 70 N. Y. 228, 234. 
 
 A suit instituted and conducted in accord- 
 ance with the prescribed course of procedure, 
 for determining the title to property. — Superior 
 Ct., Nov., 1877. Matter of Hatch, 43 Superior 
 89. 
 
 In judicial proceedings, due process of law re- 
 quires notice, hearing and judgment ; in legis- 
 lative proceedings, conformity to the settled 
 maxims of free governments, observance of con- 
 stitutional restraints and requirements, and an 
 omission to exercise powers appertaining to the 
 judicial or executive departments. It is as 
 difficult as it would be unwise, to attempt an 
 exact definition of their scope. Their applica- 
 . tion, in a particular case, must be determined 
 when the question aiises, and, in the absence of 
 exact precedents, courts must determine the 
 question upon a consideration of the general 
 scope of legislative power, the practice of gov- 
 ernments, and in view of the conceded principle 
 that individual rights may be curtailed and 
 limited to secure the public welfare and the 
 equal rights of all. — Ct. of App., Nov., 1878. 
 Bertholf J). O'Reilly, 74 N. Y. 509, 519. 
 
 As used in the fourteenth amendment to the 
 constitution of the United States, does not mean 
 by a judicial proceeding. — Ct. of App., Jan., 
 1878. Matter of Ryers, 72 N. Y. 1, 10. 
 
 27. Sarth, as used in a contract to dig a 
 reservoir — Seld, to include "hard-pan." — Cl. of 
 App., Nov., 1878. Dickinson v. City of Pough- 
 keepsie, 75 N. Y. 65, 76. 
 
 28. Easements. A liberty, privilege or ad- 
 vantage in land, without profit, existing distinct 
 from the ownership of the soil. The essential 
 qualities of easements are, first, they are incorpo- 
 real ; second, they are imposed upon corporeal 
 property ; third, they confer no right to a partici- 
 pation in the profits arising from such property, 
 and fourth, there must be two distinct tenements, 
 the dominant, to which the right belongs, and 
 the servient, upon which the obligation rests. — 
 Ct. of App., Sept., 1877. Pierce v. Keator, 70 
 N. Y. 419, 421. 
 
 29. Enumerated and defined, as used 
 in 1 Rev. Stat., ch. 73.3, ? 92, are not to be read 
 literally as limiting beneficial powers to the few 
 specially detailed in the previous sections of the 
 statutes. The word "enumerated" is used in 
 the sense of "mentioned," "indicated," "referred 
 to," "authorized." — -Supreme Ct., {1st Dept.,) 
 March, 1880. Cutting v. Cutting, 20 Hun 360, 
 365. 
 
 30. Floating debt, as used in a statute pro- 
 viding for the settlement of the floating debt of 
 a municipal corporation, means that mass of 
 lawful and valid claims against the corporation, 
 for which there is no money in the corporate 
 treasury specifically designed, nor any taxation 
 or other means of providing money lo pay, par- 
 
122 
 
 DEFINITIONS. 
 
 ticularly provided.— Ci. 0/ App., Dec., 1877. 
 People, ex rel. Cooke, v. Wood, 71 N. Y. 371, 
 374. 
 
 31. For cause, as used in a statute author- 
 izing the removal of public officers " for cause," 
 means that a reason must exist which is personal 
 to the individual sought to be removed, which 
 the law and a sound public opinion will recog- 
 nize as a good cause for his no longer occupying 
 the place.— &tpreme Ct., {1st Dept.,) Dec., 1879. 
 People, ex rel. Nichols, v. Mayor, &c., oif New 
 York, 19 Hun 441, 448. 
 
 32. Forgery is the attempted imitation of 
 another's personal act, and by means of such 
 imitation to cheat and defraud, and not the do- 
 ing of something in the name of another which 
 does not profess to be the other's personal act, 
 but that of the doer thereof, who claims and in- 
 sists, by and in the act itself, ihat he is author- 
 ized to obligate the individual whom he is as- 
 suming to obligate precisely as' he undertakes to 
 do. — Supreme Ct., {3d Dept.,) Sept., 1878. Mann 
 *. People, 15 Hun 155, 166. 
 
 33. Fraud, as used in the provision of the 
 bankrupt act, declaring that a debt " created by 
 the fraud * * *- of the bankrupt," shall 
 not be discharged, &e., means an active, express 
 fraud, not one implied from an unlawful act. — 
 Ct. of App., May, 1879. Hennequin v. Clews, ■ 
 77 N. Y. 427, 429. 
 
 34. Full supply, as used in a contract to 
 deliver a certain quantity of ice, when the com- 
 pany should have a "fiiU supply" — Held to 
 mean when their ice-houses were full. — Ct. of 
 App., March, 1877. Kemp o. Knickerbocker 
 Ice Co., 69 N. Y. 45, 52 
 
 35. Funeral expenses, as used in Laws 
 of 1874, ch. 267, declaring for what debts lands 
 may be sold by the surrogate, include the cost of 
 a suitable headstone to be erected at the grave 
 of the deceased. — Supreme Ct., (3d Dept.,) May, 
 1878. Owens v. Bloomer, 14 Hun 296. 
 
 36. General la/w. A law applicable to 
 all the people of the state, and operating in all 
 parts of the state, would be general. But a law 
 may be general without affecting all the people 
 of the stale. A law regulating the righls of 
 married women, or of minors, or of adults, or 
 of aliens, would be general, and it would be 
 
 general although confined to the persons in 
 eing at the time of its passnge. So, a law con- 
 ferring new rights upon all existing insurance 
 companies, or railroad companies, or manufac- 
 turing companies, would be general. A law 
 which relates to persons or things as a class is 
 general, but one which relates to particular per- 
 sons or things of a class is special and private. 
 —Ct. of App., Sept., 1877. Matter of New York 
 Elevated R. B. Co., 70 N. Y. 327, 350 ; S. C, 3 
 Abb. N. Cas. 401. 
 
 37. General O'wner. As used in relation 
 to personal property, the general owner is he 
 who has the right to enjoy or do with the prop- 
 erty as he pleases, even to spoiling or destroying 
 it — he who has that right in it by which it be- 
 longs to him in particular, to the exclusion of 
 all others. — Ct. of App., Nov., 1878. Farmers', 
 &c., Nat. Bank v. Logan, 74 N. Y. 568. 
 
 38. General power in trust. A gen- 
 eral power is in trust when any person or class 
 of persons other than the grantee of such power 
 is designated as entitled to the proceeds, or any 
 portion of the proceeds, or other benefits to re- 
 sult from the alienation. — Supreme Ct., {Isl 
 
 Dei>t.,) March, 1880. Cutting (■. Cutting, 20 
 Hun 360, 364. 
 
 39. Good-"wlll. The advantage or benefit 
 which is acquired by an establishment beyond 
 the mere value of the capital, stock, funds or- 
 property employed therein, in consequence of 
 the general public patronage and encourage- 
 ment which it receives from constant or habit- 
 ual customers, on account of its local position, or 
 common celebrity, or reputation for skill, or in- 
 fluence, or punctuality, or from other accidental 
 circumstances or necessities, or even from ancient 
 partialities or prejudices. — Ct. of App., Sept., 
 
 1877. Boon v. Moss, 70 N. Y. 465, 473. 
 
 As used in respect to a hotel, means the- 
 greater probability that travelers and transient 
 persons will continue to stop at~a hotel to which 
 they have become wonted, and with the ways to 
 and from which, and with its accommodations 
 and surrotindrngs, they are already familiar. — 
 SupremeVt., {1st Dept.,) Dec, 1879. Mitchell v. 
 Bead, 19 Hun 418, 422. 
 
 40. Illegitimate, as used in 1 Eev. Stat. 
 754, i 19, providing that "children and rela- 
 tives who are illegitimate shall not be entitled 
 to inherit under the provisions of this chapter," 
 means begotten and bom out of lawful wedlock. 
 Supreme CJ., (3d Dept.,) Sept., 1879. Millei- 
 V. Miller, 18 Hun 507. 
 
 41. In and about, as used in an agreement 
 by a horse car company to keep a city street in 
 repair "in and about "the rails, means, at least, 
 within the two rails of each track and some space 
 outside of each rail, so far outside as the street 
 surface was disturbed (or, in the absence of 
 evidence, would be likely to be disturbed,) in 
 the act of laying the track. — Ct. of App., Nov, , 
 
 1878. McMahon v. Second Ave. R. K. Co., 75 
 N. Y. 231, 236. 
 
 42. Interlocutory judgment. An in- 
 termediate or incomplete judgment, where the 
 rights of the parties are settled but something 
 remains to be done, as when there is an account- 
 ing to be had, a question of damages to be ascer- 
 tained, or a reference required to determine the 
 amount of rent due for use and occupation. — Ct, 
 of App., March, 1879. Cambridge Valley Nat. 
 Bank V. Lynch, 76 N. Y. 514, 516. 
 
 43. Judgment, as used in Code of Pro., 
 J 34, conferring appellate jurisdiction upon the 
 Court of Common Pleas, was used in its usual 
 sense, and does not include determinations not 
 resulting in judgments. — Ct. of App., April, 1879. 
 Bamberg v. Sterne, 76 N. Y. 555, 557. 
 
 44. Jurisdiction of the person is wheni 
 the citizen acted upon is before the judge, either 
 constructively or in fact, by reason of the ser- 
 vice upon him of some process known to the 
 law, and which has been duly issued and exe- 
 cuted.— CS. of App., March, 1878. Lange v. 
 Benedict, 73 N. Y. 12, 27. 
 
 45. Jtirisdiction of the subject mat- 
 ter is jurisdiction of the general atetract thing 
 which is the subject matter. The power to in- 
 quire and adjudge whether the facts of each 
 particular case make that case a part or an in- 
 stance of that general thing — that power is 
 jurisdiction of the subject matter. lb. 
 
 46. Just and fair, as used in the act of 
 1801, providing for tlie discharge of a prisoner 
 on civil process, where " the proceedings on the 
 part of the prisoner were just and fair," means 
 that the proceedings of the debtor have been 
 just and fair in respect to the matteis that he is 
 
DEFINITIONS. 
 
 12$ 
 
 required to swear to in the aflBdavit upon pre- 
 kenting liia petiiion ; tliat they relate to the in- 
 <iuiry whether he has made such disposition of 
 his property as in the affidavit he is obliged to 
 swear that he has not ; or, in other words, 
 whether the judge is satisfied that the statement 
 made in his affidavit is true, in respect to which 
 the fullest inquiry may be made by the oral ex- 
 amination of the prisoner under oath, as well as 
 the examination of his wife or of any other wit- 
 nesses which the creditor has to ofiFer.-Cfam. Pleas, 
 April, 1880. Matter of Fo\*ler, 59 How. Pr. 
 148. Compare Matter of Koberts, Id. 136, 138. 
 
 47. Labor, as used in the mechanics' lien 
 law of 1862, for Kings and Queens counties, 
 (Laws of 1862, ch. 478,) includes skilled as well 
 as unskilled labor. — Ct. of App., Jan., 1879. 
 Striker v. Casaidy, 76 N. Y. 50, 52 ; reversing, 
 10 Hun 18. 
 
 48. Laborer or servant, as used in 
 Laws of 1848, ch. 40, J 18, making stockholders 
 in corporations organized under that act person- 
 ally liable for debts due to laborera and servants, 
 mean " persons who, in common parlance and ac- 
 cording to the general understanding of men, 
 fall iinder that appellation in enumerating the 
 different classes of persons employed by a cor- 
 poration." — Supreme Ct., (2d Dept.,) Dec., 1878. 
 Dean v. De Wolf, 16 Hun 186, 188. 
 
 49. La'wful issue, as used in a will, when 
 synonymous with children. — Supreme Ct., {1st 
 Dept.,)Jan.,l%%% Palmer ». Horn, 20 Hun 70,71. 
 
 50.' License imports leave, permission, suf- 
 ferance, authorization. It implies only the re- 
 moval of legal restraint by a grant of permis- 
 sion. — Superior Ct., May, 1878. Sun, &c., Assoc. 
 ». Tribune Assoc, 44 Superior 136, 140. 
 
 51. Lien. A right of one to retain property 
 in his possession belonging to another, until cer- 
 tain demands of him in possession are satisfied. 
 — Ct. of App., Oct., 1878. Jordan v. Nat. Shoe 
 and Leather Bank, 74 K. Y. 467, 473. 
 
 52. Lottery. Where a pecuniary consid- 
 eration is paid, and it is determined by lot or 
 chance, according to some scheme held out to 
 the public, what and how much he who pays the 
 money is to have for it, that is a lottery. [Fol- 
 lowing 56 N. Y. 424.]— a of App., May, 1878. 
 Wilkinson v. Gill, 74 N. Y. 63, 66. 
 
 53. Lying at anchor, as used in a policy 
 of marine insui-ance — Held, not applicable to a 
 vessel purposely beached, though having an an- 
 chor out as a greater security in case of storms 
 or exceptionally high tides. — Supreme Ct., (2d 
 Dept.,) Dec, 1879. Reid«. Lancaster Fire Ins. 
 Co., 19 Hun 284, 286. 
 
 54 Mailed, as used in the official register 
 of a deceased notary — Held, to mean placing a 
 letter in the post-office, with postage prepaid, to 
 be delivered under public authority. — Superior 
 Ct., Feb., 1878. Nat. Butchers', &c., Bank <;. 
 De Groot, 43 Superior 341. 
 
 55. Main sea. The common law definition 
 of the main sea was that part of the sea lying 
 outside of the terrcefauces, or points on the oppo- 
 site shore sufficiently near to enable persons stand- 
 ing on one shore to distinctly see and discern with 
 the naked eye what is doing on the opposite 
 shore. The water within the terrce fauces, al- 
 though properly called the sea or an arm of the 
 sea, is not the main sea within the common law 
 definition. — Ct. of App., April, 1878. People, ex 
 rel. Morris, ». Supervisors of Eichmond Co., 73 
 N. Y. 393, 396. 
 
 56. Managing agent, as used in Code of 
 Civ. Pro., I 432, subd. 3, providing for service- 
 of process in actions against corporations, is em- 
 ployed to distinguish a person invested with 
 general power, involving the exercise of judg- 
 ment and discretion, from an ordinary agent or 
 employee, who acts in an inferior capacity, and 
 under the direction and control of superior- 
 authority, both in regard to the extent of the 
 work and the manner of executing the same. — 
 —Supreme Ct., [Ist Dept.,) Dec., 1879. Bed- 
 dington v. Mariposa Land, &c., Co., 19 Hun 405,. 
 408. 
 
 57. Manifest, as used in a statute provid- 
 ing for the correction of manifest errors in an 
 assessment, means something which is apparent 
 by an examination of the assessment-roll or 
 return, needing no evidence to make it more- 
 clear. That which is open, palpable and incon- 
 trovertible. It is synonymous with evident, vis- 
 ible, plain, obvious to the understanding from 
 an examination of the roll or document ; or, al; 
 the most, only requiring a mathematical calcula- 
 tion to demonstrate it. — Ct. of App., Dec., 1877- 
 Matter of Hermance, 71 N. Y. 481, 486. 
 
 58. Matters and proceedings iix 
 bankruptcy, as used in U. S. Eev. Stat., I. 
 711, are the matters and proceedings which per- 
 tain to the special and peculiar jurisdiction of 
 the federal courts as courts of bankruptcy. The- 
 adjudication of the bankruptcy; the appoint- 
 ment of assignees and other agents for the ad- 
 ministration of the system ; the vesting of the 
 title to the bankrupt's property in the assignee ;. 
 the marshaling and distribution of the assets ^ 
 the discharge of the bankrupt from his debts p 
 these and other like powers belong to the juris- 
 diction in bankruptcy, and are matters and pro- 
 ceedings in bankruptcy of which state courts 
 have no iurisdiction.^Ci!. of App., Jan., 1878.. 
 Kidder v. Horrobin, 72 N. Y. 159, 167. 
 
 59. May, as used in Laws of 1878, ch. 186^ 
 ? 156, providing in what cases " appeals may be- 
 taken " from the City Court of Yonkers to the 
 General Term of the Supreme Court, means- 
 must— Supreme Ct., (2d Dept.,) Feb., 1879, 
 Mitchell V. Pike, 17 Hun 142. And see, also,. 
 Hagadom v. Eaux, 72 N. Y. 583, 586. 
 
 60. Means of support, as used in the- 
 " Civil Damage Act," (Laws of 1873, ch. 646,) 
 denotes that it was not alone a common law in— 
 jury^or an injury before remediable by action, 
 to which the statute was intended to apply. The 
 words are new in legal enactments, and have no- 
 settled legal meaning. — Ct. of App., Nov., 1878- 
 Volans V. Owen, 74 N. Y. 526, 529. 
 
 61. Members, as used in the provision of 
 the insurance act of 1853, (Laws of 1853, ch- 
 463, ? 107,) providing that the company may 
 sue or be sued by any of " its members or stock- 
 holders," is synonymous with " stockholders." — 
 Ct. of App., Sept., 1879. People v. Security Life- 
 Ins. Co., 78 N. Y. 114, 123. 
 
 62. Motion. A motion is not a remedy in 
 the sense of the code, but it is based upon some- 
 remedy, and is always connected with and de- 
 pendent upon the principal remedy. It is U>- 
 furnish relief in the progress of the action or 
 proceeding in which it is made, and generally 
 relates to matters of procedure, although it may 
 be used to secure some right in consequence of 
 the determination of the principal remedy. — 
 Ct. of App., Nov., 1879. Matter of Jetter, 78 N_ 
 Y. 601, 605. 
 
124 
 
 DEFINITIONS. 
 
 6_3. Negative easement consists in re- 
 straining tlie owner from doing that with, and 
 upon, his property which, but for the grant or 
 covenant, he might lawfully have done, and 
 hence is called a negative easement, as distin- 
 -guished fiom that class of easements which com- 
 pels the owner to suffer something to be done 
 upon his property by another. — Ct. oj App., Sept., 
 1877. Trustees of Columbia College v. Lynch, 
 70 N. Y. 440, 447. 
 
 64. Negotiate means, among other things, 
 to transfer, to sell, to pass, to procure by mutual 
 intercourse and agreement with another, to ar- 
 range for, to settle by dealing and management. 
 — Gl. of App., April, 1877. Yerkes v. Nat. 
 Bank of Port Jervls, 69 N. Y. 382, 386. 
 
 65. OflBce. That function by virtue of which 
 a person has some employment in the affairs of 
 another ; and it may be public, or private, or 
 ^lium public, as exercised under public authority, 
 but yet affecting only the affairs of particular 
 individuals. — Ct. of App., liov., 1877. Matter 
 of Hathaway, 71 N. Y. 238, 243. 
 
 66. Order, as used in 2 Eev. Stat. 534, 2 1, 
 Bubd. 3, which punishes, as for a contempt, the 
 " disobedience to any lawful order, decree or pro- 
 cess of a court of record," is sufficiently compre- 
 hensive to embrace a peremptory mandamiis. — 
 Ct. of App., March, 1879. People, ex rel. Gar- 
 
 1)utt, V. Koohester, &c., Ky. Co., 76 N. Y. 294, 
 500. 
 
 67. Party to the action, as used in Code 
 -of Civ. Pro., § 870, providing for the taldng of 
 the deposition of a party before trial, includes 
 only parties to the record : that a person is a 
 party in interest is not sufficient to authorize his 
 examination under said provision. — Ct. of App., 
 &pt., 1879. Seeley v. Clark, 78 N. Y. 220, 221. 
 
 68. Pavement, as used in statutes relative 
 to assessments for local improvements in cities, 
 indudes flagging for sidewalks. — Supreme Ct., 
 (1st Dept.,) March, 1880. Matter of Grube, 20 
 Hun 303, 304. 
 
 69. Pecuniary iiyuries, as used in the 
 statute giving damages to the next of kin of a per- 
 son whose death is caused by negligence, to the 
 extent of the "pecuniary injuries" suffered by 
 the plaintiff in consequence of snch death, is not 
 to be confined to the immediate loss of money or 
 property ; but includes prospective advantages 
 -of a pecuniary nature, which have been cut off 
 by the premature death of the person from whom 
 they would have proceeded ; and the word pecu- 
 niary was used in the statute in distinction to 
 those injuries to the affections and sentiments 
 which arise from the death of relatives, and 
 which, though most painful and grievous to be 
 borne, cannot be measured or recompensed by 
 money. It excludes, also, those losses which result 
 from the deprivation of the society and compan- 
 ionship of relatives, which are equally incapable 
 of being defined by any recognized measure of 
 value.— /Supreme Ct., (3d Dept.,) Nov., 1878. 
 Bierbauer v. New York Central, &c., E. E. Co., 
 15 Hun 559, 563. 
 
 TO. Premises, as used in a marine fire 
 policy, providing that "if the premises should 
 be vacated," &c., means the ship insured. — Su- 
 preme Ct., (2d Dept.,] Dec., 1879. Eeid v. Lan- 
 caster Fire Ins. Co., 19 Hun 284, 286. 
 
 As used in a fire policy, containing similar pro- 
 vision, see Herrman v. Adriatic Fire Ins. Co., 
 -45 Superior 394. 
 
 71. Presumption. An inference of a fact 
 
 not known, arising from its necessary or usual 
 conneclion with others which are known. — Ct. of 
 App., March, 1877. HUton v. Bender, 69 N. Y. 
 75, 82. 
 
 72. Proflt a prendre consists of a right to 
 take a ■part of the soil or produce of the land, in 
 which there is a supposable value. It is, in its 
 nature, corporeal, and is capable of livery, while 
 easements are not, and may exist independently, 
 without connection with or being appendent to 
 other property. — CS. of App., Sept., 1877. Pierce 
 V. Keator, 70 N. Y. 419, 421. 
 
 73. Public office. An employment on be- 
 half of the government in any statutory or public 
 trust, not merely transient, occasional or inci- 
 dental.— ft of App., Nov.; 1877. Matter of 
 Hathaway,_ 71 N. Y. 238, 244. 
 
 As used in the charter of the city of Brooklyn, 
 (Laws of 1873, ch. 863, ? 5,) prohibiting an al-, 
 derman from holding " any other public office^" 
 includes the office of representative in congress. — 
 &. of App., June, 1879. People, ex rel. Kdly, 
 V. Common Council, 77 N. Y. 503, 508. 
 
 74. Purchaser, as used in the recording 
 acts, embraces every person to whom any estate, 
 or interest in real estate, shall be conveyed, for 
 a valuable consideration, and also every assignee 
 of a mortgage or lease, or other conditional es- 
 tate. — Superior Ct., Nov., 1879. Bank for Savings 
 V. Frank, 45 Superior 404, 411. 
 
 75. Real estate, as used in 2 Eey. Stat. 
 194, § 70, providing for the sale of infant's real 
 estate, includes a remainder in fee. — Ct. of App., 
 Apnl, 1878. Jenkins v. Fahey, 73 N. Y. 355, 
 362 ; reversing 11 Hun 351. 
 
 76. Responsible bidder, as used in a 
 statute regulating awards of public work by con- 
 tract, means a bidder who, in addition to his 
 ability to give an adequate bond, is " able to re- 
 spond or to answer in accordance with what is 
 expected or demanded." — Supreme Ct., (^. T.,) 
 April, 1878. People, ex rel. Martin, v. Dor- 
 sheimer, 55 How. Pr. 118. 
 
 77. Semi-colon. A point only used to 
 separate parts of a sentence more distinctly than 
 a comma. — Ct. of App., Feb., 1879. Lambert v. 
 People, 76 N. Y. 220, 225 ; S. C, 6 Abb. N. Cas. 
 181. 
 
 78. Side'walk. The word of itself has no 
 strict legal interpretation, and its meaning and 
 import must be governed by facts showing its 
 limits and extent in the street where it is located. 
 — Ct. of App., April, 1877. Porter v. Waring, 
 69 N. Y. 250, 253. 
 
 79. Street, as used in a statute relating to 
 local improvements, includes sidewalks and gut- 
 ters, and when the act speaks of " re-paving any 
 street," it embraces the whole street and every 
 kind of paving, including flagging of the side- 
 walks.— O. of App., Feb., 1879. Matter of Bur- 
 meistfer, 76 N. Y. 174, 181. 
 
 80. Subject matter in dispute is the 
 act or acts which constitute the cause of action. 
 The cause ; the object ; the thing in dispute. 
 The matter or thought presented for considera- 
 tion, in some statement or discussion. — Ct. of App^ 
 Jan., 1878. Hunt v. Hunt, 72 N. Y. 217, 228. 
 
 81. Subsequent, as used in the statute re- 
 lating to filing chattel mortgages, means after 
 the time when, by statute, the mortgage should 
 have been re-filed. — Superior Ct., Feb., 1878. 
 Wray v. Fedderke, 43 Superior 385, 339. 
 
 82. Surplus earnings. An amoiut 
 owned by a corporation, over and above the 
 
DEFINITIONS— DEPOSITIONS, I. 
 
 r 
 
 125 
 
 capital and actual liabilllies, is " surplus earn- 
 ings," as that phrase is used in 1 Kev. Stat. 415, 
 \ 6, providing for the taxation of moneyed cor- 
 porations. — Cf. oj Af/p., Jan., 1879. People, ex 
 rel. Manhattan Fire Ins. Co., v. Commissioners 
 of Taxes, 76 N. Y. 64, 74. 
 
 83. Title. Interest. A title is a lawful 
 cause or ground for possessing that which is 
 ours. An interest, though prini|irily it included 
 the terms estate, right and title, has latterly 
 come often to mean less, and to he the same as 
 concern, share, and the like. — Ct. of App., May, 
 1878. MerriU v. Agricultural Ins. Co., 73 N. 
 Y. 452, 456. 
 
 84. Unoccupied. Meaning of this word 
 m used in policies of fire insurance, see Supreme 
 Ct., (2d Dept.,) Feb., 1878. Wait v. Agricultural 
 Ins. Co., 13 Hun 371, 373 ; Gibbs v. Continental 
 Ins. Co., 13 Hun 611, 620. 
 
 85. Vacant and unoccupied. Vacant 
 is not a synonym of unoccupied. Vacant means, 
 primarily, empty, void of every substance except 
 air, and unoccupied is that staUv^ where no one 
 has the actual use or possession of the thing or 
 property in question. This distinction originates 
 and exists in the language from which the terms 
 descend to UB.— Superior Ct., March, 1879. Herr- 
 mau V. Merchants' Ins. Co., 44 Supeiior 444, 452. 
 
 As used in a condition in a fire policy on a 
 saw-mill, avoiding the policy in case j;he mill 
 should become vacant and unoccupied,' does not 
 mean that the saw-mill should be inhabited, or 
 that any one should remain in it to guard against 
 fires.— en. of App., Jan., 1878. Whitney v. Black 
 Kiver Ins. Co., 72 N. Y. 117. 
 
 86. Vessel, as used in Laws of 1862, ch. 
 482, providing for the collection of demands 
 against ships and vessels, includes a canal-boat. 
 —Supreme Ct., {ilh Dept.,) April, 1878. Fralick 
 ■0. Betts, 13 Hun 632. 
 
 As used in a regulation of harbor-masters, pro- 
 hibiting vessels from anchoring in certain places 
 in Kew York harbor, does not include small, 
 open, undecked sail-boats and row-boats. — Ct. of 
 App., June, 1877. Lambert j;. Staten Island K. 
 K. Co., 70 N. Y. 104. 
 
 87. "Warrant. A writing from a compe- 
 tent authority, in pursuance of law, directing 
 the doing of an act, and addressed to an ofiScer 
 or person competent to do the act, and affording 
 him protection irom damage if he docs it. — Ct. 
 of App., Dee., 1877. People, ex rel. Cooke, v. 
 Wood, 71 N. Y. 371, 376. 
 
 88. "Waste. The disherison of the re- 
 mainderman or reversioner. Any act or omis- 
 sion of the tenant for life which deprives the 
 person in remainder or reversion of the inheri- 
 tance. — Supreme Ct., (2d Dept.,) Dee., 1878. 
 Wade V. Malloy, 16 Hun 226, 229. 
 
 89. "Whole amount of the capital 
 stock, as used in a statute providing for the 
 taxation of bank stock, includes every part of 
 the assets of the bank from which an income is 
 derived, and from which the dividends earned 
 are to be paid ; the surplus on hand, as well as 
 every other investment which constitutes a por- 
 tion of the capital. — Ct. of App., March, 1879. 
 People, ex rel. Tradesmen's Bank, v. Commis- 
 sioners of Taxes, 69 N. Y. 91, 94. 
 
 DEMAND. 
 
 As to the Necessity of a demand before suit, 
 see Bills of Exchange, 13; Pbomissory 
 Notes, 33-41 ; Tbover, 12-15. 
 
 DELIVERY. 
 
 Deeds, 2-5 ; Sales, 15-18. 
 
 DEMURRER. 
 
 How Interposed, and When proper, see Plead- 
 isa. III. 
 
 As to Appeals from orders on, see Appeal, 
 03, 171, 172. 
 
 To return on Jlfajidamws,. see Mandamus, 24> 
 
 DEPOSIT. 
 
 As a distinct species of Bailment, see Bail- 
 ment, 4, 5, 
 
 As to Moneys deposited in bank, see Banks, 
 U-19. 
 
 DEPOSIT, (Village of.) 
 Municipal Cobpobations, 110, 111. 
 
 DEPOSITIONS. 
 
 I. De Bene Esse, and on Commission. 
 II. Examination of Parties befoee Tbial> 
 
 I. De Bene Esse, and on Commibsion. 
 
 1. Depositions de bene esse. Whefe 
 the testimony of a witness is taken de bene esse, 
 an objection to the form of a question asked him 
 should be taken when the deposition is made. 
 Any formal objection not taken before the officer 
 taking the deposition, will be deemed to have 
 been waived. — Ct. of App., June, 1877. Hebbard 
 V. Haughian, 70 N. Y. 54. 
 
 2. "When a commission ■will be re- 
 fused. Where a plaintiflTis a fugitive from 
 justice, a commission to examine him on his 
 own behalf in a foreign country should not b& 
 granted. — Supreme Ct., (3d Dept.,) May, 1878. 
 McMonagle v. Conkey, 14 Hun 326. 
 
 3. Necessity of an order of the court. 
 A commission cannot be issued without an order 
 of the court, and if issued by consent, an order 
 must be entered on stipulation, and the stipula- 
 tion must be in writing. — Supreme Ct., (3d Dept.,) 
 Nov., 1879. Mason & Hamlin Organ Co. v. 
 Pugsley, 19 Hun 282. 
 
 4. A commission issued without any special 
 order of the court, but by stipulation, "that the 
 annexed commission do issue," &c., is not in- 
 valid for want of a seal. — Supreme Ct., (ith 
 Dept.,) Oct., 1878. Churchill ». Carter, 15 Run 
 385. 
 
 3. Costs for drawing interrogatories. 
 Only $10 costs can be taxed for drawing inter- 
 rogatories to be attached to a commission to take 
 depositions, under Code of Pro., § 807, even in a 
 case where more than one set of interrogatories 
 are drawn and used. — Com. Pleas, Feb., 1877.. 
 Johnson v. Chappell, 7 Daly 43. 
 
126 
 
 DEPOSITIONS, I, II. 
 
 O. Motion to suppress. The fact that, 
 prior to his examination, a. witness whose depo- 
 flition is to be taken is furnished by the attorney 
 for one of the parties with copies of the inter- 
 rogatories and cross-interrogatories to be admin- 
 istered to him, is not ground for the suppression 
 of the deposition, but only goes to his credibility 
 ■and the weight of his tfstimony. — Superior Ct., 
 Dec., 1 878. Butler v. Flanders, 44 Superior 531 : 
 S. C, 56 How. Pr. 312. 
 
 7. An objection to evidence, taken under a 
 ■commission, that the commission was not exe- 
 •CQted by the person intended, should be raised 
 by motion to suppress, where the party has an 
 opportunity so to do ; if not so raised it will be 
 -deemed to have been waived ; it cannot be 
 raised upon the trial, where the party had 
 knowledge of the fact a sufiBcient time before the 
 trial to eneble him to make the motion. — Ct. of 
 App., March, 1877. Newton v. Porter, 69 N. Y. 
 133, 142. 
 
 II. Examination of Pakties before Thial. 
 
 8. Jurisdiction to grant the order. 
 The court at Special Term has no power to grant 
 an order for the examination of a defendant for 
 the purpose of enabling the plaintiff to make 
 and serve his complaint. The right to such an 
 -examination is purely a statutory one ; the mode 
 pointed out by the statute must be followed ; 
 ind by the statute (New Code, U 872, 873,) the 
 ipplication must be made to, and the order 
 granted by a judge, not by the court. — Ct. of App., 
 May, 1879, Heishon v. Knickerbocker Life Ins. 
 Co., 77 N. Y. 278. 
 
 9. The county jndge, for the purposes of an 
 order for examination before trial, possesses co- 
 ordinate powers with a Special Term justice. — 
 Supreme Ct., (2d Dept.,) Dec., 1878. Corbett v. 
 Gibson, 16 Hun 241. 
 
 10. As to the power of the court in granting 
 orders for examination before trial, the right to 
 the order, power to vacate it, requisites of affi- 
 <]avit to obtain order to vacate, and the history 
 of the legislation on the subject generally, see 
 Levy V. Loeb, 5 Abb. N. Cas. 157 ; S. C, 44 Su- 
 perior 291 : followed in Hickey v. O'Connor, 45 
 Id. 614. 
 
 11. In ■what oases the order should 
 "be granted. Where a broker or commission 
 merchant withholds from his customer the fullest 
 information in relation to property alleged to 
 have been bought or sold, the right to examina- 
 tion before trial in an action to recover alleged 
 profits, or to adjust tiie unsettled accounts, should 
 be fully accorded. — Supreme Ct., {1st Dept.,) July, 
 1880. Miller v. Kent, 59 How. Pr. 321. 
 
 12. Where the administrator of a deceased 
 partner sues the surviving partners for an ac- 
 counting, among other things, he is entitled to an 
 order for the examination of the defendants in 
 order to enable him to prepare a complaint, but 
 the examination should only extend to an in- 
 ■quiry into such facts as are necessary to be in- 
 ■cluded in the complaint. — Svipreme Ct., (Sp. T.,) 
 Oct., 1879. Raymond v. Brooks, 59 How. Pr. 
 383. 
 
 13. "WTien it should be refused.* The 
 right of a party to examine his adversary before 
 the trial, under Code of Pro. (Old Code), ? 391, is 
 not absolute, and such an examination will not 
 be allowed in a case where, by the established 
 
 *The cases under this caption |were decided under 
 ibe old code. 
 
 rule before the code, a bill for a discovery would 
 not have been sustained in equity.— Com. Pkas, 
 Jwne, 1877. Phoenix v. Diipuy, 7 Daly 238. 
 
 14. Where the facts and circumstances stated 
 in the affidavits are not sufficient to satisfy the 
 judge, he is not bound to grant the order, but 
 should refuse it. — Supreme Ct., (\st Dept.,) Oct., 
 
 1878. Greer v. Allen, 15 Hun 432. S. P., (3d 
 Dept.,) Nov., 1878. Chapiu v. Thompson, 16 
 Hun 53. 
 
 15. Where the applicant for the order only 
 seeks to find out what the opposite party will 
 swear to, so as to enable him to prepare to meet 
 and overcome it, the order will be re&iped, — 
 Chapin v. Thompson, supra, 8. P., Fitzpatrick 
 V. Van Shaick, .'i9 How. I?r. 472. 
 
 16. An examination should not be ordered 
 under Code of Pro., J 391, in a case in which the 
 party to be examined might refuse to answer, on 
 the ground that his answer to questions put 
 would tend to criminate himself. — Supreme Ct., 
 (].st Dept.,) Aprii;i878. Brandon Manuf. Co. v. 
 Bridgman, 14 Hun 122. S. P., Greensward i;. 
 Union Dime Savings Inst., 59 How. Pr. 399. 
 
 17. WTio may apply for an order. A 
 parly to an action cannot be examined condi- 
 tionally, before trial, at his own instance ; the ap- 
 plication must come from the adverse party. — 
 N. Y. Marine Ct., May, 1878. Montague v. Wor- 
 stell, 55 How. Pr. 406. 
 
 18. "Who may be examined. A person 
 sued in his representative capacity, as president 
 of an association consisting of numerous indi- 
 viduals, is the only "party" defendant, and may 
 be examined as such before trial, as a matter of 
 right, under Code of Civ. Pro., ^ 870, el seq. — 
 Superior Ct., (Sp. T.,) March, 1878. McGuffin v. 
 Dinsmore, 4 Abb. N. Cas. 241. 
 
 19. Who may ncit be. The words " party 
 to an action" in the provision of Code of Civ. 
 Pro., J 870, providing for the taking of the dep- 
 osition of a party before trial, include only par- 
 ties to the record ; that a person is a parly in in- 
 terest is not sufficient to authorize his examina- 
 tion under said provision. — Ct. cf App., Sept., 
 
 1879. Seeley ». Clark, 78 N. Y. 220. 
 
 20. The provisions (2 870, el seg.,) do not in- 
 clnde and cannot be extended to the officers, 
 servants, agents or employees of a party, although 
 such party be a corporation. Therefore, a di- 
 rector of a corporation defendant cannot be 
 compelled to submit to an examination before 
 trial.— a. of App., /Sep*., 1878. People v. Mu- 
 tual Gas Light Co., 74 N. Y. 434; affirming 
 14 Hun 157. Nov , 1879. Boorman v. Atlan- 
 tic, &c., R. E. Co., 78 N. Y. 599 ; affirming 17 
 Hun 555. 
 
 21. "What afQ.davlts are sufflcieut. 
 When plaintiff's affidav^ on a motion for an 
 order to examine the defendant before trial, in- 
 dicate that the examination may be necessary to 
 enable the plaintiff to give formal expression to 
 the allegations which must in the end consti- . 
 tute his complaint, they are sufficient. — Superior 
 Ct., March, 1879. Heishon v. Knickerbocker 
 Life Ins. Co., 45 Superior 34. 
 
 22. Upon an application for an order for the 
 examination of defendant to enable plaintiff to 
 obtain facts necessary to enable him to frame his 
 complaint, the affidavit need not state that the 
 plaintiff intends to use the deposition upon the 
 trial. — Supreme Ct., (Isl Dept.,) Jan., 1880. 
 Brisbane v. Brisbane, 20 Hun 48. 
 
 23. Where the affidavit upon plaintiff's mo- 
 
DEPOSITIONS, II,— DESCENT. 
 
 127 
 
 tion states enough to show the inateviaUty_ of 
 the examination, other facts and conclusions 
 stated by way of argument tending to show the 
 materiality of testimony to meet tlie alleged de- 
 fences, should not defeat the examination.— .6V 
 m-eme Gl., (1st Dept,) July, 1880. Miller v. 
 Kent, 59 How. Pr. 321. 
 
 23 o. To justify an order to examine a de- 
 fendant to enable plaintiff to frame his com- 
 plaint, the affidavit must disclose what induced 
 plaintiff to proceed. A general averment is not 
 «ufficient. — Smreme Ct., (1st Dept.,) Sept., 1880. 
 Simmons v. Yanderbilt, 59 How Pr. 411. 
 
 24. As to the necessary allegations in an affi- 
 davit for an order to examine an adverse party 
 before trial, under Code of Civ. Pro., J 872, 
 «nbd, 2, see Boorman v. Pierce, 56 How. Pr. 
 251 ; Dunham v Mercantile Mut. Ins. Co., Id. 
 240; S. C, 6 Abb. N. Cas. 70 ; Hynes v Mc- 
 Dermott, 7 Daly 513; S. C, 55 How. Pr. 259; 
 Ludewig v. Pariser, 4 Abb. N. Cas. 246. 
 
 25. What are insufficient. It should 
 appear, from the affidavits and papers upon 
 which the order is founded, that it was the pur- 
 pose of the moving party to use the testimony upon 
 the trial. Affidavits which state that the plaintiff 
 <!annot safely proceed to trial without defend- 
 juit's deposition, that the testimony is material 
 .and necessary to enable plaintiff to prepare for 
 the trial of, and to safely try the action, yet 
 nowhere state that it is the intention of the 
 plaintiff to use the deposition or the testimony on 
 the trial, are defective. They imply an inten- 
 tion not to use the testimony on the trial. — Su- 
 perior Gt., April, 1879. Batterson v. Sanford,,45 
 Superior 127. 
 
 26. An affidavit to procure an order for 
 the examination of defendant, under J 870, 
 must state the nature of the action, the substance^ 
 of the cause of action, and of the judgment de- 
 manded, and if an answer has been served, the 
 nature of the defence, and also the facts which 
 show that the testimony is material and neces- 
 sary for the party applying for the examina- 
 tion. To allege that theaction " is brought upon 
 a contract, and that the judgment demanded is 
 for the sura of six hundred and ninety dollars, 
 with interest; that the answer of the defendant 
 IS a general denial," and that "the examination 
 •of the defendant is necessary," and stating the 
 matters as to which the examination is desired, 
 is not enough.— /Siioreme Ct., {\st Dept.,) Oct., 
 1878. Greer t>. Allen, 15 Hun 432. 
 
 27. Affidavits — Held, insufficient in not set- 
 ting forth the nature of the defence to be inter- 
 posed, or the necessity of the examination of 
 plaintiff. Robertson v. Eussell, 20 Hun 243; 
 Beach v. Mayor, &c., of New York, 14 Hun 79 ; 
 S. C. 4 Abb. N. Cas. 236. 
 
 28. In wliat county tlie examination 
 may be had. Code of Civ. Pro., ? 886, pro- 
 viding that a party to be examined before trial, 
 if a resident Of this state, shall not be re- 
 quired to attend in any county other than that 
 in which he resides, or where he has an office 
 for the regular transaction of business, in person, 
 is peremptory, and will be enforced by the 
 -courts. — Supreme Ct, (1st Dept,,) April, 1878. 
 Marsh v. Woolsey, 14 Hun 1. S P., Superior Ct., 
 Dec., 1879. Hesse v. Briggs, 45 Superior 417. 
 
 29. Serving the order. The order must 
 iDe served upon the party to be examined ; ser- 
 vice on his attorney only will not justify an at- 
 tachment for non-appearance, or the striking 
 
 out of the party's pleading. — Supreme Ct., {lit 
 Dept.,) Nov., 1878. Mayer v. Noll, 56 How. Pr. 
 214. 
 
 30. Privilege to refuse to answer. 
 Upon an examination before trial, the fact that 
 the witness' answers to certain questions which 
 may properly be addressed to him, may tend to 
 criminate him, is no justification for refusing to 
 be sworn. When questions of such a character 
 are addressed to him, he may or may not avail 
 himself of the personal privilege which the law 
 in such cases accords to him. — Superior Ct., (Sp. 
 T.,) March, 1878. McGuffiii jj.Dinsmore, 4 Abb. 
 N. Cas. 241, 244. April, 1879. Batterson v. San- 
 ford, 45 Superior 127. Compare Greensward v. 
 Union Dime Savings Inst., 59 How. Pr. 399. 
 
 31. Examination of party before suit 
 brought. The provision (Code of Civ. Pro., 
 § 870,) providing for the examination before 
 suit brought of a person who expects to be a 
 party to an action about to brought, only pro- 
 vides for the examination of an expected parly 
 when he himself applies for it, and not for the 
 examination of a party not yet sued at the in- 
 stance of another who conteniplates a suit against 
 the {ormei.— Supreme Ct., (% T.,) Sept., 1878. 
 Matter of Paulmier, 5 Abb. N. Cas. 151 ; S. C, 
 56 How. Pr. 1. 
 
 32. Second examination. Where a 
 party has been once examined before trial, an 
 order for a second examination will not be 
 granted unless special facts are shown justifying 
 a re-examination, Dambmann v. Butterfield, 
 15 Hun 495. 
 
 As to the examination of witnesses In the trial 
 of an action, see Witnesses, IV. 
 
 As to compelling production of Books and 
 papers, see Discovert. 
 
 DESCENT. 
 
 1. "What -will descend to the heir. 
 The title to land appropriated and taken pos- 
 session of by the state, does not vest in it until 
 the amount of damages becomes fixed by ap- 
 praisement. Where, therefore, after such appro- 
 priation and before the appraisal of damages,' 
 the owner of the land died intestate — Held, 
 that the title to the land remained in the owner 
 until his death and then descended to his son, 
 his only heir-at-law — subject to the dower of liis 
 widow — ^together with the claim against the 
 state.— Gs. of App., Sept., 1879. Ballou v. Bal- 
 lon, 78 N. Y. 325. 
 
 2. A claim was subsequently made against 
 the state in the name of the son and widow, and 
 an award was made and recorded in their names ; 
 subsequently the son died intestate. Held, that 
 the claim was, at the time of his death, a personal 
 asset and went to his administratrix. lb. 
 
 3. Whether a cheese factory should pass as 
 personal property to the administrator, or de- 
 scend as real estate to the heir, determined in a 
 particular case.^8wpreme Ct., {4th Dept.,) Oct., 
 1878. Siilwell v. Melrose, 15 Hun 378. 
 
 4. "Who may take by descent. Prior 
 to the passage of Laws of 1873, ch. 830, relating 
 to adoption of children, the naother of D., an infant 
 child, gave it to one K., by whom it was reared and 
 treated as his adopted son. The boy took the name 
 of K., and shared in the latter's estate. Subse- 
 quently D. died, leaving a child. The child 
 
128 
 
 DESCENT— DEVISE. 
 
 died while a minor, leaving personal estate, and 
 the surrogate decided that his maternal grand- 
 father was entitled to the whole estate, to the 
 exclusion of his paternal grand-parents, who 
 were both living. Hdd, error ; that all three 
 were entitled to participate per capita in the es- 
 tate. — Supreme Ct., {4th Dept.,) April, 1879. 
 Hill V. Nye, 17 Hun 457. 
 
 5. Descent tbrough alien ancestor. 
 One S., a naturalized citizen, died seized of certain 
 real estate, leaving him surviving his widow, 
 since dead ; his father, residing in Germany, 
 also dead ; a sister, who came to this country, 
 and previous to his death, married a citizen of 
 the United States, and after his death was natu- 
 ralized; a nephew, who came to this country 
 when sixteen years old, and was naturalized in 
 1870 ; and a niece, who came to this country 
 when fifteen years old, and has never been natu- 
 ralized. Hdd, that the married sister took by 
 descent all the real estate of lier brother, and 
 that she did not take through her father, who 
 was an alien. — Supreme Ot., {Ist Dept.,) Oct., 
 1878. Luhrsr. Eimer,*l'5Hxin399. 
 
 6. For the rules now governing collateral 
 descent from brother to representatives of a de- 
 ceased sister, where the alien mother survives, 
 see Renner v. Miiller, 57 How. Pr. 229. 
 
 7. Illegitimate children. A child born 
 out of wedlock in Wurtemburg, by the laws of 
 which kingdom ante-nuptial children are legiti- 
 mated by the subsequent marriage of their pa- 
 rents, emigrated with his parents to Pennsylva- 
 nia, where the latter were married. By the laws 
 of Pennsylvania, the child became legitimate 
 upon the marriage of his parents. The father 
 died intestate, leaving property in this state. 
 In an action by the child to recover such lands — 
 
 Held, 1. That the right of plaintiff to inherit was 
 to be determined solely by the laws of this state. 
 
 2. That having been begotten and born out of 
 lawful wedlock, he was an illegitimate child, as 
 that term is used in the statute of descents of 
 this state. 
 
 3. That neither the provision of the United 
 States constitution, requiring full faith and 
 credit to be given in each state to the public 
 acts of every other state, nor the provibion 
 thereof that the citizens of each state shall be 
 entitled to all the privileges and immunities of 
 citizens in the several states, required such effect 
 to be given to the statutes of Pennsylvania as 
 would enable the plaintiff to inherit land in this 
 state. — Supreme Ct., (Zd Dept.,) Sept., 1879. 
 Miller ». Miller, 18 Hun 507. 
 
 DETERMINATION OF CONFLICTING 
 CLAIMS TO REAL PROPERTY. 
 
 EjIlCTUKNT, 12, 13. 
 
 DEVIATION. 
 
 iNStTEAItCE, 132, 133. 
 
 DEVISE. 
 
 1. Validity of devise to charitable 
 
 * Said to have been affirmed, February 24th, 1880. 
 
 corporations. — As to whether Laws of 1860, 
 ch. 360, which prohibits persons having certain 
 relatives from devising more than half their 
 property to benevolent or other societies, intends 
 relatives at the time of the execution of the 
 will or at the time of the testator's death, se& 
 Dowd's Will, 8 Abb, N. Cas. 118, 122. 
 _ 2. — of devise to foreign corpora- 
 tion. Where a foreign corporation is author- 
 ized by its charter to take by bequest, it may 
 take under a will made by a citizen of tliis state ; 
 but a devise by a citizen to such corporation, of 
 land stituate in this state, is void — Supreme Ct., 
 (Sp. T.,) March, 1879. Draper v. President and 
 Fellows of Harvard College, 57 How. Pr. 269. 
 
 3. What is a specific devise. J. de- 
 vised his residuary real estate to Robert, Catha- 
 rine, his wife, and Richard, " as tenants in com- 
 mon and their heirs forever." Held, that the de- 
 vise to the wife of Robert was as specific as that 
 to either of the others, and that each took an un- 
 divided one-third. — Ot. of App., March, 1S77> 
 Hilton V. Bender, 69 N. Y. 75, 86. 
 
 4. Devise to t^wo or more. Survivor- 
 ship. When the word " survivor " in a devise 
 to one for life, and upon her death, to certain 
 children of testator, or to the "survivor or 
 survivors" of them, will be held to refer to 
 the death of the testator, and not to that of the 
 tenant for life, see Matter of Meyer, 57 How. 
 Pr. 203. 
 
 5. A devise to several children in one clause, 
 is to be construed as a devise to each in severalty 
 of a proportionate share — Ct. of App. Marehf 
 1880. Monarque v. Monarque, 8 Abb. N. Cas. 
 102, 115 : reversing 19 Hun 332. 
 
 6. A testator devised his farm to his three 
 children. A, B and C, " and unto their respective 
 heirs and assigns forever, * * * to be 
 equally divided among them or their heirs ; and 
 in case either of my said sons should die with- 
 out issue, that then, and in such case, his share 
 shall be equally divided amongst the survivor 
 or survivors, or his or their heirs." A died 
 first, leaving issue ; B died second, without issue. 
 Held, that C was entitled to the whole of B'» 
 share, and that the children of A had no in- 
 terest therein. — Supreme Ct., {4th Dept.,) June^ 
 1879. Widrig v. Finster, 18 Hun 237. 
 
 7. What -words ■will pass a fee. A 
 testator devised all l^is residuary est£^te to his- 
 executors, directing them, after converting the 
 same into money, to pay over one-half thereof 
 to his son H. and the other half to a trustee 
 named in his will, and directed them to invest the- 
 principal, and to pay over the interest to his sou 
 W. for his use and benefit. The property placed 
 in charge of the trustee, was declared in the will 
 to be the share of W. in liis father's estate, to be 
 held for his benefit "during his natural life,^ 
 when he may dispose of the same by will at his 
 pleasure." Held, that W. took the absolute estate- 
 in the one-half devised to his trustee, subject 
 to the trust, and not merely a life estate there- 
 in ; and that upon his dying intestate, his ad- 
 ministrator was entitled to recover the same 
 from the trustee. — Supreme Ot., {ith Dept.,) 
 January, 1879. Fox v. Carr, 16 Hun 566. _ 
 
 8. _ Primary and ulterior devises. An 
 ulterior devise to take effect upon the defeasance- 
 of a former devise will take effect as well when 
 the failure of the primaiy devise is by the 
 happening of some event, such as the death of 
 the devisee, during lifetime of the testator, ag. 
 
DEVISE— DISCOVEUY AND INSPECTION. 
 
 129 
 
 by an event occurring after his death, by which 
 the first devise, after it has taken effect, is de- 
 feated, unless the ulterior devise is so connected 
 with and dependent upon the primary one that 
 it cannot consistently with the provisions of the 
 will have effect if the latter fails ah initio. — Ct. 
 cf App., June, 1877. McLean v. Freeman, 70 
 N. Y. 81 ; affirming 9 Hun 246. 
 
 Q. Remainders. A testatrix devised the 
 income of certain real estate as follows : " Unto 
 my daughter M., widow, during her natural life, 
 * * * and after her death I give the re- 
 mainder of such third to her children and law- 
 ful heirs." At the time of the testatrix's death, 
 M. had three children, all of whom died before 
 her, unmarried and intestate. M. subsequently 
 devised her interest in the property to plaintiff. 
 3eld, that on the death of the testatrix the 
 children of M. took vested remainders, which, 
 on their death unmarried and intestate, passed 
 to M., and that her will vested the same in plain- 
 tiff.— Soprcme &., {1st Bept.,) Nov., 1879. Drake 
 V. Lawrence, 19 Hun 112. 
 
 10. Rights and liabilities of devisee, 
 generally. Where land, upon which a crop 
 is growing, is devised in such form as to convey 
 it to the devisee, the crop is put upon the foot- 
 ing of a chattel specifically bequeathed ; it can- 
 not be sold for the payment of general legacies, 
 but only for the payment of debts after the other 
 assets not specifically bequeathed have been ap- 
 plied.— Ot. of App., April, 1879. Stall v. Wil- 
 bur, 77 N. Y. 158, 162. 
 
 11. The executor in such case may take the 
 crop primarily as trustee for creditors ; but when 
 it appears that there are no creditors, there 
 being no longer any trust purpose to serve, the 
 whole title, legal and equitable, vests in the die- 
 visee ; he can compel a delivery ; or, in case it 
 has been converted by the executor or any other 
 person, he may maintain an action to recover 
 its value. lb. 163. i 
 
 12. It is not necessary to allege in the com- 
 plaint in such an action that there were no 
 legacies to be paid under the will, or that there 
 was sufficient other personal property to pay 
 them. Nor is it essential to allege that letters 
 testamentary have issued upon the will, and that 
 plaintiff had title in some way from the execu- 
 tor, lb. 
 
 13. When the devise is to two or more the 
 action may be brought by one, to recover his 
 proportion of the crop ; it is not necessary to join 
 his co-tenants. lb. 
 
 14. Charges upon land devised, for 
 maintenance. A will devising testator's 
 farm to his three sons, subject to a charge for the 
 maintenance and support of his three daughters 
 on the farm, construed ; and the rights of the 
 sons as to the sale of the farm, and of the daugh- 
 ters as to maintenance after such sale, deter- 
 mined. — Supreme Ct.,(3d Dept.,) Nov., 187fl. 
 Borst V. Crommie, 19 Hun 209. 
 
 15. — for legacies. Where the per- 
 sonalty is grossly insufficient to pay the debts 
 and legacies, very slight indications in the will 
 wiU be laid hold of by the court, to raise an im- 
 plication that the executor is to pay the legacies 
 out of the real estate. — Supreme Gt., {1st Dept. 
 Sp. T.,) Feb. 1880. Manson v. Manson, 8 Abb. 
 H. Cas. 123. 
 
 16. Where the legatee was the testator's widow, 
 and the gift was in lieu of dower, and testator's 
 sons, who were residuary legatees were directed. 
 
 within a given time, to pay the legacy, the per- 
 sonal estate being wholly inadequate — Hdd, that 
 the legacjr was a charge upon the land. lb. 
 
 17. Where a devisee of real estate is ap- 
 pointed executor, and is directed to pay legacies,, 
 a charge upon the real estate will be created 
 when there is a failure of personal estate. lb.. 
 126. 
 
 18. Lapsed devises. That the old rule, 
 that where the devisee dies before the testator, 
 the land devised goes to the testator's heirs-at- 
 law, and not to the residuary devisee, is not in 
 force in this State, see Hillis v. Hillis, 16 Hun 
 76. 
 
 As to devises in Lieu, of dower, see DowEB, 9. 
 As to the powers and duties of Personal repre- 
 sentatives in respect to lands devised, see Ex- 
 
 EOUTOES AND ADMINISTRATORS, IIL 
 
 DIRECTORS. 
 
 Corporations, 59-63 ; Bailroad Com- 
 panies, III. 
 
 DISABILITY. 
 
 Of Aliens, see Aliens. Of Infants, see In- 
 fants. Of Insane persons, see Insane Per- 
 sons. Of Married women, see Husband and 
 Wipe, IV. 
 
 As to the effect of the disability to Suspend 
 the running of the statute- of limitations, see 
 Limitations of Actions, IV. 
 
 DISBURSEMENTS. 
 
 Costs, 56, 57. 
 
 DISCHARGE. 
 
 Bankbuptct; Execution; Habeas Cor- 
 pus; Imprisonment; Insolvency. 
 
 DISCONTINUANCE. 
 
 Of Adions, generally, see Practice. Of 
 Appeal, see Appeal, 117. 
 
 DISCOUNTS. 
 
 Banks and Banking, 32-34. 
 
 DISCOVERY AND INSPECTION. 
 
 1. Who may be ordered to produce 
 books and papers. The directors of a 
 corporation which is a party to an action, cannot 
 be required to produce before trial, for the in- 
 spection of the opposite party, the books of the 
 corporation, or to give him sworn copies of 
 entries therein, under Code of Civ. Pro., ? 803, 
 authorizing the court to compel such production 
 or copy by " a party to an action." — Ct. of App., 
 
130 
 
 DISCOVERY AND INSPECTION— DISTRIBUTION. 
 
 Nov., 1879. Boorman v. Atlantic, &c., R. E. 
 Co., 78 N. Y. 599. 
 
 2. That to authorize the production of books 
 and papers under said provision, it must be 
 shown that they are in possession or under the 
 control of the person required to produce them, 
 see lb. 
 
 3. Time to apply for tlie order. An 
 order for examination of witnesses and produc- 
 tion of any books and papers by any party or 
 witness, under Laws of 1877, ch. 466, J 21, may 
 be had at any time. The granting of such 
 order is not confined to cases where a proceed- 
 ing under the act is pending. — Com. Pleas, {Sp. 
 r.,) Jan., 1879. Matter of Bryce, 56 How. Pr. 359. 
 
 4. Service of th.e papers. Where a 
 domestic corporation defendant is ordered to 
 allow plaintiff to inspect its books, or show 
 cause, &c., both the first order to show cause, 
 and the order to show cause why the answer 
 should not be stricken out, may be served upon 
 the attorney of the defendant ; it is not necessary 
 to serve them upon any of its officers. — Supreme 
 Ct., (M Dept.,) Feb., 1880. Eossner v. New 
 York Museum Assoc, 20 Hun 182. 
 
 5. Opposing the motion. Plaintiff 
 sued, as assignee of F., upon certain written 
 contracts made by and between defendant and 
 F. Defendant^ claiming the contracts to be 
 forgeries, applied for an order requiring plain- 
 tiff to deposit them in the court, so that he 
 might inspect them. Plaintiff, in his opposing 
 affidavit, said " that he has not now, nor has he 
 had ever in his possession or under his control, 
 any of the above-named contracts." Mdd, in- 
 sufficient, without any explanation or further 
 statement of facts, to require the denial of the 
 application. — Supreme Ct., {\st Dept.,) April, 
 1880. Hepburn v. Archer, 20 Hun 535. 
 
 6. Consequences of failure to pro- 
 duce. Defendant subpoenaed plaintiff to pro- 
 duce the bond in suit, and asked him, as a wit- 
 ness on the trial, if he had it; he replied that 
 he did not have it ; that he did not have it in 
 his possession when subpoenaed. At this point, 
 the court stated that the question was, whether 
 he had control of it. After about an hour con- 
 sumed by counsel in efforts to find out where 
 the bond was, plaintiff's counsel said that he 
 had it in his pocket, and being asked by the 
 court if he would produce it, declined to do so 
 at present, whereupon the judge struck out the 
 complaint. Hdd, proper. — Supreme Ct.; (3d 
 Dept.,) Jam,., 1878. Shelp v. Morrison, 13 Hun 
 110. 
 
 7. "When the application should be 
 denied. The application should be denied in 
 cases where it is clear that the documents, the 
 inspection of which is sought, may be produced 
 on an examination before trial, of an adverse 
 party, under a subpoena duees teewm, the object 
 being only to prove circumstances as the founda- 
 tion of relevant inferences, rather than a fact 
 proximately probative of an issue. — Superior 
 Ct., {Sp. T.,) June, 1878. New England Iron 
 Co. V. New York Loan and Improvement Co., 
 55 How. Pr. 351. 
 
 8. When an order for production of books to 
 enable plaintiff to frame his complaint will be 
 refused, under the rule forbidding fishing ex- 
 aminations, see Brownell v. Nat. Bank of Glo- 
 versville, 20 Hun 517. 
 
 0. Compelling attorney to disclose 
 client's address. The court has power, in 
 
 a proper case, to make an order requiring the 
 attorney for the plaintiff to furnish the defend- 
 ant with the plaintiff's residence and address. — 
 Supreme Ct.A'M Dept.,) May, 1879. Corbett v. 
 Gibson, 18 Hun 49 ; Corbett v. De Comean, 45 
 Superior, 588; Id. 637; S. C, 4 Abb. N, Cas. 
 252; 5 Id. 169. 
 
 As to the remedy by Swpplementary proceed- 
 ingn, see Execution, V. 
 
 As to the Examinaium of a party h^ore trial, 
 see Depositions, II. 
 
 DISMISSAL. 
 
 Equitt, 11; Apptiat., 131, 249, 250; 
 Teial, V. 
 
 DISORDERLY PERSONS. 
 
 CBiMEErAL Law, 13. 
 
 DISPOSSESSION. 
 
 Landlobd axd Tenant, IV. 
 
 DISSOLUTION. 
 
 CoEPOBATioNS, VII. J Insubance, VI. J and 
 the titles ef the various distinct corporate 
 bodies, 
 
 DISTRIBUTION. 
 
 [Consult, also. Descent ; Executobs and 
 AJdministbatobs.] 
 
 1. As to the jurisdiction of the surrogate 
 to determine the validity of a gift causa mortis, 
 in proceedings for distribution, and the relative 
 rights of creditors and next of kin as towards 
 the donee, see Fowler v. Lockwood, 3 Eedf. 
 465. 
 
 What proof is sufficient to establish a gift 
 causa mortis, see lb. 
 
 2. "Who may take. Where an intestate 
 leaves no descendants, and no widow,- father, 
 mother, brother or sister, or descendants of 
 brothers or sisters, but leaves as his nearest sur- 
 viving next of kin, first, second and third 
 cousins, the first cousins take the whole personal 
 estate, to the exclusion of the second and third 
 cousins. — Supreme Ct., (2d Dept.,) Sept., 1878. 
 Adeen. Campbell,* 14 Hun 551. 
 
 3. "What debts are preferred. Arrears 
 of rent due on leases held by the intestate, when 
 a preferred debt, in distribution, see Harris v. 
 Meyer, 3 Eedf. 450. 
 
 4. Distribution in default of legatee. 
 In the absence of a legatee capable of taking 
 under a will, pro tanto revoked, the personal es- 
 tate is to be distributed to the next of kin under 
 the statute of distributions. — Surrogates Ct., 
 (Monroe Co.,) Dec., 1879. Dowd's Will, 6 
 Abb. N. Cas. 118. 
 
 As tq what are Assets, and the powers and 
 duties of Personal representaiivea, in making dis- 
 tribution, see Executors and Administba- 
 
 TOBS, II., III. 
 
 • Said to have been affirmed, November 25th, 1879. 
 
DIVORCE, I., 11. 
 
 131 
 
 DISTRICT COURTS. 
 
 Appeal, 265-270 ; Cotjets, 20-24. 
 
 DIVIDENDS. 
 
 COEPORATIONS, 9-11. 
 
 DIVORCE. 
 
 I. Suit to Annttl Marriage Contract. 
 II. AssoLtTTE Divorce. 
 
 III. Limited Divorce. 
 
 IV. Alimony ; and Custody of Children. 
 
 I. Suit to Annul Marriage Contract. 
 
 1. Time within wliicli to sue. The 
 provision of 2 Key. Stat. 133, ? 33, that a suit 
 to annul a marriage, on the ground of physical 
 incapacity, "shall in all cases be brought within 
 two yeaiB from the solemnization of the mar- 
 riage," is a statute of limitation, and must be 
 taken advantage of by answer, or the action will 
 not be barred by the lapse of that time — Su- 
 preme Cl., {\st Bept.,) Jan., 1879. Kaiser v. 
 Kaiser, 16 Hun 602. 
 
 2. "WTien a reference -will be granted. 
 In an action by the husband to dissolve the mar- 
 riage on the ground of fraudulent concealment of a 
 disease contracted by the wife, and also on the 
 ground that by reason of such malady she was phy-' 
 sically incapable of entering into the marriage 
 state, and that there is no probability that her 
 physical incapacity will be removed, the grant- 
 ing of a compulsory reference on the applicar 
 tion of the defendant is error, unless plaintiff 
 -waives trial by jury as provided in Code of Civ. 
 Pro., § 1009. Such a reference can only be or- 
 <lered in cases where, from a pliysical incapacity, 
 other than that which results from sickness, the 
 marriage cannot be consummated. — Supreme Cl., 
 (l8« Dg>(.,) March, 1879. Morrell v. Morrell, 
 17 Hun 324. 
 
 n. Absolute Divorce. 
 
 3. Jurisdictional questions. Every 
 state has the right to determine for itself upon 
 what grounds the relation of marriage between 
 persons domiciled within its territory may be 
 dissolved, and it may prescribe what legal pro- 
 ■ceedings may be had to that end. — Ct-ofApp., 
 ■Jan., 1878. Hunt v. Hunt, 72 N. Y. 217 ; affirm- 
 dng 9 Hun 622. 
 
 4. Jurisdiction of the person of a defendant 
 in an action for divorce may be acquired by a 
 -court of the state in which he orshe is a domiciled 
 citizen, by such proceedings in the nature of 
 service of process of the court as the law of the 
 state has made equivalent to personal service 
 within its jurisdiction ; so long as the citizen re- 
 tains that relation to the state, he owes it alle- 
 giance and is subject to its laws, and this sub- 
 jection he cannot throw off by a temporary or 
 j)rolonged absence from the state. lb. 240. 
 
 5. When an arrest •will be granted. 
 Where, in the wife's suit for divorce, she shows 
 that defendant is about to depart from the state, 
 
 with no present intention of returning, except, 
 possibly, to pass through it, and that he is _ to 
 sail for Europe within a month, to be gone in- 
 definitely, a proper case is made out for the 
 issuing of an order of arrest. Inasmuch as the 
 judgment may require the performance of an 
 act, the neglect or refusal to perform which 
 would be punishable by the court as a contempt, 
 the case is brought within Code of Civ. Pro., | 
 550, subd. 4.— Supreme Ct., {Isl Bept.,) May, 
 1880. Boucicault v. Boucicault, 59 How. Pr. 
 131. 
 
 6. Evidence of adultery. Although pre- 
 sumptive evidence alone is sufficient to establish 
 the fact of adulterous intercourse, the circum- 
 stances must lead to it, not only by fair infer- 
 ence but as a necessary conclusion ; appearances 
 equally capable of two interpretations, one an 
 innocent one, will not justify the presvmiption of 
 guilt. Evidence simply showing full and fre- 
 quent opportunity for illicit, carnal intercourse, 
 is not alone sufficient to found an inference that 
 the criminal act was committed. — Ct. of App , 
 Nov., 1877. Pollock v. Pollock, 71 N. Y. 137, 
 141. 
 
 7. General cohabitation alone, i. e., thesimply 
 living or being together all or most of the time in 
 the same household, apart from suspicious circum- 
 cumstances characterizing it, i,s not sufficient to 
 warrant an inference of adultery ; there must be 
 some accompanying circumstances fitted fairly to 
 induce a belief that it was not for a proper pur- 
 pose, lb. 144, 146. 
 
 8. Recriminatory charges. Where, in 
 an action for divorce a mmsulo, recriminatory 
 charges are made in the answer, no less evidence 
 it required to establish such charges than is re- 
 quired to establish a like charge in an original 
 action for divorce. lb. 141. 
 
 9. To support recriminatory charges in an 
 action for divorce brought by the husband, evi- 
 dence was given to the effect that the alleged 
 paramour was almost daily at the apartments 
 occupied by him both as his residence and place 
 of business, and sometimes in the evenings; 
 that at times they were on the street together 
 and went to places of amusement ; that she con- 
 sulted with him as to, and made purchases for 
 the table, and at times did the housework in the 
 absence of the woman employed for that pur- 
 pose. It also appeared that the female had 
 been, from an early age, in plaintiff's family ; 
 that she was at the time employed as an assist- 
 ant in plaintiff's business. There was no evi- 
 dence of any improper endearments or famili- 
 arities of any kind iSetween the parties. 
 
 Seld, 1. That the evidence was not sufficient 
 to sustain the charges. 
 
 2. That the facts that the fbmale charged 
 to be the paramour of plaintiff was be- 
 lieved by his neighbors to be his wife, and 
 was twice addressed as such, in the absence of 
 proof that she knew herself to be so considered, or 
 heard herself so addressed — she testifying that 
 she did not^was not, in connection with other 
 facts, sufficient to justify a finding that the par- 
 ties cohabited together as husband and wife. lb. 
 
 10. Motion to conflrm referee's re- 
 port. Notwithstanding the determination of 
 the issues by the referee in favor of the divorce, 
 the court may in the proper exercise of its 
 BuperTisor/"power, upon the hearing of excep- 
 tions to the report, withhold Judgment of di- 
 vorce upon the ground of insufficiency of proof 
 
132 
 
 DIVORCE, II. 
 
 of the alleged adultery, as also for the reason 
 that there was sufficient evidence of condonation. 
 But the court cannot on the hearing of the mo- 
 tion to confirm the report, and the exceptions 
 thereto, dismiss the plaintiff' s complaint upon 
 the merits. — Superior Ct., June, 1877. Harding 
 V. Harding, 43 Superior 27. 
 
 11. Where a party excepts to a. report and 
 hrings those exceptions to a hearing, the motion 
 is substantially a motion fo» a new trial, and the 
 party making it is not entitled to relief exceed- 
 ing that which is usually awarded to a party 
 successfully moving for a new trial on a case or 
 exceptions under Code of Pro., ? 265, viz.: No 
 absolute judgment should he given where the 
 question is one that can be determined by further 
 proof; but an order should be entered (if it is a 
 case for a new trial), setting aside the report, 
 vacating the ord§r of reference, and ordering a 
 new trial of the issues, thus leaving the contest- 
 ing«parties free to select any of the modes of 
 trial prescribed by the code. In a case where 
 no answer has been made, nor issue joined, but 
 only a reference to take testimony and report, on 
 the coming in of the report, the court may send 
 back the report to the referee, with directions 
 to take further proof, if the court deem the 
 proofs insufficient. lb. 
 
 12. Judgment thereon. In an action for 
 a divorce a vineido, defendant's answer contained 
 recriminatory allegations of adultery by plain- 
 tiff The issues were sent to a referee to take 
 the testimony and report the same with his 
 opinion thereon. The referee reported that, in 
 his opinion, defendant was guilty of the adul- 
 tery charged, but that plaintiff was not guilty. 
 The decision of the Special Term stated that the 
 court found plaintiff guilty of the adultery " as 
 charged in the answer," and directed that the 
 complaint be dismissed. Held, that this was a 
 sufficient compliance with the provision of the 
 code (? 267), requiring that upon trial by the 
 court, its decision shall contain a, statement of 
 the facts found, and the conclusions of law sep- 
 arately. — Ct. of App., Nov., 1877. Pollock v. 
 Pollock, 71 N. Y. 137, 140. 
 
 13. Effect of foreign decree. A court 
 in another state cannot adjudge to be dissolved 
 and at an end, the matrimonial relation of a citi- 
 zen of this state, domiciled and actually abiding 
 here throughout the pendency of the judicial 
 proceedings there, without a voluntaiy appear- 
 ance by him therein, and witli no actual notice to 
 him thereof, and without personal service of 
 process on him in that state. — Ct. of App., Jan., 
 1879. People o. Baker, 76 N. Y. 78, 80 ; re- 
 versing 15 Hun 256. 
 
 14. The courts of this state will not assume 
 to pass primarily upon the constitutionality of a 
 statute of another state, or upon the validity of 
 a judgment of divorce granted under it. — Ct. of 
 App., Jam., 1878. Hunt v. Hunt, 72 N. Y. 217, 
 232. 
 
 15. A judgment rendered by a court having 
 power lawfully conferred to deal with the gen- 
 eral subject involved in the action, and having 
 jurisdiction of the parties, although against the 
 facts or without facts to sustain it, is not void as 
 rendered without jurisdiction, and cannot be 
 questioned collaterally. Therefore, where an 
 action for divorce is hrought in a court having 
 power to entertain such an action, and which 
 has jurisdiction of the parties, the court has 
 power to give judgment, although plaintiff fails 
 
 to make out a cause for divorce as prescribed by 
 the laws of the state ; and this failure cannot he- 
 shown collaterally to avoid the judgment while 
 it stands unreversed, whether the judgment is- 
 availed of in the state where granted or 
 in a sister state, lb. 230 ; affirming 9 Hun 622.. 
 
 16. Consequently, a judgment of divorce ren- 
 dered by the court of another state against at 
 domiciled citizen thereof, upon a substituted! 
 service of process such as the law of the state 
 has authorized in the case of an absent defend- 
 ant, is valid in personam so as to effect a dissolu- 
 tion of the marriage contract ; and is conclusive 
 upon the defendant in the courts of this state, 
 although he was not within the territorial juris- 
 diction during the progress of the suit and did 
 not appear therein. lb. 241. 
 
 17. Upon appeal from the decision of a po- 
 lice justice, in proceedings against the relator 
 for abandoning his wife and children, he offered 
 in defence a decree of absolute divorce procured 
 by him in Utah. The decree, granted Novem- 
 ber 3d, 1876, showed upon its face that the re- 
 lator appeared by counsel, and that the wife 
 neither appeared in person or by counsel ; thai 
 she had been served by publication ; and that a 
 decree was taken pro cmfesso, on the ground 
 " that the said parties cannot live in peace and 
 union together, and that their welfare requires a 
 separation, and that the plaintiff wisAes to beayme- 
 a resident of Beaver county, in the territory of 
 Utah." The wife testified that her husband left 
 his family in September, 1876, in Brooklyn," 
 telling her that he was going to Cincinnati ott 
 business ; that she was never in Utah and never 
 knew of the suit until a copy of the decree was- 
 served upon her three months later. Held, that 
 the decree was fraudulently obtained, and an ab- 
 solute nullity. — Supreme Gt., (\sl Dept.,) Marehy 
 
 1878. People, ex rel. Commissioners, v. Smith,. 
 13 Hun 414. 
 
 18. Appeals. Where, in an action for di- 
 vorce on the ground of adultery, trial is had 
 before a referee, and judgment rendered upon 
 his report in favor of defendant, which is re- 
 versed by the General Term on questions of 
 fact and a new trial ordered, the order of Gen- 
 ral Term is appealable to this court, the appel- 
 lant giving the usual stipulation required by 
 Code of Civ. Pro., ? 191.— a. of App., June^ 
 
 1879. Conger v. Conger, 77 N. Y. 432. 
 
 19. In such case, upon affirmance of the order 
 here, judgment absolute can be rendered against 
 the appellant upon such stipulation, as the ques- 
 tion of adultery has been tried, and the decision 
 of the General Term and of this court is to the 
 effect that the defendant is guilty ; the judg- 
 ment, therefore, will be basSi upon evidence 
 and upon judicial determinations. lb. 
 
 As to whether the order is appealable, where 
 the judgment was reversed for error of law, not 
 involving the merits, gucere. lb. 
 
 20. Prohibition of marriage of guiltsr 
 party. Under 2 Eev. Stat. 146, § 49-forbid- 
 ding the re-marrage of a party divorced for adul- 
 tery — even re-marriage with the former spouse, is- 
 forbidden, and snch re-marriage without leave of 
 the court is a mdlity. In such a case the divorced 
 adulterer who re-marries his former wife, with- 
 out leave, cannot defend, on that'ground, a mo- 
 tion to enforce payment of alimony granted in the 
 divorce suit. — City Ct. of Brooklyn, {Sp. T.,) 
 Aug., 1877. Moore v. Moore, 8 Abb. N. Cas^ 
 171. 
 
DIVORCE, III., ly. 
 
 133 
 
 III. Limited Divokce. 
 
 21. For cruelty. Threats of violence by 
 a husband against a wife, of such a character as 
 to induce a reasonable apprehension of bodily 
 injury, and charges of infidelity made in bad 
 jfaith, as auxiliaiy to and in aggravation of the 
 -threatened violence, are sufiScient to constitute 
 "cruel and inhuman treatment," within the 
 meaning of the statute authorizing a limited di- 
 ■vorce. (2 Kev. Stat., 147, ? 51.)— Ct. of App., 
 Aprii, 1878. Kennedy v. Kennedy, 73 N. Y. 369. 
 
 22. To entitle a wife to a divorce a menm et 
 ihoro under the first and second subdivisions of 
 the statute, there must either be actual violence 
 ■or a reasonable appreheusibn of bodUy injury. 
 Wounded susceptibilities do not sufSce. Occa- 
 
 . «ional outbursts of passion will not do ; nor 
 mere abuse, however gross. Words of menace, 
 iowever, are sufficient if they be of such a char- 
 acter and accompanied by such circumstances as 
 to justify a belief in their seriousness. That is, 
 they must impress the person to whom they are 
 addressed, not as idle words, not as a form of in- 
 temperate expr£ssion, but as importing action, 
 and in that sense convey tlie reality of a threat 
 ■of bodily harm. — Supreme Ot., {Sp. T.,) Jan., 
 1880. Euckman v. Ruckman, 58 How. Pr. 278. 
 
 23. Although words in form threatening 
 were uttered, yet where, upon a patient and 
 thoughtful review of the entire evidence, the 
 ■court is satisfied that the language used was a 
 mere exhibition of coarse and vulgar passion ; 
 that the defendant never for a moment contem- 
 plated physical violence ; and that the plaintiflf 
 never believed herself to be in the slightest 
 jeopardy, a decree will be refiised. lb. 
 
 24. For abandonment. To justify a 
 judgment for a limited divorce on the ground of 
 abandonment, such circumstances must appear as 
 indicate a manifest and determined purpose in the 
 iusband to withdraw from the wife permanently 
 his society and protection, and to withhold from 
 her the means necessary for her support. — Suy 
 jrreme Ct., (Sp. T.,) Jan., 1880. Euckman v. 
 Euckman, 58 How. Pr. 278, 283. 
 
 25. Defences. In the wife's suit for a 
 limited divorce, on the ground of cruel and in- 
 human treatment, if the husband desires to de- 
 fend on the ground that she has forfeited her 
 light to such relief by her own ill-conduct, or 
 that his offences have been condoned, he must 
 set up such defences in his answer. — Supreme 
 Ct., {2d Dept.,) Sept., 1878. Eoe v. Boe, 14 Hun 
 •612. 
 
 IV. AuMomr; and Custody of Childebn. 
 
 26. When alimony will be granted, 
 ■generally. As the allowance is only author- 
 ized in favor of a wife,- it must be admitted, or 
 proof must be submitted, sufficient to authorize 
 the court to determine that the applicant stands 
 in the relation of wife to the opposite party ; 
 and when, in answer to her allegation of mar- 
 riage, facts are stated showing that the applicant 
 was not competent to contract such marriage, 
 and did not thereby become a wife, as that she 
 was at the time the wife of another, such facts 
 must be denied, or explained to the satisfaction 
 •of the court; if left uncontroverted, the court is 
 not justified in making the allowance. — Ct. of 
 App., Nov., 1877. Collins v. Collins, 71 N. Y. 
 269, 274. S. P., Kinzey v. Kinzey, 7 Daly 460. 
 
 27. So, also, where in an action, by the wife, 
 recriminatory charges of adultery are made on 
 the part of defendant, and proofs are presented 
 establishing such allegations, which are not con- 
 ti'overted by plaintiff, an allowance is not justi- 
 fied, lb. 
 
 28. Alimony and counsel fees may be allowed 
 upon the dismissal of the complaint in a hus- 
 band's action for divorce on the ground of adul- 
 tery.— Supreme Ct., {&>, T.,) Sept., 1880. Free- 
 man V. Freeman, 8 Abb. N. Cas. 174. 
 
 29. "WTien alimony pendente lite will 
 be granted. Counsel fees. Alimony and 
 counsel fees will be granted to the wife in her ac- 
 tion to annul the marriage on the ground of the 
 husband's physical incapacity to consummate 
 the same. — Supreme Ct., {N. Y. Chamb.,) Feb., 
 1880. Allen v. Allen, 59 How. Pr. 27 ; S. C, 8 
 Abb. N. Cas. 175. 
 
 To the contrary. Com. Pleas, (1^. T.,) May, 
 1880. Bloodgood v. Bloodgood, 59 How. Pr. 42. 
 
 30. Where the husband is plaintiff^ and seeks 
 to annul the marriage, but the wife affirms its 
 validity, she is entitled to alimony and couiisel 
 fees. Bloodgood v. Bloodgood, supra. 
 
 31. When refused. In an action by the 
 husband to annul the marriage on the ground 
 that defendant had a former husband living and 
 fraudulently concealed that fact, aUxaonj. pendente 
 lite was refused the wife, under the peculiar cir- 
 cumstances of the particular case. — Com. Pleas, 
 Feb., 1878. Kinzey v. Kinzey, 7 Daly 460. 
 
 32. When granted in suit for limited 
 divorce. A decree for maintenance is but an 
 incident to one for a separation, and the circum- 
 stances under which such a decree may be made 
 must be of such a nature as would, in them- 
 selves, justify a direction of a separation. — Sit- 
 preme 'Ct., (Sp. T.,) Jan., 1880. Euckman v. 
 Euckman, 58 How. Pr. 278, 283. 
 
 33. — or after voluntary separation. 
 As to whether articles of separation, making 
 adequate provision for the support of a wife, are 
 a bar to an application for alimony in an action 
 for divorce, subsequently brought by her ; or, as 
 to whether a return of the property received un- 
 der such articles is necessary, quaere. — Q.. of App. 
 Nov., 1877. Collins v. Collins, 71 N. Y. 269 
 276. 
 
 34. Application for alimony. Where, 
 in an action for divorce, the defendant is served 
 with a summons alone, and neglects to appear 
 the judgment may award final alimony, if de- 
 manded in the complaint, without any notice to 
 him of the application therefor. — Supreme Ct 
 {3d Dept.,} Sept., 1879. Park v. Park,* 18 Hun 
 466. 
 
 35. Enforcing payment by proceed- 
 ings for contempt. Where the judgment di- 
 recting the alimony is enforceable by execution, 
 proceedings in contempt cannot be resorted to on 
 the parties' failure to comply with the judgment 
 (Code of Civ. Pro., ?? 14, 1241.)-&tpenor Ct., 
 Nov., 1879. Gane v. Gane, 45 Superior 355. 
 
 36. When the defeated party in a divorce 
 suit refuses to pay the costs, disbursements, and 
 counsel fee awarded to the prevailing party an 
 attachment as for a contempt may be issued 
 against him after the return of an execution 
 unsatisfied.— iSttpreme G., {1st Dept.,) June, 1878. 
 Pritchard v. Pritchard, 4 Abb. H. Cas. 298. 
 
 37. Striking out answer for non- 
 
 * Said to have beeA affirmed in the Court of Appeals. 
 February 24th, 1880. 
 
134 
 
 DIVOECE, IV 
 
 payment. Where defendant, in an action for 
 divorce, fails to pay the alimony pendile lite 
 ordered by the court, an order to show cause 
 why his answer should not be stricken out, is 
 proper, and such order may be served on his 
 attorney. — Supreme, Ct., (1st Dept.,) March, 1880. 
 Walker v. Walker, 20 Hun 400 ; affirmed 59 
 How. Pr. 476. ; 
 
 38. Where issue is joined on the allegation 
 of adultery, and defendant is ordered to pay a 
 sum of money towards the expenses of the ac- 
 tion, which he neglects and refuses to do, his 
 answer cannot be stricken out, and a reference, 
 as in case of default, ordered. The case is not 
 within Code of Civ. Pro., U 538, 545, 546, 
 which alone confer authority to strike out plead- 
 ings iu such cases ; and no power exists to refer 
 an action for divorce where an issue has been 
 framed by the pleadings. — Supreme Ot., {Cayuga 
 Sp. T.,) Oct., 1879. McCrea v. McCrea, 58 
 How. Pr. 220. 
 
 39. Sequestration, and po'wers of 
 sequestrator. The -sequestrator of the rents 
 and profits of the husband's property, appointed 
 in an action for limited divorce, because of the 
 husband's neglect and refusal to provide alimony 
 ordered to be paid by the court, cannot, by virtue 
 of his appointment, maintain an action in his 
 own name to set aside as fraudulent, convey- 
 ances made by the husband before the order of 
 sequestration. The conveyance should either 
 be attacked in the original action, or in a 
 new action in the name of the person in whose 
 interest the sequestration was ordered. — Supreme 
 Ct., (la Dept.,) Dee., 1877. Donnelly u. Shaw, 
 7 Abb. N. Gas. 264; S. C, sub. mm. Donnelly v. 
 West, 17 Hun 564. 
 
 40. Modifying the allowance. The 
 right of the wife to final alimony, and the 
 ability of the husband to pay the same, are to be 
 determined by reference to the situation and 
 pecuniary condition of the parties at the time 
 of the entry of final judgment, and the amount 
 is not to be modified by any subsequent change 
 in the situation of either party. — Supreme Ct., 
 (3d Dept.,) Sept., 1879. Park v. Park, 18 Hun 
 466. 
 
 41. Where the wife has obtained a decree, and 
 an allowance of alimony has been made for her 
 support and "for the support and maintenance " 
 of her three children, the allowance to the wife 
 should be unchanged, but the provision for the 
 support of the children may be altered as their 
 circumstances change. — Com. Pleas, Jvly, 1880. 
 Kerr v. Kerr, 59 How. Pr. 255. 
 
 42. Where, in a suit for limited divorce, ali- 
 mony and counsel fees have been granted in so 
 small an amount as to show that the amount 
 was based upon the poverty of the defendant, 
 and a trial has been had resulting in a disagree- 
 ment of the jury, the court will not order rtie 
 payment of additional alimony and counsel fees, 
 on the ground that a new trial is necessary, 
 where it is not shown that defendant's pecuniary 
 circumstances have changed for the better. — 
 Qm. Pleas, (Sp. T.,) April, 1878. Kittle v. 
 Kittle, 8 Daly 72. 
 
 43. Release by wife — acceptance of 
 gross sum. A wife entitled to alimony pay- 
 able in installments by order of the court, may 
 release and discharge her claim therefor, in full 
 and in advance, for a stipulated sum ; and where 
 such a release had been made, and subsequently 
 she moves the court to set it aside, and on the 
 
 hearing of the motion no allegations are made 
 of fraudulent practice or artifice to induce her 
 to execute the release, nor facts appear to im- 
 peach the honesty and good faith of the trnsao- 
 tion, the court will deny the motion, and refuse 
 to set aside the release. — Superior Ct., Jan., 
 1878. Smith v. Smith, 43 Superior 140. 
 
 44 Review of order granting ali- 
 mony. Where the facts appearing upon an 
 application for alimony pendente lite are such 
 that, on general principles of equity, the wife is 
 not entitled to demand the same, the question a» 
 to the granting thereof is one of law, reviewable 
 in this court. — Ct. of App., Nov., 1877. Collins 
 V. Collins, 71 N. Y. 269. 
 
 45. On appeal to this court from an order 
 granting alimony pendente lite, the question of 
 power in the court below is the only one review- 
 able ; and if the facts stated in the complaints 
 are clearly not sufficient, if true, to constitute a 
 cause of action, alimony cannot be granted. — 
 Ct. of App., April, 1878. Kennedy v. Kennedy, 
 73N. y. 369. 
 
 46. A complaint in an action for limited 
 divorce alleged that defendant, on various; 
 occasions, "wantonly and maliciously charged 
 the plaintiff with unchastity and infidelity to- 
 her marriage vows," * * "that on one occa- 
 sion in December, 1876, he pointed a pistol at 
 her head, when angry, apparently with intent 
 to kill her," and on another occasion " ordered 
 her out of the house, and said he would make it 
 too hot for her, and threatened to murder her ; "■ 
 which acts were without cause or provocation, 
 and that a separation was necessary " to her own 
 existence" and the welfare of the children. 
 The relationship of the parties as husband and 
 wife was not questioned. Sdd, that it could 
 not be determined as matter of law that plain- 
 tiff could not establish a cause of action under 
 the complaint; and that an order granting 
 alimony to the plaintiff, based upon the com- 
 plaint and a verified petition, although said alle- 
 gations were denied or met by the answer and 
 opposing affidavits, was not reviewable here. 
 lb. 
 
 47. Custody of children. In an action 
 for limited divorce, brought by the wife against 
 the husband, the court, after it has denied tlie 
 principal relief sought, on the ground that the- 
 evidence fsiiled to show facts to establish any of 
 the causes for which a separation canjbe ad- 
 judged, has no power to give judgment award- 
 ing the custody of the children of the marriage 
 to the plaintiff, and making provision for their 
 maintenance out of the property of the husband. 
 Upon failure of the plaintiff to make out a case- 
 for a divorce, the defendant is entitled to judg- 
 ment dismissing the complaint. — Ct. of App., 
 Nov., 1878. Davis v. Davis, 75 N. Y 221. 
 
 48. The provision of the Eevised Statutes (2: 
 Eev. Stat. 147, ? 55,) authorizing a decree for 
 the support and maintenance of the wife, al- 
 though a decree for separation be not made, 
 only applies where cruel and inhuman treat- 
 nient or other cause of divorce is made to appear 
 to the court. lb. 
 
 49. The equity powers of the court cannot be 
 invoked to sustain such a judgment. The action 
 being a statutory one, the power of the court is- 
 to be sought in the statute itself, and only sucb 
 judgment can be rendered as is authorized 
 thereby. lb. 
 
 50. Nor is such relief justified by the pro- 
 
DIVORCE, IV.— DOWER. 
 
 135 
 
 vision of the statute (J 59) authorizing, in an 
 action by a married woman for divorce or sepa- 
 ration, an order for the custody of the children 
 "during the pendency of the cause or at its 
 final hearing or afterwards." This simply pro- 
 vides for the provisional custody of the chil- 
 dren, and for awarding their custody when a de- 
 cree shall he granted. lb. 
 
 51. That where a husband and wife live sepa- 
 rate, without being divorced, the remedy of the 
 wife, seeking custody of the minor children, is 
 by habeas corpus, see lb. 228. 
 
 As to agreements for iSenat-ate maintenamx, see 
 Husband and Wife, VII.- 
 
 DOCUMENTARY EVIDENCE. 
 
 EVIDENCB, IV. 
 
 DOMICILE. 
 
 1. Commercial domicile. The author- 
 ities upon the subject of the law of commercial 
 domicile, and when it controls in the courts of 
 another state, collated. — Ot. ofApp., March, 1877. 
 King V. Sarria, 69 N. Y. 24. 
 
 2. Domicile of ■wife as affected by 
 that of husband. The domicile of a hus- 
 band is prima facie that of a wife ; she may ac- 
 quire a separate domicile whenever it is neces- 
 sary for her to do so, as where the parties are 
 living apart under a judicial decree of separa- 
 tion, or when the conduct of the husband has 
 been such as to entitle her to a divorce, absolute 
 or limited ; but this right springs from and is 
 limited by the necessity of its exercise. — Ct. of 
 App., Jan., 1878. Hunt v. Hunt, 72 N. Y. 217, 
 242. 
 
 3. The wife, by her marriage with a citizen 
 of a foreign state, and residing with him at his 
 domicile there, although previously a citizen of 
 this state, becomes subject to the laws of such 
 foreign state, and her right to dispose of her 
 property by will, as well as the rights of her 
 children bom there, are to be determined by the 
 laws of such foreign state. — Supreme Ot., (i^. T.,) 
 Oct., 1878. Trimble v. Dzieduzyifci, 57 How. 
 Pr. 208. 
 
 DOWER. 
 
 1. wnat property is subject to 
 dower. As to dower in surplus moneys paid 
 into the surrogate's court on foreclosure, and 
 what claims may be set off against it, see Tay- 
 lor V. Bentley, 3 Eedf 34. Compare, also. West- 
 fall D.Westfall, 16 Hun 541. 
 
 2. General nature of the inchoate 
 right. A wife's inchoate right of dower is not 
 included in the kinds of property specified in 
 the "married women's act," (Laws of 1860, ch. 
 90, ? 1,) nor is it within the provision of ? 7 of 
 that act, as amended by Laws of 1862, ch. 172. 
 —Supreme Ct., {3d Dept.,) Sept., 1879. Kelley 
 V. Case, 18 Hun 472. 
 
 3. Duties of dowress, as such. As to 
 the duty of a dowress to keep down the rents, 
 where the dower estate is in lands held under a 
 perpetual lease subject to the payment of rent, 
 see Graham v. Luddington, 19 Hun 246. 
 
 4. Payment of purchase money by widow in 
 
 possession as dowress and as guardian in socage 
 of infant heirs, when presumed to be from rents 
 and profits, see Knolls v. Bamhart, 71 N. Y. 
 474, 479. 
 
 5. What will bar dower, generally. 
 A judgment in partition, and a sale thereunder, 
 will bar the inchoate right of dower of the wife 
 of any owner, provided she be made a party to 
 the action. — Supreme Ot., (ith Dept.,) Jam,., 1880. 
 Jordan v. Van Epps, 19 Hun 526 ; S. C, 58 
 How. Pr. 338. 
 
 Otherwise of the mei-e pendency of a partition 
 suit. Matter of Hughes, 3 Kedf. 18. 
 
 6. The wife's inchoate right of dower, she 
 being innocent, is superior to the rights of a 
 mortgagee who lends money to the husband on 
 his falsely representing himself to be a single 
 ma.n.— Supreme Ct., (2d Dept.,) 1878. Westfall 
 11. Hintze, 7 Abb. N. Cas. 236. 
 
 7. Release of dower. A convftyance ex- 
 ecuted by a husband and wife, which " grants, 
 bargains, sells, aliens, remises, releases, conveys 
 and confirms" the land and "all the estate, 
 right, title, interest, property, possession, daim 
 and demand whatsoever, as well in law as in 
 equity, of the said parties of the first part, of, 
 in and to the same," will release the wife's in- 
 choate right of dower in the land so conveyed. 
 —Supreme Ot., (2rf Dept.,^ Sept., 1878. Gillilan 
 ■V. Swift, 14 Hun 574. 
 
 8. After the wife had procured an absolute 
 divorce from her husband, the decree providing 
 that the provision for her support should not 
 be in lieu of her dower, she executed and de- 
 livered to her husband an instrument whereby', 
 in consideration of one dollar, she released her 
 right of dower in all his lands. Held, the re- 
 lease was valid as to her, and also as against a 
 third person who, with knowledge of the release, 
 took a mortgage executed by the husband on 
 land theretofore subject to her right of dower. — 
 Supreme Ot., (iih Dept.,) Oct., 1879. Savage v. 
 Grill,* 19 Hun. 4. 
 
 0. Testamentary provision in lieu of 
 dow^er. Provisions in the will, in favor of the * 
 testator's widow, though not expressed to be in 
 lieu of dower, may be construed so to be upon a 
 general view of the whole will,, and proof that the 
 widow has treated them as in lieu of her 
 dower. — Supreme Ot., {1st Dept.,) July, 1878. 
 Bettsv. Belts, 4 Abb. N. Cas. 317. 
 
 10. Actions for dower. Under the laws 
 of 1870, ch. 717, as amended by Laws of 1874, 
 ch. 258, providing that in any action by a widow 
 to recover her dower, she may file a consent ac- 
 cepting a gross sum in lieu thereof, and that the 
 court may thereupon order a sale, &c., where 
 such consent is filed the court is authorized to 
 award costs and an extra allowance to the de- 
 fendant as well as to the plaintiff, and the dower 
 interest is to be computed upon the proceeds re- 
 maining after the deduction of both these 
 amounts. — Supreme Ot., (2d Dept.,) Sept., 1878. 
 Schierloh v. Schierloh, 14 Hun 572. 
 
 11. When the appointment of a receiver of 
 all the rents and profits, is proper in a suit for 
 dower, notwithstanding a prior decree in a par- 
 tition suit respecting the same property, see 
 Egan V. Walsh, 43 Superior 402. 
 
 As to the Estate of the husband in wife's lands, 
 after her- death, see Curtesy. 
 
 *Said to have been affirmed in the Court of Appeals, 
 February 3d, 1880. 
 
136 
 
 DRAINS. 
 
 DRAFTS. 
 
 Bills of Exchange. 
 
 DRAINS. 
 
 1. Oonstitutionality of the statute. 
 The drainage act (Laws of 1869, ch. 888, as 
 
 ' amended by Laws of 1871, ch. 303,) is not viola- 
 tive of any constitutional provision. It does not 
 authorize the taking of private property for a 
 private use; the object for which drainage may 
 be had and lands taken, under the act, is solely 
 the public health, and this is a public purpose. 
 It does not infringe the constitutional provision 
 prohibiting the taking of property without " due 
 process of law." (Art. 1, § 6.) The property of 
 the citizen is reached under the act in two 
 ways only — by assessment, a mode of exercise 
 of the power of taxation, and so constitu- 
 tional, and by taking^ land needed, and 
 making compensation, which is not violative of 
 the constitutional provision. — Ot. of App., Jan., 
 1878. Matter of Eyers, 72 N. Y. 1. 
 
 2. Jurisdictional questions. Where, in 
 proceedings instituted under the act above men- 
 tioned, neither the commissioners nor the 
 county court determine that the proposed drain- 
 age is necessary for the public health, jurisdic- 
 tion is not acquired, and the proceedings are 
 void. Any person owning or possessing lands 
 affected by the proceedings, though not actually 
 taken thereby, may raise such objection. — Su- 
 preme Ot., (ith Dept.,) Oct., 1879. Burk v. Ayers, 
 19 Hun 17. 
 
 3. That a determination that the proposed 
 drainage is necessary " to carry off surface water 
 from farm lands and the highways," will not au- 
 thorize an order ; and that there must exist a ne- 
 cessity for draining the lands of the petitioners, 
 or the lands described in the petition, see Ih. 
 
 4. Necessity of compensation. Lands 
 ♦cannot be permanently appropriated for drains 
 for the benefit of other lands, under the police 
 power of the state or otherwise, without com- 
 pensation. — Gt. of App., Sept.,l?il^. Matter of 
 Cheesebrough, 78 N. Y. 232. 
 
 5. Tlie petition. In proceedings under 
 the statute relating to the drainage of swamps, 
 etc., (Laws of 1869, ch. 888,) to acquire title in 
 invitvm to an easement in lands for the purpose 
 of drainage, the petition must state not only that 
 the commissioners cannot agree with the owner 
 "upon the compensation and damages," but 
 also the reason why an agreement cannot be 
 made; in the absence of such statement the 
 court acquires no jurisdiction. — Ot. of App., 
 iVoj)., 1877. Matter of Marsh, 71 N. Y. 315; 
 reversing 10 Hun 49. 
 
 6. In such proceedings, where the rights of 
 
 property are sought to be interfered with under 
 the right or color of eminent domain, the facts 
 necessary to give the court or officer jurisdiction 
 must appear in the 'petition, which alone is to 
 be looked to for the facts upon which jurisdic- 
 tion depends. lb. 
 
 7. Appointment and po'wers of the 
 commissioners. The commissioners au- 
 thorized to be appointed under and by the drain- 
 age act (Laws of 1869, ch. 888, as amended by 
 Laws of 1871, ch. 303,) are officers included in 
 one or the other of the classes whose election or 
 appointment is, by the constitution (art. 10, J 
 2,) left under the control and direction of the 
 legislature, and the provision of said act, as to 
 their appointment, is in accordance with the 
 constitutional requirement.— Ct. of App., Jan., 
 
 1878. Matter of Ryers, 72 N. Y. 1. 
 
 8. Whether the provision of said act (J 17) 
 authorizing the commissioners appointed by a 
 county judge to act in more than one county is 
 valid, qwere. If invalid, it is separable from 
 the other provisions, and does not invalidate the 
 appointment by a county judge of commission- 
 ers to act solely in and for his own county. lb. 
 
 Q. Commissioners appointed under the act of 
 1869, cannot levy and collect an assessment for 
 the expense of a drain until they have acquired 
 a sufficient title to the lands required therefor. 
 The persons to be benefited can only be assessed 
 for a drain lawfully constructed, and which can 
 be perpetually maintained. — Ct. of App., May, 
 
 1879. Ohnsted v. Dennis, 77 N. Y. 378, 385. 
 
 10. A license from the owners of land to con- 
 struct the drain does not vest any title or give 
 any irrevocable easement in the land. lb. 385. 
 
 11. The statement required by 2 IQ of the 
 act, to be made and filed by the commissioners, 
 of the costs, expenses, etc., is to be made after 
 the whole work is completed, or, at least, after 
 it is in such a condition that the entire expense 
 of its completion can be accurately ascertained ; 
 and is to be of the entire expense, as it is the 
 basis of the assessment therefor. 1 b. 386. 
 
 18. A commissioner appointed under the act, 
 has a right to resign. His resignation is complete 
 when it is received by the county judge. Ifo 
 formal acceptance by the latter is needed to give 
 it effect ; and, after such resignation, the person 
 so resigning cannot legally act as commissioner. 
 lb. 387. 
 
 DURESS. 
 
 Effect of, on contract, see ContbACTS, 38, 40. 
 
 DYING DECLARATIONS 
 
 Homicide, 4, 6. 
 
EASEMENTS, I., II. 
 
 137 
 
 E. 
 
 EASEMENTS. 
 
 I. General Pkinciples. 
 II. Pakticulab Kinds of Easements. 
 
 I. General Principles. 
 
 1. "What is an easement. The distinc- 
 tion between an easement and a right to profit a 
 prendre pointed out. — Ot. of App., Sept., 1877. 
 Pierce v. Keator, 70 N. Y. 419. See, also, 
 Definitions, 72. , 
 
 2. "Who may acquire an easement, 
 and how. Easements of all kinds may be 
 created and exist in favor of any third person, 
 irrespective of ^ny privity of estate or commu- 
 nity of iirterest between the parties ; and, in this 
 respect, there is no distinction between negative 
 casements and those rights that are more gene- 
 rally known as easements, as a way, etc. — Ct. of 
 App., Sept., 1877. Trustees of Columbia Col- 
 lege V. Lynch, 70 N. T. 440, 448. 
 
 3. Where the owner of two or more tene- 
 ments sells one of them, or the owner of an en- 
 tire estate sells a portion, the purchaser takes 
 the tenement or portion sold, with all the bene- 
 fits which appear, at the time of the sale, to be- 
 long to it, as between it a,nd the property which 
 the vendor retains. But no burden or servitude 
 can be imposed by the vendor upon the tene- 
 ment, or portion sold, in favor of the property 
 retained by him, in deiogation of his grant, 
 without a reservation expressed in the grant, 
 unless an apparent sign of servitude exists on 
 the part of the tenement or portion sold, in 
 favor of the property retained, and the easement 
 claimed is stricty necessary to the enjoyment 
 of the property retained. In the latter case 
 visibility and strict necessity must both concur, 
 as in the case of a party wall, and especially in 
 the case of a claim of right of way. — Superior 
 Ot., Dec., 1879. Outerbridge v. Phelps, 45 Su- 
 perior 555, 572 ; S. C, 58 How. Pr. 77. 
 
 4. Where a land-owner makes and files a 
 map, designating thereon streets and public 
 squares, and sells lots with reference to such 
 map, the purchasers, where such public squares 
 have subsequently been used as highways, ac- 
 <juire such an easement therein as will authorize 
 them to apply for an injunction to restrain a 
 Tailroad company from laying its tracks in such 
 highways without compensation to them. — Svr 
 preme Ot., (ith Dept.,) Oct., 1879. Pratt v. Buf- 
 falo City K&ilway Co., 19 Hun 30. 
 
 5. How extinguished. When the owner 
 of the easement created by a covenant in a deed 
 not to erect certain structures calculated to ob- 
 struct "light, air and vision," has made or per- 
 mitted permanent erections which substantially 
 intercept the air, light and vision and from 
 his lot, the easement is thereby extinguished ; 
 and so if the erection interferes with the ease- 
 ment to a certain extent, to that extent it is de- 
 stroyed ; the fact that the owner chooses to re- 
 
 ,Jinquish part of his easement does not deprive 
 liim of the whole. It devolves upon the defend- 
 ant, in an action upon the covenant, to show 
 that the erection, either in whole or in part, de- 
 
 stroyed the easement. — Ot. of App,, Jam., 1878. 
 Lattimer v. Livermore, 72 N. Y. 174. 
 
 6. As to what acts on the part of the owner 
 of the dominant estate will or will not amount 
 to a waiver of a covenant against the erection 
 of a stable upon the premises protected by the 
 covenant, see Du Bois v. Darling, 44 Superior 
 436. 
 
 "7. Incidental rights and liabilities of 
 owner of easement. Where a grant is 
 made, in general terms, of a right to enter upon 
 the lands of the grantor and lay pipe for the 
 purpose of conducting water across them, with- 
 out specifying the place or size of pipe, after 
 the grantee has, with the acquiescence of the 
 grantor, once laid the pipe, what was before in- 
 definite and general becomes fixed and certain, 
 and the easement cannot thereafter be changed ; 
 it can neither be exercised in any other place, 
 nor can the size of the pipe be increased. — Ot. 
 of App., Nov., 1877. Onthank v. Lake Shore, &c., 
 E. E. Co., 71.N. Y. 194, 197. 
 
 8. Defendant owned for his building, as then 
 occupied, a right of sewerage under plaintifi''s 
 lot, and, by reason of changes in the use of his 
 building, increased largely the amount of re- 
 fuse matter passing through such sewer. Held, 
 that this did not afiect his right to enjoy the 
 easement where the passage through the sewer 
 was not obstructed nor the sewer injured by such 
 increased use. — Supreme Ct., {1st JOept.,) March, 
 1878. Flint v. Bacon, 13 Hun 454. 
 
 9. What facts are sufficient notice to the 
 owner of a lot over which an easement is 
 claimed by prescription, of the claim of the per- 
 son acquiring the same, considered. — Supreme 
 Ct., (3d Dept.,) Nov., 1878. Ward v. Warren, 15 
 Hun 600. 
 
 10. The liability of the owner of a right to 
 conduct water in a closed race across plaintiff's 
 land, for damages occasioned by the bursting of 
 the race, whereby plaintiff's land became flooded, 
 determined in a particular case. — Supreme Ct., 
 {3d Dept.,) April, 1880. Fritcher v. Anthony, 20 
 Hun 495. 
 
 II. PAETICtTLAB KiNDS OP EASEMENTS. 
 
 11. Party walls. A party wall standing 
 equally upon the land of adjoining proprietors, 
 and whose central line is throughout coincident 
 with the line of division between their respect- 
 ive premises, constitutes no encumbrance upon 
 or defect in the title of either, such as will re- 
 lieve a purchaser from his contract, or entitle 
 him to compensation, notwithstanding that the 
 owner may have covenanted with him to convey 
 by good title in fee simple, free of encumbrance. 
 But a party wall wholly on one of two contigu- 
 ous lots of land, yet subject to appropriation 
 and>use, for all the purposes of a party wall, by 
 the proprietor of the other, whether for a term 
 or in perpetuity, and whether the privilege was 
 given by grant, or J)y license, covenant or pre- 
 scription, constitutes an encumbrance upon, or 
 a defect in the title of. the lot on which it 
 stands. — Superior Ct., Jan., 1878. Mohr v. 
 Parmelee, 43 Superior 320. 
 
 12. A covenant between one of the grantors 
 
138 
 
 EASEMENIS, II.- 
 
 -EJECTMENT. 
 
 of defendant and plaintiff, to contribute to the 
 expense of a party wall built by plaintiff, in 
 case such grantor should use and enjoy the 
 same, is a mere personal covenant, which does 
 not run with the land, and does not bind defend- 
 ant, even though his deed was made subject to 
 such agreement. — Com. Pleas, June, 1877. Scott 
 V. McMillan, 8 Daly 320. 
 
 13. In the absence of an agfeement between 
 the owners of property respecting them, win- 
 dows have no place in a party wall. Whether 
 the erection of fire escapes is an improper use 
 of the party wall, qucEre. — Supreme Ct., {Sp. T.,) 
 Sept^ 1879. St. John v. Sweeney, 59 How. Pr. 
 175. 
 
 14. Private ■ways, generally. A right 
 of way existing by grant cannot be lost by mere 
 non-user. Nor can it be surrendered by verbal 
 declarations, and loose conversations, for an in- 
 terest in land created by deed cannot thus be 
 extinguished. — Supreme Ct., (3d Dept. Dire.,) 
 Dec., 1878. Longendyck v. Anderson, 59 How. 
 Pr. 1. 
 
 15. The evidence showed the use of a way for 
 more than fifty years, the defendant and his 
 grantors during that period having used the 
 way where it passed over plaintiff's land, and it 
 appeared that plaintiffs and their grantors used 
 it over the lands of defendant for an equal pe- 
 riod. Seld, that it had become a way by pre- 
 scription, and- that mere words of defendant 
 would not amount to acts interrupting its use. 
 lb. 
 
 16. Rights of o-wner. A right of way, 
 whether by grant or prescription, carries with 
 it, as incident thereto, a right to make necessary 
 repairs and remove all obstacles to its enjoy- 
 ment—Of. of App., Dec., 1878. McMillan v. 
 Cronin, 75 N. Y. 474; S. C, 57 How. Pr. 53 ; 
 dismissing appeal from 13 Hun 68. 
 
 17. The respective rights of the purchasers 
 of two buildings separated by an alley-way 
 used as a carriage-way, determined, in a case de- 
 pending upon particular facts — Supreme Ct., {3d 
 Dept.,) April, 1880. Spencer v. Weaver, 20 Hun 
 450. 
 
 18. Remedy for interference or ob- 
 structions. Where plaintiff's damages, by 
 reason of being deprived of the use of the way, 
 would be difficult of estimation in dollars and 
 cents, and the claimed right to its use by the 
 one party and its denial by the other will be 
 productive of many actions, unless settled, and 
 the defendant compelled to remove a cause of 
 continuing injury, an action in equity is main- 
 tainable. — Saprem.e Ct., (3d Dept. Circ.,) Dec., 
 1878. Longendyck v. Anderson, 59 How. Pr. 1. 
 
 19. Plaintiff owned a right of way across de- 
 fendant's farm, and defendant built a cider mill 
 abutting upon and accessible only from such 
 way. The way was obstructed by the wagons 
 of customers of the dder mill, with the knowl- 
 edge and assent of the defendant. Held, that 
 defendant was responsible for the obstruction so 
 occasioned. — 'Supreme Ct., {3d Dept.,) Jan., 1879. 
 Dennis v. Sipperly, 17 Hun 69. 
 
 20. A ■way of necessity only arises 
 where there is no access to the dominant estate 
 except over the servient one. Thcfact that a 
 way existing over the dominant land is too 
 steep or too narrow, or less convenient, does not 
 alter the case ; and when the owner of the domi- 
 nant estate acquires by the purchase of other 
 lands, or otherwise, a way of access from a 
 
 highway over his own land to the land to which 
 the way belongs, the way of necessity ceases. — 
 Superior Ct., Dec., 1879. Outerhridge v. Phelps, 
 45 Superior 556. 
 
 What easements will Pass by deed, see- 
 Deeds, 28. 
 
 EAST HAMPTON. 
 
 Municipal Coepoeations, 112. 
 
 EDGEWATER. 
 
 Municipal Cobpokations, 113. 
 
 EJECTMENT: CONFLICTING CLAIMS 
 TO REAL PROPERTY. 
 
 l._ wnen ejectment -will lie. An action 
 of ejectment will not lie to oust a lessee of piers 
 and bulkheads in the city of New York, whose 
 lease was informally granted by the department 
 of docks. An equitable action to remove cloud 
 on title is the proper remedy in such a case. — 
 Supreme Ct.; {Sp. T.,) May, 1876. Mayor, &c., 
 of New York v. North Shore Staten Island 
 Ferry Co., 55 How. Pr. 154. S. P., Same v. 
 Union Ferry Co., Id. 138. 
 
 2. wnat ■title or possession ■will sup- 
 port the action. Land was conveyed to 
 plaintifl^ a married woman, in 1844, as and tor 
 her separate estate, free from the control of her 
 husband, one of the defendants, who indorsed 
 upon the deed a covenant with the grantor that 
 plaintiff should hold the same as above stated- 
 Hdd, that the acts of 1848 and 1849 vested the- 
 legal title to the land in her, so that she could 
 maintain ejectment therefor; and that the fact 
 that her husband had expended a large amount 
 of money in improving the property was no de- 
 fence. — Supreme Ct., (2d Dept.,) Jidy, 1879. 
 Wood V. Wood, 18 Hun 350. 
 
 3. The sufficiency of plaintiff's title, under a 
 comptroller's deed, of wild forest land, upon 
 which he had entered and made improvements, 
 to maintain ejectment against trespassers, sus- 
 tained, in a particular case. — Supreme Ct., {Set 
 Dept.,) Nov., 1878. Thompson v. Burhans,* 1.5- 
 Hun 580. 
 
 4. "WTiat title or possession is insuf- 
 ficient. In an action of ejectment plaintiff 
 claimed under a deed which described the premi- 
 ses, generally, as " the lot or piece of land called 
 the Cross lot," and as " now in the possession " 
 of the grantee ; following this was a description 
 by metes and bounds, in which the easterly 
 boundary of the lands conveyed was given as 
 " the east line of the Montressor patent, as th& 
 same ought to be established." T., the grantee 
 at the time of the grant, was in possession and 
 occupying up to a fence on the east, which was 
 beyond the east line of the patent ; the grantor 
 had no paper title beyond the line of the patent, 
 and it did not appear that at that time a title 
 had been acquired either by grantor or by gran- 
 tee by adverse possession or practical location 
 of the line. Held, that the intent of the parties • 
 was to limit the grant to lands within the boun- 
 
 *Said to have been reversed in the Court of Appeals^ 
 December 2d, 1879. 
 
EJECTMENT— ELECTIONS. 
 
 13J> 
 
 daries of the patent ; and that plaintiff could 
 not claim under it beyond the line given, unless 
 a different one had been established subsequently 
 by adverse possession or practical location. — 
 Gt. of App., April, 1878. Jones v. Smith, 73 
 N. Y. 205.- 
 
 5. The orijtinal fence was built about 1813, 
 upon a curved irregular line, not claimed or 
 supposed to be the line of the patent, but to 
 avoid an obstruction on that line. At the time 
 the adjoining premises were unoccupied ; the 
 fence was maintained where it was first erected 
 until 1866, when it was removed by defendant 
 and placed on the true line. In 1844, one V. O. 
 was owner and occupied the farm so deeded to 
 T., and B. was the owner of the farm adjoining 
 on the east. It was agreed between V. O. and 
 B. that the fence should be continued as a divi- 
 sion fence until convenient for the parties to 
 build a permanent one upon the true line. . The 
 land in question was the strip between the true 
 line and that of the old fence. Hdd, that the 
 evidence failed to show any adverse claim of 
 right to occupy to the line of the old fence, or 
 an acquiescence by the adjoining owners in that 
 as the trae line ; that in the absence of evidence 
 to the contrary it must be assumed that the fence 
 was maintained up to 1844 on the line where it 
 was originally built, under an implied license, 
 and after that time under an express license,, as 
 a temporary division fence, not as a permanent 
 boundary line. lb. 
 
 6. Evidence. What evidence is admissi- 
 ble under a general denial, in ejectment, to show 
 that plaintiff is estopped from claiming the 
 locus in quo, see Creque v. Sears, 17 Hun 123. 
 
 7. Judgment. Where it appears that the 
 property is subject to a dedication to public use, 
 judgment will not be ordered that plaintiff have 
 possession subject to the easement, unless it ap- 
 pears that defendant has been guilty of some 
 unlawful and unauthorized interference with 
 plaintiff's rights. — Supreme Ol., (3d Dept.,) Nov., 
 1878. De Witt v. Village of Ithaca, 15 Hun 568.~ 
 
 8. For the rules governing supplemental 
 accounting under a judgment in ejectment, di- 
 recting the surrender of the premises to plain- 
 tiff upon his payment of a sum of motiey, to be 
 ascertained upon such accounting, see Madison 
 Ave. Baptist Church v. Baptist Church in Oliver 
 Street, 43 Superior 151. 
 
 9. "Writ of possession. After judgment 
 for plaintiff, a writ of possession issued to the 
 sheriff, was partly executed by him, by taking 
 the keys of the front door of the premises in 
 question, and removing a portion of defendant's 
 goods therefrom, when he was served with a 
 stay of proceedings. After reading the order 
 he stopped the removal of the goods, told a per- 
 son in the house to go out, as he was about to 
 lock up the house, and having locked the doors, 
 went away, leaving a deputy in possession. 
 Seld, that when the sheriff was served with the 
 stay, plaintiff was already in possession, and 
 that the sheriff was not bound tp turn him out 
 and reinstate defendant; and his failure so to 
 do was not a contempt. — Supreme Ot., {3d Dept.,) 
 April, 1880. People, ex rel. Scudder, v. Cooper, 
 20 Hun 486. 
 
 10. Costs. Where plaintiff recovered in 
 ejectment upon trial before a referee, and a new 
 trial was ordered by the General Term, costs to 
 abide the event ; and on the new trial, defend- 
 ant having obtained a verdict, a second new 
 
 trial was granted on the ground of newly-dis- 
 covered evidence, on payment of costs, after: 
 payment of which, a third trial was had in 
 which a verdict was rendered in favor of plain- 
 tiff— BeW, that plaintiff was only entitled to 
 tax costs for the third trial. — Supreme Ot.,(1S 
 Dept.,) Feb., 1878. Provost v. Farrrell, 13 Hun 
 303. 
 
 11. Disoontinu'anoe after judgment. 
 Where, in an action of ejectment, judgment wa& 
 entered, and execution issued, and plaintiff put 
 in possession of the premises by the sheriff, and- 
 subsequently the judgment was vacated, and 
 another defendant added, but plaintiff was al- 
 lowed to keep possession under the execution 
 until a judgment should be rendered in defend- 
 ants' favor, and after answer of defendants deny- 
 ing plaintiff's right to possession of the premises,, 
 and claiming ownership in fee in the same, 
 plaintiff will not be permitted to discontinue- 
 on payment of costs without restoring to defend- 
 ant possession of the property. — Superior Ct.y. 
 Feb., 1878. Carleton v. Darcy, 43 Superior 373. 
 
 12. Determ.lnation of conflicting- 
 claims to real property. One in actual' 
 possession of land for three years may maintain^ 
 an action under Code of Pro., J 449, to compel 
 the determination of claims thereto ; and evi- 
 dence of the posjession is sufficient to compel 
 the defendant to show his title. But where the- 
 plaintiff in such an action shows only possession 
 under an unfounded claim of title, evidence- 
 of actual possession and occupation by defend- 
 ant prior to the entry by plaintiff is a sufficient, 
 defence.— a. of App., May, 1877. Ford v. Bel- 
 mont, 69 N. Y. 567 ; affirming 35 Superior 13o_ 
 
 13. The plaintiff herein claimed title in fee- 
 to the premises in question, under the deed of a; 
 referee in foreclosure proceedings, which deed- 
 was dated June 3d, 1876. The defendant claimed 
 title to the same under a lease for sixty years^ 
 made by the mayor, &c., March 18th, 1876, upon 
 a sale for taxes. Hdd, that such a claim may be 
 determined in an action like the present, which, 
 was brought to determine conflicting claims to. 
 certain real estate, under Code of Pro., J 449, 
 and 2 Kev. Stat. 313, and amendments. — Su- 
 perior Ct., May, 1879. Donahue v. CConor, 45- 
 Superior 278. 
 
 For rules relative to the Title to real property,, 
 and the rights and liabilities of the owner ia 
 respect to its use, see Keal Peopbrty. 
 
 As to New trials in ejectment, see New Tbiai<.. 
 21. 
 
 ELECTION. 
 
 Of Officers, see Cohpobations, 54-56 ;■ 
 Elections; Municipal Corporations, IV. r 
 Ofpicbrs, 2-4. 
 
 As to election between different Forms or 
 Clauses of action, see Action, 17-21. 
 
 As to election between Dower and Testamemtari^ 
 provision, see Dower, 9. 
 
 ELECTIONS. 
 
 1. Powers of the legislature. The legis- 
 lature has power to provide for the manner in. 
 which the result of an election shall be deter- 
 mined and declared, and their enactment in 
 reference thereto is binding. — Ct. of App., Jon.,. 
 
140 
 
 ELECTIONS— EMINENT DOMAIN. 
 
 1878. People, exrel. Conliss, v. North, 72 N. Y. 
 124. 
 
 2. Appointment of inspectors. In the 
 •city of New York, under Laws of 1872, ch. 675, 
 ? 13, inspectors of election are to be chosen from 
 ■the two great parties each as an entirety, without 
 regard to subordinate factions. Failure to ap- 
 point within the time specified will not disfran- 
 chise the city at the ensuing election. — Supreme 
 Ot., (1st Dept.,) Sept., 1879. People, ex rel. Van 
 Wyck, V. Wheeler, 18 Hun 540; S. C, 57 How. 
 Pr. 445. 
 
 3. Correction of irregular returns. 
 As to the right to apply for a TnandamMs to 
 ■compel the county canvassers to send back for 
 ■correction to the ward inspectors, election re- 
 turns claimed to be incorrect and fraudulently 
 
 ■altered, and when such a mandamus will be re- 
 fused, see People, ex rel. Hatzel, v. Supervisors 
 ■of New York Co., 58 How. Pr. 141. 
 
 4. Contested elections. The provisions, 
 ■of Laws of 1872, ch. 575, § 13, relating to the pre- 
 servation of ballots cast at elections in the city 
 of Brooklyn, construed; and the admissibility of 
 «uch ballots in evidence in a contested election 
 -case, determined. — Supreme Ot., (2d I)ept.,) May, 
 
 1878. People, ex rel. Dailey, v. Livingston,* 18 
 Hun 59. 
 
 EMBEZZLEMENT. 
 
 1. An indictment for embezzlement need 
 mot describe the particular kind of money taken, 
 "viz., bank bills, coin, &c., but it must state the 
 value of the money taken. — Supreme Ct., (4<A 
 Dept.,) Jan., 1879. Bork v. People, 16 Hun 476. 
 
 2. Evidence. In order to sustain an in- 
 dictment under the statute relating to embezzle- 
 ments (2 Rev. Stat. 678, § 59, as amended by 
 Xaws of 1874, ch. 207,) against the treasurer of 
 a corporation, for the alleged conversion to his 
 -own use of money of the corporation, it must be 
 made to appear that the money in question 
 .came into his possession or under his care by 
 virtue of his o&ce.—Ot. of App., Oct., 1879. Bar- 
 tow V. People, 78 N. Y. 377 ; reversing 18 Hun 
 
 =22. 
 
 3. Upon the trial of such an indictment it 
 appeared that B., the prisoner, was treasurer of 
 -a savings institute, and was also cashier of a 
 
 bank, the two corporations occupying the same 
 room and doing business over the same counter. 
 By the by-laws of the institute it was provided 
 ithat its president should have charge of its se- 
 curities and property; also that the money of 
 the institute should be deposited with the bank ; 
 it was so deposited, credit being given to the in- 
 stitute. A bond of $1000 belonging to the in- 
 stitute was placed in the hands of F., its attor- 
 ney, for collection ; by whom did not appear. F. 
 •collected the bond, and retained the money for 
 the purpose of making another investment, de- 
 positing it to his own credit in said bank ; sub- 
 .sequently he drew on his own check |600 from 
 the bank ; this, with other moneys, all amount- 
 ing to $1500, he placed in a package addressed 
 to B., whether officially or personally did not 
 .appear. This package was delivered to S., who 
 iianded it to B., on the street, after banking 
 Jiours. B., in accordance with the custom of 
 
 •Said to have been reversed in the Court of Ap- 
 gpeab, Dec. 19th, 1879. 
 
 business of the bank, was going to New York 
 with a package of money to deposit with its cor- 
 respondent bank; he deposited both packages 
 there to the credit of his bank, and on the next 
 day wrote to F., acknowledging receipt of the 
 money, using the letter-head of the bank, and 
 signing in his usual manner as cashier. The 
 money so deposited in New York was drawn out 
 by the bank, which subsequeiitly suspended. 
 This item of $1500 was not entered on the books 
 of the institute, or credited to it on the bank 
 books, and it did not appear that F. was cred- 
 ited with it on the books of either corporation. 
 Held, that the evidence failed to show as matter 
 of law, that the money came to the hands of B. 
 as treasurer of the institute, and that a charge to 
 that effect was error. , lb. 
 
 4. Upon the trial of a city treasurer for em- 
 bezzlement, receipts given by him for the tax- 
 rolls, placed in his hands for collection, together 
 with the tax-rolls themselves, are inadmissible 
 in evidence, until it has been shown that he had 
 received the money authorized to be collected by 
 the tax-rolls. Bork v. People, supra. 
 
 5. Upon the trial of the secretary of a savings 
 bank for embezzling the funds of the bank, the 
 books of the bank, kept by the accused, and in 
 his handwriting, and also a book kept by the 
 treasurer of the bank, showing the amounts paid 
 over to the bank by the accused, are admissible 
 in evidence to show the amounts received by de- 
 fendant. — Supreme Ot., {2d Dept.,) July, 1879. 
 Humphrey v. People, 18 Hun 393. 
 
 6. Evidence on the part of the accused, in 
 such case, tending to show that the other officers 
 of the bank were in complicity with him, and 
 that he made the false entries in the books with 
 their knowledge and approval, for the purpose 
 of deceiving the bank department, is inadmis- 
 sible, lb. 
 
 As to False pretences and Larceny, see those 
 titles. 
 
 EMINENT DOMAIN. 
 
 [Consult, also, MuNiciPAl, Coepobations j 
 
 ' BAXLHOAB COMPAIflES.] 
 
 1. Constitutionality of statutes. After 
 the fee of land has been properly condemned 
 and taken for a highway, and compensation pro- 
 vided, it is competent for the legislature, by the 
 same or subsequent act, to authorize the construc- 
 tion of a railroad on the highway without exact- 
 ing compensation from the corporation author- 
 ized to construct it, or making provision for 
 compensating the owners of adjacent lands for the 
 consequential injury which they might suffer 
 from this use of the highway.— Ci. of App., 
 March, 1877. Washington Cemetery v. Prospect 
 Park and Coney Island K. K. Co., 4 Abb. N. 
 Cas. 15 ; affirming 7 Hun 655. 
 
 2. The state, when taking property for public 
 use, has a right to prescribe the extent of its in- 
 terference with ijrivate property, and acts inde- 
 pendently and without the consent of the owner, 
 and no implication ought to be indulged that a 
 greater interest or estate is taken than is abso- 
 lutely necessary to satisfy the language and ob- 
 ject of the statute malang the appropriation. 
 
 -f*- . . , 
 
 3. It is not necessary that exact or techmcal 
 
 language should be used in a statute for taking 
 
EMINENT DOMAIN. 
 
 141 
 
 private property for public use, in order to vest 
 the fee in the public ; but it must clearly appear, 
 before that efiect can be given to a statute, that 
 it was the intention of the legislature, disclosed 
 by the act itself, to take a fee. If any remaining 
 private ownership is inconsistent with the use 
 for which the land is taken, and compensation is 
 made for the fee, and the provisions of the act 
 cannot be carried out unless a fee is taken, a fee 
 will be deemed to be taken in the absence of ex- 
 press words. /6. 
 
 4. The section of the act of I860, providing 
 for the construction of a railroad in Seventh 
 avenue and certain other streets in the city of 
 New York, (Laws of I860, ch. 513,) which 
 authorizes the persons named to " run upon, in- 
 tersect and use " any portion of other railroad 
 tracks, should they deem it necessary, makes 
 full provision for compensation, and is constitu- 
 tional. — Ct. of App., Jan., 1878. Sixth Ave. E. 
 E. Co. V. Kerr, 72 N. Y. 330. 
 
 5. What property may be taken. 
 The right of a street railroad company to the use 
 of a street for the purposes of its business is a 
 property right, subject to condemnation for pub- 
 lic use ; and the legislature may authorize other 
 persons, either natural or artificial, to do a sim- 
 ilar business in the same street, or to use the 
 tracks of the company, by making compensation 
 to it, whenever in their judgment, the public 
 good requires. lb. 
 
 6. The state, in the exercise of the right of 
 eminent domain, or a corporation to whom it 
 has delegated the right, is not bound to take the 
 entire estate, and, strictly, should take only such 
 an interest as is necessary to be acquired to ac- 
 complish the public purpose in view. lb. 
 
 7. To take property already appropriated to 
 another public use, the act of the legislature 
 must show the intent so to do by clear and ex- 
 press terms, or by necessary implication, leaving 
 no doubt or uncertainty respecting the intent. 
 The legislature is not presumed to have aban- 
 doned the former use, and turned over the prop- 
 erty to the later use, without clear and unmis- 
 takable expression of that intention. — Supreme 
 a., (2d Dept.,) Feb., 1880. Matter of New York, 
 &c., E. E. Co., 20 Hun 201, 205. 
 
 . 8. What is not a taking for public 
 use. Impairing its value by the proximity of 
 other property legitimately employed for the 
 public use and benefit, under the sanction and 
 by the authority of a legislative enactment, can- 
 not be said to be taking private property for pub- 
 lic use in the exercise of the right of eminent 
 domain. — Superior Ct.,Jan., 1878. Sixth Ave. Ey. 
 Co; V. Gilbert Elevated E. E. Co., 48 Superior 292. 
 
 9. Authorizing a corporation to use, for the 
 public use and benefit, such parts of a highway 
 SiS have not been already appropriated by a cor- 
 poration, under authority conferred on it, as ac- 
 tually required by it, the use authorized to be 
 made bj the former corporation being such as 
 not to interfere materially with the use by the 
 latter of the parts so appropriated by it, is not 
 the taking of private property of the latter cor- 
 poration, lb. 
 
 10. Authorizing a corporation to use for the 
 purpose of a railroad for the public use and 
 benefit, streets opened in the city of New York, 
 under the act of 1813 or parts thereof, does not 
 take away any property or right of property of 
 the abutting owners in the streets. lb. 
 
 11. The right to compensation. 
 
 Whether the doctrine that to entitle the. owner 
 of property to protection under the constitu- 
 tional provision that private property shall not 
 be taken for public use without compensation, 
 the property must actually be taken in the phy- 
 sical sense of the word, and that the owner is 
 not entitled to remuneration for indirect or con- 
 sequential damages, applies to a case in which, 
 the injury results from the unauthorized exer- 
 cise of the right of eminent domain, see Burk v, 
 Ayers, 19 Hun 17. 
 
 12. How compensation is computed^ 
 Assessments for benefits. Where, after 
 land has been taken for a public highway, and the- 
 damages awarded are all assessed back upon the- 
 adjoining land for benefits arising from the open- 
 ing of the highway, the same land is sought to be- 
 taken for the purpose of constructing a railroad 
 thereon, the compensation for such additional 
 use should be the same as if the highway had! 
 never been opened. — Supreme Ct., {2d Dept.,), 
 Dec., 1878. Matter of Prospect Park, Ac, E. E- 
 Co., 16 Huu 261. 
 
 13. The actual value of the land taken, an 4 
 also damages for the depreciation of the residue 
 of the lot from which it was taken, and for any 
 depreciation caused by the use to which the land 
 taken is to be appropriated, should be awarded 
 to the land-owners in such a case. lb. 
 
 14. Conclusiveness of commissioners'' 
 report, or award. How far the report of the 
 commissioners, in a proceeding to take lands- is- 
 binding on the parties, as between themselves, 
 after it has been confirmed by the court, con- 
 sidered. — Supreme Gl., {1st Dept.,) Dec., 1879, 
 Livingston v. Sulzer, 19 Hun 375. 
 
 15. An award of the commissioners of esti- 
 mate and assessment, appointed in proceedings- 
 under the act of 1813, (Laws of 1813, ch. 86,) lo- 
 acquire lands for a street improvement in the 
 city of New York, when confirmed by the Su- 
 preme Court, is final and conclusive both upon 
 the city and the owners ; it is in the nature of a- 
 judgment and cannot be assailed collaterally. 
 Where, therefore, an award is made to " unknown 
 owners " and upon application to the court for 
 the payment of the award there appears to be- 
 connicting claimants, the only question to be de- 
 termined is, who is the unknown owner ? Whea 
 ascertained he is entitled to the award the same 
 as if he had been known and the award made to- 
 him by name ; it is immaterial whether he 
 owned an absolute fee or a fee subject to a pub- 
 lic easement; the amount awarded must be 
 taken to have been made for his interest, what- 
 ever it was. — Gt. of App , May, 1878. Matter of 
 Department of Parks, 73 N. Y. 560, 565. 
 
 16. Setting aside award. The award 
 of commissioners appointed to appraise lands to 
 be taken for railroad purposes will be set aside 
 when they reject legal and competent evidence, 
 or mistake the principle that should govera 
 their appraisement. — Supreme Ct., (3d Dept.,) 
 Sept., 1878. Matter of New York Central, &c., 
 E. E- Co., 15 Hun 63. 
 
 17. Discontinuance of proceedings. 
 A corporation, by which proceedings are in- 
 stituted to acquire title to lands, may abandon 
 such proceedings at any time before the title is 
 actually acquired, upon payment of the taxable 
 costs and expenses. It cannot be required to 
 pay other charges and counsel fees. — Supreme 
 Ct., (3d Dept.,) Nov., 1878. Matter of Waverly 
 Water Works Co., 16 Hun 57. 
 
142 
 
 EQUITY, I., II. 
 
 ENTRY. 
 
 As to Sight of a landlord to re-enter, see Laitd- 
 lOED AND Tenant, 21 a. 
 As to entry of Judgments and Decrees, see 
 
 JtTDQMENT, II. 
 
 EQUITABLE CONVERSION. 
 Wills. 53-56. 
 
 EQUITY. 
 
 I. The JtmisDicTioN, Generally ; and 
 
 HOW EXBECISED. 
 
 H. Jurisdiction in Paetictjlab Cases. 
 
 I. The Jttbisdiction, Generally ; and 
 HOW Exercised. 
 
 L "WTiat matters are within the ju- 
 risdiction, generally. Wherever superior 
 •equities exist, and are established in favor of 
 one judgment creditor or a/class of creditors 
 against other judgment creditors, or against the 
 property of their common debtors, courts of 
 •equity have full jurisdiction in the premises to 
 adjudicate upon and enforce the same, by judg- 
 ment in reference thereto. — Superior Cl., Dee., 
 1879. Claflin v. Maguire, 45 Superior 521; 
 Heim v. Davenport, Id. 523. 
 
 2. The jurisdiction which courts of equity 
 •exercise over individuals, extends equally to 
 acts done, or omitted to be done, by corpora- 
 tions. — Gl. of App., March, 1879. Cushman v. 
 Thayer Manuf., &c , Co., 76 N. Y. 365. 
 
 3. That a court of equity is not without juris- 
 •diction of an action to set aside the probate of a 
 will of real estate, and vacate the will itself, see 
 De Bussierre v. Holladay, 4 Abb. N. Cas. 111. 
 
 4. Belief against proceedings at law. 
 While the existence of a defence, the risk of 
 losing evidence, or tlie apprehension of a mul- 
 tiplicity of suits, may not either of them 
 separately be a sufficient ground for restraining 
 suits at law, or decreeing the cancellation of 
 instruments, especially where proof of extrinsic 
 facts is not necessary to establish the defence, 
 yet. when all those elements are combined, and 
 extrinsic proofs are necessary to the defense, a 
 proper case for relief is made. — Ct. of App., Dec., 
 1878. Town of Springport v. Teutonia Savings 
 Bank, 75 N. Y. 397, 405. 
 
 5. Effect of lapse of time. Laches. 
 Stale demands. There is no rule of law 
 fixing the time within which one may discover 
 that a writing does not express the contract 
 which he supposes it does, or which bars him of 
 relief for delay other than that contained in the 
 statute of limitations. — Ct. of App., March, 1878. 
 First Nat. Bank of Chittenango v. Morgan, 73 
 N. Y. 593. S. P., Derby v. Yale, 13 Hun 273. 
 
 6. In order to constitute laches or negligence, 
 the party should have knowledge, or must have 
 failed or omitted to obtain knowledge where it 
 <x)uld be obtained, after notice, or circumstances 
 which should have put him on inquiry. — 
 Swpreme Ct., (Sp. T.,) August, 1880. Union 
 Dime Savings Inst. v. Clark, 59 How. Pr. 342. 
 
 7. Feigned issues. The court, at Special 
 Term, has power to set aside a verdict on feigned 
 issues, and find the facts itself. — Supreme Ct., {\st 
 Dept.,) Dee., 1878. Wallace v. American Linen 
 Thread Co., 16 Hun 404. 
 
 8. In an equity case, where the issues are 
 tried before a jury, the trial judge should hear 
 the motion for a new trial on the case made ; 
 and where he decides that such motion can- 
 not be made after judgment, his decision is 
 reviewable on appeal. — Smyreme Ct., {3d Dept.,) 
 Sept., 1879. Chapin v. Thompson, 58 How. 
 Pr. 46. 
 
 9. The hearing, generally. When one 
 of several joint defendants in an equity action 
 does not answer, the hearing as to him should 
 be brought on in connection with the trial 
 against the other defendants. — Ct. of App., June, 
 1878. Tyng v. Halsted, 74 N. Y. 604. 
 
 10. Interposing objections. The objec- 
 tion that the plaintifi's remedy is at law, rather 
 than in equity, and that the court, as a court of 
 equity, has no jurisdiction of the matters set up 
 in the complaint, can be taken on the trial at 
 Special Term, if interposed before the parties 
 have proceeded to the actual trial of the action 
 before the judge, by the introduction of evi- 
 dence upon the merits. — Supreme Ct., (Isf Dept.,) 
 Nov., 1877. De Bussierre v. Holladay, 4 Abb. 
 N. Cas. Ill, 118; S. C, 55 How. Pr. 210. 
 
 11. Dismissal of complaint. Where 
 the allegations and prayer of the complaint, 
 which are addressed solely to the equitable 
 cognizance of the court, and disclose no cause 
 of action for legal relief, are insufficient to en- 
 title plaintifiT to equitable relief, the complaint 
 should be dismissed. lb. 
 
 11. Jurisdiction in Particular Cases. 
 
 12. Accounting. In equity, an action will 
 lie to recover interests in property, where 
 parties have obtained the legal title to the same 
 by a series of fraudulent and unconscientious 
 acts and dealings, even in a case where no false 
 statements appear to have been made; and 
 where one, by a series of such acts, and by col- 
 lusion with others, has placed a party in a situa- 
 tion of embarrassment for his own advantage, 
 and then availed himself of the opportunity to 
 obtain the property bf that party by a purchase 
 or transfer through other parties with whom he 
 is in collusion, at a sacrifice, he can be called to 
 account in an equitable action. — Superior Cl., 
 June, 1877. De Lavalette v. Shaw, 43 Superior 
 13. a. of App., Sept., m7. Getty ». DevUn, 
 70 N. Y. 504; affirming 9 Hun 603. 
 
 13. In cases where many persons have claims, 
 and are prosecuting, or about to prosecute them 
 at law, against one defendant, or a|;ainst a class 
 of defendants, or against a fund, liable in equal 
 degree to all those persons and to others, a court 
 of equity, to forestall a multiplicity of actions, has 
 jurisdiction of an action for a general account- 
 ing and adjustment of all the rights, and to re- 
 strain separate and individual actions at law in 
 the same or other courts, thus bringing all the 
 litigation into one suit. It is immaterial 
 whether the rights of action arise from general 
 principles of law or from particular provisions 
 of constitution or statute. — Oi!. of App., June, 
 1878. Pfohl V. Simpson, 74 N. Y. 137. 
 
 The bringing into one such action, however, of 
 all parties similarly situated, will not give a 
 
EQUITY, II. 
 
 143 
 
 Tight or impose a liability which did not exist 
 •otherwise. lb. 
 
 14. Oanoellation of contracts — -when 
 relief ■will be granted. An application to 
 a court of equity for the cancellation or deliver- 
 ing up of instruments is not, strictly speaking, a 
 matter of absolute right. It is a matter of sound 
 •discretion to be exercised by the court, either in 
 granting or refusing the relief prayed, according 
 to its notion of what is reasonable and proper 
 under all the droumstanoes of the particular 
 ■case. — Supreme Ct., {Sp. T.,) June, 1877. Mayor 
 ■&C., of New York, v. Union Ferry Co., 55 How. 
 Pr. 138, 142. 
 
 15. Where the law affords an adequate remedy 
 for redress, equity will not interfere and decree 
 *he cancellation of an instrument. But where 
 remedial justice, adequate for the protection of 
 the party, is not complete at law or is in doubt, 
 the interposition of a court of equity may be 
 invoked. lb. 
 
 IQ. An action to obtain the cancellation of a 
 forged deed, as a cloud upon title, is maintainable 
 •where the deed contains a proper certificate of 
 acknowledgment, and has been recorded. — Sii- 
 preme CI., (4<A Dept.,) Jan., 1879. Eemington 
 Paper Co. v. O'Dougherty, 16 Hun 594. 
 
 VT. Instances. Plaintiff and her husband 
 ■executed to K. a bond and mortgage simply as 
 an accommodation, to be used as collateral 
 security for a loan he proposed effecting. E. 
 failed to procure the loan, but sold the bond and 
 mortgage to defendant B. In an action brought 
 hy plaintiff to have the bond and mortgage 
 canceled — Sdd, that E., having no authority to 
 sell the bond and mortgage, conveyed no title to 
 B., and that plaintiff was entitled to judgment 
 declaring the bond and mortgage void as against 
 her.— 04. of App., April, 1877. Davis v. Bech- 
 stein, 69 N . Y. 440, 443. 
 
 18. The complaint alleged that plaintiff was ■ 
 induced, by fraudulent representations to pur- 
 ■chase from defendant a farm for $18,000 ; that 
 if the representations had been true the farm 
 would have been worth $20,000, but that it was, in 
 fact, worth not more than $12,000 : that he paid 
 $5000 in cash, assumed a mortgage for $2000, 
 and gave a mortgage back for $11,000, payable 
 in annual installments of $1000 each, one of 
 which plaintiff had paid. The prayer was that 
 the mortgage might be canceled, and for dam- 
 ages. Held, that upon the facts alleged, plain- 
 tiff was entitled to have the bond and mortgage 
 •canceled and delivered up. — Supreme Ct., (%d 
 Dept.,) Jan., 1878. Eanney v. Warren, 13 Hun 
 11. 
 
 19. Plaintiff issued its bonds, negotiable in 
 form, to a large amount and in great numbers, 
 under the act authorizing it to subscribe to the 
 ■capital stock of the C. L. railroad (Laws of 
 1869, ch. 314,) which provides (| 2) that a certi- 
 .fied copy of the affidavits of the assessors of the 
 town that the required consents of a majority of 
 the taxpayers of the town have been given, and 
 the consents, shall be presumptive evidence of 
 the fpcts therein contained. In actions brought 
 to restrain the holders of said bonds from trans- 
 ferring them and to have them delivered up and 
 ■canceled, it appeared that while the affidavits 
 a,nd consents were in form sufficient, the consents 
 
 . -of a majority of the taxpayers were not in fact 
 obtained, and that tlie proceedings for bonding 
 the town had been reversed and annulled by 
 judgment of this court (People, exrel., v. Allen, 
 
 52 N. Y. 538,) rendered, after defendants be- 
 came holders of the bonds. 
 
 Held, 1. That plaintiff having established the 
 necessary preliminary point that the bonds and 
 the record of proceedings for their issue created 
 a prima facie liability, and having established 
 the other requisite facts, was entitled to the relief 
 sought; that the parties here, not having been 
 parties to the proceeding in which said judg- 
 ment was rendered, it was not binding upon and 
 did not estop defendants from setting up the 
 affidavits of the assessors as proof of the re- 
 quisite consents, and so the record of reversal 
 would not be a defence to any action on the 
 bonds, and would not avoid the necessity on the 
 part of the town of being at all times prepared 
 with evidence to rebut the presumption afforded 
 by the affidavits ; and that plaintiff was entitled 
 to relief from this burden and fi-om vexatious 
 litigation. 
 
 2. That the affidavits of the assessors weie 
 not conclusive in favor of defendants ; and that 
 the railroad commissioners could not estop the 
 town from disputing the consents. 
 
 3. That an omission of an offer in the com- 
 plaint to return the stock of the railroad corpo- 
 ration, even if the town was bound to surrender 
 it, was not fatal to the action, the parties having 
 gone to trial on the merits without objection. — 
 Ct. of App., Dee., 1878. Town of Springport v. 
 Teutonia Savings Bank, 75 N. Y. 397. 
 
 20. "When relief will be withheld. 
 An unconscionable arrangement will not be dis- 
 turbed where there has been a ratification of it, 
 with knowledge of all its bearings, after time 
 has been had for consideration. — Ct. of App., 
 Sept., 1879. Kent v. Quicksilver Mining Co., TS 
 N. Y. 159. 
 
 21. Where an amount is paid expressly as a 
 compromise of an account, and not because it 
 was conceded to be due, the party receiving the 
 payment cannot set aside and cancel a. release 
 given by him, on the ground of fraud, and yet 
 retain the whole consideration therefor ; if the 
 release is to be canceled the parties should be 
 put in statu quo as far as possible. — Ct. of App., 
 Jan., 1879. McMichael v. Kilmer, 76 N. ,Y. 
 36 ; reversing 1 2 Hun 336. 
 
 22. Defendant executed a lease, under seal, 
 to plaintiff, of a dwelling-house in the city of 
 New York, with the furniture therein, a sched- 
 ule whereof was to be made and attached to the 
 lease upon the lessee taking possession. In an 
 action to cancel' the lease it appeared that, in the 
 negotiations prior to its execution, defendant 
 agreed to supply certain deficiencies in the fur- 
 niture and- to have the house completely fur- 
 nished by the beginning of the term. The 
 lease contained no covenant as to additions to 
 the furniture; this was known to the lessee 
 when_ she signed it; defendant then again 
 promised to complete the furniture, and the 
 lessee, upon being asked if she was willing to 
 sign, upon the faith of defendant's promise, an- 
 swered that she was, and it was thereupon 
 signed by all the parties, in duplicate, the lessor 
 and lessee each taking one. Defendant did not 
 fulfill her promise and the lessee thereupon re- 
 fused to accept, and never took, possession. 
 Held, that these facts did not bring the case 
 within the jurisdiction of a court of equity to 
 reform or cancel the instrument ; and that the 
 provision as to a schedule of the furniture 
 afforded no room for the implication that other 
 
144 
 
 EQUITY, II.— ERROR. 
 
 furniture was to be supplied, or that the lease 
 was incomplete or was not to take effect until 
 the schedule was attached. — Ot. of App., Nov., 
 1878. Wilsmi v. Deen, 74 N. Y. 531. 
 
 23. Reformation of contracts— ■wrhen 
 equity ■will relieve. Equity will reform a 
 written instrument in cases of mutual mistake, 
 and also in cases of fraud, and also where there 
 is a mistake on one side, and fraud on the other. 
 —Ct. of App., May, 1879. Hay v. Star Fire Ins. 
 Co., 77 N. Y. 235, 240. Supreme a., {Sp. T.,) 
 March, 1879. Witthaus v. Schack, 57 How. Pr. 
 310. S. P., Eeal Estate Trust Co. v. Balch, 45 
 Superior 528. 
 
 24. Courts of equity will sometimes give re- 
 lief in cases of mutual mistake, where there is 
 a failure of the subject matter of the sale ; but 
 the law does not demand that both parties shall 
 be upon the same footing as to knowledge or in- 
 formation. It requires that each one should be 
 vigilant, and should abstain from stating any 
 fact tending to mislead or deceive the other. If 
 the parties stand upon a footing of equality, and 
 no fraud is committed by either, each must 
 abide by the contract, and each is entitled to the 
 benefit of his own sagacity. — Ct. of App., Nov., 
 1878. Stettheimer v. Killip, 75 N. Y. 282, 287. 
 
 25. Defendant S. contracted to sell and con- 
 vey to defendant D. certain premises, subject to 
 certain mortgages thereon. D. assigned the 
 contract to plaintiff. S. executed a deed to 
 plaintiff containing a clause by the terms of 
 which plaintiff assumed and agreed to pay said 
 mortgages, which deed plaintiff accepted and 
 put on record, in ignorance of the fact that said 
 clause was contained therein, and supposing 
 that the deed in that particular followed the 
 terms of the contract. Said clause was inserted 
 also without the knowledge or consent of S. 
 .He^, that an action was maintainable to reform 
 the deed by striking out said clause, on the 
 ground that the insertion thereof was a fraud 
 upon plaintiff. — (M. of App., May, 1879. Kilmer 
 i>. Smith, 77 N. Y. 226 ; affirming 43 Superior 
 461. Compare Crippea v. Baumes, 15 Hun 136. 
 
 26. When reformation -will be re- 
 fused. The jurisdiction of a court of equity 
 to reform a written instrument, in a case free 
 from fraud, can only be exercised where it ap- 
 pears clearly that there has beenamutual mistake 
 on the part of the parties as to the contents of the 
 instrument itself. Where both knew its charac- 
 ter and contents when they executed it, it can- 
 not be reformed merely because one of the par- 
 ties was entitled to and would have exacted a 
 different instrument had he known of extrinsic 
 facts rendering it to his interest to do so. — Ct. 
 of App., March, 1879. Whittemore v. Farring- 
 ton, 76 N. Y. 452 ; affirming 12 Hun 349. _ 
 
 27. Where a party, previous to executing a 
 written agreement, has full opportunity to ex- 
 amine it so as to know its contents, yet volun- 
 tarily signs without making such examination, 
 he cannot claim a refoi-mation of the agreement 
 simply upon evidence that it contains obliga- 
 tions he was not cognizant of and did not intend 
 to agree to ; there must be clear evidence of mu- 
 tual mistake or of fraud to authorize a reforma- 
 tion.— Qi. of App., Nov., 1878. Moran v. Mc- 
 Larty, 75 N. Y. 25 ; affirming 11 Hun 66. 
 S. P., Banney v. McMullen, 5 Abb. N. Cas. 246 ; 
 Witthaus V. Schack, 57 How. Pr. 310 ; White v. 
 Meyer, 7 Daly 428 ; Albany City Savings Inst. v. 
 Burdick. 20 Hun 104. 
 
 28. The mistake which will warrant a court 
 of equity in reforming a written contract must 
 be one made by both parties to the agreement, 
 so that the intention of neither is expressed 
 therein ; or it mast be the mistake of one party, 
 and fraud in the other, in taking advantage of 
 it, and thus obtaining a contract with the knowl- 
 edge that the party dealing with him- is in error 
 in regard to its terms. Where it appears that 
 the contract, as executed, is just the one, one of 
 the parties intended to make and the one he un- 
 derstood the other intended to make, the court 
 has no power to reform it. — (M. of App., Nov., 1878. 
 Paine v. Jones, 75 N. Y. 593. 
 
 29 Proving the mistake. While parol 
 evidence is admissible to show a mistake in a. 
 written agreement, yet to justify a reformation 
 of the instrument on that ground, the mistake 
 should be proved as much fo the satisfaction of 
 the court as if admitted. — Ct. of App., Nov., 1879. 
 Ford v. Joyce, 78 N. Y. 618. See, also. Hum- 
 phreys v. Hurtt, 20 Hun 398. 
 
 For further decisions as to the Jurisdiction of 
 and Procedure in, courts of equity, see Accotjitt- 
 ING ; Cloud on Title ; Ckeditor's Suit ;: 
 Dkcoteby; Fbaud; Feaudulent Convey- 
 ances ; Injunction ; Interpleader ; Ee- 
 cEivERs; Specific Performance; Trusts. 
 
 EQUITY OF REDEMPTION. 
 
 Mortgages, VII. 
 
 ERROR (Writ of.) 
 
 1. What is reviewable, generally. 
 An order of a General Term of the Supreme 
 Court affirming a judgment of a Court of Ses- 
 sions, upon conviction, iB not reviewable in the 
 Court of Appeals on writ of error. — Ct. of App., 
 Oct., 1879. Eighmy v. People, 78 N. Y. 330. 
 
 2. Laws of 1879, ch. 449, amending- the pro- 
 visions of the Revised Statutes in reference to 
 writs of error, applies only to cases where, after 
 conviction, sentence has been suspended or 
 stayed, anid such conviction has been affirmed 
 by the General Term of the Supreme Court. lb. 
 
 3. That if the district attorney fails to enter 
 judgment upon the order of affirmance, so that 
 a writ of error may be brought, the defendant 
 may require it to be done, and the court, on mo- 
 tion, will direct such entry, see lb. 
 
 4. Wliat is a final judgment from 
 ■which a ■writ -will lie. A judgment of a 
 General Term dismissing a writ of error with- 
 out either affirming or reversing the judgment 
 of the trial court, if there was no power to dis- 
 miss the writ, is a final judgment, and reviewa- 
 ble in the Court of Appeals. — Ct. of App., Sept.f 
 1878. Manke v. People, 74 N. Y. 415, 418. 
 
 5. The sentence imposed by the court upon 
 conviction in a criminal action is the final judg- 
 ment in the case. lb. 
 
 6. WTien granted on behalf of the 
 people. Defendant was indicted for a violation 
 of Laws of 1877, ch. 261, providing that " any 
 person who shall willfully place an obstruction 
 upon any railroad, * ■* * so as to endanger 
 the safety of any train, * * * shall, upon 
 conviction, be Dunished," &c. The prosecuting 
 
ERROR. 
 
 145 
 
 counsel, in his opening address, stated that he 
 would prove that defendant, unlawfully and 
 without permission, jumped upon an engine 
 standing on a side track, started the same, pur- 
 sued a freight train, kept it on the track half an 
 hour, and ran the engine back on a track used 
 only by trains going in the opposite direction. 
 He admitted that defendant ''had no purpose 
 to wreck a train." The court discharged the 
 prisoner, refusing to direct an acquittal. Held, 
 that the case should have been submitted to the 
 jury ; and that the people were entitled to re- 
 view the discharge on writ of error. — Supreme 
 Ol., {ith Dept.,) Jan., 1879. People v. Adams, 
 16 Hun 549. 
 
 7. Befendant in error was indicted for em- 
 bezzlement, was tried and convicted, sentence 
 was suspended, a case with exceptions settled, 
 and motion thereon for a new trial denied. The 
 proceedings were removed into the Supreme 
 Court by certiorari. The General Terni, after a 
 hearing, made an order that "the conviction 
 be reversed, and the proceedings remitted 
 to the Oyer and Terminer." Upon motion of 
 the district attorney, the order was modified by 
 striking out all after the word " reversed," and 
 inserting " the defendant discharged." The case 
 was brought into this court by writ of error. 
 On motion to dismiss the writ — Held, that as 
 there was no judgment in the Oyer and Ter- 
 miner or of the General Term, the writ did not 
 lie at common law, and was not given by stat- 
 ute ; motion therefore granted. — Ct. ofApp:, Oct., 
 1879. People i>. Bork, 78 N. Y. 346. 
 
 8. The act in relation to writs of error on be- 
 half of the people, (Laws of 1852, ch. 82, 
 amended by Laws of 1879, ch. 176,) allowing 
 such writ to review a judgment of the Supreme 
 Court in favor of a defendant charged with a 
 criminal ofience, or any order or decision quash- 
 ing an indictment, does not apply. lb. 
 
 9. The privilege conferred upon the people 
 by said act is not enlarged by the provision of 
 Laws of 1879, ch. 449, declaring that "a con- 
 viction for a criminal offence shall be deemed a 
 final judgment when sentence shall be suspended 
 by the court* in which trial was ha'd, or other- 
 wise suspended or stayed, and such conviction 
 shall have been aflirmed * * * by a Gen- 
 eral Term of the Supreme Court," and entitling 
 the defendant to review the order or judgment 
 of aflirmance by writ of error, "notwithstand- 
 ing sentence has not been passed." The pro- 
 visions relate solely to the defendant. lb. 
 
 10. Bringing up the record. One tried 
 on an indictment, convicted by verdict of the 
 jury and sentenced, may obtain and file a bill 
 of exceptions and sue out a writ of error. On 
 the return of the clerk to the writ, made in ac- 
 cordance with the statute, i. e., containing duly 
 certified transcripts of the indictment, bill of 
 exceptions and judgment, the plaintiff in error 
 may move the court to review the errors alleged. 
 —Gt. of App., Sept., 1878. Manke v. People, 74 
 N. Y. 415, 427. 
 
 11. If such errors, or any of them, if made, are 
 necessarily shown in the return, the writ may 
 not be dismissed because the return does not 
 present a full and formal record of the judg- 
 ment and proceedings of the trial court ; the 
 errors so presented must be passed upon. lb. 
 
 12. If errors are alleged which, if they oc- 
 curred, are not shown by the matter in the re- 
 turn, the court may entertain a motion on be- 
 
 half of either party, or may, on its own motion, 
 direct that a writ of certiorari issue to the trial 
 court to bring up the record. lb. 
 
 13. It is immaterial whether the record or 
 roll thereof has been made up before or after 
 the issuing of the writ of error, or before or 
 after the writ of certiorari is directed. What- 
 ever took place in the tristl court which was- 
 matter proper for record may be incorporated in 
 a roll and returned. lb. 
 
 14. Requisites of the record. Under 
 the provisions of the Revised Statutes in rela- 
 tion to proceedings in criminal cases, (2 Rev. 
 Stat. 738, § 4, et seq ,) a formal and technical' 
 common lawjudgment-record or roll is not re- 
 quired ; a copy of the minutes of conviction, 
 with a copy of the sentence thereon and a copy 
 of the indictment, all duly certified, are evidence 
 of the conviction when it appears that no record 
 of the judgment has been signed or filed. lb. 
 
 15. What is brought up forrevie-w. 
 A writ of error from the Court of Appeals 
 reaches only the record in a criminal action ; 
 it does not bring up for review proceedings sub- 
 sequent to the judgment, and no part of the 
 record. — Ct. of App., Jan., 1879. Hunt v. People, 
 76 N. Y. 89 ; Feb., 1878. People ». Casey, 72 
 N. Y. 393, 397. 
 
 • 16. Plaintiff in error was tried and con- 
 victed upon an indictment for grand lar- 
 ceny. After verdict, he moved that judg- 
 ment be arrested, on the ground that one 
 of the justices of the Court of Sessions, before 
 which he was tried, was disqualified to act as 
 judge in the case, wliich motion was founded 
 upon affidavits. The motion was denied. Upon 
 writ of error to the Court of Appeals — Held, 
 that the motion could not be regarded as one in 
 arrest of judgment, as such motion is based en- 
 tirely upon some defect in the record ; that it 
 was, in fact, an application for a new trial ; that 
 the writ of certiorari from the Supreme Court 
 brought up the record and all the papers upon 
 said motion, and the affirmance of the judg- 
 ment there ended the purpose and office of said 
 writ ; but that the writ of error from this court 
 did not bring up the proceedings on the motion, 
 as they were subsequent to the judgment and no 
 part of the record. ' lb. ; lb. 
 
 17. The hearing. What questions 
 are before the court. Under Laws of 
 1873, ch. 427, providing that either pa-rty may 
 except to the decision of the court upon a chal- 
 lenge of a juror, and that upon a writ of error 
 or certiorari the court may review such decision 
 the same as other questions arising upon the 
 trial, the Court of Appeals may review the de- 
 termination of the trial court in a criminal 
 action upon a challenge, both on questions of 
 law and of fact. — Ct. of App., Sept., 1878. 
 Greenfield v. People, 74 N. Y. 277 ; S. C, 6 
 Abb. N. Cas 1. , 
 
 18. The Coui-t of Appeals does not sit as an 
 arbiter of manners as to the lower courts ; and 
 even if there is anything overbearing or inde- 
 corous in the manner of the court, in putting a 
 proper question to the prisoner, when a witness 
 on his own behalf on a criminal trial, it cannot 
 be reviewed here unless injustice might have 
 resulted. — Ct. of App., Dec, 1878. Arnold v. 
 People, 75 N. Y. 603. 
 
 19. What errors ■will not -warrant 
 reversal, generally. The joinder of several 
 distinct misdemeanors in the same indictment is 
 
 10 
 
146 
 
 ERROE— ESTATES. 
 
 not a cause for the reversal of judgment thereon 
 on writ of error, when the sentence is single, 
 and is appropriate to either of the counts upon 
 which conviclion was had. — Gt. of App., March, 
 1878. Polinsky v. People, 73 N. Y. 65, 69; 
 affirming 11 Hun 390. 
 
 20. — because not objected to be- 
 low. The objection cannot be entertained on 
 error that there was no evidence which war- 
 ranted the conviction, where there is no excep- 
 tion in the record which raises it. — Ol. of App., 
 Feb., 1878. People v. Casey, 72 N. Y. 393. 
 
 21. The certificate of the foreman of a grand 
 jury that it is a true bill, indorsed upon an in- 
 dictment, is no part of the indictment, but sim- 
 ply the statutory mode of authenticating it, and 
 the fact that the copy of an indictment in the 
 record, brought to the appellate court, does not 
 contain the certificate, is not available to prove 
 that there was no certificate, where the record 
 states that the grand jury appeared in open 
 court and duly presented the indictment, a copy 
 of which was given ; it will be assumed in such 
 case that the indictment was regularly presented. 
 Such an objection is not available where no 
 point was made presenting it on the trial. — Ot, 
 of App., Nail., 1878. Brotherton k. People, 75 
 N. Y;159. ■ 
 
 22. The fact that upon the trial of an indict- 
 ment for murder in the first degree, the court 
 omitted to read to or to instruct the jury as to 
 the provisions of the statute defining murder in 
 the second degree and manslaughter, is not a 
 ground of error, in the absence of a request on 
 behalf of the prisoner so to do. — Ct. of App., 
 Nov., 1879. Buel v. People, 78 N. Y. 492. _ 
 
 23. The provision of the statute enlarging 
 the jurisdiction of the Courts of Sessions in the 
 city and county of New York, (Laws of 1855, 
 ch. 337, § 3, as amended by Laws of 1858, ch. 
 330,) which autliorizes an appellate court to 
 grant a new trial in capital cases when satisfied 
 that the verdict is against the weight of evi- 
 dence, etc., whether an exception was taken or 
 not in the court below, has no application to 
 writs of error in other counties of the state. lb. 
 
 24. — because not prejudicial to de- 
 fendant. Irregularities in obtaining jurors 
 are not ground for reversing a conviction, unless 
 it appears that defendant-was in fact injured or 
 prejudiced thereby. — Supreme Ct., (\st Dept.,) 
 Dec., 1879. Cox v. People, 19 Hun 430. 
 
 25. Where an indictment contains a number 
 of counts, all, however, based upon the same 
 offence, varying simply as to the description, so 
 as to meet the proof, and a conviction there- 
 under is general on all the counts, if there is 
 one good count in the indictment and evidence 
 to support it, it is suflScient to sustain the con- 
 viction, although ifye other counts are defective. 
 It is immaterial in snch case that the trial court 
 held the defective counts to be good, admitted 
 evidence to sustain them, and refused to direct 
 an acquittal under them, as the rulings could 
 not have prejudiced the accused. — Ct. of App., 
 Feb., 1878. Phelps v. People, 72 N. Y. 365, 
 373 ; affirming 6 Hun 428. 
 
 26. The admission of testimony for the 
 people, which, in the abstract, was objectionable 
 at the time of its admission, is not ground for 
 reversal, where it afterwards became important 
 in rebuttal of testimony given in defence, and 
 by reason of other evidence, could not have 
 worked to the prejudice of the accused. — Sur 
 
 preme Ct., {1st Dept.,) May, 1880. Cowley v. 
 People, 8 Abb. N. Gas. 1. 
 
 27. Where an indictment contained two 
 counts, and the second count was not preceded 
 by words showing its presentation by the grand 
 jury — Held, that as it was not demurred to, nor 
 any motion made to vacate it, and as the omis- 
 sion was not prejudicial to the prisoner, the de- 
 fect should be disregarded. — Svpreme Ct., (Isi 
 Dept.,) April, 1878. Schrumpf v. People, 14 
 Hun 10. 
 
 As to Taking exceptions, framing the bill, the 
 Searing, &c., see, also. Exceptions. 
 
 For Othe/r methods of review in criminal cases, 
 see Ceetiobabi; New Telai.. 
 
 ESCAPE. 
 
 Aa to the powers and duties of officers in re- 
 spect to Arrests, and Custody of persons arrested, 
 see Abbest ; Execution, IL ; Impeisonmbxt ; 
 Pumshment; Shebifps. 
 
 ESCHEAT. 
 
 As to the DisaiilUies of aliens to hold land, 
 see AuENa. 
 
 ESTATES. 
 
 [Consult, also, Cubtest; Doweb; Beai. 
 Pbopeett; Tenants in Common; Wiua.] 
 
 1. Estates for life. A tenant for life who 
 willfully neglects to pay the interest upon a 
 mortgage on the land, in order that it may be 
 foreclosed and the land sold, which is done, is 
 liable to the remainderman for the damages 
 sustained by him, by reason of such neglect. — 
 .Supreme a., (2d Dept.,) Dee., 1878. Wade v. 
 Malloy, 16 Hun 226. 
 
 2. As to the apportionment of interest on 
 assessments paid by the life tenant, between his 
 estate and the remainderman, see Gunning v. 
 Carman, 3 Kedf. 69. / 
 
 3. The felling of trees for the purpose of sale 
 by a tenant for life, to the injury of the rever- 
 sioner, is waste, and an action lies by the latter 
 immediately to recover damages for the injury 
 to the freehold. It is not a^ defence to such an 
 action that the tenant acted in good faith, or un- 
 der a claim of right, or that he was in posses- 
 sion, claiming title in fee to the land upon 
 which the waste was committed. As the rever- 
 sioner cannot bring trespass or ejectment against 
 the tenant so long as the tenancy continues, he 
 is not debarred from his remedy for waste, be- 
 cause the proceeding may involve the determi- 
 nation of a disputed title. — Ct. of App., Jwne, 
 1877. Kobinson v. Kime, 70 N. Y. 147, 151. 
 
 4. The will of D., after a devise to his wife 
 of a life estate in his farm and other real estate 
 in the town of J., contained this statement: 
 " Which devise I make to my said wife for a 
 home for herself and for my infant children, 
 but my intent is nevertheless that the same 
 shall be, at all times during said term, wholly 
 subject to her will and control." Other provi- 
 sion was also made for the benefit of his wife. 
 The testator made specific provision for the pay- 
 ment of taxes on all his other real estate, and 
 
ESTATES— ESTOPPEL, I., II. 
 
 147 
 
 idisposed of all the anticipated revenue from his 
 property. Held, that the widow, as a life-tenant 
 of the home farm, was liable for the taxea 
 thereon; and that the declaration that it was 
 devised as a home for herself and children did 
 not change the character of the holding so as to 
 relieve her from this burden. — Ot. of Am., Jan., 
 1878. Deraismes v. Deraismes, 72 N. Y. 154. 
 
 5. Merger of legal and equitable es- 
 tates. Where the owner of an equitable title 
 ■consequently acquires a legal one, but has an 
 interest in keeping the two titles distinct, as where 
 there is an intervening encumbrancer, he has 
 a right so to do, and the equitable title will not 
 he merged. — Cl. of App., tiepL, 1878. Payne v. 
 Wilson, 74 N. Y. 348. S. P., June, 1878. Bost- 
 wiok V. Frankfield, Id. 207, 214. 
 
 As to the Separate estate of a married woman, 
 see Husband aud Wipe, V. 
 
 Ab to Trust estates ; and the rights of the ces- 
 tui que trust, see Trusts, III. 
 
 ESTOPPEL. 
 
 I. GENERAii Principles. 
 II. Estoppel by Becord. 
 
 III. Estoppel by Deed. 
 
 IV. Estoppel in Pais. 
 
 I. General Principles. 
 
 1. The object of an estoppel. For 
 an application of the principle that the doctrine 
 of estoppel is applied to promote justice and fair 
 dealing only, never to aid a fraudulrait purpose, 
 see Ot. of App., March, 1878. Eoyce v. Watrous, 
 
 see 01. oj App., 
 73 N. Y. 597. 
 
 2. "Wlio may be estopped, generally. 
 
 The owner of property, which has. been 
 tortiously taken irom him, is not estopped from 
 xeclaiming it by the fraudulent act of the tortious 
 .taker to which he was not a party, and which he 
 in no way aided ; to create an estoppel, he must 
 have enabled the wrong-doer to perpetrate the 
 fraud. — Ct. of App., Dec., 1877. Marine Bank 
 of Buffalo V. Fiske, 71 N. Y. 353; affirming 9 
 Hun 363. 
 
 3. When the owner of a vessel, condemned 
 and sold in fraud of his rights, is estopped from 
 asserting title and from claiming freight moneys, 
 see Harris v. Burdett, 76 N. Y 582. 
 
 4. When a municipal corporation is 
 estopped. For an application of the rule 
 that a corporation, in this case a county, having 
 -accepted performance on the part of the other 
 party to a contract made by it, is estopped to set 
 up its own want of power to make the contract, 
 -see Supervisors of Schenectady Co. v. McQueen, 
 15 Hun 551. 
 
 5. Although a municipal corporation may set 
 oip, as a defence, in an action upon a contract al- 
 leged to have been made by it, its own want of 
 power to contract, yet, as against those innocently 
 ■dealing with it,and in good faith parting with 
 property, and expending money for its benefit, it 
 jnay be estopped from availing itself of irregulari- 
 .ties in the exercise of power conferred. — Gt. of 
 
 App., April, 1878. Moore v. Mayor, &c., of New 
 York, 73 N. Y. 238 ; reversing 4 Hun 545. 
 
 6. Acts of the general governing body of a 
 municipal corporation, within their general 
 
 powers, which are publishedj represented and 
 held out as valid, with invitations to individuals 
 to enter into engagements and expend money 
 and labor on the faith of them, may be assumed, 
 by those dealing with the municipal authorities, 
 to be as represented ; and the corporation hav- 
 ing received the fruits of contracts, entered into 
 on the faith of such representations, will be 
 estopped from alleging a mere irregularity, not 
 of the substance of the power, or jurisdictional 
 in its character, to avoid them. lb. 
 
 7. Estoppels against the state. In 
 the absence of fraud or collusion, the acts of 
 public oflSoers acting on behalf of the stale, within 
 the limits of the authority conferred upon them, 
 and in the performance of their duties, in deal- 
 ing with third persons, are the acts of the state, and 
 cannot be repudiated by it. — Ct. of App., Jan., 
 1878. People v. Stevens, 71 N. Y. 627. 
 
 8. In an action by the state for the conversion 
 of a draft, indorsed by a clerk in the slate treas- 
 urer's office, without authority, it appeared that 
 the clerk indorsed in all fifteen draite aside 
 from those in question ; defendant (a bank] did 
 not know of any of these indorsements, or of 
 any of the facts existing, which induced or 
 could induce it to suppose that the clerk had 
 authority; it simply acted upon his indorse- 
 ment upon the drafts taken by it. Bdd, that 
 the state was not estopped from denying the 
 authority of the clerk to indorse, as defendant 
 was not induced to act by any apparent authority. 
 Os. of App., Jan., 1879. People v. Bank of 
 North America, 75 N. Y. 547. 
 
 As to whether an estoppel, by negligence or 
 otherwise can be invoked as against the state, 
 quaere. lb. 
 
 II. Estoppel by Eecord. 
 
 9. By allegations in pleadings. Where 
 a partv gives in evidence an admission in the 
 pleadings of his adversary, he is not estopped 
 from questioning a portion thereof which is 
 against him ; he is at liberty to use the admis- 
 sion so far as it makes in his favor, and to dis- 
 prove the residue. — Ot. of App., May, 1878. 
 Mott V. Consumers' Ice Co., 73 N. Y. 543, 550. 
 
 10. A party is not estopped by not taking 
 issue upon a matter of law averred in his adver- 
 sary's pleadings. — Ct. of App., Oct., 1878. Jor- 
 dan V. Nat. Shoe and Leather Bank, 74 N. Y. 
 467. 
 
 11. The original defendants herein having in 
 their hands certain bonds belonging to the 
 estate of a deceased person, of whom plaintiff 
 was surviving executor, which came into their 
 possession as executors of a deceased co-execu- 
 tor with plaintiff, they refused to surrender the 
 bonds until a sum claimed by them to be due 
 the estate of their testator for comnussions was 
 paid; this claim plaintiff disputed. It was 
 submitted to the surrogate, who decreed that 
 defendants were entitled to the commissions. 
 Plaintiff thereupon paid the claim. The surro- 
 gate's decree was subsequently reversed. This 
 action was thereupon brought against defendants 
 as individuals, not in their representative capa- 
 city, to recover back the sum paid ; the answer 
 alleged that plaintiff " called upon the defend- 
 ants and paid them " the money in question. 
 
 Held, 1. That the pleadings concluded de- 
 fendants from raising the question on appeal 
 that they did not receive the money as indivi- 
 duals, and so that an action could not be main- 
 
148 
 
 ESTOPPEL, II., III. 
 
 tained against them personally; also that as 
 executors of the deceased executor they had no 
 right to take any charge or control of the 
 bonds. 
 
 2. That as defendants were to be regarded as 
 ■joint debtors, a demand made of one was suffi- 
 cient to sustain the action against both. 
 
 3. That the action was properly revived 
 against the executor of the survivor of the origi- 
 nal defendants.— a. o/App., Feb., 1878. Scholey 
 V. Halsey, 72 N. Y. 578. 
 
 12. By recitals in judgments. An 
 estoppel arising out of the judgment of a court 
 of competent jurisdiction is equally conclusive 
 upon all the parties to the action and their 
 privies. It may not be invoked or repudiated 
 at the pleasure of one of the parties as his in- 
 terest may happen to require. — U. S. Supreme Ct., 
 Oct., 1879. Brooklyn, &c., K. E. Co. v. Nat. 
 Bank of the Eepublic, 22 Alb. L. J. 189. 
 
 13. When, in an action brought by one 
 claiming title under a deed from a United States 
 internal revenue collector, to set aaide a Us 
 pendens and judgment as a cloud on his title, 
 defendant is not estopped from objecting to the 
 failure in plaintiff's proofs to establish the col- 
 lector's right to sell, by the fact that he did not 
 give notice at the sale that the collector could 
 give no title thereby, see Brown v. Goodwin, 
 75 N. Y. 409. 
 
 14. A judgment necessarily founded on the 
 ground that a party to the action in which it is 
 rendered is, by certain acts done by him, estopped 
 from setting up the invalidity of a sale of certain 
 property, will estop such party in any action 
 brought by him against the parties to the action 
 in which such judgment was rendered, or their 
 privies, in which the validity of such sale is in- 
 volved, from setting up its invalidity. — Superior 
 Ct., Nov., 1877. Harris v. Burdett, 43 Superior 
 57 ; affirmed 76 N. Y._582. 
 
 15. When a party is estopped by a judgment 
 in a former action from setting up, as against a 
 purchaser under said judgment, another title 
 than that therein established in said party's fa- 
 vor, see Cooper v. Piatt, 45 Superior 242. 
 
 16. — in orders. The rules applicable to 
 judgments as estoppels do not apply to their full 
 extent to orders made on motions. Such an or- 
 der is not conclusive as an adjudication, as to a 
 fact which might have been, but which was not 
 actually litigated. The motion may also be re- 
 hewed upon a different state of facts, or by sup- 
 plying defects in proof. — Ct. of App., Sept., 1 878. 
 Kiggs V. Pursell, 74 N. Y. 370.' 
 
 1*7. — in undertaking's. The parties to 
 the action may waive the formalities of the 
 statutory proceedings, and in such case the 
 sureties to the undertaking are bound by the 
 waiver, and are estopped from questioning the 
 recitals in the undertaking ; and this although 
 they had no knowledge of the facts that the pro- 
 ceedings were not to be taken and the undertak- 
 ing used in the manner prescribed by the stat- 
 )ite. — Ct. of App., April, 1877. Harrison v. Wil- 
 kin, 69 N. Y. 412. 
 
 18. Therefore, where in pursuance of an ar- 
 jangement between two parties, one of whom 
 had in, its possession personal property claimed 
 by the other, an action was brought by the 
 former in the form of an action to recover pos- 
 session of the property, and an undertaking was 
 given, entitled in the action, reciting that plain- 
 liff claimed delivery of the property, and un- 
 
 dertaking to prosecute the action and to return 
 the property, if return should be adjudged, etc. — 
 Held, that the sureties to the undertaking were- 
 estopped in an action thereon, from question- 
 ing the recital, although they had no knowledge 
 that the defendants in the replevin suit were not 
 in possession of the property, or that the statu- 
 tory proceedings were not to be had, or the un- 
 dertaking used to obtain delivery. lb. 
 
 19. Where the defendant, in an action to re- 
 cover possession of personal property, in which 
 the plaintiff el aims immediate delivery, after th» 
 sheriff has taken possession of the property, 
 gives an undertaking pursuant to the code, re- 
 citing the taking at the suit of the plaintiff, and 
 that defendant is desirous of having it returned ; 
 and, upon the undejtaking, obtains delivery and 
 retains the property, he is estopped thereby 
 from denying that he had possession of the 
 property at the time of the commencement of 
 the action. It is only upon the ^sumption that 
 the property was taken from his possession, that 
 he is entitled to demand its return ; and, having 
 obtained the delivery of the property to hint 
 upon that ground, he cannot escape responsibility 
 by alleging that it was not taken from him or 
 was not in his possession at the commencement 
 of the action. — Ct. of App., May, 1878. Diossy 
 V. Morgan, 74 N. Y. 11. 
 
 III. Estoppel bt Deed. 
 
 20. "Wlien a deed or other sealed in- 
 strument -will operate as an estoppel. 
 A purchaser of mortgaged premises who take* 
 a deed thereof subject to the mortgage, and as- 
 sumes and agrees to pay the same, is estopped 
 from contesting the consideration or validity of 
 the mortgage ; and when the mortgage was given 
 by his grantor to secure part of the purchase- 
 money upon the purchase Dy him, said grantee, 
 so long as he remains in quiet and peaceful pos- 
 session of the premises, cannot defend against 
 the mortgage, because of failure of title. — Ct. of 
 App., June, 1878. Parkinson v. Sherman, 74 N. 
 Y. 88. 
 
 21. The fact that said grantee is liable to, and 
 that in an action to foreclose the mortgage a 
 judgment is asked against him for any defi- 
 ciency, is immaterial. lb. 
 
 22. Plaintiff agreed to purchase and take an 
 assignment of a mortgage held by a college on 
 lands belonging to the wife of G., and went with 
 G. to the agent of the college, who said the col- 
 lege never assigned a mortgage. Plaintiff, how- 
 ever, paid the money to the agent, receiving a. 
 satisfaction-piece, which he kept in his posses- 
 sion, and which was never recorded. Subse- 
 quently G. sold the premises, the grantee assum- 
 ing the payment of the mortgage. Held, that 
 both G. and his grantee were estopped from? 
 denying the existence and validity of the mort- 
 gage. — Supreme Ct., {ith Dept.,) Jime, 1878. 
 Johnson v. Parmely, 14 Hun 398. See, also^ 
 Haile v. Nichols, 16 Hun 37. 
 
 23. When it will not so operate. 
 Where, after the purchase of a mortgage, the 
 mortgaged premises are conveyed subject to the 
 mortgage which the grantee, by the deed, as- 
 sumes and covenants to pay, such grantee is not 
 estopped from insisting as against such pur- 
 chaser, that he is not liable under the covenant. 
 —Superior Ct., March, 1877. Eeal Estate Trust 
 Co. V. Balch, 45 Superior 528. 
 
ESTOPPEL, III., IV.— EVIDENCE. 
 
 149 
 
 24. Wliat words in a deed, describing the prop- 
 erty conveyed are too indefinite and uncertain 
 to create an estoppel against the grantor in a 
 <;ollateral action, not founded on the deed itself, 
 «ee Edmonston v. Edmonston, 13 Hun 133. 
 
 25. When a party is not estopped in an ac- 
 tion on a covenant in a lease from claiming non- 
 performance of conditions precedent, see Peo- 
 ple's Bank of New York v. Mitchell, 73 N. Y. 
 406. 
 
 IV. Estoppel in Pais. 
 
 26. Ho-w created, generally. To con- 
 stitute an equitable estoppel, three elements must 
 ■concur: 1. A declaration made or act done 
 by the party against whom the estoppel is 
 ■claimed, with intent that it should be acted on. 
 2. That the party claiming the estoppel relied 
 and acted npon such declaration or act. 3. 
 That the party claiming the estoppel would be 
 injured if the other parly were permitted to re- 
 tract his declaration or undo his act. — Superior 
 Ct., March, 1877. Keal Estate Trust Co. v. 
 Ealch, 45 Superior 528, 537. 
 
 2*7. Design to mislead, unnecessary. 
 It is not necessary to an equitable estoppel that 
 the party should design to mislead. It is enough 
 that the act was calculated to mislead and ac- 
 tually did mislead the other party while acting 
 in good faith, and with reasonable care and dili- 
 gence. — Ct. ofApp., March, 1877. Blair v. Wait, 
 ■69 N. Y. 113, 116. S. P., Costello v. Mead, 55 
 How. Pr. 356, 358. McConnell v. Sherwood, 58 
 Id. 453, 463. 
 
 28. Representations and declara- 
 "tions. Representations made by one olTering to 
 sell property to another negotiating therefor, 
 are part of the res gestw, and binding upon the 
 maker, although a bargain is not concluded at 
 the time, if afterwards, as a continuation of the 
 megotiation, the person to whom they were made 
 becomes a purchaser.— Ct. of App., Jan., 1878. 
 Ahern v. Goodspeed, 72 N. Y. 108. 
 
 20. Where the owner of a lot, between whom 
 ■and the owner of an adjoining lot there was a 
 -dispute about the boundary, said to one who pro- 
 posed to purchase the latter lot, that if he pur- 
 chased and claimed to a certain wall, there 
 would be no trouble, which was done— .HeW, 
 that he was estopped, as against such purchaser, 
 from claiming that the wall did not constitute 
 the true boundary. — Supreme Ct., (3d Dept.,) Jan., 
 1879. Creque v. Sears, 17 Hun 123. 
 
 30. When an insurance company is estopped 
 from denying the truth of statements in an ap- 
 plication for a fire policy, prepared by its own 
 agents, as to the ownership or interest of the 
 assured in the property insured, see Lasher v. 
 Northwestern Nat. Ins. Co., 55 How. Pr. 318. 
 
 31. Acquiescence or assent. Rati- 
 fication. It is not needed that there be an 
 •express assent upon the part of the stockholders 
 in a corporation to work an equitable estoppel 
 upon them. When they neglect to promptly 
 and actively condemn the unauthorized act, and 
 to seek judicial relief after knowledge of the 
 committal of it, this will he deemed an acqui- 
 ■escence in it ; and if innocent third persons have 
 been led thereby to put themselves in a position 
 where harm would come to them if the act were 
 held invalid, the stockholders are estopped from 
 ■questioning it. — Ct. of App., Sept., 1879. Kent v. 
 •Quicksilver Mining Co., 78 N. Y. 159. 
 
 32. Where one assigned to a corporation, 
 either duly organized or held out so to be, an 
 improvement made by him, and his right to 
 letters patent therefor, the consideration ex- 
 pressed being $1, but the true consideration 
 being (by an oral agreement) a certain royalty 
 during the existence of the patent ; and after- 
 wards, but before the issuing of the patent, the 
 corporation, if not before duly organized became 
 organized, or if before organized, re-organized, 
 under the name used in the assignment, 
 and the assignor, without any notice of the 
 change, procured the issue of a patent in the 
 corporate name used in the assignment, and 
 the company accepted the patent, entered into 
 enjoyment thereof, and for a time paid to the 
 assignor the royalty claimed by him, without any 
 notice to him of any defect in its corporate ex- 
 istence at a period previous thereto, the com- 
 pany is estopped from avoiding the obligation 
 to pay the royalty originally agreed upon. — 
 Superior Ct., March, 1879. Bommer v. Ameri- 
 can Spiral Spring &c., Co., 44 Superior 454. 
 
 33. Silence. The omission by a party to 
 assert a right from ignorance of it, does not con- 
 clude him. Silence and mere passivity cannot 
 create an estoppel where the other party had 
 equal knowledge of the facts and conditions in 
 which their respective rights originate. — Sur 
 preme Ct., {Sp. T.,) Dec, 1879. Giraud v. Giraud, 
 58 How. Pr. 175 ; S. P., Snow v. Williams, 16 
 Hun 468. 
 
 34. In order to make the silence of the re- 
 cipient of a letter evidence against him, it 
 must contain some statement respecting the legal 
 right of the party requiring an answer, or 
 naturally demanding one, and it must appear 
 that the party addressed was aware of the truth 
 or falsity of the statement contained therein. — 
 N. Y. Surr. a., Jan., 1879. La Bau v. Vander- 
 bilt, 3 Eedf. 384, 398. 
 
 EVICTION. 
 
 EjECTMEsrr ; Landlord and Tenant ; Ten- 
 ants IN Common ; Vendor and Purchasek. 
 
 EVIDENCE. 
 
 I. The Necessity and Supficienot of 
 Evidence. 
 
 1. Oeneral prinelplex. 
 
 2. Jvdicial notice. 
 
 3. Presumptions. 
 
 4. Bei4 and secondary evidence 
 
 5. Hearsay evidence. 
 
 6. Bes gestce. 
 
 7. Burden of proof. 
 
 II. Parol Evidence to Affect Written 
 
 Instruments. 
 
 1. Scope and extent of the rule, generally. 
 
 2. How applied to particular instrument, 
 
 III. Admissions, Declarations, and Con- 
 
 fessions. 
 
 1. In civil aetiom. 
 
 2. In criminal cases. 
 
 IV. Documentaby Evidence. 
 
 1. In general. 
 
 2. Judgments, records, ami judidal pro- 
 
150 
 
 EVIDENCE, I. 
 
 3, Statutes, public documents, and official 
 
 eertificatea. 
 
 4. Other documentary evidence. 
 
 I. The Necessity and Supficibncy op 
 Evidence. 
 
 1. General principles. 
 
 1. wnat evidence is admissible, 
 generally. In an action by a daughter, to 
 recover the value of her support, charged by 
 her father's will upon a devise of his farm to his 
 sons, evidence of the value of the farm and the 
 charges upon it, and of the amount of the testa- 
 tor's property, is admissible as tending to show 
 what sum it would be reasonable to allow for 
 her support and clothing — Supreme Ct., [Zd 
 Dept.,) Nov., 1877. Borst v. Crommie, 19 Hun 
 209. 
 
 2. In an action to recover certain negotiable 
 bonds stolen from plaintiffi and sold to defend- 
 ants, who were brokers in the city of New York, 
 it was proved as a suspicious circumstance that 
 instead of offering them for sale in that market 
 they offered them in the cities of Poughkeepsie 
 and Albany. Defendants offered to prove the 
 usual course of brokers in such cases, which was 
 excluded. Seld, error ; as the evidence was 
 legitimate in answering the imputation of un- 
 usual conduct on their part. — Ct. of App., April, 
 1878.— Dutchess Co., Mut. Ins. Co., v. Hachfleld, 
 73 N. Y. 226. 
 
 3. On an issue as to whether payment had 
 been made or not, evidence tending to show that 
 the party had money from which the payment 
 might have been made, when admissible, see 
 Dishno v. Reynolds, 17 Hun 137. 
 
 4. Sufiaoiency. Amoxint of proof. In 
 a civil action plaintiff is not bound to establish 
 any fact beyond the possibility of a reasonable 
 doubt. He need only satisfy the jury by a pre- 
 ponderance of evidence. — Ol. of App., Nov., 1879. 
 New York Guaranty, &o., Co. v. Grleason, 7 Abb. 
 N. Gas. 334. 
 
 5. There is no rule of evidence which requires 
 that where the issue in a civil action involves 
 the question as to whether or not a crime had 
 been perpetrated, the jury is not at liberty to 
 find a verdict, the effect of which will be to 
 show their belief that the crime was committed, 
 unless the evidence would warrant them in find- 
 ing the suspected party guilty on a criminal 
 trial for the same offence. — Oom. Pleas, June, 
 1877. Davis v. Davis, 7 Daly, 308, 320. 
 
 S. What is sufficient evidence to establish, as 
 against a stockholder, his ownership of shares in 
 a corporation, considered. — Supreme Ct., (ith 
 Dept.,) Jan., 1880. Cuykendall v. Douglass, 19 
 Hun 577. 
 
 T. As to the sufficiency of evidence of title or 
 interest to authorize recovery for property de- 
 stroyed by defendant's negligence, see Eiddell v. 
 New York Central E. E. Co , 73 N. Y. 618. 
 
 8. Necessary relevancy. Whatever 
 evidence is offered which will assist in showing 
 which party speaks the truth of the issues in an 
 action is relevant; and, when to admit it does 
 not override other formal rules of evidence, it 
 should be received. — Ct. of App., Sept., 1879. 
 Platner v. Platner, 78 N. Y. 90. 
 
 9. E., a, witness for defendant, was permitted 
 
 to testify that plaintiff's husband, prior to the 
 giving of the note in suit, had talked with wit- 
 ness about the purchase of, or investment in 
 United States bonds; this was objected .to as 
 hearsay and irrelevant. Sdd, untenable ; that 
 it was not hearsay, as what was said was not 
 given in evidence; and that it was relev- 
 ant, lb. 
 
 10. One of the defendants testified that, whem 
 the bonds were given up, he asked plaintiff's 
 husband if he had the note with him, that he 
 said he had not, but " would bring it over or de- 
 stroy it, one of the two, sams as he had done a 
 number of times." The clause italicised was ob- 
 jected to as hearsay and irrelevant. Held, un- 
 tenable ; that if intended by the witness as the 
 statement of a fact known to him, it was relev- 
 ant ; if intended as an utterance of the husband, 
 it was part of the res gestae, and so compe- 
 tent, lb. 
 
 11. Evidence that the title is defective, is- 
 irrelevant in an action by a broker for services ire 
 procuring a purchaser for the land, where the 
 issue is whether or not the broker was employed, 
 and where the fact that the purchaser procureiJ 
 by him contracted to purchase the land, is not 
 disputed. — Com. Pleas., Feb., 1877. AUen v. 
 James, 7 Daly 13. 
 
 12. Positive and negative evidence. 
 As to the relative effect of positive and negative 
 testimony, and when the latter will outweigb 
 the former, see Byrne v. New York Central, &C.,. 
 E. E. Co., 14 Hun 322. 
 
 13. Evidence -wliicli appeals to the- 
 senses. Photographs and articles pro- 
 duced in court. On the trial of one accused 
 of endangering the health of a child by omitting 
 to give it proper food, care, &c., under Laws of 
 1876, ch. 122, § 4, photographs of the child, 
 taken within a reasonable time after its re- 
 moval from the custody of the accused, are ad- 
 missible in evidence to show the physical con- 
 dition of the child at or about the time of its 
 removal, although taken for that purpose. — Svr- 
 preme Ct., {1st Dept.,) May, 1880. Cowley v.. 
 People, 8 Abb. N. Cas. 1. 
 
 14. In an action to recover damages for in- 
 juries resulting from the breaking of an iron 
 hook and falling of a mast to a derrick belong- 
 ing to defendant, plaintiff alleged negligence in 
 that the hook was insufficient. Upon the trial 
 plaintiff produced a piece of iron, which his evi- 
 dence tended to show was part of the broken 
 hook, and afier the testimony of experts had 
 been given, as to evidence of weakness in the- 
 iron, it was shown to the jury. Held, no error. 
 —a. of App., Feb., 1878. King v. New York 
 Central, &c., E. E. Co., 72 N. Y. 607. 
 
 2. Judicial notice. 
 
 15. Of what the courts will take ju- 
 dicial notice. The court may judicially no- 
 tice the fact that in a large city, where two rail- 
 road tracks are laid down in a long avenue re- 
 quiring nearly an hour to traverse it, the- 
 crossings where the cars stop to take on passen- 
 gers are much frequented, even though the street, 
 considered as a whole, may not be. — Ct.of Afp.y 
 Sept., 1874. Haggerty v. Brooklyn City and 
 Newtown E. E. Co., 6 Abb. N. Cas. 129, note. 
 
 16. The court will take judicial notice that » 
 house described by the street on which it fronts,. 
 is within a certain judicial district, where the- 
 
EVIDENCE, I. 
 
 151 
 
 entire street is within the statutory bounclflries 
 of Buch district. — Supreme Ct., (Ist Dept.,) March, 
 1880. Armstrong «. Cummings, 20 Hun 313 : 
 S. C, 58 How. Pr. 331. 
 
 17. "What xnatters will not be judi- 
 cially noticed. Courts cannot take judicial 
 notice of the width of streets or of sidewalks in 
 a city, or of the ordinances of the municipal cor- 
 poration establishing the same, defining the 
 same, or prescribing and regulating their limits 
 and extent. — Gt. of App., April, 1877. Porter v. 
 Waring, 69 N. Y. 250. 
 
 18. The court will not take judicial notice of 
 a custom in the city of New York in improving 
 streets, first to regulate and grade, and then to 
 pave, as separate and distinct works. If such 
 custom exists it must be proved. — Qt. of App., 
 Dec., 1878. Matter of Walter, 75 N. Y. 354, 362. 
 
 19. Instances. The following matters will 
 notie judicially noticed, but must be proved : 
 
 That a canal in a city is a public highway. 
 New York and Brooklyn Saw Mill, &c., Co. v. 
 City of Brooklyn, 71 N. Y. 580. 
 
 That kerosene oU is a refined coal oil or earth 
 oil. Bennett v. North British, &c., Ins. Co., 8 
 Daly 471. 
 
 That the law of another state differs from our 
 own. Phoenix Ins. Co. v. Church, 59 How. Pr. 
 293. 
 
 3. 
 
 20. In general. It is not the duty of a 
 party to a civil action to call every person as a 
 witness who may give material evidence in his 
 favor, and the mere omission on his part to call 
 a witness who has no other or better knowledge 
 of the matter in dispute than those who are pro- 
 duced and give evidence, is not necessarily so 
 suspicious as to authorize an inference that the 
 testimony of the witness, if he had been pro- 
 duced, would have been adverse to the party. — 
 Gl. of Amp., April, 1877. Bleeoker v. Johnston, 
 69 N. Y. 309. 
 
 21. Where a woman is indicted as a feme sole, 
 and pleads to the indictment, this is prima faeie 
 evidence that she is unmarried. Gt. of App., 
 May, 1870. Sailer v. People, 77 N. Y. 411. 
 
 22. The presumption of innocence applies to 
 the acts of corporations the same as to those of 
 natural persons.—Superior Ct., March, 1878. 
 Cheever». Gilbert Elevated Ky. Co., 43 Superior 
 478. 
 
 23. Presumption that public officers 
 have performed their official duties. 
 When a public officer performs a specific act in 
 pursuance of a statute, it will be presumed that 
 he did it for the purposes of the act, and in 
 pleading it is sufficient to aver the performance 
 of the act.— Sitpreme Ct., {1st Dept.,) Feb., 1878. 
 Hauenstein v. KuU, 59 How. Pr. 24. 
 
 24. Where a sheriff requires a bond of in- 
 demnity from the plaintiff in execution, it will 
 be presumed, in the absence of clear evidence to 
 the contrary, that the bond is intended to relate 
 only to property already levied upon, and not to 
 property thereafter to be levied upon ; espe- 
 cially where plaintiff has not directed such future 
 levy or approved thereof. — Supreme Gt., (Ist 
 Dept.,) Sept., 1879. Clark u. Woodruff, 18 Hun 419. 
 
 25. The presumption that public officers 
 have performed their official duties does not 
 apply to municipal legislative bodies. — Buffalo 
 Superior Ct., ( Oen. T.,) April, 1879. Granger v. 
 City of Buf&Io, 6 Abb. N. Cas. 239. 
 
 26. Mailing a notice of dissolution of a co- 
 partnership, properly directed, raises a pre- 
 sumption that the notice was received by the 
 one to whom it was directed. — Gt. of App., Mam, 
 
 1877. Austin v. Holland, 69 N. Y. 571. 
 
 27. — that agent's act was author- 
 ized. When a train is in motion, and a man 
 appears with a conductor's cap and badge, and 
 acte as such, and is so recognized, it must be pre- 
 sumed that he is in the railroad company's em- 
 ployment as a conductor. — Superior Ct., April, 
 
 1878. Hoffman v. New York Central, &g., E. 
 E. Co., 44 Superior 1. 
 
 28. Presumptions in favor of regu- 
 larity in legal proceedings. It is to be 
 presumed in favor of the validity of proceedings 
 appointing a special administrator, that he took 
 the oath required by law. — Gt. of App., April, 
 1877. Dayton v. Johnson, 69 N. Y. 419. 
 
 29. Letters patent will be presumed to have 
 been regularly issued. — Supreme Gt., {3d Dept.,) 
 Jan., 1878. People v. Stephens, 13 Hun 17. 
 
 30. The rule applicable to sales by execu- 
 tors, guardians and other officers, that the lapse 
 of thirty yeais' time raises a conclusive presump- 
 tion that all legal formalities of the sale were 
 observed, does not apply to sales made in dero- 
 gation of the common law, the proceedings for 
 which are required to be evidenced by records 
 and public documents which are supposed to 
 remain in the custody of the officers charged 
 with their preservation ; these must be proved, 
 or their loss accounted for, and supplied by 
 secondary evidence. If they cannot be found, 
 or their loss accounted for, the presumption is, 
 in the absence of evidence, that they never ex- 
 isted.— C*. of App., March, 1877. Hilton v. Ben- 
 der, 69 N. Y. 75. 
 
 31. — in favor of lawfulness of cor- 
 porate acts. Where the seal of a corpora- 
 tion is affixed to an instrument it proves itself, 
 and it will be presumed that it was affixed by 
 due authority. — Supreme Ct., {4th Dept.,) Oct., 
 
 1879. Canandarqua Academy v. McKechnie, 19 
 Hun 62. 
 
 32. The officer before whom such an instru- 
 ment is acknowledged, need take no evidence 
 that the corporate seal was affixed by due au- 
 thority, or as to the title of the officer who exe- 
 cuted the instrument. lb. 
 
 33. Presumptions as to laws of other 
 states and countries, in the absence of 
 proof to the contrary, it will be presumed that 
 the law of another state in regard to a subject 
 matter before the court, is the same as the law 
 in this state. — Superior Ct., Jan., 1878. Paine 
 V. Noelke, 43 Superior 176. 
 
 Therefore, in the absence of proof, the pre- 
 sumption is that the common law rule as to 
 chai'ging the drawer of a bill of exchange pre- 
 vailing here, also prevails in Pennsylvania. — Gt. 
 of App., May, 1879. First Nat. Bank of Mead- 
 ville V. Fourth Nat. Bank of New York, 77 N. 
 Y. 320 ; reeeraing 16 Hun 332. 
 
 34. In the absence of any evidence on the 
 subject, the court will not presume that a vessel 
 plying across the English Channel, on which an 
 American citizen Was married, belonged to a 
 nationality which would subject the contract to 
 a law different from our own. — Com,. Pleas, Nov., 
 1879. Hynes v. McDermott, 7 Abb. N. Cas. 
 98, 99. 
 
 35. Presumptions respecting title to 
 or ownership of land. A conveyance by a 
 
152 
 
 EVIDENCE, I. 
 
 fictitious person will raise no presumption of 
 possession thereunder in the grantee. — Oiiy Ct. 
 of Brooklyn, Oct., 1879. David v. Williams- 
 bnrgh Gtj Fire Ins. Co., 7 Abb. N. Cas. 47. 
 
 36. When the custody and possession of 
 property is shown to be equally consistent with 
 an outstanding title in a third person as Vith a 
 title in the one having possession, no presump- 
 tion of ownership arises simply from such pos- 
 session. — Ol. of App., Oct., 1877. Eawley v. 
 Brown, 71 N. Y. 8^. 
 
 37. Where A cultivates the farm of B with 
 the farming implements, teams and domestic 
 animals of the latter, no presumption arises as 
 to the character of the occupation, or as lo the 
 right of either to the growing Crops and farm 
 produce ; but in an action where the question is 
 at issue, it is a question of fact to be determined 
 by the jury upon the evidence. lb. 
 
 38. In an action to recover possession of cer- 
 tain property, the products of a farm, of which 
 plaintiff was conceded to be the owner, defend- 
 ant claimed title by virtue of a sale under an 
 execution against plaintiff's son, who cultivated 
 the farm, using the farming implements, teams 
 and live stock belonging to his father. Plain- 
 tiff introduced in evidence a written instrument, 
 ■executed by himself and son, by which the lat- 
 ter agreed to work the farm, the products to be- 
 longto plaintiff until he had realized $600 there- 
 from, and untU full performance of the agree- 
 ment on the part of the son, the balance then to 
 belong to the latter " as his pay in full for work- 
 ing said farm." It was claimed by defendant 
 that the instrument wa« not executed at its date, 
 but was " an instrument made as a device or 
 fraud." The court charged that the son, being 
 in possession and working the farm, must be 
 presumed to be the owner of the products, unless 
 it was shown that some lease was in existence ; 
 " that the fact that it was the plaintiff's farm 
 would not make the products his, unless there 
 was something tending to establish the fact that 
 this lease is intended to establish " JSdd, error. 
 lb. 
 
 39. — personal property. Where it ap- 
 pears that a vessel is owned by the master in 
 command, and that the cargo is owned by 
 another, the legal presumption is that the 
 former is a common carrier for hire, responsible 
 for the carriage and delivery of the cargo to the 
 consignee. — ft. of App., May, 1877. Arctic Fire 
 Ins. Co. V. Austin, 69 N. Y. 470, 474. 
 
 40. Presumptions relative to intent. 
 The presumption that a party intends the ordi- 
 nary and probable consequences of his acts, is 
 not conclusive, but may be rebutted by compe- 
 tent evidence. — Ct. of App., March, 1877. Fil- 
 kins V. People, 69 N. Y. 101, 106. 
 
 41. — relative to death and survivor- 
 ship. Where two or more persons perish by a 
 common disaster, there is no presumption in 
 respect to survivorship : one who claims through 
 a survivorship, in such a case, must prove it. in 
 the absence of evidence the fact is assumed to 
 be unasc^tainable, and the property rights are 
 disposed of as if death occurred at the same 
 time, not because of a presumption of simulta- 
 neous death, but because there is no evidence or 
 presumption to the contrary. — Ct. of App., Nov., 
 1878. Newell v. ifichols, 75 N. Y. 78; affi,tnr 
 ing 12 Hun 604. 
 
 42. There is no presumption that a male sur- 
 vived longer than a female, where both perished 
 
 in a common disaster. So held in the case of a 
 mother and her infant son. — N. T. Surr. Ct., June, 
 
 1877. Stinde ». Goodrich, 3 Bedf. 87. 
 
 4, Best amd eeamdary evidence. 
 
 43. Rule requiring best evidence. 
 The best evidence of the fact that an order of 
 arrest has issued in an action is the order itself, 
 and secondary evidence to establish that fact 
 will not be allowed, unless it is sufficiently shown 
 that the original order is lost or destroyed. — 
 Com. Pleas, FA., 1878. Josuez*. Conner, 7 Daly 
 448. 
 
 What is sufficient proof of such loss or destruc- 
 tion, see lb. 
 
 43 a. Under 2 Bev. Stat. 270, ? 248, pro- 
 viding that the proceedings in any action before 
 a justice of the peace may be proved by his oath, 
 a judgment in an action before a justice can only 
 be proved by his docket properly verified. His ' 
 parol testimony as to the proceedings had is in- 
 sufficient. — Supreme Ct., (3d Dept.,) Nov., 187^. 
 Dorr V. City of Troy, 19 Hun 223. 
 
 43 b. Where articles of association of a cor- 
 poration exist, in writing, those articles are the 
 best evidence of the existence of the corpora- 
 tion, and parol evidence is not admissible to 
 prove that fact. — Supreme Ct., (3d Dept.,) May, 
 
 1878. Saltsman v. Shults, 14 Hun 256. 
 
 44. "When secondary evidence is ad- 
 missible. Where, in an action to recover a 
 balance of account for advances made by plain- 
 tiffs by means of acceptances and payments 
 through their bankers of drafts drawn upon them 
 by defendant, it appeared that plaintiffs, upon 
 receiving from the bank the canceled drafts, in 
 accordance with their usual custom and without 
 fraudulent intent, and before any question or 
 variance had arisen between them and defend- 
 ants, voluntarily destroyed them, with other 
 vouchers received at the same time. — Meld, that 
 this did not deprive plainlifife of the right of 
 proving acceptance and payment of the drafts 
 without producing them. — Ct. of App., Sept., 
 1877. Steele v. Lord, 70 N. Y. 280. 
 
 The drafts were useful only as vouchers, and 
 their destruction without fraudulent intent did 
 not absolve the debtor fi:om his obligation to re- 
 pay, or preclude other proof of the advances. 
 lb. 
 
 5. Hearsay evidence. 
 
 45. What is hearsay evidence. 
 
 Statements of the conductor in regard to the 
 occurrence, (an injury to a passenger on a horse- 
 car,) not made at the time of the act so as to con- 
 stitute a part of the res gestae, and being redtals 
 of what the driver told him at the time of the 
 event, are in the nature of hearsay evidence and 
 inadmissible. — Superior Ct., April, 1878. Hen- 
 dricks V. Sixth Ave. R. R. Co., 44 Superiors. 
 
 46. Admissibility to prove mar- 
 riagS. Hearsay and traditional evidence is 
 competent to prove a marriage when it is the 
 best the nature of the case will admit of. It is 
 not conclusive, but may establish, prima faeie, 
 sufficient for the administration or devolution of 
 property, that there was either a forqial mar- 
 riage, which cannot otherwise be proved, or that 
 the parties agreed per verba de presenti toa mar- 
 riage which was followed by cohabitation. — &. 
 of App., Dec., 1877. Chamberlain v. Chamber- 
 lain. 71 N. Y. 423, 427. 
 
EVIDENCE, I. 
 
 163 
 
 6. Resgesbs. 
 
 47. "What is admissible as part of 
 "the res gestae. Where the question is to 
 which of two parties living in the same house, 
 the plaintiff (a butcher) should charge meat 
 furnished to the house, a letter from one of the 
 parties to the plaintiff concerning payment for 
 the meat is admissible, U seems, as a part of the 
 res gestcB. — Com. Pleas, April, 1878. Crook v. 
 Harper, 8 Daly 53. 
 
 48. Declarations of the mortgagor of chat- 
 tels while in possession, are admissible upon the 
 -question of intent, as a part of the res gestce. — Su- 
 preme Ct., {ith Bept.,) Jan., 1879. City Bank of 
 Rochester v. Westbury, 16 Him 458. 
 
 49. The Q. M. Life Insurance Company 
 loaned certain moneys, for which it received the 
 individual notes of T., defendant's cashier; the 
 ■checks for the amounts loaned were made paya- 
 ble to. the order of T., and the entries of the 
 loans in the books of said company were as 
 made to T. 
 
 BeU, 1. That these were not conclusive that 
 the loan was made to T. individually ; but that 
 it was proper to show by oral evidence that the 
 loan was made to defendant. 
 
 2. That evidence of conversations had between 
 the officers of the company and T., and defend- 
 ant's president, both during the transactions re- 
 lating to the loans, and thereafter, in regard 
 thereto, and in reference to collaterals given to 
 the company therefor, was competent. 
 
 3. That for the purpose of rebutting any pre- 
 sumption arising from the form of the entries in 
 the books of the company, it was competent to 
 show similar entries in said books of a former 
 loan made to defendant. — d. of App., May, 1879. 
 Pierson v. Atlantic Nat. Bank, 77 JSl. Y. 304. 
 
 50. When declarations and representations 
 of an agent are competent as part of the res 
 gestce, see Merchants' Bank of Canada v. Gris- 
 wold, 72 KY. 472,480. 
 
 51. What is inadmissible. Declarations 
 made by a party to an action at the time of 
 doing an act between him and a third person, in 
 the suDsence of tlie other party to the action, are 
 not admissible in favor of the _party doing the 
 act, when the doing of the act was proved in his 
 behsdt— Superior Ot., Nov., 1877 . Algieti. Wood, 
 43 Superior 46. 
 
 52. In an action to recover the price of land 
 sold to defendant by plaintiff's assignor, testi- 
 mony by the person who prepared the deed that 
 the grantor, at the time of executing the deed 
 (the grantee not being present) stated to the 
 witness that the purchase price had not been 
 paid, but that the grantee had promised to pay 
 it whenever he should be requested so to do, 
 does not constitute a part of the res gestce, and 
 
 ' should be excluded. — Supreme Ct., (4(A JDept.,) 
 Jan., 1878. Trimmer v. Trimmer, 13 Hun 182. 
 
 7. Burden of proof. 
 
 53. The general rule that one who 
 has the afflrmative must prove it. 
 Where the validity of a contract made by a 
 married woman is in question, the burden of 
 establishing its validity rests upon the party 
 who asserts it. — Superior Ct., Maireh, 1878. Cash- 
 man V. Henry, 55, How. Pr. 234. 
 
 54. One who contests the validity of a mar- 
 riage contracted in a foreign country, must show 
 
 what the law as to marriage in that country was 
 at the time the marriage in question was con- 
 tracted.— Cfem. PUax., [Gen. T.,) Jfov., 1879. 
 Hynes v. McDermott, i Abb. N. Cas. 98. 
 
 55. The burden of showing that the trans- 
 feree had notice of the infirmity in a check, is 
 upon the party seeking to impeach his title. — 
 Ct. of App., Bee., 1877. Cowmg v. Altman, 71 
 N. Y. 435. 
 
 56. The rule that when the right of action 
 or defence is founded on a negative allegation, the 
 party alleging the negative must establish it, 
 applied. — Superior Ct., Nov., 1877. Algie v. 
 Wood, 43 Superior 46. 
 
 57. Applications of the rule in ac- 
 tions for negligence. In cases where con- 
 tributory negligence may be claimed,^ the 
 absence thereof is part of the plaintiff's case, 
 and the burden of satisfying the jury on that 
 point is upon the plaintiff. — Ct. of App., Nov., 
 1879. Hale v. Smith, 78 N. Y. 480. 
 
 58. In an action to recover damages for in- 
 juries to plaintiff's horse, let by him to defend- 
 ant, alleged to have been occasioned by the neg- 
 ligence of the latter, defendant claimed that 
 the horse was vicious, and evidence was given 
 on the trial, on both sides, on that question. The 
 court charged sustantially that if the damage was 
 occasioned by a defect in the horse or harness, 
 and would not have occurred if those defects had 
 not existed, defendant was not responsible ; also, 
 that if the defendant or his servants were to 
 some extent guilty of negligence, yet if the de- 
 fect or default in the property did exist, and but 
 for it the damage would not have resulted, plain- 
 tiff could not recover. Subsequently the court 
 charged that it was incumbent upon the plain- 
 tiff to show by a preponderance of evidence that 
 the horse was not vicious ; this was excepted to. 
 Held, no error ; that the burden of proof upon 
 the whole case was upon the plaintiff, and it 
 was incumbent upon him to satisfy the jury by 
 a preponderance of evidence that the injury was 
 occasioned by defendant's negligence alone, and 
 that he himself was free from fault contributing 
 to it ; that the character of the horse having been 
 assailed by evidence, the burden rested upon 
 plaintiff to sustain it, or to show that it had not 
 contributed to the injuries. lb. 
 
 59. — in ■will cases. In a will case, the 
 burden of proving survivorship is upon the 
 party claiming by reason of such survivorship. 
 —Supreme C*., (Sp. T.,) April, 1878. Stinde v. 
 Ridgway, 55 How. Pr. 301. 
 
 60. tjpon contesting a devise to a charitable 
 corporation, the burden is on the contestant to 
 show that the devise is within a statute restrict- 
 ing the corporation from taking. — N. Y. Sun: 
 Ct., Jam., 1878. Lawrence v. Elliott, 3 Redf. 
 235. 
 
 61. Various applications of the rule. 
 Where the defence of usury is interposed, the 
 affirmative of the issue is upon the defendant, 
 and where the case is tried by a referee, and the 
 transaction is equivocal, defendant must give 
 evidence of facts showing the alleged illegal in- 
 tent, and have the fact found by the referee. It 
 cannot be adjudged in the first instance by this 
 court on appeal. — Ct. of App., April, 1877. 
 Haughwout V. Garrison, 69 N. Y. 339. 
 
 62. Where in an action to restrain interference 
 with an easement, defendant claims that plain- 
 tiff, by erections on his own lands, has destroyed 
 the easement in whole or in part, or that the 
 
154 
 
 EVIDENCE, I., II. 
 
 proposed interference is harmless, the burden is 
 upon him to establish it.— Ci!. ofApp.,Jan., 1878. 
 I^ttimer v. Livermore, 72 N. Y. 174. 
 
 63. In an action between a life insurance 
 company and an agent, who is entitled to com- 
 missions paid on outstanding policies obtained 
 hy him, the presumption is that a policy has not 
 lapsed, and the burden is upon the company to 
 prove the lapse ; also, the presumption is that 
 premiums have been paid. — Ol. of App., June, 
 
 1879. Hercules Mut. Life Assur. Soc. v. Brinker, 
 77N. Y. 435. 
 
 64. In an action against a religious society 
 on a covenant in its deed, the burden of showing 
 irregularity in the sale, viz., that an order was 
 not made authorizing it, rests on the defendant. 
 — Supreme Ot., (2d Dept.,) Dec., 1879. Kappel 
 V. Chaari Zedek Congregation, 19 Hun 364. 
 
 65. Where two persons have an accounting 
 together, and a balance is stiuck, but the debtor 
 refuses to pay unless the creditor will give him 
 a release embracing other matters of dispute, in 
 an action for the balance as struck, the burden 
 is on the debtor to show error or mistake in ar- 
 riving at such balance.— Com. Pleas., April, 1878. 
 White V. Whiting, 8 Daly 23. 
 
 66. Instances. In an action to recover 
 the consideration for an assignment of certain 
 letters-patent, plaintiff alleged that the consid- 
 eration was agreed to be paid in one year, while 
 defendant's evidence was to the effect that the 
 consideration was to be paid conditionally, not 
 absolutely. Held, that a decision of the referee 
 to the effect that the burden of proof was upon 
 the plaintiff to show that the agreement was not 
 conditional, but absolute, was correct. — Ct. of App., 
 June, 1877. Hebbard v. Haughian, 70 N. Y. 54, 60. 
 
 6*7. Plaintiff having alleged in her complaint 
 and given evidence tending to prove a sale upon 
 a cr^it of one year — Held, that she could claim 
 no benefit of any presumption of a promise to 
 pay at once which might arise upon mere pro- 
 duction of the deed of transfer, and proof that 
 the consideration named had not been paid. lb. 
 
 68. In an action to recover certain bonds in 
 the possession of the defendant, claimed to have 
 belonged to plaintiff's intestate at the time of 
 his death, defendant's answer admitted plain- 
 tiff's appointment as administrator and that the 
 intestate owned tlie bonds in his lifetime, but set 
 up that prior to his decease they became de- 
 fendant's property by a donatio mortis causa, and 
 that she then took and thereafter continnously 
 kept possession of the bonds. Held, that the bur- 
 den of establishing the alleged gift rested upon 
 defendant. — Supreme Ot., {1st Dept.,) March, 
 
 1880. Conklin v. Conklin, 20 Hun 278. 
 
 69. Shifting the burden of proof. 
 When the burden of proof is upon the claimant 
 for compensation for land taken for a highway, to 
 show that it had not been dedicated, see Matter 
 of City of Brooklyn, 73 N. Y. 1.79. 
 
 70. Where an interpretation has been given 
 to a statute by the Court of Appeals, in aid of 
 which certain facts, admitted or proved in the 
 action, were considered, it is not necessary for 
 a party in another action, relying upon the in- 
 tei pretg.tion so given, to prove the same facts; 
 hut it is incumbent upon the opposite party to 
 show that those facts did not exist, assuming 
 that they were decisive in the determination, 
 before he can call upon the court to reverse its 
 decision. — Gt. of App., May, 1878. Wood v. 
 Mayor, &c., of New York, 73 N. Y. 556. 
 
 71. In an action against a warehouseman for 
 refusal to deliver goods entrusted to him, where- 
 the refusal is explained by the fact appearing, 
 that the goods were lost by a burglary, the bur- 
 den is upon the plaintiff to establish affirma- 
 tively that the burglary was occasioned by, or 
 was not prevented by reason of some negligence- 
 or omission of due care on the part of defend- 
 ant I the court will not assume, in the absence 
 of proof, that the loss was the result of his neg- 
 ligence. — Ct. of App., Nov., 1878. Claflin v^ 
 Meyer, 75 N. Y. 260; reversing 43 Superior 1. 
 
 72. In an action against one who" assumed to 
 contract as agent for a third person, for breach 
 of the implied warranty of .luthority, after it is 
 shown that defendant assumed so to contract, the' 
 burden of proof is not Ijhereby cast on the de- 
 fendant to show that he had actually authority 
 to so act, but the burden is on the plaintiff to- 
 show that he did not have such authority .^Cbm_ 
 Pleas, June, 1877. Noe v. Gregory, 7 Daly, 283. 
 
 73. Ho-w the rule is applied in crim- 
 inal cases. When the accused is proven tO' 
 have done the act charged in the indictment, 
 the burden is upon him to satisfy the jliry that 
 he did it honestly and without any criminal in- 
 tent.— /SMpreme Ct., ( 1st Dept., ) May, 1880. Cow- 
 ley V. People, 8 Abb. N. Cas. 1. 
 
 74. The burden of proving that the offence- 
 charged was committed by a person responsible- 
 for his acts is upon the prosecution. The law,, 
 however, presumes that every individual is sane. 
 Upon this presumption the prosecution may 
 rest without proof, and in case the defence of in- 
 sanity is interposed, it is for the prisoner to es- 
 tablish it. If evidence is given tending to estab- 
 lish insanity, the general question is presented 
 to the court and jury whether the crime, if com- 
 mitted, was committed by a person responsible 
 for his acts, the prosecutor holding the affirma- 
 tive ; and if a reasonable doubt remains as to the- 
 sanity of the prisoner he is entitled to the benefit 
 of it.— Ci. of App., Nov., 1878. Brotherton ». 
 People, 75 N. Y. 159. 
 
 II. Parol Evidence to Affect Written 
 Instruments. 
 
 1. Scope and extent of the rule, generaUy. 
 
 75. The general rule excluding parot 
 evidence. A written contract must be con- 
 sidered as the repository and evidence of the 
 final intentions and understandings of the 
 parties thereto ; and where there is no uncer- 
 tainty as to its object or extent, or as to its 
 meaning, it is to be conclusively presumed that 
 the whole contract of the parties, and its object, 
 purpose and meaning, are contained within the 
 writing ; and all oral testimony of conversations- 
 or declarations of the parties, previous to or at 
 the time when the contract was completed,, 
 should be rejected, as also conversations or dec- 
 larations of the parties afterwards, in regard to 
 the contract or tlie subject matter thereof. — Su- 
 perior Ct., June, 1877. Highlands Chemical, Ac.,, 
 Co. V. Matthews, 43 Superior, 39. Dec., 1879. 
 Munsell v. Flood, 45 Id. 460. 
 
 76. Exceptions to the rule, gener- 
 ally. When the time of the execution of a 
 written instrument becomes material,^! may be 
 proved by parol, even in opposition to the date, 
 when it contains one Such proof does not in- 
 fringe upon the rule excluding parol evidence- 
 
EVIDENCE, 11. 
 
 155- 
 
 to alter, add to or contradict a written instru- 
 ment. The date, when expressed, is not con- 
 sidered a part of the instrument so as to exclude 
 proof of the actual time of execution. — Gt. of 
 Am., April, 1878. Kincaid v. Archibald, 73 N. 
 Y.189. 
 
 77. The rule that where an agreement is re- 
 duced to writing it cannot be controverted or 
 varied by parol evidence, applies only to the 
 parties to the agreement. One not connected in 
 any way with the agreement may show by parol 
 what the real transaction was. — Ct. of App., 
 May, 1879. Brown v. J'hurber, 77 N. Y. 613 ; 
 S. 0., 58 How. Pr. 95. _ 
 
 78. The rule prohibiting the reception of 
 parol evidence, varying or modifying a written 
 agreement, does not apply where the original 
 contract was verbal and entire, and a part only 
 was reduced to writing ; nor does it apply to a 
 collateral undertaking. These facts are always 
 open to inquiry, and may be proved by parol. — 
 Gt. of App., Sept., 1879. Chapin k. Dobson, 78 
 N. Y. 74. 
 
 79. — in cases of mistake. Where the 
 mortgagee accepted the mortgagor's notes, giv- 
 ing him a receipt stating that he received the 
 notes in full for principal and interest on the 
 mortgages, and agreeing to assign the same to 
 such persons as the mortgagor should designate 
 — Sdd, in foreclosure, that evidence was compe- 
 tent showing that there was a mistake ; that this 
 was not the agreement of the parties, and that 
 the instrument was executed and accepted in 
 entire misapprehension as to its nature and 
 effect. — Ot. of App., April, 1878. Meyer v. 
 Lathrop, 73 N. Y. 815. 
 
 80. — -where the object is to identify 
 the subject matter, or sho-w intent of 
 the parties. In the construction of any writ- 
 ten instrument, it is competent to prove, by ex- 
 trinsic evidence, the facts surrounding the par- 
 ties, so that the court may see what they saw 
 and know what they knew, not to vary or alter 
 the writing, but to give it effect and carry it out 
 according to its intent ; and when it is apparent 
 upon the face of the instrument that some- 
 thing was contemplated and agreed upon by 
 the parties, which they have not distinctly 
 defined or expressed with sufficient clearness, 
 parol proof connecting the instrument with the 
 subject matter is allowable. — Ot. of App., April, 
 1877. Greenpoint Sugar Co. v. Whitin, 69 N. 
 Y. 328, 336. 
 
 81. A party may show any facts and circum- 
 stances surrounding the making of a contract 
 which would enable the jury to determine the 
 subject mattei- to which the contract was in fact 
 applicable. — Supreme Gl., (\st Dept.,) March, 
 1877. Bickett v. Taylor, 55 How. Pr. 126. 
 
 82. Showing distinct oral agree- 
 ment. A distinct oral agreement collateral to, 
 and not inconsistent with, a written contract, 
 may be enforced. — Supreme Ot., {1st Dept.,) Sept., 
 1879. Jones v. Jones, 18 Hun 438, 442. 
 
 2. How applied to particular instruments, 
 
 83. Bills of lading. Evidence of prior 
 parol negotiations is not competent to vary a 
 bill of lading.— Ci. of App., Jan., 1878. G-er- 
 mania Fire Ins. Co. v. Memphis, &c., R. K. Co., 
 72 N. Y. 90. 
 
 84. Bills of sale. A bill of sale "of 
 twenty-three casks of wine" imports a sale of 
 
 the ca-sks as well as the wine, and parol evi- 
 dence is inadmissible to show that it was- 
 agreed at the time of the sale that the buyer 
 should return the casks. — Supreme Ct., (ith 
 Dept.,) June, 1878. Caulkins v. Hellman, 14 
 Hun 330. 
 
 85. Memorandum of sale. Bought 
 and sold notes. Where, in a memorandum, 
 of sale, it was stated that the sale was made on 
 tlie "usual terms" — HM, that oral evidence^ 
 was competent to show what the " usual terms "' 
 were. — Gt. of App., April, 1878. Lawrence v^ 
 Gallagher, 73 N. Y. 615. 
 
 86. It is a general rule that when a contract 
 of sale has been effected and concluded by par- 
 ties through the agency of a broker, that the- 
 broker's memorandum of sale, and the bought 
 and sold notes, constitute the evidence of the- 
 contract, and no parol evidence is admissible to- 
 vary the same. But when (as in this case) it is 
 a contested question of fact whether or not the- 
 sale was effected -and concluded tlirough th&^ 
 agency of a broker, that question should be sub- 
 mitted to the jury. — Superior Ct., Jan., 1879.- 
 Marcus v. Thornton, 44 Superior 411. 
 
 87. Contracts. A warranty does not ex- 
 tend to known defects ; and in an action to re- 
 cover for an alleged breach, parol evidence is- . 
 competent to show that at the time of entering 
 into the contract plaintiff had knowledge or no- 
 tice of the real facts. — CM. of App., March, 1879„ 
 Bennett v. Buchan, 76 N. Y. 386. 
 
 88. This action was brought for an alleged 
 breach of an agreement in writing, by which- 
 plaintiffs agreed to furnish, and defendant to- 
 purchase, certain machines, upon terms and at 
 times specified. Defendant alleged, and was- 
 permitted to prove, under objection, a parol; 
 agreement made at the same time, and in con- 
 sideration of which he executed the writing, by 
 which plaintiffs guaranteed " that the machines- 
 should be so made that they would do the de- 
 fendant's work satisfactorily ; " if not, that 
 plaintiffs would take them back. Evidence was- 
 also given showing a breach of such guaranty. 
 The referee found that the matters in .writing- 
 and the oral guaranty constituted the contract 
 between the parties. Held, that the evidence- 
 was properly received, as there was nothing on 
 the face of the instrument to show that it was- 
 the whole agreement between the parties, and 
 as the oral guaranty did not controvert, and was- 
 not inconsistent with the written contract ; also, 
 tliat it was within the province of the referee to- 
 make such finding. — Ct. of App., Sipt., 1879. 
 Chapin v. Dobson, 78 N. Y. 74. 
 
 89. Deeds. Where a deed, absolute on its- 
 face, is claimed to have -been intended simply 
 as a mortgage, proof of an express promise U> 
 pay on the part of the alleged mortgagor is not 
 absolutely essential to sustain the claim ; th&- 
 absenee of such a promise tends strongly to dis- 
 prove it, but is not conclusive against it. — Gt. 
 of App., Nov., 1879. Morris v. Budlong, 78 N. 
 Y. 543. 
 
 89 a. When parol evidence is admissible to- 
 show that a deed from a husband to his wife was 
 given in pursuance of a parol agreement on the- 
 part of the wife to hold the land in trnst for a 
 daughter of the parties, see Mason v. Libbey,. 
 19 Hun 119. 
 
 90. Leases. Where a lease is in writings 
 the rights and duties of the parlies depend upon 
 the terms or legal intendment of the lease itself^ 
 
156 
 
 EVIDENCE, II., m. 
 
 38 it is conclusively presumed that the whole 
 ■engagement b embraced therein. The rule is 
 the same in equity as at common law ; and, in 
 :the absence of proof of fraud or mistake, the 
 -contract cannot be controlled by evidence that 
 it was executed on the &ith of a cotempora- 
 neous or preceding oral stipulation not em- 
 J3raced in it; nor can it be set aside on the 
 ^roimd that such oral stipulation has not been 
 performed. — Ct. of App., Nov., 1878. Wilson v. 
 Been, 74 N. Y. 531. 
 
 91. A written lease contauied no stipulation 
 -as to fixtures, but provided that the tenant should 
 make all the necessary " improvements and re- 
 pairs" during the term. It appeared that the 
 landlord, for a consideration independent of the 
 lease, promised that certain fiztnres then on the 
 premises should remain. These fixtures were 
 removed by the outgoing tenant ; the landlord 
 promised to replace them, but did not, and the 
 tenant replaced them, the landlord agreeing to 
 make it right. In an action by the tenant to 
 
 -recover the sum expended — Hdd, that plaintifi" 
 was not prednded by the lease from proving 
 the parol agreement ; that it might be sustained 
 -as a previous distinct collateral agreement, upon 
 -an independent consideration, which was not 
 merged in the lease. — Ci. of App., &pi., 1878. 
 Lewis p. Seabury, 74 N. Y. 409. 
 
 92. In an action for rent under a lease eze- 
 -cuted by two persons, parol evidence — Held 
 admissible, in the particular case, to show that 
 one of such two persons signed the lease only as 
 surety for the other, and that plaiutiff had no- 
 tice of this fact. — Supreme Ot., [ith DepL,) Jan., 
 1880. Knowles v. Cnddeback, 19 Hun 590. 
 
 93. Mortgages of land. Parol evidence 
 is admissible to show that a mortgage was given 
 to secure advances to be made by a party not 
 .named therein. — Supreme Ct., {4th Dept.,) April, 
 
 1878. Hall V. Grouse, 13 Hun 557. 
 
 94. When a bond and mortgage may be 
 varied by showing a subsequent agreement, which 
 may be considered as being incorporated int» 
 the bond and mortgage, see Clapp v. Hawley, 
 69 N. Y. 625. 
 
 95. — of chattels. Evidence of the in- 
 tention of the parties as to valuable considera- 
 tion for the execution of a chattel mortgage, 
 may be given dehors the instrument itsef^ for 
 the purpose of rebutting tlie statutory presump- 
 Ttion of fraud, &c., where the possession of the 
 
 property remains in the mortgagor. — Superior Ct., 
 J'eb., 1878. Wray ». Fedderke, 43 Superior 
 -335. 
 
 96. When a chattel mortgage appears on its 
 face to have been given to secure a second in- 
 dorser of a note, it may be shown by parol that 
 it was intended as a security for all the indorsers. 
 — Supreme Ct., {4th Sept,) April, 1879. Bain- 
 Iridge v. Richmond, 17 Hun 391 ; affirmed, 78 
 N. Y. 618. 
 
 97. Receipts. A receipt purporting to be 
 in full, and to be an absolute bar to all claims 
 and demands, is subject to explanation, and 
 does not conclude the party making the same, 
 from proof of facts and circumstances showing 
 ^that it was not in fiiU, and that there were exist- 
 ing claims and demands unpaid, although not 
 ■due at the time the receipt was given. — Superior 
 
 a, Jan., 1878. ChurchiU v. Bradley, 43 Su- 
 perior 170. 
 
 98. One who pays money on a o(mtract of 
 -.sale, and takes a receipt therefor, is not con- 
 
 cluded as to the amount remaining dne, 1>y a 
 statement in the receipt that a certain sum is 
 due. — Supreme Ct., (3d Dept.,) Sept., 1879. Jones 
 v. Ennis, 18 Hun 452. 
 
 99. Where a sheriff levies on property be- 
 longing to a third person, who, to prevent a sale, 
 gives a receipt to the sheriff for the proper^, 
 upon his assurance that his rights will not be 
 prejudiced by so doing, such receipt may be 
 explained by parol evidence of such assurances, 
 in an action against the sheriff for such wrong- 
 ful levy.— %>re7n« Ct., {4th Dept.,) April, 1879. 
 Clark V. Weaver, 17 Hun 481. 
 
 100. An instrument executed by plaintiff in 
 this form, " Received of D. M. Peyser five hun- 
 dred dollars due on demand," was set up as a 
 counter-claim. Held, that it was open to expla- 
 nation, as to its consideration, and the circum- 
 stances under which it was given ; and that, , 
 evidence having been given, without objection, 
 tending to show that it was given upon payment 
 by Peyser to plaintiff of the sum specified, 
 which was then dne from the former to the 
 latter, and was intended simply as a receipt a 
 submission of the question to the jiuy, and a 
 finding to that effect were justified. — Ct. of 
 App., Jan , 1879. De Lavalette v. Wendt, 75 
 N. Y. 579. 
 
 101. Ship's papers. It is the settled law of 
 this country that it may be shown that, by a parol 
 agreement or transfer, the title to a vessel is 
 actually in one while the ship's documents, upon 
 their face, show it to be in another. — (X of App., 
 June, 1878. Whiton v. Spring, 74 N. Y. 169. 
 
 102. P., one of the plainti& in fact, owned 
 one-eighth df a brig, sdthough the registry of 
 the vessel and the bill of sale to conform thereto 
 showed that he owned but one thirty-second part. 
 Hdd, that it was competent for P. to prove by 
 parol the facts as to the ownership ; and that it 
 was not error to allow him to recover for his 
 actual interest. lb. 
 
 103. "WiUs. The phrase "my daughter 
 Elizabeth^' as used in a will, may be shown by 
 parol to refer to an informally adopted daughter. 
 —N. T. Surr. a., April, 1877. Matter of Oahn, 
 3 Redf. 31. 
 
 m. Admissions, Decijlbations ajstb Coinxs- 
 
 SIONS. 
 1. In eiml actions. 
 
 104. Declarations of a bankrupt, 
 made before the bankruptcy, are admissible as 
 evidence against his assignee in bankrupty, to 
 establish or support, a claim against the estate 
 of the bankrupt— CS. of App., Feb., 1878. 
 Von Sachs v. Kretz, 72 N. Y. 548, 552. 
 
 105. — of corporate officers. In what 
 cases the admissions of officers of a bank, are 
 admissible in an action against the bank, see 
 Piersou v. Atlantic Nat Bank, 77 N. Y. 304. 
 
 106. — of husband or wife. In an action 
 upon a policy of insurance upon the life of a 
 husband for the benefit of the wife, the declara- 
 tions (letters) of the insured, made some time 
 prior to the application for die policy, are not 
 competent to prove the existence of facts show- 
 ing a breach of warranty — as that he had had a 
 disease denied in the amplication ; but where the 
 facts are otherwise proved, and it is necessary to 
 show that the insiued hsid knowledge thereof, 
 the declarations are competent for that purpose. 
 
EVIDENCE, III. 
 
 15T 
 
 —Ot. of App., April, 1877. Dilleber v. Home Life 
 Ins. Co., 69 N. Y. 256. Compare De Wolf v. 
 Williams, Id. 621 ; Stilwell •». Mut. Life Ins. Co., 
 72 N. Y. 385 ; McGinley v. United States Life 
 Ins. Co., 8 Daly 390. 
 
 107. — of partners. In an action against 
 the surviving partner, for money lent to the de- 
 ceased partner, the defence was that the money 
 was not borrowed or used for firm purposes. 
 Held, that declarations of the deceased partner 
 to third persons, made after borrowing the 
 money, to the effect that it was borrowed and 
 used for firm purposes, were admissible as against 
 the defendant. — Supreme Ct., (3d Dept.,) Sept., 
 1879. Klock V. Beekman, 18 Hun 502. 
 
 108. — of personal representatives. 
 Plaintiff, suing as administrator, testified as a 
 witness in his own behalf; certain declarations 
 of his, made before his appointment as admin- 
 istrator, were offered and received as evidence 
 on the part of defendant, for the purpose of im- 
 peachment. The court charged, in substance, 
 that these declarations could not be regarded as 
 evidence, upon the issues in the case, of the facts 
 stated. Held, no error. — Ct. of App., Nov., 1878. 
 Cooper V. Eastern Transportation Co., 75 N.Y. 
 116. 
 
 109. — of intestate or testator. In an 
 action by an administrator with the will an- 
 nexed, to recover property of the estate from 
 persons claiming it by virtue of an alleged gift 
 from the deceased, declarations of the deceased, 
 inconsistent with such claim, are not admissible 
 in favor of the plaintiff. — Supreme Ct., {4th 
 Dept.,) Oct., 1878. Graves v. King, 15 Hun 
 367. 
 
 110. As to the admissibility of declarations 
 of the testator, on the trial of an action brought 
 to have the probate of a will revoked, see La 
 Bau V. VanderbUt, 3 Kedf. 384. 
 
 111. — of principal or agent. When dec- 
 larations of an agent are admissible against the 
 principal, see Strause v. Josephthal, 77 N. Y. 622. 
 
 112. When the admissions of an agent are in- 
 admissible in an action against his principal, see 
 Hydorn v. Cushman, 16 "Hun 107. 
 
 113. — of trustee. When the declarations 
 of a defendant sought to be charged as trustee, 
 are competent to show the trust, see Chapman v. 
 Porter, 69 K Y. 276. 
 
 114. — of persons referred, to. Where 
 A. has referred B. to C. for information, in such 
 manner that A. would be bound by C.'s declara- 
 tions, he is not bound by declarations of C, made 
 prior to the reference. — Ct. of App., Feb., 1879. 
 Cohn V. Goldman, 76 N. Y. 284, See, also, 
 Lambert v. People, Id. 220. 
 
 115. Admissions and declarations 
 of former owner of land. Oral admis- 
 sions made by one who at the time held the 
 title to land, to the effect that he had contracted 
 by parol to sell the same to another, and had re- 
 ceived the pay therefor, are competent evidence 
 against all persons claiming title under or 
 through him. — Ot. of App., April, 1877. Chad- 
 wick V. Fonner, 69 N. Y. 404. 
 
 116. In an action by a grantee of mortgaged 
 premises to have the mortgage canceled as paid, 
 declarations of the mortgagor while the owner 
 and in possession, as to payments made by him 
 on the mortgage, are not competent as evidence 
 against plaintiff. — Ct. of App., Sept., 1879. Foote 
 V. Beecher, 78 N. Y. 155; S. C, 7 Abb. N. Cas. 
 358. 
 
 117. One through whom the plaintiff in such 
 action derived title, is incompetent, under Code- 
 of Pro., I 399, to testify as to declarations made- 
 by the mortgagor, he being at the time de- 
 ceased, lb. 
 
 118. Declarations of an owner of land as to- 
 his title, are admissible if made while he was- 
 in possession of the premises in dispute. That 
 they should have been made while he was ac- 
 tually upon the land is unnecessary. — Supreme- 
 Ct., {4th Dept.,) Jrnie, 1879. Swettenham v, 
 Leary, 18 Hun 284. 
 
 110. — of personal property. A vendee- 
 of chattels, or an assignee of a chose in action^ 
 must be a purchaser for value, in order to ex- 
 clude the declarations of a prior party in inter- 
 est from whom he derived title, made before- 
 such party parted with his interest. — Ct. of App.,. 
 Feb., 1878. Von Sachs o. Kretz, 72 N. Y. 
 548. 
 
 120. Declarations by a vendor of chattels, 
 after sale and delivery of possession, are not 
 competent evidence as against the purchaser, ini 
 an action wherein the sale is attacked as fraud- 
 ulent by the creditors of the vendor. — Ct. of App.,. 
 June, i878. Burnham v. Brennan, 74 N. Y^ 
 597. 
 
 121. Instances of admissions and de- 
 clarations -whicli liave been held inad- 
 missible. In an action to set aside a surren- 
 der of a policy of life insurance, alleged to have- 
 been induced by intimidation and threats, evi- 
 dence as to declarations of the deceased, in ref- 
 erence to the conversations with the agent of 
 the company, was drawn out by defendant's- 
 counsel on the cross-examination of one of 
 plaintiff's witnesses, for the purpose of testing the- 
 accuracy of an opinion given by the witness in 
 respect to the condition of the mind and body 
 of the insured at the time of the surrender. 
 Hdd, that the declarations were not available 
 as evidence to prove the facts stated. — Ct. of 
 App , Feb., 1878. Stilwell v. Mutual Life Ins. 
 Co., 72 N. Y. 385. 
 
 122. Upon the trial of an action against » 
 railroad company for negligently killing plain- 
 tiff's intestate, plaintiff offered to prove declara- 
 tions of the deceased, as to the manner in which 
 the injuries were received, made shortly before 
 his death, and about two hours after the acci- 
 dent. Held, not admissible either as part of the- 
 res gestee or as declarations made in extremis. — 
 Supreme Ct., {4th Dept.,) Oct., 1879. Waldele v. 
 New York Central, &c., E. K. Co., 19 Hu» 
 69. 
 
 123. Dying declarations are only admissible- 
 on the trial of an indictment for homicide. lb, 
 
 124. Upon the trial of an action for services 
 rendered in procuring a pension for defendant, 
 it appeared that plaintiff had been indicted and 
 Gonvi'cted in the federal court for charging ex- 
 cessive fees for getting the pension, and whilp^ 
 such indictment was pending, he haid returned 
 to defendant $110, which she had paid to him. 
 His counsel, in summing np, in the federal com-t, 
 characterized this as an act of generosity on his 
 
 -part. This statement of his counsel was allowed 
 to be proved as an admission of the plaintiff. 
 Held, error. —Supreme Ct., {MDept.,) Sept., 1878. 
 Adee v. Howe, 15 Hun 20. 
 
 125. When the declarations of parties affect- 
 ed* by an alleged nuisance, are inadmissible in 
 an action for damages sustained thereby, see 
 Wiel V. Stewart, 19 Hun 272. 
 
158 
 
 EVIDENCE, III., IV. 
 
 2. In mminal eases. 
 
 126. wnat declarations and confes- 
 sions are admissible. The prisoner,. after 
 the killing, fled from the state, to West Virginia, 
 where he was arrested without any process, pat 
 in irons and brought back. While on the cars 
 he was asked by the officer if he killed his wife 
 and said, " Yes." Held, that the fact that he 
 was illegally held in custody at the time he 
 made the confession, did not invalidate it or 
 render it inadmissible. — Supreme Gt., {1st 
 Beat.,) Dee., 1879. Balbo v. People, 19 Hun 
 424. 
 
 127. While at the station-house, and after the 
 deceased's watch had been found upon him, the 
 prisoner was asked by an officer " where the rest 
 ■of the jewelry was," and replied that he knew 
 nothing about it. The question being repeated, 
 he asked, "Will you do me a favor?" The officer 
 said, " I will if I can ; I sympathize with you," 
 or " I pity you ; you are in a bad fix." The 
 prisoner then asked him to send his clothes to 
 his mother and not let her know what had hap- 
 pened ; and then, in answer to a question by 
 another person, made a detailed confession. 
 Held, that his confession was admissible. — iSit- 
 preme Ct., (\stDept.,) Dec., 1879. Cox v. People, 
 19 Hun 430. 
 
 128. "What are inadmissible. Upon 
 the trial of an indictment for conveying prop- 
 erty with intent to defraud creditors, the prose- 
 cution was allowed to prove that the defendant 
 had been examined in supplementary proceed- 
 ings, and to prove the genuineness of his signa- 
 ture to the deposition, which was produced in 
 court. The district attorney then read from the 
 deposition, and asked the defendant whether the 
 fitatements so read, or those which he had made 
 upon the trial, were true. Hdd, that the evidence 
 was inadmissible under Code of Pro., ? 292. — Sv/- 
 preme Ct., {4th Dept.,) Jam,., 1880. Loomis v. 
 People, 19 Hun 601. 
 
 129. Upon the trial of an indictment against 
 an officer of an insurance company, for perjury, 
 in swearing to a false return of the company's 
 financial condition to the insurance department, 
 a witness for the prosecution, after testifying that 
 upon applying to the prisoner for information, 
 he was referred to R., the prisoner stating, in 
 substance, that R. was the book-keeper and 
 chief man, and would furnish whatever infor- 
 mation was contained in the books, was permit- 
 ted to testify, under objection and exception, to 
 declarations of E., in the absence of the prisoner, 
 to the effect that certain entries in the books of 
 the company, as to policies issued, were false, 
 and that the prisoner knew of it. Held, error; 
 that the reference to K. did not confer authority 
 upon him to bind the prisoner by his declara- 
 tions. — Ot. of App., Feb., 1879. Lambert v. Peo- 
 ple, 76 N. Y. 220; S. C, 14 Hun 512; 6 Abb. 
 St. Cas. 181. 
 
 IV. DOCTTMENTARY EVIDENCE. 
 
 1. In general, 
 
 130. Proof of authenticity. In an ac- 
 tion for money alleged to have been advanced 
 by plaintiiTs to defendant, a clerk of plaintiffs 
 testified that he made the following entry in 
 their books: "Herman Von Keller, on account, 
 4il0,000." He remembered no more about it 
 
 than that it was like a particular check he had 
 been told to draw ; he knew nothing of its cor- 
 rectness, except from its being in the book. 
 Held, that the entry was not sufficiently authen- 
 ticated to render it admissible in evidence. — 
 Supreme Ct., {]st Dept.,) Oct., 1878. Peck v. 
 Von Keller, 15 Hun 470 ; affirmM, 76 N. Y. 604. 
 
 131. Comparison of handwriting. Sig- 
 natures to instruments already in evidence, may 
 be .compared on the trial (in this case before a 
 referee), tor the purpose of determining the gen- 
 uineness or simulation of the handwriting ; and 
 if the two signatures, being superposed against 
 the light, match each other in every particular, 
 this fact is evidence that one, at least, is simu- 
 lated.— /Sttpmor Ot., Nov., 1879. Hunt v. Law- 
 less, 7 Abb. N. Cas. 113. .S. P., Suprem^e Ct., (Uh 
 Dept.,) June, 1878. Bronner v. Loomis, 14 Hun 
 341. 
 
 But signatures not already in evidence, can- 
 not be introduced merely for the purpose of 
 comparison, even when shown to have been ad- 
 mitted to be genuine by the alleged signer. — 
 Com. Pleas., Nov., 1879. Hynes v. McDermott, 
 7 Abb. N. Cas. 98, 99. 
 
 2. Judgments, records and judicial proceedings. 
 
 132. Pleadings. As to the right of 
 plaintiff to ofier in evidence an original answer, 
 after the service of an amended complaint and 
 answer, and tn disprove the allegations contained 
 in such original answer, see Fogg v. Edwards, 
 20 Hun 90. 
 
 133. Stipulation in admiralty suit. 
 A proceeding in admiralty was instituted by the 
 majority owners of a vessel, to obtain possession, 
 and a stipulation was given to obtain possession 
 for a particular vo;rage. The stipulation recited 
 the filing of the libel, and that the vessel had 
 been levied upon by virtue of and was held 
 under an execution upon a judgment against N., 
 the owner of the minority interest ; the libel 
 alleged that the action against K. was to recover 
 damages for personal injuries ; that N. was, at 
 the conuuenoement and during the pendency of 
 the action, p non-resident, and was not within 
 the state, that the judgment was by default with- 
 out personal service of the summons or appear- 
 ance by defendant, and that it and the execution 
 were void. In an action upon the stipulation — 
 Held, that the recitals therein as to the judg- 
 ment and execution were not conclusive as to 
 the validity thereof, but that said recitals must 
 be construed with reference to and in connection 
 with the allegations of the libel. — CS. of App., 
 Jan., 1879. Bartlett v. Spicer, 75 N. Y. 528 ; 
 affirming 12 Hun 398. 
 
 134. Judgments and decrees. As 
 between creditors, judgments against the debtor, 
 unimpeached for fraud, are conclusive evidence 
 of indebtedness upon all questions affecting the 
 titleto the judgment debtors property. — Supreme 
 Ct., {ith Dept.,) Oct., 1878. Hersey ». Benedict, 
 15 Hun 282, 285. 
 
 135. When a decree of divorce is not suffi- 
 cient evidence of the marriage of the parties, 
 in an action to contest the will of the husband, 
 see Gouraud v. Gouraiid, 3 Eedf. 262. 
 
 136. Judicial records. In an action by 
 vendee against vendor, for damages, for failure 
 to complete and perfect his title, whereby plain- 
 tiff suffered eviction, a record of judgment in an 
 action of ejectment against plaintiff's tenant 
 
EVIDENCE, IV. 
 
 159 
 
 Tinder which lie was evicted, is prima fade evi- 
 •dence against defendant, although he had no 
 notice of the action ; it imposed upon liim the 
 burden of showing that there was a defence to 
 the action, and tliat his title to the premises had 
 "not become forfeited. — Ct. of App., April, 1877. 
 Taylor v. Barnes, 69 N. Y. 430. 
 
 137. In an action against a common carrier 
 by a party who has advanced money upon a 
 bill of lading, wrongfully or negligently issued 
 to the wrong person, a record of a judgment 
 against plaintiff in favor of the owner of the 
 property is competent evidence. — Ct. of App., 
 Jan., 1878. Farmers' and Mechanics' Bank v. 
 Erie Eailway Co., 72 N. Y. 188. 
 
 138. Where a judgment of the Supreme 
 Court of California, on appeal, is offeredj it is 
 not necessary that a notice of appeal should ap- 
 pear in the judgment-roll in order to render it 
 admissible in evidence. It will be presumed 
 that the Supreme Court became properly pos- 
 sessed of the cause on appeal. The absence 
 from the record of a notice of appeal does not 
 •overcome this presumption. — Superior Ct., Nov., 
 1878. _ Pacific, &c., Gas Co. i/. Wheelock, 44 
 Superior 566. 
 
 139. As to tLe sufficiency of the authentica- 
 tion of a copy of the record of a judgment of 
 another state, under the act of congress, (U. S. 
 Bev. Stat., i 905,) see Burnell v. Weld, 76 N. Y. 
 103. 
 
 3. Staiutes, pvhlic domments, and official certifi- 
 cates, 
 
 140. Statutes and ordinances. The 
 statute law of California is proved by a volume 
 having on its title-page the following: "The 
 •Statutes of California, passed at the fourteenth 
 session of the legislature, 1863. Begun on 
 Monday, the fifth day of January, and ended 
 •on Monday, the 27th day of April. Sacra- 
 mento: Benjamin P. Avery, State Printer. 
 1863," and the testimony of a practitioner at 
 the bar of that state, who stated that that 
 •edition was recognized by the bar and courts of 
 that state, and was, in fact, the only one they 
 iad to use, but was unable to state whether fie 
 had himself used, or had seen others use, a vol- 
 ume of that edition in the courts is sufficient to 
 authenticate the volume.. Pacific^ &c.. Gas Co. 
 «. Wheelock, supra. 
 
 141. A municipal ordinance is competent in 
 an action for negligence, where other evidence 
 justifies the inference that its violation con- 
 iributed to the injury.— C8. of App., Jan., 1878. 
 Briggs V. New York Central, &c., K. K. Co., 72 
 2!ir. Y. 26. 
 
 142. Public documents. Passports, 
 ithough official documents, are not evidence of 
 •the correctness of their contents, as they are 
 made up from the parties' own statements, and 
 are not made evidence by statute. — Supreme Ct., 
 (1st Dept.,) April, 1878. Eobbe v. Price, 14 
 Hun 55. 
 
 143. A copy of a report of a railway com- 
 pany to the state engineer and surveyor, in ac- 
 4:ordance with the statutory requirements, is 
 ■competent evidence of a material admission 
 made therein by the defendant as a corporation, 
 with respect to the injury complained of. — Su- 
 perior Ct., Jan., 1879. Leonard v. New York 
 Central, &o., R. E. Co., 44 Superior 575. 
 
 144. Official oertiflcates. A certificate 
 of a street commissioner of the city of -New 
 
 York is not competent evidence of the width of 
 a street or sidewalk therein. — Ct. of App., April, 
 
 1877. Porter v. Waring, 69 N. Y. 250. 
 
 145. Sufficiency as evidence, and construction 
 of a notary's certificate of protest, determined in 
 a particular case. — Supreme Ct., {\at Dept.,) April, 
 
 1878. Borst v. Winckel, 14 Hun 138. 
 
 4. Other documentary emaence. 
 
 146. Entries in official registers. Q'he 
 original entries in the protest-book of a deceased 
 notary are competent evidence to show demand 
 and notice of non-payment, and such entries 
 should be admitted for that purpose by the 
 court. (3 Rev. Stat., (5th ed.,) 494, g ZQ.)— Supe- 
 rior Ct., Feb., 1878. Nat. Butchers', &c.. Bank v. 
 De Groot, 43 Superior 341. 
 
 147. — in books of corporations, 
 banks, &C. Where, in an action to recover 
 for services rendered as a general banking 
 clerk and French correspondent, at a stipulated 
 compensation, the answer denied all the allega- 
 tions of the complaint, except the allegation 
 that defendants were an association — Hdd, that 
 the minute-book of the corporation was not ad- 
 missible on its own behalf, for the purpose of 
 showing that there was no resolution of the 
 board of directors authorizing the plaintiflT's 
 employ ment.-^&tpemr Ct., Nov., 1878. Legrand 
 V. Manhattan Mercantile Assoc, 44 Superior 562. 
 
 148. When entries in the books of a corpo- 
 ration are competent to show the issue of stock, 
 in an action between third parties, see Chapman 
 V. Porter, 69 N. Y. 276. 
 
 149. — in private books of account, 
 partnership books, &c. An account-book, 
 the entries in which are transcribed from a 
 slate upon which they are first entered, is ad- 
 missible in evidence as a book of original en- 
 tries. — Supreme Ct., {1st Deptj) Sept., 1879. 
 Matter of McGoldrick v. Wilson, 18 Hun 443. 
 
 150. Where, in an action to recover a bal- 
 ance of an alleged loan, the question was as to 
 whether the loan was made to defendant, or to 
 other parties through defendant as their agent — 
 Seld, that enlries made in plaintiff's books, 
 without defendant's knowledge or consent, were 
 not competent evidence that the loan was made 
 to or upon the credit of defendant. — Ct. of App., 
 Feb., 1879. Peck v. Von Keller; 76 N. Y. 604. 
 
 151. Copies in account-book, of original 
 memoranda, when proper evidence, see Wilson 
 V. Knapp, 70 N. Y. 596. 
 
 152. When the partnership books are evi- 
 dence against estate of deceased partner, see 
 Cheever v. Lamar, 19 Hun 130. 
 
 153. Bill of lading. When a bill of lading 
 is competent as between those not parties there- 
 to, see Putnam v. Furnam, 71 N. Y. 590. 
 
 154. Map and field notes. What is a 
 sufficient authentication of a map and field notes 
 to render them admissible in evidence on the 
 question as to the boundary line between lots, 
 see Bucker v. Fero, 16 Hun 589. 
 
 155. Tax deed. The recitals in a deed 
 from a United Slates collector of internal reve- 
 nue are not sufficient, prima facie, to make out a 
 right in him to sell and convey. — Ct. of App., 
 Dee., 1878. Brown v. Goodwin, 75 N. Y. 409 ; 
 S. C, 56 How. Pr. 301. 
 
 156. The provision of the United States 
 statutes (U. S. Rev. Stat., J 3199,) providing that 
 a deed given by a collector on sale for taxes 
 shall be prima facie evidence of the facts therein 
 
160 
 
 EVIDENCE, IV.--EXCEPTIONS. 
 
 stated, makes it only evidence of the facts which 
 by statute are required to be stated therein, i. e., 
 that the real estate described was purchased at 
 the official sale, the name of the person for 
 whose taxes it was sold, the name of the pur- 
 chaser, the price paid therefor (? 3198), and the 
 other facts required by the law of this state on 
 a conveyance by a sheriff on a sale of real estate 
 on execution, to wit, that the premises have not 
 been redeemed according to law, etc. Under 
 said statute there is no lien upon real estate for 
 taxes until notice and demand of the tax and 
 neglect or refusal to pay, and no right to seize 
 and sell until there is a failure to find personal 
 estate. (§ 3172, et seq.) In order to establish 
 title, therefore, under such a deed, these pre- 
 requisites to the right to seize and sell, and also 
 the assessment of the tax and notice of sale of 
 the real estate, must be shown by evidence 
 aliuTide the deed. Ih. 
 
 157. Various other writing's and 
 memoranda. An order for goods was given 
 to an agent of plaintiff, and forwarded by such 
 agent to plaintiff. The order, which was headed 
 with defendant's name, was received in evidence 
 under objection and exception. Held, no error ; 
 that the order was no evidence of defendant's 
 liability as purchaser, without proof that de- 
 fendant authorized the agent to give an order in 
 his name ; but with such proof it was competent 
 as a communication of the order to plaintiff. So, 
 also, the entry of the order in plaintiff's order- 
 book, headed with defendant's name was held 
 competent to show that plaintiff acted on the 
 order, and charged the goods to defendant. — Ot. 
 of App., Jan., 1878. Wilcox Silver Plate Co., 
 V. Green, 72 N. Y. 17. 
 
 158. In order to establish the defence of in- 
 fancy, in a suit on a promissory note, defendant 
 offered in evidence a book called a family record, 
 shown to be in the handwriting of his father, then 
 living in Germany, containing the dates of the 
 births of his several sons. Seld, that as the 
 book was not a public record, and as the father 
 was still living, it was not admissible. — Supreme 
 a., (1st Dept.,) Api-il, 1878. Kobbe v. Price, 14 
 Hun 55. 
 
 159. When a paper embodying a parol 
 agreement, but not signed, is competent as evi- 
 dence of the agreement, see Eager v. Crawford, 
 76 N. Y. 97. 
 
 160. When a memorandum made by the 
 maker of a note on a stub thereto, which note is 
 made payable to the executor of the deceased 
 maker and is presented by him as a claim against 
 the estate, is not conclusive evidence that such 
 note was a gift, see Cowee v. Cornell, 75 N. Y. 91. 
 
 For rules of evidence particularly applicable 
 to the several distinct Causes of action, and reme- 
 dies having recognized names, see their titles ; 
 also the titles of the various legal instruments. 
 
 As to Puiiing in emdenee on the trial, see 
 Trial, 21(1-23. 
 
 As to the granting of new trials, for E}rr<yr in 
 receiving, rejecting, or disregarding evidence, or 
 for Newly-discovered evidence, see New Tbial, 
 5, 9, 10, 15-20. 
 
 For rules governing the Examination of wit- 
 nesses, see Witnesses, IV. 
 
 EXAMINATION OF PARTY BEFORE 
 TRIAL. 
 
 Depositions, II. 
 
 EXCAVATIONS. 
 
 MuOTCrPAL COKPORATIONS, 74-86. 
 
 EXCEPTIONS. 
 
 1. The necessity of an exception. — 
 
 Where in a case tried by a jury, there is no mo- 
 tion for a non-suit or exception to the charge, 
 the verdict is final as to the facts. — Ot. ^ App.,. 
 Nov., 1877. Mumby v. Jackson, 71 N. Y. 599, 
 
 2. An error in the charge of the court upoik 
 a criminal trial can only be availed of in this 
 court upon exceptions duly taken on the trial, 
 — Cl. of App., Nov., 18?8. Brothertou v. People, 
 75 N. Y. 159 ; affirming 14 Hun 486. 
 
 8. A defect in a pleading, to be available, must 
 be pointed out and reached by a proper excep- 
 tion on the trial. — &. of App., Dec., 1878. 
 Thayer v. Marsh, 75 N. Y. 340. 
 
 4. WTiat may be carried up, gener- 
 ally. The remarks of the court addressed to- 
 counsel on the rejection of evidence, or as to the 
 need of delaying the trial to send for witnesses, 
 are not the subjects of exception. Whether, if 
 the remarks of the court are so adverse to one 
 of the parties as to call for the interference of a 
 court of review, on the ground that the verdict 
 has been impi-operly influenced, the mode of re- 
 view is by exception, or whether the question 
 should be brought up on a motion to set aside 
 the verdict, see Ot. of App., April, 1879. Daly 
 V. Byrne, 77 N. Y. 182, 190. 
 
 5. Errors in giving or refusing in- 
 structions. When an exception is taken to 
 the enunciation of a legal proposition by the 
 court, such exception only presents the legal 
 soundness or unsoundness of the utterance. If 
 the charge as made is legally correct, and coun- 
 sel supposes it requires some explanation to pre- 
 vent the jury fiom being misled, a specific re- 
 quest for that purpose should be made. — /Su- 
 preme Ot., (Chamb.,) March, 1880. People v. 
 Moett, 58 How. Pr. 467, 470. 
 
 6. Plaintiff's complaint alleged his employ- 
 ment as broker by defendant to sell, the rendi- 
 tion of services resulting in a sale, and claimed 
 to recover the usual broker's commission. The 
 answer was a general denial. The court, after 
 a statement of the issues, charged in substance, 
 thatif the jury found that plaintiff was employed, 
 and that whatever services he rendered were 
 rendered under the employment, he was entitled 
 to recover the usual conuuissions. ffdd, that an 
 exception to this charge did not present the 
 question as to a double employment — which was- 
 urged as a defence for the first time on appeal — 
 that the charge must be construed as referring to 
 the questions presented and litigated on the 
 trial, i. e., the employment and the services ;. 
 that, as so construed, it was not erroneous. — Ot. 
 of App., Dec, 1878. Duryee v. Lester, 75 N. 
 Y. 442 ; affirming 43 Superior 564, 
 
 7. — in denying motion to dismiss. 
 Where a motion is made for a dismissal of the 
 complaint upon several grounds, the fact that 
 untenable grounds are also assigned, will not 
 cure an erroneous ruling on an assigned tenable 
 ground. This, although but a single exception 
 is taken to the denial of the motion, — Superior 
 Gt., March, 1879. Durant v. Abendroth, 44 Su- 
 perior 463. 
 
EXCEPTIONS— EXECUTION, I. 
 
 161 
 
 8. —in refusing postponement. An 
 exception lies to a refusal to postpone a trial on 
 account of the absence of a material witness. — 
 Superior Ct., April, 1879. Gallaudet v. Stein- 
 metz, 6 Abb. N. Gis. 221. 
 
 0._ Time to except on jury trial. Ex- 
 ceptions to the judge's charge to the jury must 
 be taken before the jury have rendered their 
 verdict. It is not within the power of the judge 
 to allow exceptions to his charge, which were 
 not taken before verdict. — Superior Q,., April, 
 1879. De Leon v. Eoheverria, 45 Superior 240. 
 Cam. Pleas, April, 1879. Koster v. Noonan, 8 
 Daly 231. 
 
 10. Where several requests to charge are 
 made at the close of the trial, none of which are 
 noticed in the charge as given, and the counsel 
 then call the court's attention to the omission, 
 and the court refuses to alter the charge given, 
 exceptions then taken to each refusal to charge 
 as before requested, are specifically taken and 
 should be considered on appeal. — Gom. Pleas, 
 April, 1878. Betz v. Conner, 7 Daly 550. 
 
 11. Ho-w exceptions shotilcl be taken 
 on trial by court or referee. It is only 
 necessary to except to the conclusions of law on 
 a trial by the court or a referee ; facts are not 
 the subject of an exception. — Supreme Ct., (2d 
 Dept.,) Sept., 1878. Eoe v. Eoe, 14 Hun 612. 
 
 12. The refusal of a referee to find a fact not 
 incontrovertibly proved is no grotmd of excep- 
 tion ; if the party desires findings he must apply 
 to the court for an order requiring a supple- 
 mental report.— Ci!. ofApp., Oct., 1877. Putnam 
 V. Furnam, 71 N. Y. 590. 
 
 13. General exceptions to evidence. 
 Where evidence is, excluded upon a mere gen- 
 eral objection, the ruling will be upheld upon 
 appeal if any ground in fact existed for the ex- 
 clusion ; it will be assumed in the absence of any 
 request on the part of the opposing party or the 
 court, to make the objection more definite, that 
 it was understood, and that theruling was placed 
 upon the right ground.— Ci. of App., May, 1877. 
 Tooley v. Bacon, 70 N. Y. 34. Sept., 1874. 
 Uaggerty v. Brooklyn, &c., E. E. Ck)., 6 Abb. 
 N. (Jas. 129, note. 
 
 14. Where, however, evidence is received 
 under a general objection, the ruling will not be 
 held erroneous unless there be some ground 
 which could not have been obviated if it had 
 been specified, or unless the evidence, in its es- 
 sential nature, be incompetent. Tooley v. Bacon, 
 supra. 
 
 15. — to instructions. A general excep- 
 tion to the refusal of the court to charge as re- 
 quested is untenable, unless each and all of the 
 several propositions submitted are sound in law, 
 and applicable to the fa.cts and circumstances of 
 the case. If either of the propositions be erro- 
 neous the objection is ima vailing. — Superior Ct., 
 May, 1878. Sun, &c., Assoc, v. Tribune Assoc, 
 44 Superior 136. 
 
 16. A general exception to all of a charge 
 upon a particular point, is unavailable on ap- 
 peal or error, when a portion of the charge is 
 correct ; the attention of the court must be called 
 to the erroneous portions. — Ol. of App., Dee., 
 1878. Arnold v. People, 75 N. Y. 603. 
 
 17. — to denial of motion for judg- 
 ment. At the close of the evidence defendant's 
 counsel moved for judgment without specifying 
 any grounds, or suggesting any point wherein 
 plaintiff's case was defective. Tlie motion was 
 
 11 
 
 denied and exception taken. Held, that the ex- 
 ception was insufficient— that the defect should 
 have been specified. — Oi. of App., Dec., 1878. 
 Thayer v. Marsh, 75 N. Y. 840. 
 
 18. Form and contents of the bill. 
 An exception, as to language used in a charge, 
 to be available, must present it in the same, or 
 in equivalent words, embracing the substance of 
 the charge, and presenting so clearly and dis- 
 tinctly the proposition enunciated by the court 
 that there can be no doubt as to what was actu- 
 ally intended. Where the phraseology of the 
 exception is of doubtful construction, so that it 
 is not easy to determine what is meant, and to 
 say that it applies to any distinct portion of the 
 charge as made, it furnishes no ground for re- 
 versal of the judgment. — Ci. of App., June, 1879. 
 McGlnley v. United States Life Ins. Co., 77 N. 
 Y. 495. 
 
 19. What questions are involved. 
 Where, upon the trial, the only question raised 
 is as to plaintiff's right to recover anything, 
 an exception to a decision thereof in favor of 
 plaintiff does not present for review any ques- 
 tion as to amount. — Ct. of App., March, 1877. 
 Jarvis v. Driggs, 69 N. Y. 143. 
 
 For further decisions respecting the neeeasity, 
 mffideney and manner of taking exceptions, see 
 AppKiL, 70; Eeboe, lO; Trial, 33, 34. 
 
 EXCISE. 
 
 LiqUOR-SELLINO. 
 
 EXECUTION. 
 
 I. Executions against PBOPERTy. 
 
 II. EXECTTTIONS AGAINST THE PeRSOW. 
 
 III. Payment. Satisfaction. Dischaboe. 
 
 IV. Belief against Executions. 
 
 V. Proceedings Supplementary to Exe- 
 cution. 
 
 I. Executions against Property 
 
 1. When the proper- remedy. Where 
 a collected judgment for costs is set aside and a 
 new trial had, resulting in favor of the party 
 who paid the judgment, an order for restitution 
 of the costs paid is enforceable by execution as 
 upon a money judgment, and not by proceed- 
 ings for contempt. — Ot. of App., May, 1879. 
 CGara v. Kearney, 57 How. Pr. 439. 
 
 2. Issuing the writ. An execution under 
 which laud may be levied upon and sold may 
 run directly from the Marine Court of New York 
 city without docketing the judgment in the 
 county clerk's office. — Com. Pleas, (Sp. T.,) Dec., 
 1877. Palmer v. Clark, 4 Abb. N. Caa. 25. 
 
 3. After the docketing of a transcript of a 
 Marine Court judgment for |25 or over, an exe- 
 cution thereon must issue out of the Court of 
 Common Pleas. An execution previously issued 
 out of the Marine Court becomes inoperative 
 upon the docketing of the transcript, and a sub- 
 sequent seizure thereunder is a trespass. — Com. 
 .Pleas, March, 1877. Oberwarth v. McLean, 7 
 Daly 70. 
 
162 
 
 EXECUTION, I. 
 
 4. What property may be reached 
 Money collected by a sheriff under an execution, 
 cannot, while it remains in his hands, be levied 
 on by him under an execution against the party 
 in whose favor it was so collected. — Superior Gt., 
 Nov., 1877. Adams v. Welsh, 43 Superior 52. 
 
 5. The salary of a judicial or' other public 
 officer cannot be levied upon while in the hands 
 of the disbursing officer of the general or muni- 
 cipal government, in his official capacity, in 
 common with other money to be applied by him 
 towards thepaymentof judicial and other official 
 salaries according to law. — Com. Pleas, {Sp. T.,) 
 April, 1879. Waldman v. O'Donnell, 57 How. 
 Pr. 215. 
 
 6. Dutyofofilcer making levy. Under 
 an execution, in the usual form, in an action for 
 the claim and delivery of personal property, it 
 is the duty of the sheriff to take and deliver the 
 property as commanded, not only if he finds it 
 in the possession of any person named therein, 
 but also if he finds it in the possession of any 
 other person, unless he can justify his refusal 
 to do so by showing that such person has a title 
 or right of possession superior to that of the 
 party to whom he is commanded to deliver it. 
 — Gt. of App., Jan , 1879. Hoffman v. Conner, 
 76 N. Y. 121 ; affirming 13 Hun 541. 
 
 Y. Where, therefore, to such an execution, 
 the sheriff returned that he could not find the 
 property so as to make delivery, and it appeared 
 in an action against him for a false return, that 
 he knew where the property was within his 
 county, and could have found it, but refused to 
 take it or to take any action in regard thereto, 
 upon the sole ground that it was in the posses- 
 sion of one M. — JETeW, that in the absence of proof 
 that M. had any title to the property or right to 
 . the possession as against plaintiff, the sheriff was 
 liable, lb. 
 
 8. Wliat is a suflloient levy. The 
 sheriff, having an execution against the defend- 
 ant, a lawyer, he went to his office and found 
 him out ; he then went to his farm, looked over 
 and made a minute of certain articles ; returned 
 to the office, and finding defendant still out, 
 looked over his library, handled the books and 
 made a memorandum of them. Next day he 
 saw defendant, sliowed him the execution, and 
 told him he had levied on the books. 
 
 JSeld, 1. That the levy was sufficient as against 
 a subsequent purchaser from defendant. 
 
 2. That it continued in force for the benefit 
 of executions subsequently received by the same 
 sheriff up to the time of payment of the execu- 
 tion under which the levy was made — Supreme 
 Gt , (ith Dept ,) Ja»., 1880. Dean ». Campbell, 
 19 Hun 534. 
 
 9. Vacating levy. A mere levy is not 
 such an actual application of the attached 
 property or the proceeds thereof as to bar the 
 right of the subsequent lienor to move to vacate 
 the same under Code of Civ. Pro., ? 682. To 
 have this effect, there must be an actual and 
 real application of the property or its proceeds, 
 as distinguished from a constructive one. — Gt. 
 of App., Sept., 1880. Woodmansee v. Bodgers, 
 59 How. Pr. 402 ; affii-ming 58 How. Pr. 439. 
 
 10. Employment of keeper. Where 
 the judgment debtor, in order to prevent the 
 closing of his store, agrees with the deputy 
 sheriff making the levy, that a keeper be em- 
 ployed, and promises to pay for his services, 
 such agreement may be enforced by the sherifl^ 
 
 if in all respects just and fair. — Supreme Gt., [Isl. 
 Dept.,) Oct., 1878. Murtagh v. Conner, 15 Hun 
 .488. 
 
 11. Taking security. The words " by 
 color of his office," in the act prohibiting the 
 taking of security by the sheriff, includes only 
 such acts as are evilly done by the countenance 
 of aij officer. The act must be unlawful and 
 unauthorized, and the legal right to take security 
 a mere color or pretence. lb. , 
 
 12. The lien. Dormant execution. 
 To obtain the lien upon the personal property 
 of a judgment debtor given by the statute (2 Bev. 
 Stat. 366, § 13 ; Code of Civ. Pro., g 1405,) Ironx 
 the time an execution is delivered to a sheriff 
 " to be executed," it is not sufficient merely to 
 place an execution in the hands of the sheriff. 
 Where an execution is delivered with directions 
 to do nothing but to hold it for further orders, 
 while thus held the sheriff is the agent of plain- 
 tiff, the execution is dormant, and no lien upon 
 the property of the debtor is acquired thereby. 
 —Gt. of App., June, 1879. Smith v. Erwin, 77 
 N. Y. 466, 471. 
 
 13. The sheriff claimed property under an 
 execution against Gr., and the receiver of the 
 former partner of G. demanded the same prop- 
 erty as having been used by the surviving part- 
 ner in the firm business. It was agreed that the 
 goods be sold by the receiver, and sufficient of 
 the proceeds be held by him subject to the lien 
 of the levy if such were shown to exist. 
 
 Seld, 1. That the levy of the execution gave 
 the sheriff a valid lien, which he could have 
 enforced by sale ; and that the proceeds in the 
 receiver's hands represented the goods so levied 
 on. 
 
 2. That the court might, on motion, order the 
 receiver to pay the judgment. — Com. Pleas, 
 1877. Hooley v. Gieve, 7 Abb. N. Cas. 271. 
 
 14. The sale. Notice of sale. The 
 notice of a sale of chattels required to be given 
 by 2 Eev. Stat. 366, ? 21, need not describe the 
 execution, nor give the name of the judgment 
 debtor.— Supreme Gt., (2d Dept.,) Dec., 1879. 
 Chapman v. Morrill, 19 Hun 318. 
 
 15. Validity of the sale, generally. 
 2 Kev. Stat. *136, § 5, which provides that every 
 sale by a vendor of chattels in his possession 
 shall be presumed fraudulent as to creditors, 
 unless accompanied by immediate delivery, or 
 followed by actual and continued change of pos- 
 session, applies to a sale under execution on a 
 judgment.— Atpreme Ct., (3i Dept.,) Nov., 1879. 
 Masten v. Webb, 19 Hun 172. 
 
 16. The fact that the judgment debtor remains 
 in possession of personal property sold on exe- 
 cution against him, as agent of the purchaser at 
 execution sale, renders the change of possession 
 constructive, and not actual, and the sale is pre- 
 sumptively fraudulent as against creditors of 
 such judgment debtor, under the statute of 
 frauds. — Gom. Pleas, April, 1878. Betz v. Conner, 
 7 Daly 550. 
 
 17. "Who may be purchaser. While 
 the court will not set aside a sale of land on an 
 execution, and order a re-sale on the ground 
 that plaintiff's agent bid less for it than he was 
 instructed to bid by his principal, yet where the 
 purchase is made by a receiver of the debtor's 
 property, appointed by the court, and charged 
 with the duty of applying the property to the 
 payment of the debts, and such purchase is made 
 for the receiver's individual benefit, the court 
 
EXECUTION, I, II. 
 
 163 
 
 ■will iiot uphold such act on his part. — Supreme 
 Ct., (Sp. T.,) Sept., 1880. Sheldon v. Saenz, 59 
 How. Pr. 377. 
 
 18. "WTiat title passes. A purchaser at 
 an execution sale can get no better title than 
 the judgment actually gives him. If a .judg- 
 ■raent has been satisfied, altliough not canceled 
 of record, even a bimafide purchaser under an 
 -execution issued upon the judgment will get no 
 title.— tt. of App., Sept., 1877. Frost v. Yon- 
 kers Savings Bank, 70 N. Y. 553, 560. 
 
 19. Where, therefore, by a valid agreement 
 between the judgment creditor and debtor, the 
 lien of the judgment upon the real estate has 
 been postponed and made subordinate to that of 
 a junior mortgage, the purchaser, although he 
 bought in ignorance of the agreement, takes 
 *he land subject to the lien of the mortgage. 
 Jb. ; reversing, in part, 8 Hun 26. 
 
 20. In an action against the members of a 
 firm, an attachment was issued against S., one 
 of the partners, which was levied upon the firm 
 property. The firm was at the time insolvent 
 and soon after made an assignment to the de- 
 fendant. Judgment was thereafter obtained and 
 ■execution issued in the attachment suit, under 
 which the sheiiif sold " all the right, title and 
 interest which " S. had in the property at the 
 time of the levy of the attachment. Plaintiff 
 was the purchaser. In an action brought to de- 
 termine the title to the property — Hdd, that as 
 Ihe firm assets were insufiicient to pay its debts, 
 the interest of S. therein was nothing, and plain- 
 tiff took nothing by his purchase. — Cl. of App., 
 April, 1878. Staats ». Bristow, 73 N. Y. 264. 
 
 21. Liabilities of purchaser. Caveat 
 , emptor. A sheriff's sale under an execution 
 
 will not be opened because of the forgetfulness 
 of the purchaser that there were prior encum- 
 brances on the property sold. — Supreme Ct.jiSd 
 Dept.,) Sept., 1879. Benedict v. Jones, 18 Hun 
 ■627. 
 
 22. A purchaser in good faith, at an ex- 
 -ecution sale, of goods in the possession of the 
 judgment debtor, is not liable in trover to the 
 true owner of the goods, until after demand and 
 refusal. — Supreme Ct., (Sd Dept.,) Sept., 1879. 
 Hawley v Brown, 18 Hun 456. 
 
 23. Distribution of surplus moneys. 
 The right of a judgment creditor who pur- 
 ■chased the property at the execution sale for 
 more than the amount of his judgment, to have 
 the surplus applied to the satisfaction of an- 
 
 , other judgment subsequently obtained by him 
 ■against the same debtor, upheld in the particu- 
 lar case, as against the claim of a subsequently 
 ^ippointed receiver of the debtor. — Supreme Ct., 
 (3d Dept.,) May, 1879. First Nat. Bank v. 
 Whitehall Transp. Co., 18 Hun 161. 
 
 24. The right to surplus moneys arising out 
 ■of a sale in foreclosure, determined in a case de- 
 pending upon peculiar and unusual circum- 
 stances. Supreme Ct., {2d Dept.,) July, 1879. 
 Snedeker v. Snedeker, 18 Hun 355. 
 
 25. Tlie return. An execution against a 
 .oity marshal on a District Court judgment, a 
 
 transcript of which has been filed in the county 
 ■clerk's office, is returnable by the sheriff to the 
 -clerk of the Court of Common Pleas, and not to 
 the clerk of the city and county of New York. — 
 Own, Pleas., June, 1880. Bartels v. Cunning- 
 ham, 59 How. Pr. 129. 
 
 26. The sheriff's deed, and rights of 
 purchaser. A sheriff's de^d, given in pur- 
 
 suance of a sale upon execution, and duly re- 
 corded, is protectedby and has the benefit of the 
 recording act. (1 Eev. Stat. 756, ? l.)—Ct. of 
 App., March, 1879. Hetzel v. Barber, 69 N. Y. 
 1,9. 
 
 27. A purchaser, at a sale under an execu- 
 tion, of property subject to a mortgage, has the 
 same right to attack the validity of the mort- 
 gage that is possessed by the creditor under 
 whose execution the property is sold, except 
 where the property is sold expressly subject to 
 the mortgage.— Com. Plea^., Jan., 1878. Wagner 
 V. Jones, 7 Daly 375. 
 
 28. Under the Code of Civ. Pro., ? 1244, a 
 deed of property sold under an execution, or pur- 
 suant to a judgment, must distinctly state, in 
 the granting clause thereof, whose right, title or 
 interest was sold, and is conveyM, without 
 naming, in that clause, any of the other parties 
 to the action.* — Supreme Ct., {1st Dept.,) Dec., 
 1877. Eandell v. Von Ellert, 4 Abb. N. Cas. 
 88. 
 
 29. A sheriff's deed on execution, after de- 
 scribing the premises, proceeded : " Excepting 
 from and out of such sale such parts of said 
 premises (if any) as had been lawfully conveyed 
 by said Cowenhoven and others, by conveyances 
 duly recorded in the registrar's office of King's 
 county, prior to October 12th, 1855." Prior to the 
 time mentioned a mortgage had been given by 
 Cowenhoven of the premises described in the 
 deed. Seld, not a conveyance within the meaning 
 of the exception. — Supreme Ct., (2d Dqji.,) May, 
 1879. Terrett v. Brooklyn Improvement Co., 18 
 Hun 6. 
 
 30. Redemption. Where, at a sale on 
 execution against two defendants, the sheriff 
 gives time to a purchaser within which to pay, 
 an offer to redeem by one of the judgment 
 debtors, made before actual payment of the bid 
 should be accepted by the sheriff. — Supreme Ct., 
 (iih Dept.,) Jan., 1880. Holmes v. Richmond, 
 19 Hun 634. 
 
 31. Exemption, and hoTV ■waived. At 
 the time of making a levy on certain chattels, 
 the deputy sheriff told the debtor's wife that he 
 thought the property was exempt, and told the 
 debtor that he would levy on it and take it away 
 if he did not forbid him, to which the debtor re- 
 plied, " I didn't know that I could forbid you," 
 and further said that the deputy might take it. 
 He was present at the sale and made no claim 
 that the property was exempt. Held, that he 
 had waived the right to claim that the property 
 was exempt and that such levy was unlawful. — 
 Supreme Ct., (3d Dept.,) Jan., 1880. Turner v. 
 Borthwick, 20 Hun 119. 
 
 II. EXECXTTIONS AGAINST THE PERSON. 
 
 32. When proper, generally. To jus- 
 tify an execution against the body it must be 
 clear from the pleadings and judgment that the 
 action is one in which it is authorized ; and 
 upon a motion to set it aside it is competent to 
 show the theory upon which the case was tried 
 and decided. — Cl. cf App., April, 1879. Neftel 
 V. Lightstone, 77 N. Y. 96, 99. 
 
 33. When a part of a judgment in tort is as- 
 signed, execution against the person of the 
 judgment debtor may still issue in the name of 
 the assignor, for the full amount of the judg- 
 
 *See amendment to this section, Laws 1S79, oh. 542. 
 
164 
 
 EXECUTION, II., III. 
 
 nient.— Supreme Ct., (Sp. T.,) Jan., 1880. 
 Dougherty v. Gardner, 58 How. Pr. 284. 
 
 34. When defendant may issue. 
 Where plaintiff is beaten in an action in 
 tort, in which defendant was liable to arrest, an 
 execution against plaintiff's person may be 
 issued for the costs ; but where the complaint 
 sets out a sale with warranty, and alleges a 
 breach, it cannot be regarded as in tort within 
 the above rule. — Herkimer County Ct., Oct., 1877. 
 Brown v. Brockett, 55 How. Pr. 32. See, also, 
 Catlin V. Adironack Co., 20 Hun 19. 
 
 35. Time of issuing. A defendant re- 
 leased from the order of arrest in the action, and 
 on baU, is not in acttml custody within the true 
 intent and meaning of the term, as used in Code 
 of Civ. Pro., § 572, which provides that an exe- 
 cution against the person must be issued within 
 tliree months after entry of judgment, where the 
 defendant is in actual custody by virtue of an 
 order of arrest in the action. — Superior Ct., 
 June, 1879. Schmidt v. Heitner, 45 Superior 
 334. 
 
 36. Necessity of exhausting the fl. 
 fa. The implied prohibition of the code against 
 issuing a body execution, unlil the return of a 
 property execution unsatisfied, is for the bene- 
 fit of the judgment debtor, and may be waived 
 by him. — C*. of App., Dec., 1877. New York 
 Guaranty, &c., Co , v. Rogers, 71 N. Y. 377 ; 
 affirming 43 Superior 551. 
 
 37. It is not a conclusive answer to an appli- 
 cation under J 288 of the code, by one of 
 several judgment debtors imprisoned under an 
 order of arrest, for a discharge from imprison- 
 ment, because of neglect to issue a body execu- 
 tion within three months after judgment, that 
 there is good reason for not returning the prop- 
 erty execution owing to circumstances affecting 
 his co-defendants. lb. 
 
 38. Proper contents. A recital in an 
 execution against the person, that a property 
 execution had been issued to the proper county, 
 and returned unsatisfied, is insufficient. It must 
 specify the county eo nomine, or the defendant 
 may be discharged on haheaa corpus. — Supreme 
 a., {Sp. T.,) Nov., 1879. People, ex rel. Brack, 
 V. EeiUy, 58 How. Pr. 218. 
 
 30. The writ should contain a provision re- 
 quiring the sheriff to return it to the proper 
 county clerk within sixty days from his receipt 
 thereof; but this being omitted does not render 
 the execution void, and plaintiff should be per- 
 mitted to amend by inserting such a direction. 
 — Supreme Ct., (1st Dept.,) April, 1880. Bene- 
 dict, &c., Manuf. Co. ti. Thayer, 20 Hun 547 ; S. 
 C, 59 How. Pr. 272. 
 
 40. Where a defendant is held under an 
 execution which does not contain such direction, 
 his remedy is by special motion, and not by an 
 application for discharge under habeas corpus. 
 lb. 
 
 41. Payment for debtor's support. 
 The provision of Code of Civ, Pro., 2 111, that 
 when, in the county of Kings, the sheriff has 
 actually confined in jail a prisoner arrested by 
 virtue of an execution issued upon a judgment 
 rendered in a court of record, he shall notify the 
 plaintiff's attorney, and the latter shall, within 
 three days thereafter, pay to the sheriff $25 for 
 the support of the debtor during the first 
 twenty days, and that "if a payment required 
 by this section be not made, the prisoner must be 
 discharged," applies to the case of an execution 
 
 issued in favor of a defendant, and upon the failure 
 of the attorney to make the payment, the sheriff 
 must at once discharge the prisoner without 
 waiting for an order of the court. — Supreme Ct.,. 
 (2d Dept.,) May, 1879. People, ex rel. Eied- 
 man, v. McCue, 18 Hun 53. 
 
 42. Bond for jail limits. When a party 
 arrested on execution gives a bond for the hmits 
 and leaves the limits by permission of the 
 deputy sheriff or jailor, such permission is an 
 answer and defence to the sheriff's action against 
 the sureties upon the bond for an escape. — Su- 
 preme Ct., (3d Dept.,) Jan., 1879. Wemple v. 
 Glavin, 5 Abb. N. Cas. 360. 
 
 43. A prisoner on the limits is not so fiilly 
 committed to the keeping of the sureties as to- 
 relieve the sheriff from his custody, and the jail 
 from one of its occupants. lb. 368. 
 
 44. Application for discharge. A 
 judgment debtor, imprisoned on execution, who 
 has disposed of his property with intent to de- 
 fraud the creditor at whose suit he is imprisoned, 
 is not entitled to his discharge under the pro- 
 visions of the KevLsed Statutes, in relation to 
 voluntary assignments by debtors so imprisoned. 
 (2 Kev. Stat. 31, et seq.)—Ct. of App., April, 1877. 
 Matter of Brady, 69 N. Y. 215 ; affirming 8 
 Hun 437. Compare Devlin v. Cooper, 20 Hun 
 188. 
 
 45. It is not necessary, to prevent such dis- 
 charge, to show that the fraudulent disposition 
 was made by the debtor with a view to the pro- 
 ceedings for his discharge ; it is sufficient, al- 
 though made before the commencement of the- 
 action, where the order ftr his imprisonment 
 was based upon the ground of such fraudulent 
 disposition. Matter of Brady, supra, 
 
 46. Where an opposing creditor establishes- 
 that the affidavit of the debtor required by said 
 statute to be indorsed upon his petition (| 5) is- 
 untrue, this is sufficient to show that " the pro- 
 ceedings, on the part of the prisoner, are not 
 just and fair,'' within the meaning of said statute 
 (?8.) 76. 
 
 4*7. That to prevent a discharge, the intent 
 must have been to defraud existing creditors, 
 not those whose claims have been paid or have- 
 ceased to exist; and that a creditor cannot 
 contest the discharge who is in no way injured 
 or defrauded, see lb. 
 
 48. Motion to vacate. Pending a refer- 
 ence of a motion to vacate an order of arrest in 
 an action for fraud, the action was tried and 
 judgment rendered for plaintiff's debt and costs,, 
 the court declining to pass upon the question of 
 fraud. On motion to vacate a body execution! 
 issued against defendant — Held, that the judg- 
 ment was not a bar to the application, as it only 
 determined the fact and amount of defendant's- 
 indebtedness, not the kind of execution to be 
 issued.— Supreme Ct., {Sp. T.,) July, 1880. Kohn. 
 V. Burtnett, 59 How. Pr. 410. 
 
 m. Payment. Satisfaction. DiscHAsaE. 
 
 49. Pasrment. Where payment is madfr- 
 to the sheriff by a debtor of the judgment debtor, 
 he has no authority to apply the money to the 
 satisfaction of an execution issued against the 
 plaintiff in the execution upon which the pay- 
 ment was made. — Superior Ct., Nov., 1877. 
 Adams v. Welsh, 43 Superior 52. 
 
 50. Entry of satisfaction — canceling- 
 entry. That where the judgment debtor pro- 
 
EXECUTION, III., IV. V. 
 
 165 
 
 <!ures one of plaintiff's attorneys inadvertently 
 to enter a satisfaction, the entry will not be can- 
 -celed in order to enable the sheriff to collect his 
 fees and poundage, where no offer is made to 
 return to defendant the money paid by him to 
 procure the satisfaction, see Bensen v. Perry, 17 
 Hun 16 ; affii-med, 77 N. Y. 625. 
 
 IV. Eeliep against Executions. 
 
 51. Remedy by injunction. In what 
 cases an injunction to prevent a sheriff's sale, on 
 the ground that otherwise the rights of firm 
 ■creditors will be imperiled, will be denied, 
 J)ecause of the presumption that the sheriff will 
 sell in accordance with the legal rights of the 
 parties, see Saunders v. Irwin, 17 Hun 342. 
 
 52. Restraining proceedings to col- 
 lect. Judgment on two notes, obtained by 
 fraudulent representations that the suit was 
 brought to recover on one of them only, (the 
 other note having been paid,) restrained. — 8v/- 
 preme Ot., (3d Dqit.,) Sept., 1878. Hinckley «. 
 Miles, 15 Hun 170. 
 
 v. Peoceedings Stjpplementaey to Execu- 
 tion. 
 
 53. Jurisdictional questions. Pro- 
 ceedings supplementary to execution must be 
 instituted in the county where the judgment 
 -debtor resides or has a place of business. — Sth 
 
 preme Ct., (Isl Dept.,) Oct., 1878. Jurgenson v. 
 Hamilton, 5 Abb. N. Cas. 149. 
 
 54. For an application of the rule that the 
 regularity of the judgment cannot be questioned 
 in proceedings supplementary to execution 
 thereon, see Diossy v. West, 8 Daly 298. 
 
 55. "Who may institute proceedings. 
 •One to whom a judgment is assigned by the judg- 
 ment creditor in his lifetime, may maintain 
 supplementary proceedings under it after the 
 death of the judgment creditor, and the court 
 ■will, in a proper case, appoint a receiver on his 
 application. — Supreme Ct., [Chamb.,) Sept., 1878. 
 •CrUl V. Kornmeyer, 56 How. Pr. 276. 
 
 56. The personal representatives of a party 
 •whose rights, under a judgment and execution, 
 had been determined prior to September, 1877, 
 may institute supplementary proceedings without 
 jenewing the aciion. Code of Pro., § 283, 
 was not repealed in that respect by Laws of 
 1877, ch. 417, § 1, subd. 8, (see § 3.)— Supreme 
 ■Ct., (Is« Beipt.,) Feb., 1880. Pardee v. Tilton, 
 -58 How. Pr. 476; S. C, 20 Hun 76. 
 
 57. Necessity of exhausting remedy 
 lay execution. To authorize an order requir- 
 ing a judgment debtor, who has property which 
 he unjustly refuses to apply to the payment of 
 the judgment, to appear and be examined before 
 the return of an execution, it must appear that 
 a demand has been made upon him so to apply 
 his property, which demand has been refused.— 
 JSupreme Ct., (ith Dept.,) Jan., 1878. First Nat. 
 Bank v. Wilson, 13 Hun 232. 
 
 58. What property may be reached. 
 The surplus income of a cestui que trust cannot 
 ■be reached in supplementary proceedings ; but 
 a judgment creditor, after execution returned 
 unsatisfied, may maintain an action therefor. — 
 JSvpreme Ct., (2d B^t.,) Feb., 1878. McEwen v. 
 Brewster, 17 Hnn 223 : Manning v. Evans, 19 
 Id. 500. 
 
 50. The quarterly dues of a proprietor of a 
 «chool — Mdd not to be reached by proceedings 
 
 supplementary to execution, under the facts of 
 the particular case. — Supreme Ct., (1st Dept.,) 
 Dec., 1889. Miller v. Hooper, 19 Hnn 394. 
 
 60 The affidavit. The provisions of rule 
 25, that " whenever an application is "made ex 
 parte for an order, the affidavit shall state 
 whether a previous application has been made 
 for such order, and if made, to what court or 
 judge, and what order or decision was made 
 thereon," do not apply to orders in supplement- 
 ary proceedings.— fetpreme Ct., (Sp. T.,) Nov., 
 1878. Schanck v. Conover, 56 How. Pr. 437. 
 
 61. The order. To give the Court of 
 Common Pleas jurisdiction in supplementaiy 
 proceedings instituted on judgments of District 
 and justices' courts, it is necessary that all the 
 jurisdictional facts should be stated in the order. 
 It is not sufficient to show the jurisdictional 
 facts in tlie affidavits on which the order is 
 obtained, but the same must be shown in the 
 order.— Com. Pleas, (Sp. T.,) March, 1879. Day 
 V. Brosnan, 6 Abb. N. Cas. 312. 
 
 62. An order requiring the debtor"to appear 
 and answer concerning his property before the 
 justice granting the same, " or some other 
 justice of this court, at chambers," specifying 
 the time and place of appearance, is not void or 
 irregular on account of its alternative form. 
 The words " or some other justice," Ac, may be 
 rejected as surplusage. — Com. Pleas, July, 1879. 
 Bank for Savings in the City of New York v. 
 Hope, 8 Daly 316. 
 
 63. Second exazaination of judg- 
 ment debtor. To obtain a second examina- 
 tion of the judgment debtor, the acquisition of 
 property by him since his former examination 
 must be shown. — Supreme Ct., {1st Dept. Sp. T.,) 
 Oct., 1878. Jurgenson v. Hamilton, 5 Abb. N. 
 Cas. 149. 
 
 64. Without some good reason a second order 
 will not be granted, even though the application 
 therefor be founded upon another judgment in 
 favor of the same creditor. — Supreme Ct., (1st 
 Dept.,) Jan., 1880. Canavan v. McAndrew, 20 
 Hun 46. 
 
 65. Examination of person as a 
 "mtness. Where the testimony actually given 
 by a witness in supplementary proceedings has 
 been erroneously taken down, he has a right to 
 have the minutes changed so as to conform to 
 the testimony actually given by him. The 
 court has no power to compel him to subscribe 
 his name to a statement which is not strictly 
 true, even though the falsity of it be shown by 
 a supplementary entry in the minutes. — Supreme 
 a., (2d Dept.,) May, 1878. Sherwood v. Dolen, 
 14 Hun 191. 
 
 66. As to plaintiff's proper course, where a 
 third party, for whose examination he has ob- 
 tained an order, fails to appear on an adjourned 
 day, see Schanck v. Conover, 56 How. Pr. 437. 
 
 67. Order that debtor's property be 
 applied to-ward satisfaction of judg- 
 ment. When the property of a foreign cor- 
 poration is attached in an action against it, in 
 which it does not appear, an order may be made, 
 under Code of Pro., | 297, requiring a third per- 
 son, indebted to, or having in his possession 
 property of such corporation attached in the 
 suit, to pay the same over to plaintiff on account 
 of the judgment, and the corporation cannot be 
 heard to object to the granting of the order. — 
 Supreme Q., (Sp. T.,) Jan., 1879. Chandler v. 
 City of Fon du Lac, 56 How. Pr. 449. 
 
166 
 
 EXECUTION, V. 
 
 68. The judge has no power to order a debtor, 
 in supplementary proceedings, to deliver to the 
 receiver property which the debtor has encum- 
 bered with a chattel mortgage payable on de- 
 mand. Neither can such order be made as to 
 personal property in the debtor's possession 
 which has been levied on by virtue of an execu- 
 tion against his property, issued subsequently to 
 the appointment of the receiver. In either case 
 the receiver's remedy is by action. — Crnn. Pleas, 
 June, 1877. Griswold v. Tompkins, 7 Daly 
 214. 
 
 QQ. An order made by a judge having juris- 
 diction to make it, directing a bank to pay over 
 to the creditor money deposited with it in the 
 name of the wife of the judgment debtor, to be 
 applied upon his judgment, binds the wife when 
 a party to, and examined in such proceedings, 
 and bars an action by her against the bank for 
 the recovery of the deposit, after the same has 
 been paid over by the bank in obedience to the 
 prder.— Cbm. Pleas, {Sp. T.,) August, 1878. 
 Schrauth v. Dry Dock Savings Bank, 8 Daly 
 106. 
 
 70. Money due from the receiver of a foreign' 
 railroad company to the judgment debtor, will 
 not be ordered to be paid over by a court of this 
 state.— Supreme Cl., {1st Dept.,) Oct., 1878. 
 Smith V. McNamara, 15 Hun 447. 
 
 "71. The judge cannot direct a horse belong- 
 ing to the judgment debtor to be delivered to the 
 creditor on his giving the debtor a receipt for 
 his claim. It should be sold under the execu- 
 tion or by the receiver. — Supreme Ct., (M Dmt.,) 
 Sept., 1879. Dickinson v. Onderdonk, 18 Hun 
 479. 
 
 72. Appointment of receiver. An 
 order to appear for examination before a referee, 
 may direct the debtor to appear before the judge 
 on the Monday following the close of the exami- 
 nation; and notwithstanding his failure so to 
 appear, a receiver may be then appointed, if the 
 examination discloses a proper case for a re- 
 ceiver. — Supreme Ct., {ith Dept.,} March, 1878. 
 Sickels V. Hanley, 4 Abb. N. Gas. 231. 
 
 73. A county judge has power, at chambers, 
 under Code of Pro., J 298, to appoint a receiver 
 in supplementary proceedings ; but with the ap- 
 pointment his authority over him ceases, and 
 the receiver is thereafter subject to the control 
 of the court in which the judgment was obtained ; 
 or if the judgment was upon a transcript from a 
 justice's court, filed in the county clerk's office, 
 then he is subject to the control and direction of 
 the county court.— (Sapreme Ct., {4th Dept.,) June, 
 1878. Pool V. Safibrd, 14 Hun 369. 
 
 74. A county judge may accept the resigna- 
 tion of a receiver appointed in supplementary 
 proceedings, and appoint his successor. — Supreme 
 Ct., {4th Dept.,) Oct., 1878. Wing v. Disse, 15 
 Htm 190. 
 
 75. Where an order is issued restraining a 
 third person from disposing of property in his 
 possession belonging to the judgment debtor 
 "until further order in the premises," an order 
 appointing a receiver is such further order ; it is 
 the final order in the proceedings, and any re- 
 straint thereafter desired should be inserted in 
 that order. — Ct. of App., April, 1878. People, 
 ex rel. Morris, v. Baudall, 73 N. Y. 416. 
 
 76. Receiver's security. The fact that 
 the undertaking filed by a receiver, appointed 
 in supplementary proceedings, is not under seal, 
 is an irregularity of which no one but the judg- 
 
 ment debtor can take advantage. — Supreme Cl.^ 
 {4th Dept.,) AprU, 1879. Morgan v. Potter, 17 
 Hun 403. 
 
 77. His title. A receiver appointed under 
 Code of Pro., § 298, becomes vested with the- 
 real estate of the debtor by virtue of his appoint- 
 ment, security, &c., without any conveyance to- 
 him from the judgment debtor.— jSupreme Ct., {4th 
 Df^t.,) Oct., 1878. Wing v. Disse, 15 Hun 190. 
 
 78. Suits by receiver — right of ac- 
 tion. A receiver, appointed in proceedings- 
 supplementary to execution, cannot maintain am 
 action to enforce the trust created by the Re- 
 vised Statutes, (1 Kev. Stat. 728, I 52,) in favoi- 
 of the creditors of one paying the consideration, 
 for lands which are conveyed to another. — Ct. 
 of App., AprU, 1879. Underwood v. Sutclifie, IT 
 N. Y. 58 ; reversing 10 Hun 453. 
 
 79. The judgment creditor has no interest,, 
 legal or equitable, in lands paid for by him, but 
 conveyed to another, {§ 51), and the creditor de- 
 rives no right through him ; if a creditor at the 
 time of the conveyance, he has simply an in- 
 terest, created by the statute, as cestui que trust ; 
 the trust does not vest in the receiver, and he is- 
 not the representative of the creditor in respect 
 to it. lb. ■ 
 
 80. Where the judgment debtor is a member 
 of the stock exchange, and the receiver has con- 
 tracted to sell his seat therein, the receiver may 
 maintain an a<!tion against the debtor to compel 
 him to transfer the seat to the purchaser. — Sa- 
 perior a., {Sp. T.,) Nov., 1877. Eitterband v. 
 Baggett, 4 Abb. N. Cas. 67. 
 
 81. A receiver in supplementary proceedings 
 cannot maintain replevin against the mortgagee- 
 of chattels mortgaged by the judgment debtor 
 and reduced to possession by the mortgagee, be- 
 fore the commencement of the proceedings. — 
 Cbm. Plecm, Dec., 1878. Campbell v. Fish, 8- 
 Daly 162. 
 
 82. As to the substitution of a receiver in. 
 supplementary proceedings, as plaintiff in a 
 pending suit brought by the judgment debtor,, 
 and what provisions may be inserted in the or- 
 der of substitution, see Matter of Wilds, 6 Abb. 
 N. Cas. 307. 
 
 83. — parties. In an action brought by a> 
 receiver appointed in supplementary proceed- 
 ings to set aside, as fraudulent against creditors, 
 an assignment of a chose in action, made by the- 
 judgment debtor, the latter is a necessary party. 
 So, also, where there are grounds for claiming 
 that the property belonged to an estate of which 
 the debtor is a personal representative ; as such, 
 he is entitled to be a party. Where the answer 
 sets up that the debtor is a proper party, it is 
 sufficient to present the question whether he is » 
 proper party, either individually or in a repre- 
 sentative capacity. — Ct. of App., June, 1877.- 
 Miller v. Hall, 70 N. Y. 250. 
 
 84. — pleading. In an, action for parti- 
 tion by a receiver appointed in supplementary 
 proceedings, the complaint alleged in substance- 
 that, by an order duly made May 22d, 1876, by 
 the county judge of U. county, plaintiff was ap- 
 pointed receiver, &c. ; that such order was re- 
 corded in said county ; that the real est-ate was 
 situate therein ; and that the judgment debtor 
 acquired title on or about April 23d, 1876. 
 Tliere was no allegation that the judgment-roli 
 was filed, or that the judgment debtor resided in 
 that county, or that the order, or a certified copy 
 thereof, was filed and recorded in the office of that 
 
EXECUTION, Y.— EXECUTORS AND ADMIN ISTEATORS, I. 167 
 
 clerk of the county where the judgment-roll was 
 filed, or where the judgment debtor resided. 
 
 Hdd, 1. That a demurrer to the complaint was 
 properly sustained as the conditions prescribed 
 by the Code of Pro., § 292, which must exist 
 before title to real estate vests in the receiver, 
 did not appear. 
 
 2. That plaintiff, by virtue of his appointment, 
 only became vested with such property as the 
 judgment debtor had at the time of the com- 
 mencement of the proceedings, and there was no 
 allegation that he owned the real estate at that 
 time ; but a proper inference from the facts 
 alleged was that he acquired title after that 
 time. — Ct. of App., Nov., 1878. Dubois v. Cas- 
 sidy, 75 N. Y. m. 
 
 85. Discontinuance or abandon- 
 ment. "Where, in supplementary proceedings, 
 an injunction is served upon the debtor, and a 
 person holding property belonging to him, and 
 the proceedings are abandoned before the ap- 
 pointment of a receiver, the judgment creditor's 
 lien is lost, and is not revived by the commence- 
 ment of a subsequent action, in the nature of a 
 creditor's bill against the debtor, the person who 
 held the property, and one to whom he trans- 
 ferred it after such abandonment.— /Supreme Vl., 
 {ilh Dept.,) June, 1878. Ballou v. Boland, 14 
 Hun 355. 
 
 86. Costs. Where a judgment creditor, at 
 whose instance a receiver has been appointed, 
 instigates and conducts a prosecution against 
 third persons through the receiver for his own 
 benefit, and in which he is solely interested, in 
 case he is defeated he is liable for costs. — Ct. of 
 App., March, 1877. Ward v. Eoy, 69 N. Y. 96, 
 99. 
 
 87. Punishment for disobeying the 
 order. The fact that the debtor, who has been 
 served with an order to appear and be exam- 
 ined, and restraining him from disposing of any 
 of his property, has a family wholly supported 
 by his labor, furnishes no excuse for his disposal 
 of wages subsequently collected by liim, without 
 permission of the court or vacation of the in- 
 junction. — Supreme Ct., (ith Dept.,) Oct., 1879. 
 Newell V. Cutler, 19 Hun 74. 
 
 88. As to the effect of delay on the part of 
 the judgment creditor, in applying for an order 
 to punish the debtor, for refusing to answer 
 questions put upon the examination, see Stanley 
 V. Lovett, 14 Hun 412. 
 
 As to the necessity of issuing an execution to 
 give the Right to maintain u. creditor's euil, see 
 Cbeditob's Suit, 1-5. 
 
 As to executions on Justice^ judgments, see 
 Justice of the Peace, 16. 
 
 As to Sheriff.^ fees on execution, and the offi- 
 cereMiability for failure to collect, or for a false 
 return, see Shekiffs, 5, 9-14. 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 I. Appointment and Eemoval, 
 II. Assets. 
 
 III. Eights, Powees, Duties and Liabili- 
 ties. 
 
 1. Care and management of the estate. 
 
 2. Payment of debts, legacies, dec. Dis- 
 
 tribution. 
 
 3. Sale of lands for payment of debts. 
 
 4. Accounting. 
 
 5. Compensatim,. 
 
 IV. Suits. 
 
 1. Actions by exeeuiors or admmistra- 
 
 iors. 
 
 2. Actions against executors or adminis- 
 
 trators. 
 
 3. Proceedings to enforce adminvstratimi 
 
 bonds. 
 V. Public Administbatoes. Foeeign Eep- 
 
 BESENTATIVES. 
 
 I. Appointment and Eemovai. 
 
 1. Power to issue letters testament- 
 ary. That the jurisdiction of the surrogate of 
 one county, who has granted letters testamentary, 
 cannot be attacked by the surrogate of another 
 county, see Matter of Harvey, 3 Eedf 214. 
 
 2. A debt upon a bond has its situs where the , 
 bond is, not where the obligor resides, and when, 
 therefore, a non-resident owner of a bond dies 
 out of the state, leaving the bond in this slate, 
 and leaving a will of personal property executed 
 according to the laws of the state where he re- 
 sided, which is duly admitted to probate there, 
 the bond is assets in the county where it is ; and, 
 although the obligor resides out of the county, 
 the presence of the bond gives to the surrogate 
 of the county jurisdiction to issue letters testa- 
 mentary, upon production of a copy of the will, 
 duly authenticated as provided by the statute. — 
 Ct. of App., April, 1878. Beers v. Shannon, 73 
 N. Y. 292, 299. 
 
 3. "WTio is eligible to act as execu- 
 tor. Since the passage of Laws of 1877, ch. 
 206, letters testamentary will be refused to a 
 non-resident alien, even where he is appointed 
 guardian by the lyill. — N. Y. Surr. Ct., Feb., 
 1878. Matter of Taylor, 3 Eedf 259. 
 
 4. When letters testamentary may be prop- 
 erly issued to sisters of the half blood, see Kir- 
 cheis V. Scheig, 3 Eedf. 277. 
 
 5. The bond of non-resident execu- 
 tor. Tlie bond required of a non-resident ex- 
 ecutor is intended to cover the proceeds of real 
 estate sold under the will or by order of the sur- 
 rogate.— /Supreme Ct., (2d Dept.,) Dec., 1879. 
 Hood V. Hood, 19 Hun 300. 
 
 6. Service of citation on non-resident execu- 
 tor outside of the state, at instance of surety 
 seeking to be relieved and to have new surety 
 substituted, when suflBcient, see Stevens v. Stevens, 
 3 Eedf 507. 
 
 7. Power to appoint an adminis- 
 trator. Where, upon presentation to a clerk 
 in the office of a surrogate of a petition asking 
 for the appointment of an administrator of the 
 estate of M., who was, in fact, then living, the 
 clerk filled up a blank for letters of administra- 
 tion signed and left with him by the surrogate, 
 and attached thereto the surrogate's seal, the 
 latter never having acted upon and having had 
 no knowledge of the petition — Held, that the 
 judicial powers of the surrogate could not be 
 delegated ; that the letters were absolutely void, 
 and were no protection to one who, upon pre- 
 sentation thereof in good faith and relying 
 upon them, paid to the person named as admin- 
 istrator, a sum du3 M. — Ct. of App., March, 1879. 
 Eoderigas v. East Eiver Savings Institution, 76 
 N. Y. 316 ; affirming, 43 Superior 217. 
 
168 EXECUTORS AND ADMmiSTRATORS, I., II., III. 
 
 8. The petition alleged tlie death of M. upon 
 the best of the knowledge, information and be- 
 lief of the petitioner ; there was no other proof 
 of death. 
 
 Held, 1. That this was not due proof of the 
 death such as would give the surrogate juris- 
 diction. 
 
 2. That the person named in the letters could 
 not be regarded as a de/acto administrator. lb. 
 
 9. Executors and administrators are not pub- 
 lic officers, and the rule of protection to those 
 dealing with the former is mure restricted than 
 when applied to the latter. lb. 
 
 10. An application to the surrogate of Albany 
 county for letters of administration with the will 
 annexed, on the estate of Anneke Jantz Bogar- 
 dus, refused, on the grounds of great lapse of 
 time and insufficient showing of jurisdictional 
 facts. — Supreme Ct., (3d DepQ May, 1879. "Van 
 Gieson v. Bridgford, 18 Hun 73. 
 
 ll._ Wlio is entitled to letters of ad- 
 ministration. Upon the death of a sole ex- 
 ecutor, the residuary legatee is first entitled to 
 letters of administration, as against the widow 
 of the testator, in like manner as if the executor 
 had renounced or failed to qualify. — N. T. Surr. 
 Q., Sept., 1878. Bradley v. Bradley, 3 Kedf. 
 512. 
 
 12. The right to renounce. Where an 
 «xecutor has been released from his office upon 
 his own application, and has formally renounced, 
 he cannot, after letters de bonis non with the will 
 annexed have been issued to another, retract his 
 renunciation and seek to be reinstated. — Supreme 
 €t., {Sp. T.,) Dec., 1878. Trow v. Shannon, 59 
 How. Pr. 214. 
 
 13. Appointment of collector. An 
 executor should noc be appointed collector of 
 the estate, pending a contest of the will under 
 which he acts, against the objection of the con- 
 testants, especially where he has an interest in 
 any degree hostile to the estate. — N. Y. Surr. Ct., 
 Mm., 1878. Howard v. Dougherty, 3 Kedf. 535. 
 
 14. Removal of executor. The sureties 
 on the bond of a non-resident executor, are 
 proper parties defendant in an action to compel 
 him to account, and to procure his removal on 
 the ground of mismanagement and waste. — 
 Supreme Ct., (M Dept.,) Dec., 1879. Hood v. 
 Hood, 19 Hun 300. 
 
 15. Upon the (rial of such action, it appeared 
 that one of the plaintiffs had assigned his in- 
 terest in the estate as security for a debt. Held, 
 that the assignee should be brought in as defend- 
 ant, lb. 
 
 II. Assets. 
 
 16. 'What ■will be deemed to be as- 
 sets. A debt owing by one of several execu- 
 tors to the testator at the time of his decease, is 
 an asset in the hands of the debtor executor, for 
 which he is solely responsible ; but it should ap- 
 pear as such asset in a joint account rendered 
 by the executors; it cannot be credited as an 
 uncollected asset. — Ct. of App., Nov., 1878. 
 Adair v. Brimmer, 74 N. Y. 539. 
 
 1*7. Administrators of an intestate were ap- 
 pointed in North Carolina, where he died, and 
 in New York, where he left some assets. De- 
 fendant, who was a simple contract debtor to the 
 intestate and who also resided in North Carolina, 
 came to New York for a temporary purpose, and 
 the New York administrator saed him by per- 
 
 sonal service while here. Held, that the action 
 could be maintained ; and that as the debtor had 
 voluntarily come into this state, and as there was 
 no intent to defraud the North Carolina admin- 
 istrators, and as he had not paid the debt or been 
 sued upon it in North Carolina, the debt be- 
 came assets in this state. — Supreme Ct., {4th 
 Dept.,) Jan., 1879. Fox v. Carr, 16 Hun 434. 
 
 III. Eights Powers, Duties akd Lia- 
 bilities. 
 
 1. Qire and manageimeml of the estate. 
 
 18. The title of an administrator de bonis 
 non with the will annexed, relates back to the 
 death of the testator; and he may recover not 
 only upon causes of action in favor of the testa- 
 tor in his lifetime, but also for causes of action 
 arising after his death in regard to the assets. — 
 Supreme Ct, (Sp. T.,) Oct., 1878. Luers v. 
 Brunges, 56 How. Pr. 282. 
 
 19. Not only the unadministered assets of the 
 testator, in specie, in the hands of the executor or 
 others pass to him, but also the moneys and se- 
 curities realized on any sale thereof by the ex- 
 ecutor, for the purpose of further administra- 
 tion, which have not lost their identity and can 
 be distinguished from the individual .property 
 of the executor. lb. 
 
 20. Care and management of real 
 property, generally. Equity will not aid 
 an effort to impair or destroy the legal remedies 
 of creditors, or sanction an attempt on the part 
 of an executrix to vest individually in herself 
 and mingle with her own property, real estate 
 which, until her testator's debts are paid, is 
 chargeable with a trust. — Com. Pleas, May, 1880. 
 Mayer v. McCune, 59 How. Pr. 78, 84. 
 
 21. Po-wer to contract, or enforce 
 contracts of decedent. Contracts of ex- 
 ecutors and administrators, although made in 
 the interest and for the benefit of the estate they 
 represent, if made upon a new and independent 
 consideration, moving between their promisee 
 and themselves, are their personal contracts, 
 and do not bind the estate. — Superior Ct., April, 
 1878. Ross V. Harden, 44 Superior 26. 
 
 22. In any case, a contract must be valid as 
 between the parties to it, and must be supported 
 by a good and sufficient consideration as between 
 them, in order to be sustained and enforced be- 
 tween their legal representatives, or between 
 either of them and the legal representatives of 
 the other. No contract can bind the legal rep- 
 resentatives of a deceased person, that was not 
 valid and binding upon that person at the time 
 it was made. So, if a contract be invalid and 
 void, as being against good morals, or in conflict 
 with the established policy of law, neither the 
 parties to it nor their respective executors or 
 administrators acquire any rights, or incur any 
 liabilities under or by virtue of the same. Ih. 
 
 23. Liability for attorney's fees. 
 Where charges of an attorney are against an ex- 
 ecutor, he must show not only that they are a 
 fair compensation for his services, but that they 
 were the proper subject of charges against an ex- 
 ecutor, and were necessary under the circum- 
 stances of the case. — Supreme Ct., {1st Dept.,} 
 Sept., 1880. Matter of Knapp, 59 How. Pr. 
 367. 
 
 24. — for rent of premises leased by 
 testator. A testator who left all his property, 
 
EXECUTORS AND ADMINISTRATORS, III. 
 
 169 
 
 Teal and personal, to his wife, and appointed her 
 sole ezecatrix, was at the time of his death the 
 lessee of premises, the lease of which had one 
 year to run. The widow continued to occupy 
 a portion of said premises as a place of business, 
 •and sub-let the remainder for her own profit. 
 Held, an election on her part to hold the prem- 
 ises as legatee and not as executrix, which made 
 her personally liable for the rent subsequently 
 accruing. — Supreme Gt., (2d Dept.,) Dec., 1878. 
 Howard v. Heinerschit, 16 Hun 177. 
 
 25. An executor is liable, as such, upon the 
 •covenants contained in a lease, executed by his 
 testator as tenant, whether he enters into pos- 
 session of the demised premises or not ; but if 
 he does enter into possession, his liability on 
 ^uch covenants becomes personal, the same as 
 that of an assignee of the lease. lb. 
 
 26. Care and raanagement of per- 
 sonal property. The administratrix of a 
 part owner of a vessel is not bound to protect 
 the interest of her intestate, and cannot bind the 
 ■estate by incurring liability for repairs, &o., 
 after the vessel has become too old for use. — 
 OUy Ct. of Brookh/n, May, 1880. Ltmt v. Lunt, 
 8 Abb. N. Cas. 83. 
 
 27. Collecting assets. Payment, on the 
 faith of letters void for want of jurisdiction, to 
 ihe person thereby undertaking to be appointed 
 jidministrator, of a debt due to, or money of the 
 alleged deceased, will not protect the party so 
 paying against an action brought therefor by the 
 allegrf deceased, he being in fact still in life. — 
 Suiperwr Ct., Jan., 1878. Eoderigas v. East 
 Eiver Savings Inst., 43 Superior 217. 
 
 28. An administrator received, among other 
 assets, a bond and mortgage, which he foreclosed, 
 bidding in the premises, and taking a deed there- 
 for in his own name, individually. Subse- 
 quently, he contracted to sell the premises to 
 the defendant, who afterwards refused to com- 
 plete his purchase, on the ground that plaintiff 
 being an administrator, could not purchase the 
 premises and could not convey a good title. In 
 an action to compel defendant to perform his 
 <:ontract — 
 
 Hdd, 1. That to save the estate from loss, it 
 was the right and duty of plaintiff to bid in the 
 premises at the sale, and that although he took 
 the deed in his own name, he held the property 
 for the benefit of the estate, and not otherwise. 
 
 2. That the premises thus purchased were to 
 be regarded as personal property, to be con- 
 verted by plaintiff into money, to be accounted 
 for by him as part of the personal estate. 
 
 3. That he was authorized to make the con- 
 tract of sale to defendant, and that the latter 
 ■should be compelled to complete his purchase. — 
 Supreme Ct., {1st Dept.,) April, 1880. Valentine 
 41. Beldeuj 20 Hun 537. 
 
 29. Liability for losses, neglect, &c. 
 In what cases a neglect on the part of an ex- 
 ecutrix to enforce a judgment in favor of the 
 estate, whereby its priority as a lien on realty 
 becomes impaired, will render' her personally 
 liable for the amount of the judgment, see Hol- 
 lister V. Burritt, 14 Hun 291. 
 
 30. — for acts of co-trustee. Where 
 ■excessive payments are made, or moneys drawn, 
 by one executor, with the consent or acquies- 
 ■cence of the others, out of a fund which has 
 been collected, and has come into the possession 
 -of such other executors, or the joint possession 
 and control of all, they all become liable, not 
 
 only to make good to the other distributees, on 
 the final distribution, any excess of advances so 
 made, but at all intermediate stages to make 
 good all payments which become due or payable, 
 under the provisions of the will, to such dis- 
 tributees. — Ct. of App., Nov., 1878. Adair v. 
 Brimmer, 74 N. Y. 539. 
 
 31. So, also, where an executor, by his negli- 
 gence, suffers his co-executor to receive and 
 waste the estate, when he has the means of pre- 
 venting it by proper care, he is liable to the 
 beneficiaries for the waste. lb. 
 
 32. As to whether, where an agent appointed 
 by all the executors jointly to manage the finan- 
 cial affairs of the estate, makes over-payments 
 out of the funds held by him as such agent, all 
 the executors are jointly liable, qucere. lb. 
 
 33. Where securities of the estate were in- 
 trusted to one of the executors for sale, on his 
 promise to pay the proceeds into the general 
 flmd, which promise he failed to perform — Held, 
 that permitting hint so to act was not such neg- 
 ligence on the part of the other executors as 
 would render them liable for such default. lb. 
 
 34. An executor and trustee is liable for a 
 portion of the trust fund, not invested as directed 
 by the will, but retained and misappropriated 
 by his co-trustee. — Weste. Smr. Ct., Nov., 1878. 
 Bates V. Underbill, 3 Bedf. 365. 
 
 35. One executor cannot bind either the es- 
 tate or his co-executor by indorsing a note in the 
 name of the estate, even though in renewal of 
 one indorsed by the testator in his lifetime. — 
 Supreme Ct., (1st Dept.,) April, 1878. Bailey v. 
 Spofford, 14 Hun 86. 
 
 36. Collecting effects of decedent 
 witlilield by third person. The provi- 
 sion (Laws of 1870, ch. 394,) authorizing the 
 personal representative to apply to the surrogate' 
 for the examination of persons claimed to have 
 in their possession effects which belonged to the 
 deceased, and authorizing the surrogate, on its 
 appearing that any such effects are withheld, to 
 issue his warrant for the seizure of such effects, 
 and their delivery to the executor or administra- 
 tor, unless the person holding the same shall 
 give security, as therein provided, is unconstitu- 
 tional and void. — Supreme Ct., (3d Dept.,) April, 
 1880. Matter of Beebe, 20 Hun 462. 
 
 37. Sales of land, generally. A pur- 
 chaser has no right to expect from an executrix 
 anything more than a covenant against her own 
 acts ; but if she contracts to give a covenant of 
 "Warranty, and actually executes it, the covenant 
 wUl be valid, and she will be bound" thereby. — 
 Com. Pleas, May, 1880. Mayer v. McCune, 59 
 How. -Pr. 78, 82. 
 
 38. — under po^wer of sale, in -will. 
 Under a power of sale, contained in a will, the 
 executors are not authorized to dispose of the 
 testator's real estate for the purpose of forming 
 a mining corporation, and to receive stock of the 
 corporation in payment therefor. The fact that 
 the testator, in his lifetime, was willing to make 
 such a disposition of the lands, does not enlarge 
 the powers of the executors ; it is only material 
 as bearing upon the question of their good faith 
 in the transaction. — Ct. of App., Nov., 1878. 
 Adair v. Brimmer, 74 N. Y. 539. 
 
 39. Where executors have made such a 
 transfer, they are personally liable for the mar- 
 ket value of the lands at the time they conveyed, 
 with interest from that time. lb. 
 
 40. Where a testator directs certain real es- 
 
170 
 
 EXECUTORS AND ADMINISTRATORS, III. 
 
 tate to be sold, and the prooeeils divided among 
 persona named in the will, the general rule is 
 that the persons entitled, if of full age, may 
 elect to take land, provided the rights of others 
 are not affected by such election. — Supreme Ct., 
 (2d Dept.,) Sept., 1878. Prentice v. Janssen,* 
 14 Hun 548. 
 
 41. Where such election is made, the execu- 
 tor is not a necessary party to an action brought 
 to partition the land. 76. 
 
 42. An executor was empowered, during the 
 minority of the devisees, to sell the land jointly 
 with the other owners. Held, that a conveyance 
 executed by him alone, after one of the devisees 
 came of age, conveying " all the right, title, in- 
 terest and estate in me vested as executor," was 
 not a valid execution of the power, lb. 
 
 43. An agreement between an executor 
 clothed with a testamentary power of sale, and 
 the persons beneficially interested under the 
 will, that the executor shall purchase the land, 
 is not necessarily void, and can only be called 
 in question by those interested in the land under 
 the will — not by strangers. — Supreme Ot., {So. 
 T.,) Dee., 1878. Clark v. Jacobs, 56 How. Pr. 
 619. 
 
 2. Payment of debts, legacies, &e. Distribution. 
 
 44. Jurisdiction and po-wers of the 
 surrogate. A judgment against a deceased 
 person, although disputed or rejected by his 
 personal representatives, need not be sued over 
 m order to authorize a decree for its payment 
 by the surrogate.— (7i!. o/App., Feb., 1878. Mc- 
 Nulty V. Hurd, 72 N. Y. 518. 
 
 45. The surrogate may, upon application for 
 such a decree, inquire into and pass upon alleged 
 payments made to apply upon the judgment, 
 and determine the amount due theieon, and may 
 also determine who is the owner of the judgment 
 and entitled to the money ; but he has no juris- 
 diction to determine whether there has been an 
 accord and satisfaction, or whether the estate is 
 entitled in equity to a release or discharge, 
 either in whole or in part, from the judgment. 
 
 46. That the remedy of the executors or ad- 
 ministrators to prevent the enforcement of the 
 judgment, and to obtain relief where the surro- 
 gate has no jurisdiction to grant it, is by resort 
 to the proper judicial tribunals, see lb. 
 
 4Y. This may be had either before or after a 
 decree for the payment of the judgment, and a 
 restraining process obtained either to prevent 
 the decree or its enforcement, lb. 
 
 48. The surrogate has jurisdiction to heJtr 
 and decide on disputed claims against the estate, 
 in the course of a proceeding before him, on 
 petition by the executor, for leave to lease, 
 mortgage or sell real estate to pay debts. — Svr 
 preme Ul., (3d Pept.,) Nov., 1878. Hopkins v. 
 Van Valkenburgh, 16 Hun 3. 
 
 49. Payment of funeral expenses. 
 The husband is primarily liable for the funeral 
 expenses of his deceased wife, and they are 
 not chargeable upon the wife's estate as against 
 her creditors, 'if he is solvent.— Kings Co. 
 Sarr. Ol., Dec, 1877. Garvey v. McCue, 3 
 Eedf. 313. 
 
 60. Marshaling assets. When an ex- 
 
 *Said to have been affirmed in the Court of Ap- 
 peals, January I3th, 1880. 
 
 ecutor should reserve enough of the personal 
 estate to meet an anticipated deficiency on fore- 
 closure of a mortgage on land belonging to the- 
 estate, see Williams v. Eaton, 3 Eedf 503. 
 
 51. M., being an accommodation indorser 
 upon the notes of T., who had died insolvent^ 
 by giving security to the holders for their pay- 
 ment, obtained authority from them to com- 
 mence actions in their names, for the purpose 
 of collecting the notes out of the estate. In s* 
 doing he incurred necessary and reasonable costs, 
 and expenses, over and above the costs allowed 
 in the judgments. In an action to marshal and> 
 distribute the assets of the estate — Held, that 
 M. was entitled to be allowed such costs anc{ 
 expenses. — Ct. of App., Jan., 1878. Tbompson. 
 V. Taylor, 72 N. Y. 32. 
 
 52. Payment of debt in advance of 
 distribution. The authority vested by the 
 statute (2 Eev. Stat., 116, g 18), in a surrogate 
 to decree the payment by an executor of a debt 
 owing by the deceased or a proportional part 
 thereof in advance of the final accounting, is to 
 be exercised in conformity with, not in hostility 
 to the general principles of equity among cred- 
 itors, and only in cases where the contemplated 
 payment can be made consistently with the 
 rights of all parties interested in the estate. — 
 Ct. of App., Nov., 1877. Thompson v. Taylor, 
 71 N. Y. 217. 
 
 53. That an executor or administrator acting 
 in good faith will be protected in paying a debt 
 in full, pursuant to tlie surrogate's decree, 
 although it may finally turn out that by reason 
 of losses or other causes the remaining assets 
 are insufficient to fully pay the other creditors, 
 see 76. 
 
 54. Such .a decree, however, is provisional to 
 this extent, that if it remains unexecuted when 
 the general decree for the distribution of the 
 estate among the creditors is made, it mnst, in 
 case of insufficiency of assets to pay the debts in 
 full, give way to the paramount authority of the 
 statute providing for the equality between the 
 creditors ; and the creditor obtaining the decree 
 cannot claim a preference under it. 76. 
 
 It is not necessary in such case to procure the 
 decree to be formally vacated. 75. 
 
 55. Rights of representative -who 
 is a creditor of the estate. Shortly be- 
 fore his death the intestate delivered to his wife 
 an equitable assignment of a debt due to him, 
 which she collected after his death, but did not 
 credit to the estate, claiming the assignment to 
 have been given her in payment of a debt owing 
 to her by the intestate. The peraonal estate 
 was insufficient to pay the debts, and the sol- 
 vency of the estate was disputed. A creditor 
 sought to have the administratora' accounts sur- 
 charged with the amount so received, but the 
 action of the administratrix was sustained. — Su- 
 preme Ct., {ith Dept.,) Jan., 1880. Richard- 
 son V. Koot, 19 Hun 473. 
 
 56. Presentment of claims. Notice 
 to creditors. Before bringing an action to 
 recover a strictly legal claim against an estate, 
 its owner should present the same to the execu- 
 tor or admisnisirator, pursuant to Eev. Stat., ch. 
 6, tit. 3. I 4:1.— Superior Ct., June, 1877. Key- 
 ser V. Kelly, 43 Superior 22. 
 
 57. Claims against an estate may be pre- 
 sented at any time after executors qualify and 
 enter upon the discharge of their duties ; and 
 when they examine and decide upon the justice; 
 
EXECUTORS AND ADMINISTRATORS, III. 
 
 171 
 
 of a claim presented, although no notice to 
 creditors has been published, the effect -of their 
 decision is the same as though the claim was 
 presented after publication! of such a notice. — 
 a. ofApp., May, 1879. Field o. Field, 77 N. 
 Y. 294. 
 
 Therefore, it is not requisite that a claim 
 against an estate be presented to the executors, 
 and their refusal to refer made during the pub- 
 lication of notice to creditors, to entitle a plain- 
 tiff suing upon such claim, to costs. lb, 
 
 58. Reference of disputed claims. 
 Pending a reference of a disputed claim, the 
 court may, on motion, order other persons 
 whose presence is necessary to a complete deter- 
 mination of the controversy, to be brought in 
 and made parlies. — Supreme Ot., {Sp. T. and 
 Chamb.,) Dec., 1879. Mowry v. Peet, 7 Abb. N. 
 Cas. 195. 
 
 50. Where the referee reports that the claim 
 referred is wholly unfounded, the court may, on 
 the application of the representative, direct him 
 to report upon any claim in favor of the estate 
 and against the claimant of the unfounded claim. 
 — Stmreme Ct., {2d Dept.,) Dec., 1879. Matter 
 of Hendrickson v. Dickson, 19 Hun 290. 
 
 60. An award made against the estate under 
 a submission by executors or administrators will 
 ascertain and liquidate the claim submitted, but 
 it will confer no right upon the party in whose 
 favor it is made, as against other creditors, to 
 priority of payment out of the assets. The 
 statute regulates the rights of creditors to dis- 
 tribution, and an award of payment -absolutely, 
 while it may bind the executors or administra- 
 ,tors personally, cannot prejudice the right of 
 other creditors, having debts of equal degree, to 
 share in the distribution of the decedent's es- 
 tate.— Ci.o/^pp., May, 1878. Wood v. Tunni- 
 cliff, 74 N. Y. 38. 
 
 61. Costs of the reference. An archi- 
 tect presented a bill for services, and, it not hav- 
 ing been paid by his employer, he presented a 
 claim against the latter's estate for the same ser- 
 vices, but largely exceeding in amount the bill 
 first rendered. The executor refused to pay. 
 Held, that such refusal was not unreasonable, 
 and that the estate should not be charged with 
 the costs of an unsuccessful defence before a 
 referee appointed under the statute. — Supreme 
 Ct; (1st Dept.,) July, 1879. Harrison v. Ayers, 
 18 Hun 336. 
 
 62. Where a claim for $1151.50 was referred 
 by consent of the claimant and the executors, 
 and the claimant recovered only $674:— Held, 
 that he should not have costs against the execu- 
 tors, but only the referee's and witness' fees, and 
 disbursements ; unless bad faith or mismanage- 
 ment on the part of the executors were shown. 
 —Supreme Ot., {4th Dept.,) Jan., 1880. Pursell 
 V. Fry, 58 How. Pr. 317 ; S. C, 19 Hun 595. 
 
 63. Appeal from judgment on re- 
 port. A claim having been referred, the re- 
 port of the referee, in favor of the plaintiff, was 
 confirmed with the consent of the executors' at- 
 torney, and judgment entered. The executors 
 appealed. Held, that the confirmation of the 
 report not having been opposed, and no motion 
 having been made at Special Term to set aside 
 the report, or for a new trial, the judgment was 
 not appealable.— Supreme Ct., {4th Dept.,) Jan., 
 1879. Frane v. Vanline, 16 Hun 528. 
 
 64. Where the judgment entered on- the ref- 
 eree's report on a reference of a disputed claim 
 
 is set aside by the General Terra on appeal, ano" 
 the order of reference vacated, the Special Termi 
 has power to refer the case to a new referee to 
 hear and determine, even though the action is 
 one in which a compulsory reference could not 
 ordinarily be ordered. — Supreme Ct., {3d Dept.,) 
 May, 1879. Hasten v. Budington, 18 Hun 105.. 
 
 65. Payment of legacies. Where an 
 administrator has appealed from a decree order- 
 ing him to pay over legacies, and filed a sufii- 
 cient bond, an attachment will not be granted 
 against him for failure to obey the decree, untih 
 after the determination of the appeal. — N. Y. 
 Surr. Ct., AprU, 1878. Matter of Espie, 3 Eedf. 
 270. 
 
 66. What facts must be shown to confer ju- 
 risdiction on the surrogate to order the payment, 
 to a legatee of a portion of the legacy necessary 
 to the legatee's support, before payment of debts,, 
 &c. ; and as to the proper contents of the bond 
 to refund the money when necessary to pay- 
 debts and prior legacies, see Barnes v. Barnes, 
 13 Hun 233. 
 
 67. Distribution— lio-w made and 
 compelled. It is no defence to an application-' 
 to punish an administrator for contempt in not 
 paying over a distributive share to one of tlie- 
 distributees, pursuant to an order of the surro- 
 gate, that other persons claim the share a* 
 assignees of the person named in the order. 
 He should obey the order unless prevented by 
 some superior authority. — Westc. Surr. Ct., July,.. 
 1877. Marshall v. Hitchcock, 3 Kedf. 461. 
 
 68. The decree of a surrogate for the pay- 
 ment of money by an administrator is not 
 merged by docketing the same in the ofSce of 
 the county clerk. After the docketing, the per- 
 son in whose favor it was docketed has two- 
 remedies thereon, one by attachment against th& 
 administrator in the surrogate's court, an(i 
 another by execution based upon the docket ;: 
 the two remedies are not inconsistent but con- 
 current or cumulative, and may both be pur- 
 sued until the decree has been complied with ; 
 nor is such decree merged in a judgment subse- 
 quently obtained by the person to whom the 
 money is directed to be paid, against the admin- 
 istrator and his sureties upon the axiministrator's- 
 bond.— a. of App., Dec., 1878. Townsend v. 
 Whitney, 75 N. Y. 425: affirming 15 Hun. 
 93. 
 
 69. The rights of the distributees as to their 
 respective proportions of the income of the tes- 
 tator's estate, and the discretionary powers of 
 the executor in respect thereto, determined in a 
 case depending upon particular facts. — Supreme 
 a., {2d, Dept.,) Jvly, 1879. Ireland v. Ireland,. 
 18 Hun 362. 
 
 3. Sale of lands for payment of debts. 
 
 70. To pay what debts land may 
 be sold. When judgment for deficiency in a 
 foreclosure suit, after death of deceased, is a debt 
 to pay which the surrogate may order a sale of 
 his lands, see East Eiver Nat. Bank v. McCaf- 
 frey, 3 Redf. 97. 
 
 '71. " Funeral expenses," as used in Laws of 
 1874, ch. 267. declaring for what debts lands 
 may be sold by the surrogate, include the cost 
 of a suitable head-stone to be erected at the- 
 grave of the deceased. But an expenditure of 
 $500 in erecting a head-stone, where the wiiole- 
 estate does not exceed f 8000, is too great to be- 
 
172 
 
 EXECUTORS AND ADMINISTRATORS, III. 
 
 allowed aa a part of the funeral expenses. — Su- 
 preme Ct., [Zd Dept.,) May, 1878. Owens v. 
 Bloomer, 14 Hun 296. 
 
 72. A decision of the surrogate, in proceed- 
 ings for the sale of land to pay debts, adjudging 
 ■certain claims to be vans'' and subsisting demands 
 against the estate, is appealable at the instance 
 •of the heir-at-law. lb. 
 
 73. Wlien a sale is proper. A creditor 
 -of a firm, both the members of which are dead, 
 may, on the proper proof, procure a sale by a 
 surrogate's order, of the real estate of the part- 
 ner who survived the other, although tlie latter 
 left abundant assets to meet all demands against 
 his estate. — Westc. Surr. Ct., AprU, 1879. Bridge 
 V. Swain, 3 Eedf. 487. 
 
 74. In ascertaining the sufficiency or insuf- 
 ficiency of a decedent's personal estate for the 
 payment of his debts, and the consequent pro- 
 .priety of mortgaging or selling his real estate 
 for that purpose, only the personal property 
 which ha^ actually come to the hands of the 
 
 -executors is to be regarded ; uncollected and 
 litigated demands in favor of the estate are to 
 be excluded. lb. 
 
 75. The petition for an order to sell real 
 estate to pay debts, should contain a description 
 ■of all the real estate of which the intestate 
 -died, seized. — Westc. Surr. Ct.,Jan:, 1879. Mat- 
 ter of Igglesden, 3 Eedf. 375. 
 
 76. The bond. The penalty of the bond 
 given on the sale of land subject to a mortgage, 
 to pay debts, must be double the value of the 
 property to be sold, and this value may be 
 obtained by other proof than the allegation of 
 the petition ; where the evidence warrants, and* 
 no objection is taken, a less value than that 
 alleged therein, may be established as the basis 
 for fixing the penalty of the bond. — Westc. Smr. 
 •Ct., Jan., 1879. Jackson v. Holladay, 3 Kedf. 
 -379. 
 
 77. "What lands should be sold. The 
 rule that unencumbered lands should be sold to 
 pay debts in preference to mortgaged lands, 
 applied. Matter of Clark, 3 Kedf. 225. 
 
 78. Allovrances and costs. The surro- 
 gate, not a Supreme Court justice, is the proper 
 officer to apply to for an order directing the pay- 
 ment of an allowance and costs in a proceeding 
 to sell lands for payment of debts. — Westc. Surr. 
 a., May, 1878. Clocke v. Igglesden, 3 Kedf. 
 
 -339. 
 
 4. Accounting. 
 
 79. Jurisdiction and po^wers of the 
 surrogate. Where an executor, in good faith, 
 resists the charging of a legacy upon the rssi- 
 
 •duaiy estate in his hands, and shows that there 
 -exists a real question of fact or law, a surrogate 
 has no jurisdiction to decide the question upon 
 settlement of the executor's accounts — Ct. of 
 App., Jan., 1878. Bevan v. Cooper, 72 N. Y. 
 -317, 328. 
 
 80. As to the power of the surrogate of New 
 York county to appoint an auditor or referee to 
 take the account of an executor, on the petition 
 
 ■of a creditor, see Matter of Douglass, 3 Eedf. 
 ■538. 
 
 81. Parties— Intervention. The com- 
 mittee in lunacy of a legatee, appointed in 
 another state, cannot intervene on the final 
 :a,ccoanting of the executor in this state, by virtue 
 -of his foreign appointment. — N. Y. Surr Ct. 
 
 Weller v. Suggett, 3 Kedf. 249. 
 
 82. Mode of stating the account. 
 
 Where an accounting by executors does not 
 purport to be final, or to dispose of the whole 
 estate, it is not essential that interest should be 
 computed down to the surrogate's decree ; when 
 all the accounts presented are made up to a cer- 
 tain date it is sufficient ; the state of the accounts 
 on that date, when established, will furnish the 
 starting point for a further or final account. — 
 Ct. of App., Nov., 1878. Adair v. Brimmer, 74 
 N. Y. 539. 
 
 83. The accounts credited and the surrogate's 
 decree allowed to the executors, all payments 
 made to beneficiaries, without regard to their 
 distributive shares. HM, error; that the ac- 
 counts should have been made up so as to 
 show the net amount of assets in the hands of 
 all the executors collectively, and the distribu- 
 tive share to which each distributee was entitled 
 at the time of the accounting ; and that the 
 executors were only entitled to credit for pay- 
 ments to distributees, to the extent of the distri- 
 butive share to which each was entitled ; they 
 could not claim credit for over-payments aiid 
 thereby diminish or postpone the amounts paya- 
 ble to other legatees. lb. 
 
 84. Where excessive payments have been 
 made by one of several executors, without the 
 authority or consent of the others, out of moneys 
 which have come to his hands severally, and 
 which have never come under the control of the 
 other executors, that one will be held solely re- 
 sponsible for so much of the fund as has thus 
 come to his hands, and be credited only with 
 such amounts as have been legally paid, or which, 
 if himself a legatee, he was legally entitled to 
 retain. But the excess in his hands cannot be 
 subtracted from the general account of all the 
 executors, as a payment to a legatee ; it must 
 remain in the account as so much assets of the 
 estate, and when the whole balance of the estate, 
 not legally disposed of, is thus ascertained, the 
 question in what proportion the, several execu- 
 tors are liable for such balance must be deter- 
 mined, lb. 
 
 85. What are proper charges against 
 the representatives. The executors, in an 
 account presented to the surrogate, credited 
 themselves with the amount of taxes paid on a 
 farm devised for life to testator's widow. This 
 the surrogate disallowed, and decreed a distri- 
 bution of the sum. Upon a subsequent account- 
 ing, the executors were again charged with this 
 sum. Held, error ; that if the former decree had 
 not in fact been complied with, it could be en- 
 forced, and the same sum should not be again 
 charged — Ct. of App., Jan., 1878. Deraismes v. 
 Deraismes, 72 N. Y. 154. 
 
 86. What were proper charges against an ad- 
 ministrator, on his accounting before the surro- 
 gate, determined in a peculiar case where nu- 
 merous transfers of land (some claimed to be 
 fraudulent) had been made, and the widow and 
 another laid claim to the proceeds of such land 
 in the administrator's hands. — Supreme Ct,, {Uh 
 Dept.,) Jan., 1879. Westfall v. Westfall, 16 Hun 
 541. 
 
 87. "When char.geable with interest. 
 Wliere an administrator's accounts show a sale 
 of bonds belonging to the estate, and account for 
 the proceeds, in the absence of any objection to 
 them or proof tending to impeach the state- 
 ment, it is to be taken as true, and it is error 
 for the surrogate to charge him with the value 
 
EXECUTORS AND ADMINISTRATORS, III. 
 
 173. 
 
 and interest as if he had retained them. — Ot. of 
 App., Jan., 1878. Wright v. Fleming, 71 N. Y. 
 612. 
 
 88. When an administrator should be charged 
 ^th interest on notes taken on sale of assets, see 
 Haskin v. Teller, 3 Redf. 116. 
 
 89. What credits should be allo-wed 
 them. While an administrator will not in 
 general, be allowed a charge for clerk hire in 
 keeping his accounts, yet just and reasonable 
 expenses incurred in the preparation of his ac- 
 counts for submission to the surrogate, he may 
 be allowed for, under Laws of 1863, ch. 362, § 8. 
 — Westo. Surr. Ct., Aug., 1877. Fowler u. Lock- 
 wood, 3 Eedf. 465. 
 
 90. When payment by an administrator, of 
 interest on a mortgage on land afterwards sold 
 for debts of the intestate, will be allowed to him 
 on his accounting, see Stilwell v. Melrose, 15 
 Hun 378. 
 
 91. Where the husband, who was administra- 
 tor of his wife's estate, applied money thereof, 
 in good faith, to the support of their children, 
 the amount was allowed to him on his final ac- 
 counting. — Surr. Ct., Oct., 1878. Matter of Marx, 
 5 Abb. N. Cas. 224. 
 
 92. Executors are not entitled to be credited 
 in their accounts with interest paid to raise 
 money for advances to beneficiaries in excess of 
 their distributive shares. — Ot. of App., Nov., 
 1878. Adair v. Briminer, 74 N. Y. 539. 
 
 93. Two of several executors, who were in- 
 debted to the estate, with the consent of their co- 
 executors, gave their individual bond, in satis- 
 faction of a mortgage payable by the estate ; the 
 transaction was advantageous to the estate, and 
 the bond was so given to obviate an objection 
 that the executors, as such, had no power to 
 give it. Held, that the fair inference was that 
 the bond was given on behalf of the estate, and 
 the executors were entitled to be credited with 
 payments made on said bond. lb. 
 
 94. AUo'wances for funeral ex- 
 penses, head-stones, Sec. A husband, 
 upon his accounting as administrator of his de- 
 ceased wife, should be alowed for her necessary 
 and proper funeral expenses paid by him— Sit- 
 preme Ct., (2d J)ept.,) Sept., 1878. McCue v. 
 Garvey, 14 Hun 562. 
 
 95. As to the powers of the administrator 
 respecting the erection of a monument or head- 
 stone over the grave of his intestate, the proper 
 cost thereof, and of the burial plot, see Matter 
 of Erlacher, 3 Eedf. 8. 
 
 96. Amounts allowed for funeral expenses, 
 and undertakers' bills, reviewed, and passed upon 
 with a view to the financial condition of the es- 
 tate in which the expense in question was in- 
 curred. Matter of Eooney, 3 Eedf. 15. 
 
 97. — for costs, counsel fees, &c. A 
 surrogate has no authority, upon the account- 
 ing of an executor, to direct him to pay a sum 
 to his counsel for the services of the latter ; 
 charges for services, rendered by an attorney to 
 an executor, are against the executor indi- 
 vidually, and there is no authority warranting 
 a decree in favor of the attorney, against the 
 estate, or against the executor as such. — Ct. of 
 App., Sept., 1879. Seaman v. Whitehead, 78 
 NTy. 306. 
 
 98. The allowances authorized to be made 
 by the act of 1863, relating to proceedings in the 
 Surrogate's Ckiurt, (Laws of 1863, ch. 362, J 8,) 
 are to the executor himself, and allow him to 
 
 charge the estate for such counsel fees as he has- 
 been obliged to pay, limited however, by the- 
 rate prescribed by the act. lb. 
 
 99. Where an executor is sued indiviiiually 
 for the price of a tombstone, ordered by him in 
 accordance with a direction in the will, and judg- 
 ment recovered against him which he pays, he 
 should be allowed upon his final accounting the; 
 costs and disbursements included in such judg- 
 ment, and a reasonable counsel fee paid to his- 
 attorney, provided he acted in good faith in de- 
 fending the action.— (SMpceme Ct., {4th Dept.,) 
 Gel., 1878. Matter of Grout, 15 Hun 361. 
 
 100. Where an executor interposed a claim 
 against the estate — Hdd, improper for the sur- 
 rogate to allow to the executor the fees of the- 
 auditor to whom the claim was referred, or 
 counsel fees for services in support of the claim^ 
 — Ct. of App., Feb., 1878. Shakespeare v. Mark- 
 ham, 72 N. Y. 400, 407. 
 
 101. Practice— objections and excep- 
 tions. If the objections filed are insufficient, 
 the surrogate may allow further objections to be- 
 filed; but this is not within the power. of an. 
 auditor. If the contestants desire to present 
 other objections, they should file them before- 
 the surrogate, and obtain an order referring them 
 to the auditor.— Oi!. of App., Oct., 1878. Bough- 
 ton V. Flint, 74 N. Y. 476. 
 
 102. The accounting party is not bound to 
 establish payments for which he presents vouch- 
 ers, unless denied by objections, and the burden 
 of impeaching such payments is on the con- 
 testants, lb. 
 
 103. If the rulings of an auditor are review- 
 able on appeal from a surrogate's decree (as to- 
 which, qiusre), the questions must first be pre- 
 sented to the surrogate, and his decision obtained 
 thereon. lb. 
 
 104. The mere noting of an exception in the 
 minutes of the testimony taken before the 
 auditor, is not the mode of bringing such ques- 
 tion before the surrogate.' A specific exception 
 should be filed to the auditor's report that the- 
 ruling complained of was erroneous, lb. 
 
 105. Where infants are cited on a final 
 accounting of an executor or administrator, a 
 special guardian must be appointed, or the sur- 
 rogate will have no jurisdiction over such minors, 
 except for service of the citation. — Surr. Ct^ 
 May, 1878. Matter of Lockman, 4 Abb. N. Cas^ 
 173. 
 
 106. Who may file objections. Where,, 
 under the provisions of the Revised Statutes 
 (2 Eev. Stat. 92, I 52,) an executor, after 
 eighteen months from the time of his appoint- 
 ment, has been required to render, and has ren- 
 dered, an account, the surrogate in examining it 
 may allow, for his information, any person to- 
 point out the errors and defects in the account.. 
 Where, therefore, the person upon whose appli- 
 cation the order requiring the account was- 
 granted files objections thereto, the surrogate is 
 not bound to strike out or dismiss them, but, at 
 least, may retain and use them as the basis of his- 
 investigation. — Ct. of App., May, 1877. Buchan 
 V. Eintoul, 70 N. Y. 1. 
 
 lOY. \Vhether the person who applied for 
 the order can appear and contest the account, 
 and as to whether the surrogate may appoint an 
 auditor to examine the account, see lb. 
 
 108. Power and duties of the audi- 
 tor. Compensation. When disputed ac- 
 counts of an executor are referred to an auditor 
 
174 EXECUTORS AND ADMINISTRATORS, III., IV. 
 
 ■for examination, it is his duty to pass upon the 
 objections filed to the accounts, and no others. — 
 Cl. of App., Oct., 1878. Boughton v. Flint, 74 
 If. Y. 476. 
 
 109. An auditor cannot withhold his report 
 until his fees are paid. The allowance to be 
 made to him by the surrogate is to follow the 
 •confirmation of the report. — -N. Y. Surr. Ct., Nov., 
 
 1878. Matter of Foster, 3 Eedf. 532. 
 
 110. Enjoining the proceedings. When 
 an action is proper to restrain proceedings be- 
 fore the surrogate on the final accounting of an 
 -administrator, see Wright v. Fleming, 76 N. Y. 
 517 ; affii-ming 12 Hun 469. 
 
 111. Appeals from surrogate's de- 
 cree. Where an executor appeals from the 
 surrogate's decree upon the final accounting, and 
 the petition of appeal contains a specification 
 of one item only, the respondent may set forth 
 such other items of the account as he claims are 
 «rroneons, though the error is prejudicial to 
 him only in common with all the other benefi- 
 ciaries, none of whom have appealed or applied 
 to intervene. — Supreme Ct., (2d Dept.,) May, 
 
 1879. Cox V. Schermerhom, 18 Hun 16. 
 
 112. The right, generally. The pro- 
 visions of 2 Rev. Stat. 93, § 58, respecting com- 
 missions of executors, explained, and the 
 amounts to be allowed thereunder, as well as 
 under Laws of 1863, ch. 362, stated. See this 
 case as to compensation of personal representa- 
 tives generally. — Supreme Cl., (1st Dept.,) July, 
 1878. Betts v. Betts, 4 Abb. N. Cas. 317. 
 
 113. How computed. An executor who 
 eeUs real estate subject to mortgages, is entitled 
 to commissions on the whole purchase price, in- 
 cluding the amount secured by the mortgages. — 
 Supreme Ct., {7d Dept.,) May, 1879. Cox v. 
 Schermerhom, 18 Hun 16. 
 
 114. Commissions of executor -wrho 
 is also trustee. A person is not entitled to 
 receive commissions both as executor and as trus- 
 tee upon the same fund for the same time. — Ct. 
 o/ App., Nov., 1879. Hall v. Hall, 78 N. Y. 
 535 ; affirming 18 Hun 358. 
 
 115. When executors are entitled to commis- 
 sions as trustees, as well as those which they 
 may daim as executors, see Matter of Carman, 
 3 Redf. 46. 
 
 116. Compensation of collector. There 
 is no statute providing for a compensation to 
 special administrators or collectors. But they 
 are within the equity of the statute fixing the 
 compensation of executors and administrators, 
 and entitled to the same fees and commissions. 
 Such commissions are not to be based simply 
 upon the actual money received and paid out, 
 but upon the value of the whole estate received 
 and passed over by the collector. — Supreme Ct., 
 (ith Dept.,) Jime, 1879. Green v. Sanders, 18 
 Hun 308. 
 
 117. As to the commissions of a collector, and 
 when he should be allowed the full commissions 
 of an administrator, see Matter of Duncan, 3 
 Eedf. 153. See, also, Haskin v. TeUer, Id. 316. 
 
 IV. Suits. 
 
 1. Actions by executors or administrators. 
 
 118. "When representative may sue. 
 
 and in what capacity. The widow and 
 next of kin of a deceased executor cannot main- 
 tain an action to foreclose a mortgage belonging 
 to the estate of the testator. Such an action can 
 only be brought by an administrator de brniis non. 
 The appointment of one of the plaintiffi as such 
 administrator during the pendency of the action, 
 will not uphold the action. — Supreme Cl., (Sp. 
 T.,) Oct., 1878. Galfield v. Hanson, 57 How. 
 Pr. 331. 
 
 119. An action by an administratrix to re- 
 cover money claimed to have been paid to de- 
 fendant by mistake of fact, should be brought on 
 behalf of the e.state and not in plaintiff's own 
 behalf.— Own. Pleas, March, a878. Gulkeii. 
 Uhlig, 55 How. Pr. 434. 
 
 120. When the heirs-at-law, and not the per- 
 sonal representatives, are the proper parties to 
 maintain an action tp recover proceeds of lands 
 belonging to the estate, see Roup v. Bradner, 19 
 Hun 513. 
 
 121._ The proper form of action. An 
 administrator cannot recover, at law, money 
 overpaid to creditors, upon the misplaced confi- 
 dence that the assets would be sufficient to pay 
 in fall all claims against the estate. The remedy 
 in such case is in equity. — Com. Pleas, March, 
 1878. Gulke «. Uhlig, 55 How. Pr. 434. 
 
 122. Parties. The intestate's widow is a 
 necessary party to an action by the adminis- 
 trator to set aside a contract made by the intes- 
 tate, and which is pecuniarily beneficial to the 
 widow, on the ground of the insanity of the in- 
 testate when he made the contract. An allega-' 
 tion in the complaint that the widow has con- 
 sented to surrender the contract, does not excuse 
 omitting herasaparty. — Supreme Ct., (ith Dept,,) 
 Feb., 1880. Riggs v. American Tract Soc, 7 
 Abb. N. Cas. 433. 
 
 123. Complaint. In an action by an 
 administratrix, suing in her representative 
 capacity upon a non-negotiable promissory note, 
 where the complaint alleges the note to have 
 been delivered to her intestate, it is unnecessary 
 to allege that it is in plaintiff's possession. The 
 burden of proof is on the defendant to show that 
 it has been parted with by plaintiff or the intes- 
 tate.— Cbm. Pleax, Dec., 1878. Cordier v. Thomp- 
 son, 8 Daly 172. 
 
 124. Where the averments in, and the frame 
 of a complaint are such as to affix to the plain- 
 tiff a representative character and standing in 
 the litigation, and to Bhow that the cause of 
 action, if any, devolved upon him solely in that 
 character, the omission in the title to the action 
 of the word " as," between the name of plaintiff 
 and words descriptive of his representative 
 capacity, does not prevent him from claiming 
 in that capacity. — Ct. of App., April, 1878.' 
 Beers v. Shannon, 73 N. Y, 292, 297. 
 
 125. Evidence. In an action brought by 
 plaintiff upon a bond which the complaint 
 showed he claimed to hold as executor, plaintiff 
 offered in evidence letters testamentary issued to 
 him in another state; this was objected to on 
 the ground that plaintiff did not sue in his rep- 
 resentative capacity, the word " as " being 
 omitted in the title. The objection was over- 
 ruled. Plaintiff then offered in evidence an 
 exemplified copy of the proof of the will. This, 
 as stated in the case, was "duly objected to;" no 
 grounds of objection were stated ; the objection 
 was overruled. It was objected on appeal that 
 there wiis no proof that the person making the 
 
EXECUTOES AND ADMINISTEATORS, IV. 
 
 175 
 
 ■copy was authorized so to do, or that he was the 
 ■oftice'r he assumed to be. Hdd, that as the ob- 
 jection was not such an one as could not, by any 
 '|)ossibility, have been obviated if it had been 
 taken on the trial, it could not be relied upon 
 ■on appeal. lb. 299. 
 
 126. Judgment. M'here the judgment in 
 ^n action by an executor or an adminislrator is 
 in form for a recovery in plaintiff's favor per- 
 sonally, or fails to show exactly whether it is 
 adjudged to him individually, or as a represen- 
 tative, it is not a subject of review here ; the 
 remedy is by motion at Special Term to amend. 
 lb. 
 
 127. Costs. In an action by an executor, 
 ' upon a promise made to him after the testator's 
 
 ■decease, a verdict was rendered for defendant, 
 judgment for costs entered against plaintiff, with- 
 ■out reference to his representative character, 
 and an execution issued against him de bonis. 
 Held, proper.— Supreme Ct., (4(A Dept.,) Oct., 
 1878. Bostwick ii. Brown, 15 Hun 308. 
 
 2. Actions agaimt executors or administrators. 
 
 128. "Wlio may sue. Where the only as- 
 ■set of the estate is a mortgage given by the 
 ■executor to the testator, before the latter's 
 death, and the executor refuses to pay it, a 
 judgment creditor of the testator may maintain 
 an action to compel the sale of the mortgaged 
 premises, and the payment of his debt out of the 
 ))roceeds. — Supreme Ot., (2d Dept.,) Dec., 1878. 
 £aynor v. Gordon, 16 Hun 126. 
 
 129. Parties— intervention. The firm 
 ■of H., P. & Co. transferred all its property, real 
 and personal, to S. N. P., one of the partners, 
 upon the agreement that he should sell the prop- 
 ■erty, pay the firm debts, and divide what might 
 remain between the plaintiff and himself. S. N. 
 P. died in possession of the firm property, leav- 
 ing a will, by which he devised his estate to the 
 -defendants, in trust, to manage the same and 
 apply the profits thereof to the use of his chil- 
 dren until the youngest should become of age, 
 ■and then to divide the same equally among 
 them. After all the children had come of 
 age, the plaintiff sued the defendants, as ex- 
 ecutors and trustees, to compel them to ac- 
 ■count for the property received by their testator 
 irom the firm, and to pay to plaintiff his share 
 .thereof. One of the children applied to be 
 made a party to the action, to enable him to 
 .protect his interest in the estate. Held, that 
 ■the application should have been "granted. — 
 Supreme Ct., {1st Dept.,) Dec., 1879. Haas v. 
 Craighead, 19 Hun 396. 
 
 130. When an action against executors for 
 ■the conversion of proceeds of sales of land is 
 barred by the six years' statute of limitations, 
 see Eoup v. Bradner, 19 Hun 513. 
 
 131. Where a complaint, in an action to fore- 
 •close a mortgage executed by the defendant, as 
 •executor, allegesd that he executed it as such 
 executor — Hdd, that the complaint was suffi- 
 •cient, and that it was unnecessary to allege the 
 ■defendant's appointment as executor; he is pre- 
 sumed to be such as he has described himself. — 
 ■Supreme Oil., {Sp. T.,) Oct., 1879. Kingsland v. 
 :Stokes, 58 How. Pr. 1. 
 
 132. One who has received a judgment 
 -against an executor, has no right to have the 
 amount of his costs included in the sum allowed 
 io him in proceedings before the surrogate to 
 
 mortgage the decedent's real estate for the pay- 
 ment of debts, but only the face of the judgment, 
 notwithstanding the action was commenced in 
 the lifetime of the decedent, and revived by the 
 executor. — Westc.Surr. Ct., August, 1878. Burn- 
 ham V. Harrison, 3 Kedf. 345. 
 
 133. An executor or administrator, exempt 
 from costs in an action under and by virtue of 
 § 41, tit. 3, ch. 6, of the Ee vised Statutes, cannot 
 be made liable under J 317 of the code. — Su- 
 perior. Ct., June, 1877. Keyser v. Kelly, 43 
 Superior 22. 
 
 3. Proceedings to enforce administration bonds. 
 
 134. Liability of the sureties. The 
 sureties to a bond, conditioned as prescribed by 
 the statute (2 Bev. Stat. 77, § 42,) given by an 
 executor in pursuance of a surrogate's order, in 
 proceedings under the statute (2 Eev. Stat. 72, 
 I? 18, 19, 20,) against the executor, upon com- 
 plaint made because of his removal from the 
 state or for other cause specified, cannot limit 
 their liability to deficiencies or defalcations of 
 the executor occurring after the giving of the 
 bond. The object of the statute was to provide 
 against any improper use of the funds belonging 
 to the estate without regard to the time of its 
 occurrence, and the condition of the bond pro- 
 viding that the executor "shall obey all orders 
 of the surrogate touching the administration of 
 the estate," by its express terms binds the obli- 
 gors for<.a failure of the executor to obey an 
 order as to the payment of moneys which came 
 to the hands of the executor, although lost or 
 disposed of before the bond was executed. — Ct. 
 of App., Feb., 1878. Scofield v. Churchill, 72 
 N. Y. 565. 
 
 135. In an action upon such a bond, to re- 
 cover a legacy ordered to be paid by the surro- 
 gate's decree on the final accounting of the ex- 
 ecutor — 
 
 Held, 1. That evidence tending to show the 
 condition of the assets of the estate, at and prior 
 to the time of the execution of the bond, was in- 
 competent and properly excluded. 
 
 2. That in the absence of fraud or collusion 
 between the executor and legatee, the decree of 
 the surrogate was conclusive upon the sureties. 
 lb. 
 
 136. That the decree made by the surrogate 
 on the accounting is binding upon the surety, 
 and establishes prima facie the amount due from 
 the administrator, see Gerould v. Wilson, 16 
 Hun 530. 
 
 137. As to the liability of the surety on an 
 administrator's bond for costs awarded to coun- 
 sel by the surrogate, in an application by a 
 creditor for an accounting by the administrator, 
 and payment of his claim, see Browning v. Van- 
 derhoven, 55 How. Pr. 97 ; S. C, 4 Abb. N. Cas. 
 166. 
 
 138. What constitutes a breach of an admin- 
 istrator's bond, the liability of the sureties, and 
 admissibility of evidence in an action on the 
 bond, determined in a particular case. — Superior 
 Ot., March, 1879. Mundorff v. Wangler, 57 
 How. Pr. 372. 
 
 139. Who may proceed upon the 
 bond. Upon the final accounting of an admin- 
 istrator, the surrogate may issue separate certifi- 
 cates to each of the next of kin, entitled under 
 the decree to the payment of separate sums, upon 
 which they may docket separate judgments, and 
 
176 
 
 EXECUTORS AND ADMINISTRATORS, IV., V. 
 
 each of such persons may sue separately upon 
 the administrator's bond to recover the amount 
 due to him or her. — Supreme Ot., (Sd Dept.,) 
 Sept., 1878. Bramley v. Forman, 16 Hun 144. 
 
 140. Where a non-resident executor gives a 
 bond to The People of the State of New York 
 for the faithful discharge of his duties, the peo- 
 ple are trustees of an express trust, within Code 
 of Pro., § 449, and may sue in their name to 
 recover for a breach of the bond. — Supreme Ct,, 
 (id Dept.,) Dec., 1878. People, ex rel. Becar, v. 
 StruUer, 16 Hun 234. 
 
 141. Legatees under the will may enforce a 
 bond given by a non-resident executor, though 
 not parties to the bond. — Supreme Ct., (2d Dept.,) 
 Dec., 1879. Hood v. Hood, 19 Hun 300. 
 
 142. Matters of defence. The sureties 
 in an administration bond are not concluded 
 from questioning the decree of the surrogate on 
 the ground of an excess of jurisdiction. — Supreme 
 Ot., (Ut Dept.,) May, 1875. Browning v. Van- 
 derhoven, 4 Abb. N. Cas. 166. 
 
 143. An administrator's bond provided by 
 mistake -that he should obey " all the orders of 
 the surrogate of the county of Ontario," instead 
 of the county of Steuben. It appeared that the 
 surety knew of the use to be made of the bond 
 and that it had been delivered to the surrogate 
 of Steuben county. Held, that the mistake was 
 immaterial. — Supreme Ct., {ith Dept.,) Jan., 1879. 
 Gerould v. Wilson, 16 Hun 530. 
 
 144. Irregularities in the form of the surro- 
 gate's decree against an absconding administra- 
 tor, not personally served — Sdd not available 
 as a defence to the sureties on the administration 
 bond, in a particular case. — Supreme Ct., {1st 
 Dept.,) March, 1880. Harrison .,. Clarke, 20 
 Hun 404. 
 
 145. Evidence. In an action against the 
 sureties upon a bond given by a special adminis- 
 trator or' collector under the statute (2 Kev. 
 Stat. 77, § 43,) a recital in the bond that the sur- 
 rogate was about to issue letters, with proof that 
 defendant's principal acted as special adminis- 
 trator, was called to account and was decreed to 
 be in default as such, is sufScient without proof 
 of the actual appointment and the issuing of 
 letters to the special administrator ; it is not 
 necessary that the bond should state an actual 
 appointment. — Ct. of App., April, 1877. Dayton 
 V. Johnson, 69 N. Y. 419. 
 
 146. Whether, in such an action, a decree of 
 the surrogate adjudging defendant's principal to 
 be in default, and determining the amount 
 thereof, is competent evidence against the de- 
 fendant to show a breach of the bond, it appear- 
 ing by the decree that the citation upon which 
 the proceedings before the surrogate were based, 
 was only served upon such principal by publica- 
 tion, see lb. 
 
 147. In such an action, upon due proof being 
 made that upon the settlement of the accounts 
 of defendant's principal, it appeared an amount 
 of money remained in his hands, which he had 
 failed to pay over, the burden is upon the de- 
 fendant to show that this has been paid over ; 
 the presumption is that it has not been, and to 
 escape liability the presumption must be re- 
 butted by proof that it has. lb. 
 
 148. In an action against the executor of a 
 surety for a breach of the bond, by the omission 
 of the administrator to obey a decree for pay- 
 ment, the decree directing the payment and 
 stating facts sufficient to show that the surrogate 
 
 was proceeding within his jurisdiction, the peti- 
 tion for the decree, and the citation issued 
 thereon, and the bond, having been read in evi- 
 dence; and it having been proved that the 
 administrator had omitted to perform the decree, 
 that the surrogate's certificate under the decree 
 had been duly docketed, that execution had been 
 duly issued and returned unsatisfied, and that 
 the surrogate had assigned the bond — Held, that 
 plaintiff had made out a case which required 
 the direction of a verdict in his favor. — Superior 
 Ct., March, 1879. Mundorffu. Wangler, fl Su- 
 perior 495. 
 
 149. What is sufficient evidence of the death 
 of the principal in the bond, as against the 
 surety or his executor, in such a case, see lb. 
 
 150. Subrogation of surety on pay- 
 ment of judgment. — Upon payment of a 
 judgment against an administrator and his sure- 
 ties, by one of the sureties, he becomes subro- 
 gated to a decree, previously made by the surro- 
 gate, for the payment of the money sued for, and 
 has the right to have the same assigned to him- 
 self or to some other person designated by him ; 
 and, upon such assignment, may enforce the- 
 decree by attachment against the administrator. 
 Where the assignment is to a person designateci 
 by the surety, the assignee becomes a party to 
 the decree, the whole legal title thereto is vested 
 in him, and he can invoke every remedy for its 
 enforcement. — Ct. of App., Dec., 1878. Townsend 
 V. Whitney, 75 N. Y. 425 ; affirming 15 Hun 93. 
 
 151. Application for release from lia- 
 bility. Indebtedness of surety on administra- 
 tor's bond to the estate, when not ground for 
 refusing his application to be released from fur- 
 ther liability, see Lewis v. Watson, 3 Bedf. 43. 
 
 V. Public Administbators. Foeeign Eep- 
 
 KESENTATIVES. 
 
 152. A public administrator who has 
 succeeded to the rights of a special administra- 
 tor, and to whom the bond of the latter has beeit 
 duly assigned for the purpose of prosecution,. 
 (Laws of 1837, ch. 460, ? 65,J may bring an 
 action as public administrator upon the bond. — 
 Ct. of App., April, 1877. Dayton v. Johnson, 69 
 N. Y. 419. 
 
 153. The public administrator of the city of 
 Kew York may administer in preference to a. 
 foreign administrator. — N. Y. Surr. Ct., Jidy,. 
 1877. Matter of Hanover, 3 Redf. 91. 
 
 154. Foreign representatives. Assets- 
 appertaining to the estate of a testator, domi- 
 ciled abroad, at the time of his death, should be- 
 remitted to the foreign executor for distribution,, 
 according to the laws of the jurisdiction where- 
 the will was made and established, — Svpreme Ct.,. 
 (Sp. T.,) Oct., 1878. Trimble v. Dzieduzyiki, 57 
 How. Pr. 208. 
 
 But a legacy paid into court will not be turned 
 over to a foreign administrator, in virtue of his 
 foreign appointment. — N. T. Surr. Ct., Feb., 1878. 
 Matter of Jones, 3 Redf. 257. 
 
 155. For an application of the rule that the 
 courts of this state will not entertain jurisdic- 
 tion of an action at law against a foreign execu- 
 tor, see Field v. Gibson, 20 Hun 274 ; affirming 
 56 How. Pr. 232. 
 
 As to the rights of Heirs and Dislrihvieeg, see- 
 Descent; Distribution. 
 
 Of Devisees and Legatees, see Devisb, 10-13 ; 
 Legacies. 
 
EXPRESS COMPANIES— EXTRADITION. 
 
 177 
 
 EXECUTORY DEVISE. 
 
 Devise, 8. 
 
 EXEMPTION. 
 
 Attachment, 2, 3; Exectjtion, 31; Taxes, 
 18-20. 
 
 EXHIBITS. 
 
 EVIDKNCE, IV. 
 
 EXONERATION. 
 
 Of Sail, Bee Bail, 3-5; of Guarantor, see 
 GxTABANTT, IV. ; of Surety, see Principal and 
 
 SUBETY, III. 
 
 EXPERTS. 
 
 Witnesses, V. 
 
 EX POST FACTO LAWS. 
 
 Statutes, 14, 15. 
 
 EXPRESS COMPANIES. 
 
 1. Liabilities, generally — receiving 
 money conditionally. As to the right of 
 an express company, on delivery of a package 
 shipped C. O. D. to the consignee, to receive the 
 money conditionally, agreeing to hold it nntil 
 the consignee be further heard from, and what 
 acts of the shipper will amount to a ratification 
 of such a course on the part of the company, see 
 Brooks V. American Exp. Co., 14 Hun 364. 
 
 2. Bight to limit the common laiv 
 liability. An express company which, refuses 
 to transport fragile goods, such as glass, unless 
 the shipper will accept a receipt containing a 
 contract limiting the company's' liability for 
 breakage, etc., cannot be compelled by manda- 
 mus to carry the goods, subject to all the com- 
 mon law liabilities of a common <!arrier. — Su/- 
 preme Ct., (1st Dept.,) Dec., 1878. People, ex rel. 
 Walker, v. Babcock, 16 Hun 313. 
 
 8. Effect of special contracts, notices, 
 &c. Where a traveler, on delivery of baggage 
 to a local express company, receives a paper, 
 which, from the circumstances of the transac- 
 tion, he has a right to regard simply as a receipt 
 or voucher, to enable him to follow and identify 
 his property, and no notice is given to him that 
 it embodies the terms of a special contract, or is 
 intended to subserve any other purpose than as 
 a voucher, his omission to read the paper is not, 
 per se, negligence, and he is not, as matter of 
 law, bound by its terms. — Ct. ofApp., April, 1878. 
 Madan v. Sherard, 73 N. Y. 329 j affirming 42 
 Superior 353. 
 
 4. The question whether, in a particular case, 
 ihe party receiving such a receipt accepted it 
 with notice of its contents, or with notice that it 
 contained the terms of a special contract, so as 
 to require him to acquaint himself with its con- 
 tents, is one of evidence to be determined by the 
 jury. Ih. _ 
 
 5. Defendant's agent came into a railroad car, 
 in which plaintiff was traveling, and called for 
 baggage. He received the check for plaintiff's 
 trunk, with directions as to the delivery, and 
 marked on a blank receipt the date, number of 
 check, and place of delivery, which he handed 
 to plaintiff, without anything being said as to its 
 contents. The car was dimly lighted, so that 
 plaintiff, where he was seated, could not have 
 read the receipt. Without looking at or reading 
 it, he put it in his pocket. The receipt was 
 marked upon the margin, "Domestic bill of 
 lading," and purported to be a contract_ relieving 
 defendant from, or limiting its liability' in certain 
 specified cases, and among others, limiting its lia- 
 bility, save in case of a special contract, to iJlOO. 
 The court refused to charge, as matter of law, 
 that the delivery of the receipt created a con- 
 tract for the carriage of the trunk, under its 
 terms, and limited defendant's liability to the 
 amount specified, but submitted the question to 
 the jury. Held, no error; that defendant, in 
 order to relieve itself from full liability, was 
 bound to establish a contract upon the special 
 terms contained in the receipt; that no such 
 contract arose, as matter of law, from the 
 acceptance of the receipt under the circum- 
 stances, lb. 
 
 For decisions applicable to Express compa- 
 nies. In common with other common carriers, see 
 Carriebs; Kailroad Companies, and titles 
 there referred to. 
 
 EXTRADITION. 
 
 1. Effect of recitals in governor's 
 ■warrant. The recitals in a warrant of the gov- 
 ernor of this state for the arrest of a fugitive 
 from the justice of another state are to be taken, 
 at least prima fade, as true. A return, therefore, 
 to a writ of haieas corpus setting forth such a 
 warrant, which contains recitals of facts neces- 
 sary to confer authority, under the constitution 
 and laws of the United States, to issue it, is a 
 sufficient justification for holding the prisoner, 
 without producing the papers or evidence on 
 which the governor acted. — Ct. of App., May, 
 1879. People, ex rel. Draper, v. Pinkerton, 77 
 N. Y. 245 ; affirming 17 Hun 199. 
 
 2. Who is a fugitive from justice. 
 The governor, in determining that the act of 
 congress has been complied with, has no juris- 
 diction to inquire into the truth of the charges 
 made, or to look outside of the papers presented, 
 to determine whether or not the person de- 
 manded is a, fugitive fromi justice. The fact 
 that the person has committed a crime in an- 
 other state, and that he has been found in this 
 state, establishes conclusively that he is a fugi- 
 tive from justice. lb. (17 Hun 199.) 
 
 12 
 
178 
 
 FALSE IMPRISONMENT— FALSE PRETENCES. 
 
 FACTOR. 
 
 Pbincipaii and Agent, 81-85. 
 
 FAILURE. 
 
 Of QmgideraHon, see Contracts, 12 ; of Issue, 
 Bee Wills, V. Of Title, see Covenants, 16 ; 
 Vbnbob and Pubchaseb, 14, 15, 29-41. 
 
 FALSE IMPRISONMENT. 
 
 1. wnen the action lies. An action for 
 false imprisonment win lie for, and immediately 
 upon an illegal arrest ; and the statute of limi- 
 tations commences to run from that time. — Com. 
 Pleas, Jan^ 1880. Dusenbury v. Kielly, .58 How. 
 Pr. 286; S. C, 8 Daly 537. 
 
 2. The rules that the piior prosecution must 
 have terminated in plaintiff's favor, and that 
 an unreversed judgment in the present defend- 
 ant's favor in the former action is evidence of 
 probable cause, applied in an action for alleged 
 false imprisonment on an execution issued by 
 a justice of the pence. — Supreme O., {ith Dept.,) 
 June, 1878. Sailesbury v. Creswell, 14 Hun 
 460. 
 
 3. The complaint. In an action for false 
 imprisonment the complaint alleged, in sub- 
 stance, that the defendant wrongfully and will- 
 fully, without ju9t CMuse, jirovocation or juris- 
 diction, falsely imprisDued and caused to be de- 
 tained in prison the plaintiff, under the follow- 
 ing circumstances: defendant presided as judge 
 at and held a United States Circuit Court, be- 
 fore which plaintiff was tried and convicted of a 
 statutory^ offence, punishable by a fine or im- 
 prisonment ; he was sentenced by the defendant 
 lo pay a fine and also to be imprisoned. Plain- 
 tiff paid the amount of the fine to the clerk of 
 the court, who paid the same into the United 
 States treasury. A writ of habeas corpus was 
 granted and returned into paid court during the 
 same term, and on such return, defendant hold- 
 ing the court and as judge tlierof, vacated and 
 set aside the sentence, and re-sentenced the 
 plaintiff to imprisonment, and he was impris- 
 oned accordingly. In proceedings afterwards 
 had, the United States Supreme Court adjudged 
 the re-sentence to have been pronounced with- 
 out authority, and discharged plaintiff from im- 
 prisonment. It was not alleged that defendant 
 was a party to such proceedings or was repre- 
 sented or heard therein. Held, that the com- 
 plaint did not set forth a cause of action, and 
 that a demurrer thereto was properly sustained ; 
 that defendant in imposing the second sentence 
 acted judicially and was not liable, although 
 such sentence was in excess of jurisdiction and 
 void. — Ot. of App., March, 1878. Lange v. 
 Benedict, 73 N. Y. 12. 
 
 4. The general averment in the complaint 
 that the defendant " wrongfully and willfully, 
 without * * * jurisdiction, falsely impris- 
 oned " the plaintiff, did not entitle plaintiff to 
 judgment under the rule that the demurrer 
 admits the allegations in the pleadings demurred 
 
 to, as by the complaint it was based upon the 
 special circumstances set forth, and was no 
 broader or more effectual than those circum- 
 stances, lb. 24. 
 
 5. Matters of defence. Process regularly, 
 issued upon a judgment of a justice of the peace- 
 in an action for a statutory penalty less than 
 $200, authorizing the imprisonment of the de- 
 fendant therein, is a protection in an action for 
 false imprisonment to the officer executing it 
 and to the parties at whose instance it was 
 issued and served. — Ct. of App., April, 1877. 
 Hallock V. Dominy^69 N. Y. 238. 
 
 6. Evidence. In an action against a phy- 
 sician for false imprisonment in confining the 
 plaintiff, (supposed to have the small-poz,) in 
 his office, and delivering her to a hospital am- 
 bulance on its arrival, evidence of subsequent 
 injuries received in the ambulance, and in the 
 hospital, is inadmissible. — Supreme Ct., (4ft 
 Dept.,) April, 1878. Bider v. FuUer, 13 Hun 
 669. 
 
 As to Malicious Prosecution, see that title. 
 
 FALSE PRETENCES. 
 
 1. Jurisdiction of the offence. . It ap- 
 peared that the prisoner, on trial for obtaining 
 goods by false pretences, was put into bankruptcy 
 within three months after obtaining the goods. 
 It was claimed that he was punishable only under 
 the provisions of the United States bankrupt 
 law, which provided for the punishment of a 
 bankrupt, who, within three months prior to the 
 commencement of proceedings in bankruptcy, 
 obtains goods on credit with intent to de&aud, 
 under the false pretence of carrying on business. 
 Held, untenable ; that the scope of said provi- 
 sion and of the state statute, (2 Bev. Stat. 677, J 
 -53,) under which the indictment was found, 
 were widely different, and that they could stand 
 together ; but that even if the United States 
 statute embraced in its terms predsely the 
 offence charged in the indictment it would not 
 have nullified or superseded the state law. — Ot. 
 of App., Dec., 1878. Abbott t>. People, 75 N. Y. 
 602 ; affirming 15 Hun 437. 
 
 2. What will constitute the offence. 
 The accused purchased goods worth $600, giving 
 to the prosecuting witness his check on a bank 
 in Pennsylvania, dated on the day of the sale, 
 and payable three weeks later, representing that 
 he was rather short, and was frightened that he 
 would not have money enough to pay the check. 
 He had no money in the bank named, and kept 
 no account there. Beld, that he was guilty of 
 obtaining the goods by false pretences. — Su- 
 pi-eme Ct., (2d Dept.,) Feb, 1879. Foote v. 
 People, 17 Hun 218. 
 
 3. Where defendant procured a contractor 
 with the city authorities to make out a bill for 
 materials furnished, by which it appeared that 
 the materials had been delivered to the cityi 
 whereas, in fact, they had not, and by virtue of 
 such false statement in the bill, procured it lo 
 be audited, and obtained "the money thereon as 
 the attorney of the contractor — Hdd, that he 
 was properly convicted of obtaining money by 
 
FALSE PRETENCES. 
 
 false pretences. — Supreme Ct.j (Isf Dept.,) Nov, 
 1879. People v. Genet, 19 Hun 91. 
 
 4. A lawyer, who, by means of false repre- 
 -sentations to his client about the safety of an 
 investment on mortgage, procured her sigpature 
 to a satisfaction-piece, cashed the mortgage, and 
 kept the money — Held, properly convicted of 
 •obtaining money by false pretences. — Supreme 
 ■CX;, (1st iept.,) Jan., 1880. Therasson v. People, 
 iO Hun 55. 
 
 5. Upon the trial, it appeared that the 
 prisoner and one M. called upon the prosecu- 
 trix, and after bargaining for certain goods and 
 agreeing upon the price, M., whom the prisoner 
 lepresented as a man in business, having two 
 stores, etc., went out, as he said, to get the 
 money. M. returned with a check for the 
 amount of the purchase, purporting to be diawn 
 by one S., dated the next day. Attention being 
 called to the fact that the check was post-dated, 
 M. replied : " It is too late to go to the bank to- 
 day." (It was then after banking hours.) Both 
 the prisoner and M. said the check was good, 
 and that the maker had a business. The check 
 was received and the goods were delivered to 
 and taken away by the prisoner and M. No 
 such person as the drawer of the check kept an 
 account at the bank on which It was drawn, nor 
 •did it appear that there was any silch person, 
 and the check was admitted to be worthless. 
 Held, that the circumstances tended to show the 
 transaction to be a device on the part of the 
 prisoner and M. to defraud the prosecutrix ; 
 that the fact that the check was post-dated did 
 not, under the circumstances, make the transac- 
 tion simply an undertaking that the money to 
 meet it would be in the bank at its maturity; 
 and that the evidence justified a conviction. — 
 Ct. of App., March, 1878. Lesser v. People, .73 
 N. Y. 78. 
 
 6. The criminal intent. "Where the 
 ■charge is the obtaining, by false pretences, the sigr 
 nature of any person to a deed, the intent " to 
 cheat and defraud " is an essential element of 
 •the offence, and the question whether such intent 
 ■existed is a question for the jury. — Supreme Ct., 
 {ith Dept.,) Jan., 1879. Brown ». People, 16 
 Hun 535. 
 
 y. The indictment alleged that defendant, 
 with intent feloniously to cheat and defraud the 
 mayor of the city of New York, and to obtain 
 and get into his possession the sum of $166.66 be- 
 longing to said city, knowingly made certain false 
 and fraudulent representations to the cC'mptroUer 
 of the city, whereby he was induced to pay the 
 money to a third person. It did not allege that 
 defendant received the money or any part 
 thereof, either alone or in conjunction -sirith 
 -others. Hdd, insufficient. — Supreme Ct., {Ut 
 Deipl.,) March, 1878. People, ex rel. Phelps, v. 
 •<3eneral Sessions, 13 Hun 395. 
 
 8. Whether, if the indictment had charged 
 that defendant obtained the money, it would be 
 sufficient to show, upon the trial, that some 
 other person actually received it, see lb. 
 
 9. Evidence. On a trial for obtaining 
 ■goods in January, upon false pretences, con- 
 tained in a written statement made by defend- 
 ants as to their pecuniary condition, statements 
 made by them in March following, in regard to 
 iheir responsibility, are inadmissible to show 
 guilty knowledge. .Such evidence is too remote 
 to show that defendants knew that the written 
 statement was false when it was made. — Supreme 
 
 « 
 
 Cl., {\at Dept.,) July, 1878. Shulman v. People, 
 14 Hun 516 ; affirmed, by divided court, 76 N. Y. 
 624. 
 
 10. The admission of a person indicted for 
 false pretences as to solvency, that there was a 
 mortgage on his property, is not admissible 
 against him on the trial, to prove the existence 
 of such mortgage, without first accounting for 
 the non-production of the mortgage itself the 
 record thereof, or a copy of such record. — Sur 
 preme Gt., April, 1878. Sherman v. People, 13 
 Hun 575. 
 
 11. The indictment alleged that defendant 
 represented " that he was out of debt, or nearly , 
 out of debt, and that he had no debts against 
 him except a few dribbling grocery bills," and 
 then charged " whereas in truth and in fact 
 said defendant was not ovit of debt and was 
 not nearly out of debt, but was largely in debt 
 and owed large sums of money to divers per- 
 sons." Upon the trial the prosecution were not 
 permitted to prove any specific sums owed by 
 defendant, none being described or set forth in 
 the indictment. — Supreme Cl., (4(A Dept.,) April, 
 1879. Barber v. People, 17 Hun 366. 
 
 12. What evidence as to the ownership of the 
 articles, obtained by the false representations, 
 is sufficient to sustain the indictment, considered. 
 lb. 
 
 13. Upon the trial of an indictment for ob- 
 taining goods under false representations as to 
 solvency — Held, that schedules of his assets and 
 liabilities, made by the prisoner in proceedings 
 in bankruptcy, were competent as evidence to 
 show the falsity of the representations. — Ct. of 
 App , Dec, 1878. Abbott v. People, 75 N. Y. 
 602 ; affiiming 15 Hun 437. 
 
 But the testimony given by him in supple- 
 mentary proceedings, is inadmissible to show 
 the existence of debts at the time he represented 
 himself out of debt. Barber *. People, supra. 
 
 14. Burden of proof. On the trial of one 
 indicted for conspiring to obtain from the prose- 
 cuting witness, a promissory note, by felsely 
 representing that a certain female was with 
 child by him, and that if he did not give the 
 note, she would charge him as its father, the 
 prosecution must prove each of the representa- 
 tions to be false; it is not incumbent upon de- 
 fendant to prove them to have been true. — Sa- 
 preme Ct., 14th Dept,) Oct., 1878. Babcook e. 
 People, 15 Hun 347. 
 
 FALSE REPRESENTATIONS. 
 
 Fbaud, 3-6; iNSimAircE, 60, 02-103, 
 127 ;• Vendob and Pubchaseb, 1, 8. 
 
 FALSE RETURN 
 
 Constables, 2 ; Sheriffs, 13, 14. 
 
 FEES. 
 
 Attobney and Client, 21-32 ; Auction, 
 6, 7 ; Costs, 54-57 ; Shebiffs, 4, 5 ; Wnv 
 nesses, 3. 
 
 FEIGNED ISSUES. 
 Equity, 7, 8. 
 
180 
 
 FENCES— FIXTURES. 
 
 FENCES. 
 
 1. Division fences — fence vie'wers. 
 Under the provisions of Laws of 1866, oh. 540, 
 and Laws of 1871, ch. 635, relating to division 
 fences, each owner, where the lands are not 
 wholly cleared or improved, must maintain his 
 proportion of the division fence so far as he uses 
 it; that is, so far as it serves to fence his lands 
 which are inclosed, whether cleared or im- 
 proved or not ; bnt if, before he has contributed 
 to the division fence, he chooses to let a part of 
 his lands lie open, or if, after he has built a 
 portion of it, he chooses so to do and to remove 
 that part of the division fence adjoining it, he 
 may do so upon procuring the certificate of the 
 fence viewers to that effect, in compliance with 
 the staXute.^Supreme Ct., {4th Dept.,) June, 1878. 
 Chamberlain v. Keed, 14 Hun 403. 
 
 2. Where not the whole of the fence but a 
 portion only is removed, and the remainder left, 
 he must build, pay for, or maintain, as the case 
 may be, his proportion of such part of the 
 division fence as he continues to use for the pur- 
 pose of inclosing any part of his land. Ih. 
 
 3. An agreement between the adjoining own- 
 ers, by virtue of which specific portions of the 
 division fence are assigned to each to maintain, 
 is rescinded by either party removing a portion 
 of such fence, under the statute, which he was 
 by the agreement bound to maintain ; the 
 other party may then proceed de novo to have 
 the division fence apportioned, and the fence 
 viewers may be called in to settle any dilute 
 which may arise. lb. 
 
 4. Where the fence removed was in a, de- 
 cayed and ruinous condition, and in several 
 places so completely broken down and destroyed 
 as to afford no protection to plaintiff's adjoining 
 land — Held, that defendant did not waive the 
 benefit of the fence viewers' certificate by not 
 removing his fence until the first of April fol- 
 lowing ; though the case would have been differ- 
 ent if the fence had been a substantial one, pro- 
 tecting plaintiff's land. lb. 
 
 FERRIES. 
 
 1. Enjoining disturbance of fran- 
 chise. The application of the plaintiff for an 
 injunction against the running of a ferry by de- 
 fendant, between the city of Hudson and the 
 village of Athens^ denied, on the ground that 
 the pleadings did not show such an interference 
 with the plaintiff's rights as would warrant an 
 ibj'iniction pendente lite. — Svpreme Ol., (3d Dept.,) 
 Nov., 1879. Power v. Village of Athens, 19 
 Hun 165. 
 
 2. Bate of ferriage. Recovery of 
 excessive charges. As to the legal rate of 
 ferriage for foot passengers, over said ferry 
 from Athens to Hudson, and the right of a pas- 
 senger to recover excessive payments for fer- 
 riage, in an action against an agent of the pro- 
 prietor of the ferry, collecting the same, not- 
 withstanding the fact of his acting as agent, see 
 Edmonds v. Abeel, 20 Hun 441. 
 
 FIDUCIARY CAPACITY. 
 
 A'bbiBst, 12-16. 
 
 FIERI FACIAS. 
 
 Execution, L 
 
 « 
 
 FILING- 
 CHATTEL MOBTGAOES, 8-14 ,' JUSOUENT, IL 
 
 FINDINGS. 
 
 By iteferee, see Befebence; by Juc^e, on 
 trial without a jury, see Tbial, 76, "77. 
 
 FIRE. 
 
 Insurance against, see Insubance, H. ; lia^ 
 bility for Negligence, in respect to spread o£^ see . 
 Kailboas Companies, 7'7-81. 
 
 FIXTURES 
 
 1. As bet'ween vendor and purcha-' 
 ser. Files of marl, excepted in a deed of th» 
 land on which they had been dug and throwa 
 up, held personal property, in a case depend- 
 ing upon particular facts ; and the grantor, hav- 
 ing become revested with the title to the land — 
 Sdd, that he was estopped from chuming the 
 marl as a part of the realty. — Swpreme Ct,, (4tk 
 Bepi.,) Oct., 1879. Lacustrine Fertilizer Co. ». 
 Lake Guano, &c., Co., 19 Hun 47. 
 
 2. An engine and boiler, situate in a cheap- 
 board building of little value— ifeW to be per- 
 sonalty, as between the purchaser at an execu- 
 tion sale against the vendee of the engine, and 
 the assignee of the vendors thereof, who had 
 obtained a re-transfer &om the vendee on his- 
 failure to pay the purchase price. — Ct. of App., 
 Jan., 1879. Sisson v. Hibbard, 75 N. Y. 542 ;, 
 affirming 10 Hun 420. 
 
 3. — mortgagor and mortgagee. A 
 shingle machine and planing machine, in a saw 
 mill — ife2d personal property, under the circum- 
 stances of the particular case, where the contro- 
 versy was between an assignee of the mortgagor 
 of the mill, and the purchaser at foreclosure. — 
 Supreme Ct., {Sd Dept.,) Sept., 1878. Wells ».- 
 Maples, 15 Hun 90. 
 
 4. Pier mirrors, mantel mirrors, and gas fix- 
 tures, all more or less fastened to the realty — 
 Held personal property, in the particular case,, 
 as against the mortgagee claiming them as fix- 
 tures. — Supreme Ct., {2d Dept.,) Dee, 1878. Mc- 
 Eeage v. Hanover Fire Ins. Co., 16 Hun 239. 
 
 5. — landlord and tenant. One who- 
 derives title to demised premises, while the 
 tenancy is subsisting, under a mortgage executed 
 by the lessor subsequent to the lease, occupies 
 the position of the lessor ; and, unless the lessee- 
 by some act or omission on his part after the 
 execution of the mortgage, has lost his rights, 
 machinery placed by him upon the premises,, 
 which, as between him and the lessor, would be- 
 considered as personal property, will ~be so con- 
 sidered as between him and the one deriving 
 title under the mortgage, although the machinery 
 is so annexed that, as between vendor and ven- 
 
FIXTUEES— FRAUD. 
 
 181 
 
 ^ee, it would be part of the realty. — Cl. of App., 
 ■Jan., 1879. Globe Marble Mills Co. v. Quinn, 
 76 N. Y. 23. 
 
 6. Where, under a provision of a lease, en- 
 titling him so to do, the lessee purchased and 
 received a conveyance after the execution of a 
 mortgage by the lessor — Held, that while the 
 ■estate for years under the lease was merged in 
 the fee, machinery placed by the lessee upon the 
 premises and annexed thereto before the con- 
 veyance, did not, by operation of law, and in the 
 absence of any evidence of an intent on the part 
 ■of the lessee, become part of the realty, and was 
 not merged, as the ownership thereof was sepa- 
 rate and independent from the interest under 
 sthe lease, and was not derived from the lessor. 
 16. 
 
 7. What fixtures, erected by the tenant for 
 business purposes, are removable by him at the 
 ■expiration of his term, considered. — Supreme 
 
 Ct., (1st Dept.,) Dec., 1879. Livingston v. Sul- 
 zer, 19 Hun 375. 
 
 FORBEARANCE. 
 
 Debtor and Ceeditor, 16-18; Guabahty, 
 
 18-22 ; PRDfCIPAL AND SlTBETT, 12-14. 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 As to the right of a land-owner, out of pos- 
 session, to Segain posxes^on and maintain it, see 
 £eai. Pbopebty, 5. 
 
 FORECLOSURE. 
 
 Mechanics' Lien, 11 ; Mortgages, VI. 
 
 FOREIGN CORPORATIONS. 
 
 •CJORPORATIONS, VIII. ; INSURANCE, VI. 
 
 FOREIGN DIVORCES. 
 
 Divorce, 13- 17. 
 
 FOREIGN EXECUTORS. 
 
 Executors and Administrators, 154, 155. 
 
 FORGERY. 
 
 1. What will constitute the offence. 
 — Under the provision of the Revised Statutes, 
 (2 Bev. Stat. 673, g 34,) declaring that "every 
 person who, with intent to defraud, shall make 
 any false entry * * in any book of account 
 kept in the office of the comptroller of the state," 
 •or other state officers, shall, upon conviction, be 
 ^adjudged guilty of forgery in the third degree, 
 it is not necessary that the intent be to obtain 
 
 money, or cause the loss of money directly by 
 means of the false entry. The words " intent 
 to defraud" are used as synonymous with 
 fraudulent intent or purpose, to distinguish the. 
 case from one of an erroneous or fictitious entry 
 innocently made. Where, therefore, an em- 
 ployee in the office of the state treasurer, having 
 charge of the books of account and the deposits, 
 made a false entry of a deposit in bank, as a part 
 of a criminal scheme to purloin the funds of the 
 state, or to temporarily cover up a defalcation — 
 Held, that this was an "intent to defraud," 
 within the meaning of the statute. — (M. of App., 
 Feb., 1878. Phelps v. People, 72 N. Y. 365, 
 371 ; affirming 6 Hun 428. 
 
 2. What instruments are subjects 
 of forgery. — A county officer who, without 
 authority, has executed in his own name, as the 
 official representative of the county, an instm- 
 ment purporting in its body to be the contract 
 or obligation of the county, cannot be convicted 
 of forgery. Such an instrument is not one 
 " being or purporting to be the act of another," 
 within the meaning of the provision of Bev. 
 Stat. 673, § 33, defining forgery in the third 
 degree ; the " act " referred to is the making 
 of the instrument, and the offence consists in 
 making an instrument purporting to be made 
 by another. — Ot. of App , Dec., 1878. People v. 
 Mann, 75 N. Y. 484. 
 
 3. Indictment — ^variance. A count in 
 an indictment of a public officer, for forgery by 
 false entries in books of account, alleged a false 
 entry in a book containing an account between 
 the people and the " Mechanic^ and Farmer^ 
 Sank ; " after setting forth the false entry, it was 
 alleged " that the aforesaid account between the 
 people * * * and said Farmer^ and Me- 
 chanics^ Bank, after such false entry, was to the 
 tenor following," etc. 
 
 Held, 1 . That the discrepancy in the name of 
 the bank did not affect the validity of the count, 
 as it appeared upon the face thereof, to be a 
 mere clerical error, which could not possibly 
 have misled or prejudiced the accused. 
 
 2. That a variance in the date of an item of 
 the account, as set forth in the indictment, from 
 the account proved, was immaterial when said 
 item preceded the date of the false entry some 
 six months, and a balance of the account had 
 been twice struck after the item and prior to the 
 false entry. Phelps v. People, supra. 
 
 FORMER ADJUDICATION. 
 
 Judgment, III. 
 
 FRANCHISE. 
 
 Corporations, I. ; and the titles of the vari- 
 ous corporate bodies. 
 
 FRAUD. 
 
 Comprises only general principles aa to what RCts 
 or representations are, or are not fraudulent, and the 
 remedies at the command of the person wronged or 
 deceived. The following titles should be consulted for 
 the decisions on the effect of fraud or deceit upon the 
 matters and questions there treated : Assignments ; 
 Bills of Kxchangus; Chattkl Moktgagbs; Con- 
 
182 
 
 FRAUD, I., II. 
 
 TBACTs; Deeds; Mortgages; Pkomissory Notes; 
 Sales ; Vendob ahd Pubchabeb ; Wili£. 
 
 The circumstances which will render a conveyance 
 fraudulent as against the grantor's creditors, are 
 treated undei Fbaddulekt Cohyeyances. 
 
 I. What Amounts to Fraud oe Deceit. 
 II. Remedies for ^raud. 
 
 1. Action for damages, at law. 
 
 2. Stdtfor rdief, in equity. 
 
 3. Setting uffravd aa a defence. 
 
 I. What Amounts to Fraud or Deceit. 
 
 1. wnat amounts to fraud, generally. 
 — ^A party whose duty it is to prepare a written 
 contract aocording to a previous agreement, if 
 he prepares one materially changing the terms 
 of the previous agreement, and delivers it as in 
 accordance therewith, commits a fraud, entitling 
 the other to relief.— Ol. of App., May, 1879. 
 Hay V. Star Fire Ins. Co., 77 N. Y. 235, 240. 
 
 2. A deduction of fraud may be made not 
 only from deceptive assertions and false repre- 
 sentations directly made, but from facts, inci- 
 dents and circumstances which may be trivial 
 in themselves, but decisive evidence of a fraudu- 
 lent design.— Ct. of App., May, 1877. Beardsley 
 ti. Duntley, 69 N. Y. 577, 581. 
 
 3. False representations. A represen- 
 tation that a certain business would yield large 
 profits, does not constitute fraud in law. — Superior 
 Cl., Nov., 1878. Sparmann v. Keim, 44 Superior 
 163. 
 
 4. Defendant, while acting in a fiduciary 
 capacity as agent of plaintiff, collected money 
 and appropriated it to liis own use. He subse- 
 quently gave notes to plaintiff for the amount 
 embezzled, representing that the notes were well 
 secured when they were not. Held, that plain- 
 tiff could repudiate the settlement for fraud. — 
 Supreme a., (Sp. T ,) July, 1880. Spence v. 
 Baldwin, 59 How. Pr. 375. 
 
 5. Defendant, in order to induce people to 
 insure with it, caused advertisements to be pub- 
 lished and pamphlets to be issued, stating, in 
 substance, that it insured at half the cost in 
 other companies, as one-half of the premiums 
 could be paid in premium notes, and its divi- 
 dends always had and would pay the notes. The 
 dividends, as defendant's managers well knew, 
 never had paid the premium notes, and gener- 
 ally would fell much short of doing so. Plain- 
 tiff' read some of the advertisements, and received 
 one of the pamphlets from an agent of defend- 
 ant ; and, relying on these and other represen- 
 tations, took an endowment policy for $500, 
 payable at her death, or at the end of five years, 
 if she should be then living. During the five 
 years she paid one half the premiums in cash 
 and gave her notes for the other half; at the end 
 of each year, the note of the previous year was 
 included in the new note But one small divi- 
 dend was made during the five years. At the 
 end of the five years she demanded the $500, but 
 defendant would only pay the difference between 
 that sum and the amount of the last note. JSeld, 
 that an action for fraud was maintainable, as 
 there was a false representation of a specific fact 
 material to the transaction ; and that plaintiff 
 was not estopped, by allowing the contract to run 
 to maturity, from asserting the fraud, as there 
 was no means of discovering it prior to that 
 
 time. — Ol. of App , Feb., 1879. Kohrachneider 
 V. Knickerbocker Life Ins. Co., 76 N. Y. 216. 
 
 6. Expressions of opinion as to the 
 ability of a corporation to pay — Hdd, not action- 
 able, though the corporation had ceased to ex- 
 ist, that fact being unknown to defendant, and 
 the former members of the corporation being 
 still engaged in business under the corporate 
 name. — Supreme Ct., (3d Dept.,) Jan., 1879. Bab- 
 cock V. Libbey, 17 Hun 131. 
 
 7. Concealment. A party can only com- 
 mit a legal fraud in a business transaction with, 
 another by fraudulent misrepresentations of fact, 
 or by such conduct or artifice for a fraudulent 
 purpose as will mislead the other parly or throw 
 him off his guard and cause him to omit in- 
 quiry or examination which he would otherwise 
 make. — Ct. of App., Nov., 1878. Dambmann v. 
 Schulting,75 N. Y..55 ; reversing 12 Hun 1. 
 
 8. Where there is no such relation of trust or 
 confidence between the parties as imposes upon 
 one an obligation to give full information to the- 
 other, the latter cannot proceed, blindly omitting 
 all inquiry and examination, and then complain 
 that the other did not volunteer to give the in- 
 formation he had. lb. 
 
 9. Where a note-broker purchased accep- 
 tances of D. S. & Co., to a large amount, and 
 sold them to plaintiff, suppressing the fact 
 (known to him) that the acceptances were drawn 
 by a clerk of D. S. & Co., who had no funds in 
 their hands, and D. S. & Co. shortly thereafter 
 failed — Held, in an action by plaintiff against 
 the broker for frtiud, that the suppression of 
 such facts was not fraudulent. — Supreme Ct., {1st 
 Dept.,) Dec., 1 878. People's Bank of New Yort 
 x;. Bogar^ 16 Hun 270. 
 
 10. Silence. Where a party, having sold 
 property in which another was interested, has- 
 once reported fully to the latter the amount for 
 which he sold, and, thereafter, is presented with 
 an account by said other party, and is threatened 
 with immediate suit unless it is settled, in which 
 account the amount is stated less than what he- 
 received, after a compromise and settlement of 
 the account, he cannot be held liable for fraud,, 
 because of an omission to call attention to the 
 error in this item of the account; he is not 
 bound to repeat the information once given,, 
 and to insist upon swelling the account against 
 himself. — O. of App., Jan., 1879. McMichael 
 V. Kilmer, 76 N. Y. 36 ; reoerung 12 Hun 336. 
 
 11. Undue influence. The fact that one 
 of the parties to a contract is old, and is the 
 grandfather and the employer of the other, does- 
 not raise a conclusive presumption of such an 
 inequality between them as imposes upon the 
 latter the burden of proving, affirmatively, that 
 no deception was practiced, no undue influence- 
 used, and that all was fair, open, voluntary, and 
 well understood. While these relations are, as^ 
 matter of fact, consistent with weakness and 
 confidence on the one side, and strength and 
 undue infiuence on the other, this is not neces- 
 sarily presumable from the relations themselves, 
 and it must be shown, in order to impose thi» 
 burden. — Ct. of App., Nov., 1878. Cowee v. 
 ComeU, 75 N. Y. 91, 99. 
 
 II. Eemedies for Fraud. 
 
 1. Action for damages, at km. 
 
 12. When action for deceit will Ue.. 
 
FEAUD, II.— FRAUDULENT CONVEYANCES, I. 
 
 183 
 
 One wbo makes false representations to a mer- 
 cantile agency, as to his pecuniary responsibil- 
 ity, is liable to an action for deceit, by a person 
 induceii thereby to sell him goods on credit, the 
 goods not being paidfor. — Supreme Gt., (2d Dept.,) 
 May, 1879. Eaton, Cole, &c., Co. v. Avery, 18 
 Hun 44. 
 
 13. Who may maintain it. Where 
 plaintiff was induced, by defendant's false repre- 
 sentations, to purchase a farm for $18,000, pay- 
 ing $5000 cash, assuming a mortgage for $2000, 
 and giving back a bond and mortgage for 
 $11,000, and the farm was, in fact, worth only 
 $13,000, whereas, if the representations had 
 been true, its value would have been $19,000 — 
 SeM, in an action for deceit in the sale, that as 
 plaintiff could successfully defend an action to 
 foreclose the mortgage, there being a greater 
 sum due thereon than the damages claimed, he 
 liad not, as yet, sustained any damage, and 
 could not recover. — Supreme Ot., (3d Dept.,) Jan., 
 1879. Ranney ». Warren, 17 Hun 111. 
 
 14. Who is liable. One who, with knowl- 
 edge of a fraudulent combination to obtain the 
 property of another without paying therefor, 
 becomes a party thereto, and aids in the accom- 
 plishment of the fraudulent purpose by making 
 representations which he knows, or has reason 
 to believe, to be false, is liable for the damages 
 sustained by the owner. — Ol. of App., Oct., 1877. 
 Morehouse v. Yeager, 71 N. Y. 594. 
 
 15. One who receives goods with guilty 
 knowledge of the fraud by which his assignor 
 obtained them, is not entitled to notice of re- 
 scission of the sale to his assignor — a simple 
 demand is sufficient— and he is liable to the 
 person defrauded for a return of the goods, or 
 their value, even though he may have parted 
 with the goods before suit brought. — Com. Pleas, 
 Jan., 1878. Meacham v. Collignon, 7 Daly 402. 
 
 16. Pleading. In an action for fraud in 
 the purchase or sale of property, induced by 
 false representations, the complaint must, in 
 substance, state the representations, and aver 
 their falsity, and tliat they were made with 
 intent to deceive the plaintiff, and induce him 
 to make the purchase or trade, and that they 
 did induce such trade, to the plaintiffs damage. 
 —Herkimer Co. Ct., Oct., 1877. Brown v. Brock- 
 ett, 55 How. Pr. 32. 
 
 1*7. In an action for money alleged to have 
 been obtained by defendant from plaintiff, by 
 means of false representations, the answer con- 
 tained a general denial, and also denied that 
 plaintiff was the real party in interest, and 
 alleged that he had no legal or equitable right 
 to prosecute the action. Held, tliat under such 
 an answer, defendant could not prove an assign- 
 ment of all the estate of plaintiff to an assignee 
 in bankruptcy, nor the schedule of his property, 
 made in such proceeding. — Supreme Ct., {ith 
 Dept.,) April, 1878. Sannders v. Chamberlain, 
 13 Hun 5t>8. 
 
 18. Evidence. Proof of similar and co- 
 temporaneous frauds, is admissible in an action 
 for deceit, as bearing upon tlie question of in- 
 tent.— jSapr-mc Ot., {ilhDept.,) Get., 1878. Her- 
 sey V. Benedict, 15 Hun 282. 
 
 10. Amount of recovery. In an action 
 for fraud, plaintiff is not bound to surrender 
 what he has received, but may retain it, and 
 recover such damages as he may establish at 
 the trial. — Supreme Ct., {1st JDept.,) April, 1878. 
 IjCxow v. Julian, 14 Hun 152. . 
 
 20. Defendant, by falsely representing that 
 he owned an overdue mortgage made by plain- 
 tiff, induced the latter to pay him $120, to carry 
 the mortgage another year. Defendant paid 
 the real owner of the mortgage $100 for so oai- 
 rying it. On foreclosure, this $100 was allowed 
 as a payment on the mortgage. Plaintiff sued 
 defendant for the deceit. Held, that he could 
 recover the $?0 not applied on the mortgage, 
 with interest. — Supreme Ot., (4.th Dept.,) April, 
 1878. Saunders v. Chamberlain, 13 Hun 568. 
 
 2. Suit for relief, in eq\/,Hy. 
 
 21. Power of equity to grant relief. 
 An equitable action cannot be maintained to 
 annul q, judgment rendered upon conflicting 
 evidence, upon the ground that the opposite 
 party and his witnesses conspired together to 
 obtain the judgment by perjury and fraud, and 
 that the judgment was obtained by false evi- 
 dence. The proper remedy, in such a case, is a 
 motion for a new trial. — Ot. of App., May, 1877. 
 Eoss V. Wood, 70 N. Y. 8. 
 
 22. The fraud which will justify equitable 
 interference in setting aside a judgment or 
 decree, must be actual and positive, not merely 
 constructive ; it must be fraud occurring in the 
 concoction or procurment of the judgment or 
 decree, which was not known to the party at the 
 time, and for not knowing which, he is not 
 chargeable with negligence. lb. 
 
 3. Setting up fraud as a defence. ^ 
 
 23. How the fraiid must be pleaded. 
 When a party pleads that he has been de- 
 frauded, he is bound to so aver it that his oppo- 
 nent shall have notice of it, and an opportunity 
 to meet it. It is not to be gathered from vague 
 and partial allegations and obscure inferences. — 
 Superior Ot., April, 1878. Hilsen v. Libby, 44 
 Superior 12. 
 
 As %o fraud in Sales of chattels, see Sales ; in 
 Sales of land, see Vendor and Purchaser. 
 
 FRAUDULENT CONVEYANCES. 
 
 [Consult, also. Assignments fob Bmnbfit of Oked- 
 
 ITORS.] 
 
 I. What Conveyances are Fraudulent. 
 II. Eemedy by Suit in Equity. 
 
 I. What Conveyances are Fraudulent. 
 
 1. What conveyances are fraud tilent, 
 generally. Every assignment or conveyance 
 of property, with, intent to hinder, delay, or de- 
 fraud creditors, is void as against creditors, not 
 only at common law but by statute, and every 
 conveyance or transfer of chattels not followed 
 by an actual and contitiued change of possession 
 is presumed to be fraudulent as against creditors ; 
 and such want of change of possession is conclu- 
 sive evidence of fraud, unless it be shown that 
 the same was not made with intent to de- 
 fraud.- Ct. of App., Feb., 1878. Southard v. 
 Benner, 72 N. Y. 424. 
 
 2. In an action to recover possession of cer- 
 tain personal property, which plaintiff claimed 
 under a sale from S., it appeared that at the 
 
181 
 
 FRAUDULENT CONVEYANCES, I.. II. 
 
 time of the alleged sale S. was insolvent, owing 
 debts to the amount of about $16,000, and aside 
 from the propei-ty in question, having assets only 
 of the value of $800. Plaintiff gave for the 
 property, which was worth $1800, a note made 
 by K., who was hopelessly insolvent, having 
 judgments against him to a large amount, which 
 note S. received without plaintiff's indorsement. 
 The property remained in the possession of S. 
 several days, when it was removed to a room, 
 the rent of which plaintiff testified that he paid, 
 while the lessor testified it was paid by S. ; the 
 latter then made an assignment to defendant R. 
 Plaintiflj S. a«d K. were intimate. Plaintiff's 
 testimony was contradicted in several other par- 
 ticulars. Hdd, that the evidence was sufficient 
 to warrant a finding that the alleged sale was 
 fraudulent. — Ct. of Arm., June, 1879. Blaut v. 
 Gabler, 77 N. Y. 461. 
 
 3. Instance of a conveyance in consideration 
 of an agreement on the part of the grantee to 
 support the grantor and his wife during their 
 lives, held void as against the creditors of the 
 grantor. — Supreme Ct., {2d Dept.,) Dec, 1879. 
 Toddi). Monell, 19 Hun 362. 
 
 But compare to the contrary Hungerford v. 
 Cartwright, 13 Hun 647. 
 
 4. Effect of relationship bet-ween the 
 parties. A transfer, without consideration, by 
 a husband, engaged in carrying on business,, of 
 the bulk of his property to his wife, with a view 
 to place it beyond the reach of future creditors, 
 is fraudulent and void as to such future cred- 
 itors. Especially is this the case as to those who 
 niSy trust the hnsband, relying upon his owner- 
 ship of the property, and in ignorance of the 
 transfer made to the wife. — Supreme Ct., (Zd 
 Dept.,) May, 1879. Carr v. Breese, 18 Hun 134. 
 
 5. A transfer by a husband of all his property 
 to his wife and daughter, on condition that the 
 wife will discontinue a pending suit for limited 
 divorce, and thereafter live apart from him, is 
 fraudulent and void as to existing creditors. — 
 Swm-eme Ct., {4th Dept.,) April, 1879. Morgan 
 V. Potter, 17 Hun 403. 
 
 6. As to what consideration is sufficient to 
 uphold such a conveyance from a husband to 
 his wife, as against creditors of the former, see 
 Syracuse Chilled Plow Co. v. Wing, 20 Hun 
 206. 
 
 V. The rule that a conveyance to a child of 
 all the debtor's property, made after the accruing 
 of a debt upon which a judgment is subsequently 
 obtained, is a mere voluntary conveyance, and 
 void us against such judgment creditor, applied. 
 — Supreme Ct., (Sp. T.,) Jime, 1877. Champlin 
 V. Seeber, 56 How. Pr. 46. 
 
 8. Protection of grantee in good faith. 
 While the statute against fraudulent transfers 
 avoids a voluntary conveyance, made with in- 
 tent to defraud creditors, although the grantee 
 was innocent of any fraudulent intent, yet when 
 the conveyance is founded upon a valuable con- 
 sideration, the title of the grantee is not affected 
 by the fraudulent intent of the grantor not 
 known to or participated in by him. But if, in 
 such cuse, the consideration be so grossly inad- 
 equate that it would be unconscionable to allow 
 -the deed to sland as a conveyance, equity will 
 permit it to stand as security only for the money 
 actually advanced. — Supreme Ct., (2d Dept,) 
 Dec, 1878. Van Wyck v. Baker, 16 Hun 168. 
 
 9. -The judgment, in such a case, should de- 
 clare the conveyance to be a security only and 
 
 require the plaintiff to redeem, or leave him to 
 his remedy upon the land, or it should direct a 
 sale of the land subject to the grantee's interest; 
 a judgment directing a compulsory sale by a re- 
 ceiver, of the property, including the grantee's 
 interest therein, is unauthorized. 1 b. 
 
 9 a. The statute does not contemplate that the 
 title of a purchaser for value shall be impaired, 
 unless the notice of fraudulent intent on the 
 part of the vendor is a notice previous to the 
 perfecting of the sale. — Superior Ct., April, 1878. 
 Gottberg v. Conner, 44 Superior 554. 
 
 10. When a bona fide transferee, to whom 
 property is assigned in fraud of creditors, he not 
 being a party to the fraud, will be protected in 
 respect to moneys advanced in consideration of 
 the assignment, see Pond v. Comstock, 20 Hun 
 492. 
 
 II. Kemedt by Suit in Equitt. 
 
 [Consult, also, Gbbditobs' Suit.] 
 
 11. Who may file a bUl. An action-may 
 be maintained by a judgment creditor to set 
 aside a conveyance of lands made by the debtor, 
 as made with intent to defraud the creditor, 
 although the debt was created after the convey- 
 ance, where it appeare that the debtor obtained 
 credit on the strength of his ownership of the 
 lands, then transferred them with intent to de- 
 fraud his creditors, and thereafter continued in 
 possession and seeming ownership, and kept up 
 his credit thereby. In such case a transfer may 
 be made with intent to defraud a subsequent, as 
 well as a prior creditor ; and the fraudulent in- 
 tent appearing, the conveyance will be declared 
 void.— CS. of App., Nov., 1877. Shand v. Han- 
 ley, 71 N. Y. 319. 
 
 12. A creditor by simple contract is within 
 4;he protection of the provision of the statute of 
 frauds declaring every conveyance or transfer 
 of chattels, not followed by actual and continued 
 change of possession, to be presumptively fraud- 
 ulent (2 Eev. Stat. 136, U 5, 6,) as against the 
 creditors of the vendor or assignor; bnt until 
 he has a judgment and a lien, or' a right to a 
 lien, upon the specific property, he is not in a 
 condition to assert his rights as a creditor. — Ct. 
 of App., FA., 1878. Southard i;. Benner, 72 N. 
 Y. 424. 
 
 13. Where a fraudulent conveyance of real 
 estate has been made, a subsequent judgment 
 creditor of the grantor, may sell under his exe- 
 cution, and the purchaser may impeach the con- 
 veyance in an action at law to recover the prem- 
 ises ; or he may, but is not bound to, file a cred- 
 itor's bill to set aside the conveyance. — Ct. of 
 App., Nov., 1879. Bergen v. Snedeker, 8 Abb. 
 N. Gas. 50. 
 
 14. That the overseer of the poor of a town 
 cannot, as such, maintain an action to set aside a 
 deed, of all his property, from father to daughter, 
 on the ground that the burden of the support of 
 a lunatic son of the grantor will thereby be cast 
 upon the town, see Bowlsby v. Tompkins, 18 
 Hun 219. 
 
 15. Parties defendant. In an action to 
 set aside a fraudulent conveyance, a ciaim for 
 the rents received by the grantee may be joined ; 
 and where the action is brought after the death 
 of the grantee intestate, the administrator may 
 be joined with the widow and heirs as a party 
 to the action.— iSapreme Ct., {Sp. T.,) Dee,, 1878. 
 Coleman v. Phelps, 57 How. Pr. 393. 
 
f KAUDULENT CONVEYANCS, II.— GAS-LIGHT COMPANIES. 185 
 
 16; Evidence— burden of proof. In an 
 ■action to set aside a gratuitous transfer from wife 
 to husband, the burden of proof is upon the lat- 
 ter to show that the gift was freely and delib- 
 ■erately made, and that the transaction was fair 
 and proper. — Ct. of App., May, 1878. Boyd v. 
 De La Montagnie, 73 S. Y. 498, 502. 
 
 17. In an action by judgment creditors to set 
 aside a conveyance as fraudulent, prior convey- 
 ances by the judgment debtor, of other property, 
 •cannot be attacked when the action does not 
 •comprehend the setting them aside. Conse- 
 quently the fact that tlie consideration for the 
 conveyance sought to be set aside was paid by 
 the grantee out of funds which can be traced as 
 forming a part of the proceeds arising from the 
 sale by the grantee of the judgment debtor of 
 property which liad been previously owned and 
 conveyed by the judgment debtor to such 
 .grantee, is immaterial. Such proceeds cannot, 
 in such an action, be shown to be the property 
 of the judgment debtor, by evidence showing 
 that the deed made by the judgment debtor to 
 his grantee of the property from the sale whereof 
 by -such grantee the same was derived, was 
 fraudulent as to creditors. — Superior Ct., June, 
 1879. Kinghorn v. Wright, 45 Superior 615. 
 
 IS. The decree, and ho-w enforced. 
 "Where an action is brought by a judgment cred- 
 itor on behalf of all other judgment creditors, as 
 well as himself, to set aside fraudulent convey- 
 
 ances of the debtor's real estate, a judgment is 
 not improper adjudging the appointment of a 
 receiver to take a conveyance of and to sell real 
 estate.— Ci!. of App., Nov., 1877. Shand v. Han- 
 ley, 71 N. Y. 319. 
 
 19. Where, in such action, the holder of a, 
 lien or claimant of other interest in the property 
 is made a party defendant, and the validity of 
 the lien or claim is made a question in the action, 
 and is disposed of adversely to such defendant, 
 a sale and conveyance by the receiver will vest 
 in his grantee a title superior to such lien or 
 claim. lb. 324 
 
 For the effect of fraudulent acts or represen- 
 tations .4s between tlieparties to the conveyance, 
 see Vendob and Purchaser, I. 
 
 As to the remedy by Oreditor's Suit, see that 
 title. 
 
 FREIGHT. 
 
 Caekiees, 18-21; Instirance, 136-147; 
 Shipping, 12, 13. 
 
 FUGITIVES FROM JUSTICE. 
 
 Extradition. 
 
 FUNERAL EXPENSES. 
 
 ExECtJTOKS AND Administbatobs, 49, 94-98. 
 
 G. 
 
 GAS-LIGHT COMPANIES. 
 
 1. Right to lay pipes in city streets. 
 A gas-light company was authorized, by its 
 ■charter, to lay pipes through the streets of a city, 
 -with the consent, and subject to the reasonable 
 regulation of the municipal authorities. Such 
 consent having been obtained, the company 
 afterwards transferred its property to another 
 ■company. Held, that the consent above men- 
 tioned did not pass by the transfer to the latter 
 company. — Oily Ct. of Brooklyn, (Ghamb.,) Sept., 
 1879. City of Brooklyn v. Fulton Municipal 
 •Gas Co., 7 Abb. N. Cas. 19. 
 
 2. Sucli right to use the streets, the municipal 
 consent having been obtained, is in the nature 
 of a franchise granted by the slate, and may be 
 ■exercised by a receiver appointed pendente lite. 
 — dty Ol. of Brooklyn, {Okamb.,) Oct., 1879. City 
 ■o£ Brooklyn v. Jourdan, 7 Abb. N.Cas. 23. 
 
 3. Property in gas mains. Where, at 
 the request of the owner of a row of houses, a 
 gas-light company lays a private main, such 
 main still continues to be the property of the 
 gas-light company, and a rival company which 
 attempts to use it, even at the request of the 
 ■owner of the houses, will be enjoined. — Supreme 
 a., {2d Depl.,) Feb., 1880. Poughkeepsie Gas 
 •Co. V. Citizens' Gas Co., 20 Hun 214. 
 
 4. Liability for explosions— effect of 
 contributory negligence. Where a gas- 
 light company, upon discontinuing its supply of 
 gas to a customer, and removing the meter, fiiils 
 
 to close the service pipe so as effectually to ex- 
 clude the gas from the building, it is guilty of 
 an omission of duty, and is liable for any 
 damages caused solely by such neglect. — Ct. of 
 App., Oct., 1877. Lanigan v. New York Gas- 
 light Co., 71 N. Y. 29. 
 
 5. In an action to recover damages alleged to 
 have been occasioped by such neglect, it ap- 
 peared that plaintiff had been for a long time 
 aware that the gas had escaped, and was escaps 
 ing into his cellar ; he sent servants into the 
 cellar with a Jight, and an explosion occurred, 
 doing the injury complained of. The cellar was 
 seldom used, and had not been opened for five 
 days before the accident. Held, that the evi- 
 dence was sufficient, to sustain a finding of con- 
 tributory negligence on the part of plaintiff; 
 that he would be presumed to know the inflam- 
 mable and explosive qualities of the illuminat- 
 ing gas in ordinary use, that the escaoing gas 
 would necessarily accumulate in a cellar so 
 seldom opened, and the danger of bringing a 
 light in contact with it ; and that, for a disregard 
 of this peril, and a neglect to see that the escape 
 of gas was properly prevented, he was responsi- 
 ble, lb. 
 
 6. The fact that, on numerous prior occasions, 
 the cellar had been entered with a light without 
 causing an explosion, did not establish that it 
 was prudent so to do ; whether knowledge of the 
 harmlessness of the prior act?, in going into the 
 cellar with a light, would make that prudent 
 which, but for such knowledge would have been 
 
186 
 
 GAS-LIGHT COMPANIES— GIFT, I. 
 
 imprudent, was for the consideration of the ref- 
 eree, in connection with the other circumstances, 
 and did not necessarily and uncontrovertibly es- 
 tablish that plaintiff was not negligent at the 
 time of the accident, so as to make a finding of 
 contributory negligence error as matter of law. 
 Xb. 
 
 For decisions relative to MicmufcKluring cor- 
 porations, generally, see MAsxTPACTUEHfG Com- 
 pares. 
 
 GENERAL AVERAGE. 
 
 Instibance, 143-146. 
 
 GENERAL ISSUE. 
 
 Pleasikq, and the titles of the various causes 
 of action. 
 
 GENERAL TERM. 
 
 Ab to What is appealable to, and the Jurisdic- 
 diction and Procedure of the General Term, see 
 Appeat., II. 
 
 GIFT. 
 
 I. Gifts Intek Vivos. 
 n. Gifts Causa Mobtis 
 
 I. Gifts Intee Vivos 
 
 1. What constitutes a gift. An abso- 
 lute gift requires a renunciation by the donor 
 and an acquisition by the donee of all interest 
 in and title to the subject of the gift. — Ot. of 
 App., June, 1877. Curry v. Powers, 70 N. Y. 
 212. 
 
 2. The delivery of a check upon a savings 
 bank, payable at a future day, is not, as between 
 the payee and the legal representatives of the 
 draw er, a valid gift. lb. 216. 
 
 3. What does not. A brother' of E. in- 
 sured his life for her benefit. Upon his death the 
 insurance money was paid to her father, who 
 credited it to her private account. The brother 
 was, at the time of his death, indebted to tlie 
 father, and upon a subsequent statement by E. 
 that she intended the money to go to pay such 
 indebtedness, the fatlier caused the credit of.said 
 money to be transferred from the account of E. 
 to that of the brother. After the transfer E. was 
 furnished with her account, and her attention was 
 called to the transfer which she said was correct. 
 She settled the account, paying a small balance 
 due thereon and receiving a receipt. In an ac- 
 tion by the executor of E. to recover of her 
 father's estate the amount of the insurance 
 money — Sdd, that the effect of the transactions 
 between E. and her father was to divest her of 
 any claim against him for or on account of said 
 money ; that it was an effectual appropriation by 
 her of her money in payment of so much of her 
 brother's indebtedness ; that, as it was not a gift 
 or intended as such, the law as to gifts inter vivos 
 had no application, — Cl. of App., Dec., 1878. 
 
 ■ Hodge V. Hoppock, 75 N. Y. 491. 
 
 4. Necessity and eufilciency of de- 
 livery. To constitute a valid gift the transfer" 
 must be consummated, and not remain incom- 
 plete, or rest in mere intention ; and this is so- 
 whether the gift is, by delivery only, or by the- 
 creation of a trust in a third person or in the- 
 donor ; enough must be done to pass the iitle-. 
 Where, however, a trust is declared, whether in 
 a third person or the donor, it is not essential/ 
 that the property should he possessed by the- 
 cestui que trust, or that the latter should be in- 
 formed of the trust. — Ct. of App., Nov., 1878. 
 Martin v. Funk, 75 N. Y. 134. 
 
 5. Instances of insufficient deli'T'ery. 
 C, with intent to make a gift to his two sons, E. 
 and J., delivered to each of them a check upon 
 a savings bank, pay Ale four d ays after his death . 
 He stated that he wanted the control of the 
 money as long as he lived, in order to receive 
 the interest. He also delivered to B. his hank 
 pass-books, stating that they would want themr 
 to get the money ; that he did not consider them 
 safe there, and directed K. to take care of them. 
 C. had more money on deposit in each of the 
 savings banks than called for by the respective- 
 checks. E. deposited the books in bank, where 
 they remained until after the death of C. 
 
 Seld, 1. That the transaction did not consti- 
 tute _a valid gift ; that the delivery of the check* 
 did not transfer the funds deposited, nor did the- 
 delivery of the pass-books, assuming that they 
 were the subjects of transfer as a gift, as the de- 
 cedent did not absolutely part with his control 
 over them. 
 
 2. That the transaction could not be sustained 
 in equity as a declaration of trust, or as gifts by 
 appointment or appropriation. Curry v. Powers,. 
 supra. 
 
 6. In an action for the alleged conversion by 
 L., defendant's testatrix, of certain United States 
 bonds, which plaintiff claimed had been pre- 
 viously given to him by L., plaintiff testified, in 
 substance, that L. . placed the bonds in an en- 
 velope marked with plaintiff's name, calling 
 them his, and directed him, " if anything should 
 happen to her," to take possession of all that was 
 in the safe, and deposit it with the safe deposit 
 company, and keep his bonds himself ; the bonds 
 were afterwards kept in the same safe where L. 
 had previously kept them. Plaintiff also testi- 
 fied that the bonds were in his possession in 
 1872, and were his property ; that he drew in- 
 terest upon them for three years and a half; 
 that they were in an envelope marked "Joe 
 Trow's property," and were kept in the safe of 
 L.'s husband. Other witnesses testified to dec- 
 larations of L., to the effect that she had given 
 the bonds to plaintiff; that they were his bonds, 
 and that he had the interest thereon as it accrued ; 
 also, that plaintiff had access to the safe, and 
 that plaintiff at one time, in L.'s presence, ctit 
 off the coupons. Held, that what occurred at 
 the time the bonds were placed in the envelope 
 did not amount to an executed gift, but that 
 upon the whole evidence, it was a qiiestion of 
 fact for the jury, whether the gift had not been 
 at some time completed. — Ct.^ App., Nov., 1879. 
 Trow V. Shannon, 78 N. Y. 446 j affirming 8 
 Daly 239. 
 
 7. Gifts from husband to wife. Be- 
 fore the statute relating to and protecting the 
 estates of married women, the husband had 
 power to give, directly and without the inter- 
 vention of trustees, personal property to his- 
 
GIFT, I., II.— GUAEANTY, I., II. 
 
 18T 
 
 wife, so that the same became free in equity 
 from his power of disposition of the same. By 
 our present statute law, a gift of property hy a 
 husband to his wife, vests the same absolutely in 
 the wife, and it becomes her separate property 
 and estate to all intents and purposes. — Superior 
 Ct., Aug., 1878. Fowler v. Butterly, 44 Superior 
 148. 
 
 8. Testimony by the widow that, a few days 
 before her husband's death she took possession 
 of certain bonds, and kept continuous possession 
 of them until after his death, when she depos- 
 ited them with a friend, is insufficient to estab- 
 lish a gift from the husband to the wife. — Sit- 
 preme 01., (1st Dept.,) March, 1880. Conklin v. 
 Conklin, 20 Hun 278. 
 
 9. — from wife to husband. A gratui- 
 tous transfer of property from a wife to a husband, 
 induced in part by representations on his part 
 that she was liable for a debt, for which in fact 
 she was not liable, and made in the belief that 
 the effect of the transfer would be to delay the 
 creditors or in some way to save the property, 
 will be set aside by a court of equity. — Ut. of 
 ApP; May, 1878. Boyd v. De La Montagnie, 73 
 ISTTy. 498. 
 
 10. To sustain an action for that purpose it is 
 not necessary to show a fraudulent intent upon 
 the part of the husband in imaking the repre- 
 sentations ; a mutual misapprehension or mis- 
 take is sufficient. lb. 502. 
 
 11. The fact that the" wife consented to the 
 transfer !o defraud creditors does not constitute 
 a defence. lb. 503. 
 
 12. Where the wife is thus induced by un- 
 true statements, and acting under a misapprehen- 
 sion, to make the transfer at the time, when but 
 for such misapprehension she would not then 
 have made it, her legal right to a retrausfer is 
 not impaired by the fact that she intended to 
 give the property to her husband by will. lb. 
 
 II. Gifts Causa Mobtis. 
 
 13. "WTiat constitutes a gift in view 
 of death. What acts and words on the part 
 of an aged man, in poor health, will amount to a 
 valid gift causa mortis, of a bank book, see Van- 
 dermark v. Vandermark, 55 How. Pr. 408. 
 
 14. As to what is sufficient proof to establish 
 a valid gift causa mortis, as against the next of 
 kin of the donor, in proceedings before the sur- 
 rogate for distribution, see Fowler v. Liockwood, 
 SKedf. 465. 
 
 15. Validity, and how proved. The 
 policy of the law regards with extreme solici- 
 tude and suspicion any parol disposition of 
 property causa mortis ; and particularly where 
 such disposition is to take effect only in case of, 
 and after death. If any valid disposition of it, 
 even with respect to its care and custody, can be 
 effectively made otherwise than by the observ- 
 ance of those testamentary attestations which 
 the statute of wills requires, the purpose and 
 intention of thd" owner should be established by 
 the clearest and most indubitable evidence, and 
 without any resort to conjecture or surmise. — 
 Superior Ct., April, 1878. Boss v. Harden, 44 
 Superior 26, 39. 
 
 As to gifts in Fraud of creditors, see Fraudu- 
 lent ClONVBYANCES, I. 
 
 As to gifts by WiU, see Devise ; Legacies ; 
 WlliM. By way of Advancement, see Advance- 
 ment. 
 
 GLOVERSVILLE. 
 
 MUKICIPAL COBPORATIONS, 114. 
 
 GRAND JURY. 
 
 Indictment, 1. 
 
 GRAND LARCENY. 
 
 Larceny. 
 
 GUARANTY. 
 
 I. General Principles. 
 II. Requirements op the Statute of- 
 Frauds. 
 
 III. Construction and Operation, 
 
 IV. Eights and Liabilities op Guabantok^ 
 
 1. In general. 
 
 2. What vM discharge him. 
 
 3. Aciiong on guaranties. 
 
 I. General Principlbs. 
 
 1. General nature of the contract p- 
 its effect, &c. The guarantor of a note on 
 which there is a prior indorsement, undertakes 
 for the performance of each contract which he- 
 has guaranteed, that of the maker and that of 
 an indorser. If either fails to perform the con- 
 tract which is guavanteed, a cause of actions 
 arises to the holder of the guaranty for suoh> 
 default. — Supreme Ot., {ith Dept.,) June, 1879-.. 
 Deck V. Works, 57 How. Pr. 292, 307. 
 
 2. What constitutes a binding guar- 
 anty. Mutual promises, by persons compe- 
 tent to contract, to submit to arbitration claims- 
 and demands which are the subjects of arbitra- 
 tion, are a good consideration each for the other .p 
 a, submission, therefore, being obligatory, ai 
 guaranty of performance of the award, executed 
 concurrently with the submission, is binding 
 also.— O!. of App , May, 1878. Wood v. Tunni- 
 cliff, 74 N. Y. 38. 
 
 II. Eequirements op the Statute op 
 Frauds. 
 
 3. What promises are not within 
 the statute, generally. Where the vendor\. 
 of a promissory note warrants that it is good, 
 and will be paid at maturity, such guaranty is- 
 not within the statute of frauds, and is valid,, 
 though not in writing. — Supreme Ot., (4tA Dept.,^ 
 Oct., 1878. Milk V. Rich,* 15 Hun 178. 
 
 4. — because original undertakings.- 
 Where the purpose of a promise to pay the 
 debt of a third person is to secure a benefit to- 
 the promisor, by relieving his property from a 
 lien, or securing or confirming his possession, 
 the promise is original and not collateral, an® 
 so is not within the statute of frauds. — Ot. of 
 App., April, 1879. Prime i;.-Koehler, 77 N. Y. 91- 
 
 * Said to have been aflirmed, February 24th, 1880. 
 
188 
 
 GUARANTY, II., III. 
 
 5. Defendant purchased certain premises sub- 
 ject to a mortgage, the payment of which, how- 
 -ever, lie did not assume. By the mortgage the 
 j)rincipal became due at the option of the mort- 
 gagees, in case of thirty days' default in paying 
 interest. Default thereafter haying been made 
 in the payment of interest, which default had 
 continued for more than thirW days, defendant 
 -agreed verbally with plaintifife, owners of the 
 mortgage, that if they would not exact payment 
 of the principal, or foreclose the mortgage, and 
 would give time for payment, he would, when 
 -the next installment of interest became due, pay 
 
 the interest then in arrear; to which the plain- 
 tiffs assented, and took no proceedings to collect 
 during the time specified. In an action upon 
 the agreement — Hdd, that defendant's promise 
 was not to answer for the debt of another, 
 within the meaning of the statute of frauds ; 
 that defendant, by virtue of his ownership of the 
 land, presumptively had an interest in protect- 
 ing it from sale on foreclosure ; that the con- 
 ifiideration of his promise was one running 
 • directly to him from the promisees ; and that 
 the agreement was therefore entered into for his 
 own benefit, not for the benefit of the original 
 debtor, or in aid of the original contract, and 
 was not within said statute. lb.; affirming 
 7 Daly 345. 
 
 6. Defendant owed plaintiff $1970, and wrote 
 her to meet him at a place appointed ; she did 
 so, and he produced three railroad bonds of 
 f 1000 each, and advised her to purchase them, 
 saying that the bonds were good ; that if she 
 took them, he would guarantee them so that no 
 loss should come to her. She took the bonds, 
 relying upon this promise. Held, not simply 
 an agreement to answer for the debt of another, 
 but a promise founded upon an original con- 
 sideration, and that the defendant was liable 
 thereon.— Supreme Cl., (2d Dept.,) Sept., 1878. 
 Allen V. Eighmie,* 14 Hun 559. 
 
 7. Plaintiff was employed by S. to assist him 
 in building a house for defendant, for which 
 there became due to plaintiff $156.80. S., 
 having abandoned the work, with defendant's 
 -consent, left in his hands sufficient money to 
 j)ay plaintiff, which defendant verbally prom- 
 ised both S. and plaintiff to do. Held, that the 
 promise was not void as being one to answer for 
 the debt of another, and that plaintiff was en- 
 titled to recover.— (Supreme Of., {2d Dept.,) May, 
 1879. Cock V. Moore, 18 Hun 31. 
 
 III. Ck)NSTBTJOTION AND OPEEATION. 
 
 8. Guaranty of credit. Letters of 
 -credit. — Defendant opened a credit with plain- 
 tiffs, in favor of K. & Co., to be used by time 
 drafts drawn by E. & Co. on plaintiffi. Shortly 
 afterwards defendant sent to plaintiffs a letter 
 revoking the credit, of the acceptance of which 
 plaintiffs had in the meantime notified R. & Co., 
 promising to protect their drafts. B. & Co. 
 were informed by plaintiffs of the revocation, 
 but had then drawn divers drafts on plaintiffs, 
 which the latter accepted and paid at maturity, 
 
 -and notified defendant, who refused to reimburse 
 these advances. In an action to recover these 
 advances — Held, that defendant was liable. — Ct. 
 .of App., June, 1878. Gelpcke o. Quentell, 74 
 jr. Y. 599. 
 
 *Said to have been affirmed, January 13tli, 1880. 
 
 9. C. was carrying on business at Buffiilo, 
 doing his banking business with plaintiff; he 
 needed and had a line of discounts with plain- 
 tiff, which he desired to continue, but plaintiff 
 requested more security. Defendant, who was 
 the father-in-law of C., residing in Canada, 
 thereupon gave to plaintiff a letter of credit, as 
 follows: Please discount for Mr. Cummer, to 
 the extent of $4000. He will give you cus- 
 tomers' paper as collateral. You can also con- 
 sider me responsible to the bank for the same." 
 In an action thereupon — 
 
 Held, 1. That as the letter was ambiguous, 
 evidence of the surrounding circumstances was 
 competent ; that viewed in their light it appeared 
 that the letter was intended as a continuing 
 guarfinty; and that, therefore, defendant's lia- 
 bility did not cease with the discount and pay- 
 ment of the sum stated. 
 
 2. That the statement as to customers' paper 
 was not a condition or limitation upon the right 
 to discount, nor did it limit or define the char- 
 acter of the paper to be discounted ; and that 
 defendant was liable for discounts, although not 
 secured by such collateral. • 
 
 3. That a change in the business conducted 
 by C, after the date of the letter of credit, with 
 notice to plaintiff, did not affect defendant's lia- 
 bility for subsequent discounts ; that plaintiff 
 had the right to rely upon the guaranty until, by 
 some adequate notice, defendant terminated his 
 liability.— 0!. of App., AprU, 1878. White's 
 Bank of Buffalo v, Myles, 73 N. Y. 335. 
 
 10. Guaranty of payment. Defendant, 
 on purchasing a horse from plainti^ offered in 
 part payment an over-due note made by third 
 persons, which plaintiff refused to receive, until 
 defendant wrote upon the back of it : "I guar- 
 antee the within note," and signed his name 
 thereto. Held, a guaranty of payment, and not 
 merely that the note was collectible. — Supreme 
 a., {Sd Dept.,) Sept., 1878. Winchell v. Doty, 
 15 Hun 1. 
 
 11. Distinction bet-ween guaranty of 
 payment and of collection, The funda- 
 mental distinction between a guaranty of pay- 
 ment and one of collection is that, in the first case, 
 the. guarantor undertakes unconditionally that 
 the debtor wiU pay, and the creditor may, upon 
 default, proceed directly against the, guarantor, 
 without taking any steps to collect of the prin- 
 cipal debtor, and the omission or neglect to pro- 
 ceed against him is not (except under special 
 circumstances) any defence to the guarantor; 
 while in the second case the undertaking is that, 
 if the demand cannot be collected by legal pro- 
 ceedings, the guarantor will pay, and conse- 
 quently legal proceedings against the principal 
 debtor, and a failure to collect of him by those 
 means are conditions precedent to tne liability 
 of the guarantor ; and to these the law, as estab- 
 lished by numerous decisions, attaches the fur- 
 ther condition that due diligence be exercised 
 bv the creditor in enforcing his legal remedies 
 against the debtor.— Ct. of App., Feb., 1878. 
 McMurray v. Noyes, 72 N. Y. 523. 
 
 12. Continuing guaranties. A guaranty 
 as follows : " We hold ourselves responsible for 
 the payment of any sum, not to exceed five thou- 
 sand dollars ($5000), Mr. C. H. Woodruff may 
 receive of your bank for legitimate business 
 purposes" — Held, a continuing guaranty. — iSiJ- 
 prem^ Ct., (2d Depl.,) Dee., 1878. Ci^ Nat. 
 Bank V. Phelps, 16 Hun 158. 
 
GUARANTY, III., IV. 
 
 18» 
 
 13. The bank referred to, then a state bank, 
 subsequently became a national bank, adding the 
 word " national " to its name. Held, that its 
 identity was not so changed as to terminate the 
 guaranty. lb. 
 
 14. Defendant assigned a certificate of stock 
 to the plaintiff's cashier, " as security for the 
 payment of any demands the Merchants' Na- 
 tional Bank may, from time to time, have or 
 hold against Edwin W. Hall." Held, intended 
 as a continuing guaranty for all demands then 
 existing against Hall, and for all renewals 
 thereof, as well as for all that might thereafter 
 be created in the ordinary conduct of his legiti- 
 mate business with the bank. — Supreme Ct., (3d 
 Itept,) May, 1879. Merchants' Nat. Bank of 
 Whitehall v. Hall, 18 Hun 176. 
 
 IV. Eights a2id Liabimties op Gtjakantoe. 
 
 1. In general. 
 
 15. Exhausting remedy agaiuBt 
 debtor. Due diligence in exhausting all legal 
 remedies against the principal debtor, is a con- 
 dition precedent to any liability on the part of 
 a guarantor of collection. — Ct. of App,, March, 
 1879. Northern Ins. Co. v. Wright, 76 N. Y. 
 445 ; affirming 13 Hun 166. 
 
 16. 'WTien guarantor is liable in the 
 first instance. Plaintiff and the executors of 
 
 V. H., deceased, submitted to arbitrators certain 
 disputed claims arising out of transactions be- 
 tween plaintiff and the testator in his lifetime ; 
 the executors covenanted to abide by and per- 
 form the award, and defendants executed a guar- 
 anty covenanting to pay any award made against 
 the executors in case of their failure to pay. 
 The arbitrators found that the executors, as such, 
 were indebted to plaintiff in the sum stated. In 
 an action upon the guaranty — Held, that it was 
 not simply an indemnity against any denmstavit 
 on the part of the executors ; that the executors, 
 by entering into the arbitration, assumed that 
 the assets were sufficient to pay any award wliicli 
 miglit be made ; and that, upon their failure to 
 pay, defendants were liable without regard to the 
 question whether or not there were assets in the 
 hands of the executors applicable to the payment 
 of the award sufficient to pay the same. — Ot.of 
 App., May, 1878. Wood v. Tunnicliff, 74 N. Y. 
 38. 
 
 2. What will discharge him. 
 
 17. Delay to sue principal debtor. 
 Defendant, upon assignment of a bond and mort- 
 gage, covenanted that if, in case of foreclosure 
 and sale of the mortgaged premises, there should 
 arise a deficiency, he would pay the same on 
 demand. In an action thereon — Held, that the 
 guaranty was not one of payment; but the fore- 
 closure and sale were conditions precedent, to be 
 performed with due diligence in order to estab- 
 lish the liability of the guaiantor. — Ot. of App., 
 Feb., 1878. McMunay v. Noyes, 72 N. Y. 
 523. 
 
 18. The holder of the bond and mortgage 
 delayed foreclosure for fourteen months after 
 they were due. For ten months of this time the 
 mortgaged property was a sufficient security; 
 but afterwards the buildings thereon were de- 
 stroyed by fire, and the value thereof reduced 
 below the amount of the mortgage debt. Hdd, 
 
 that the delay was sufficient to constitute laches- 
 discharging the guarantor. lb. S. P., Supreme 
 Ct., (Uh Dept.,) Oct., 1878. Griffith v. Robertson, 
 15 Hun 344. 
 
 19. Defendant assigned to plaintiff a bond, 
 and mortgage, guaranteeing that the premises- 
 covered by the mortgage were sufficient for the- 
 payment of the amount secured, and also guar- 
 anteeing the collection of the mortgage. By the- 
 terms of the mortgage the whole amount became- 
 due, at the option of the holder, if default was 
 made in the payment of any part of the principal 
 and interest, and the same remained unpaid for 
 thirty days. The principal was payable itt 
 annual installments, with interest on the whole 
 amount, the first installment falling due January 
 1st, 1872. This was not paid. Small payments, 
 about sufficient to pay interest, were paid from 
 time to time, and an action (o foreclose the mort- 
 gage was commenced October 13th, 1875, plain- 
 tiff electing in the complaint to claim the whole- 
 amount due, and the foreclosure and sale was for- 
 the whole amount unpaid. In an action upon 
 the guaranty, to recover a deficiency — Held, that 
 the delay in collection constituted laches, releas- 
 ing the guarantor as to the installments falling 
 due prior to the commencement of the foreclosure- 
 suit; but that laches could not be imputed, and. 
 he was not discharged from liability for install- 
 ments subsequently accruing; and that the 
 amount realized on the sale should be deducted, 
 from the subsequent installments in determining 
 the amount of defendant's liability. — Ct. of App., 
 March, 1879. Northern Ins. Co. v. Wright,. 76 
 N. Y. 445 ; affirming 13 Hun 166. 
 
 20. Defendant was one of plaintiff's directors,, 
 and a member of its finance committee at the 
 time he executed the assignment, and so con- 
 tinued until February 4th, 1874 ; he, however, 
 never attended a meeting after January, 1873.. 
 In that month plaintiff's secretary, who was also- 
 a director, called upon defendant to pay the- 
 amount due. Defendant thereupon requested 
 the secretary to foreclose, stating it would then 
 be time to call upon him to pay ; this was not 
 communicated to the other officers, of the com- 
 pany. Three months thereafter defendant took, 
 a deed of the premises subject to the mortgage, 
 for the purpose of aiding the mortgagor to sell, 
 and in 1874 he had several conversations witlt 
 plaintiff's president about selling, advised a sale, 
 and the president arranged with him to negotiate 
 a sale ; he did not inform the president that he- 
 had taken a deed ; there was no finding of fraud 
 or deceit ; and it did not appear that defendant 
 interfered in any manner, while a director, to 
 prevent a foreclosure. Hdd, that the evidence- 
 did not justify a finding that defendant waived 
 a strict compliance with the condition precedent, 
 to prosecute ; and that he was not estopped from, 
 alleging want of due diligence. Also, that no- 
 tice to the secretary to foreclose was sufficient 
 notice to plaintiff. lb. 
 
 21. The evidence tended to show that if the 
 mortgage had been foreclosed in January, 1873, 
 the premises would have sold for sufficient to 
 pay it. Subsequently, and before foreclosure, a 
 building thereon was destroyed by fire, depreci- 
 ating its value. As to whether a failure to fore- 
 close within a reasonable time and the subse- 
 quent loss discharged defendant from all liabil- 
 ity, quaere, lb. 
 
 '22. Belease of indorser on not» 
 guaranteed. A promissory note indorsed by 
 
190 
 
 GUARANTY, IV.— GUARDIAN AD LITEM. 
 
 one E. to the defendant, was sold by the latter to 
 plaintiff for a valuable consideration, the defend- 
 ant guaranteeing payment. The note not being 
 paid at maturity, it was not protested, nor was 
 the indorser notified. The makers were insolv- 
 ent, but the indorser was good. Held, that the 
 •discharge of the indorser by failure to notify 
 tim, did not relieve defendant from his liability 
 on his guaranty. — Supreme Ct., {ith Dept.,) June, 
 1879. Deck v. Works, 18 Hun 266. 
 
 23. The rule that the surrender by a creditor 
 to the principal debtor, of collateral security held 
 'by the former, releases a surety for the same debt, 
 •does not apply in such a case. lb. 
 
 3. ActUmt on gnmraniiet. 
 
 24. Necessity of demand and notice 
 before suit. In an action upon a guaranty 
 indorsed on a bond, as follows: "I expressly 
 guarantee the vUimate payment, * * * to- 
 gether with interest and aU lawful charges," &c., 
 the complaint must set forth a demand on the 
 principal obligor, his default, and notice to de- 
 fendant, or it will be bad on demurrer. — Com. 
 Pleas, Jan., 1878. Hernandez v. Stilwell, 7 
 Daly 360. 
 
 25. But no demand or notice of default is neces- 
 sary before suing on a guaranty of the obligation 
 of a principal arising from a written agi-eementr 
 " to return " at a definite time, a definite sum of 
 money borrowed. Such a guaranty is one of 
 payment and an absolute undertaking. — Com, 
 Pleas, Dee., 1878. Cordier v. Thompson, 8 Daly 
 172. 
 
 26. Defences. In an action on a guaran- 
 ty of payment of a bond secured by a mortgage 
 ■on land, the facts tliat an action to foreclose the 
 mortgage has been commenced, and that a re- 
 ceiver of the rents and profits lias been appointed 
 in such suit, constitute no defence. — Cam. Pleas, 
 Dec., 1878. Schaafii. O'Brien, 8 Daly 181. 
 
 27. H., wishing to raise money, gave his 
 bond and mortgage for $5000, to defendant, who 
 at his request executed an assignment of the 
 mortgage, and guaranteed its payment. Plain- 
 tiff subsequently purchased the bond and mort- 
 gage from H.'s agent for $4000, out of which H. 
 paid tlie agent $250 for effecting the sale. No 
 consideration for the mortgage was given to H. 
 by defendant, but of this fact plaintiff was ignor- 
 ant. In an action upon the guaranty — 
 
 Held, 1. That the bond and mortgage were 
 usurious and void. 
 
 2. That defendant's guaranty of the payment 
 thereof did not estop him from setting up its in- 
 validity.— Sa;)rem6 Ct., {1st Dept.,) Dec., 1878. 
 Tiedemann v. Ackerman, 16 Hun 307. 
 
 28. In an action upon guaranties of certain 
 bonds, where the defence was usury, tlie referee 
 found in substance that plaintiffs having com- 
 menced legal proceedings against defendant S., 
 and caused his property to be attached, S. agreed 
 to settle by paying his indebtedness and the costs 
 and expenses of the proceedings ; that plaintiffs 
 presented their account, in which tliey charged 
 4>500 counsel fees, claimed to have been paid or 
 incurred in the proceedings, and refused to re- 
 lease the attachment unless it was paid ; that S. 
 thereupon allowed the same, and the bonds in 
 question, with guaranties, were given on the set- 
 tlement. There was no finding or request to 
 find that the $500 was paid as a consideration 
 for forbearance and that it was plaintiffs' intent 
 
 to exact usurious interest. Held, that the ques- 
 tion of usury could not be raised upon the re-' 
 cord.— Gf. of App., AprU, 1877. Haughwout v. 
 Garrison, 69 N. Y. 339 ; affirming 40 Superior 550. 
 
 29. Pleading. Where the guarantor en- 
 gages alone, by a distinct writing from the one 
 signed by the maker, although indorsed there- 
 on, his contract is a separate cause of action; 
 and the complaint in an action against both 
 is demurrable, on the ground of improperly 
 uniting distinct causes of action. — Supreme Ct. 
 (Sp. T.,) Jan., 1879. Harris v. Eldridge, 5 Abb. 
 N. Cas. 278. 
 
 For the effect of the statute of frauds upon 
 guaranties In common with other cmtraels, see 
 Contracts, III. ; also. Auction, 2 ; Sales, I. ; 
 Vendor and Purchaser, I. 
 
 As to the nature and enforcement of the Lia- 
 bility of a mrety, generally, see Bonds, II.; Ex- 
 ecutors and Administratoes, 134-151; 
 Principal and Surety, II. 
 
 GUARDIAN AD LITEM. 
 
 1. The necessity of a guardian ad 
 litem. Where an infant is cited to appear on 
 an accounting of personal representatives, a 
 special guardian must be appointed to represent 
 him, although he has a general guardian ; and 
 an allowance to such special guardian, upon 
 such accounting, is proper. — N. Y. Surr. Ct., 
 May, 1878. Gunning v. Lockman, 3 Eedf. 273. 
 
 2. When the objection of " no guar- 
 dian" should be interposed. Where 
 plaintiff is an infant at the time the action is 
 begun, but arrives at majority before the trial, 
 tlie omission to procure the appointment of a 
 guardian ad litem for him is a mere irregularity, 
 which the defendant waives by pleading to the 
 merits. — Supreme Ct., (3d Dept.,) May, 1878. 
 Smart v. Haring, 14 Hun 276. 
 
 3. "Who raay make the application. 
 Where infant plaintiffs under the age of four- 
 teen resided with their father, at Breslau, Prus- 
 sia, at the time the action was commenced, a 
 general guardian appointed by a probate court, 
 in Massachusetts, applied for, and procured, the 
 appointment of a guardian ad litem for them to 
 bring the action. Held, that the application 
 was properly granted, and that it was not neces- 
 sary that a general guardian should have been 
 appointed in this state for the purpose of mak- 
 ing such application. — Supreme Ct., {1st Dept.,) 
 May, 1879. Freund v. Washburn, 17 Hun 543. 
 
 4. "Wlio may be appointed. While the 
 right of the general guardian to sue for money 
 belonging to his ward, is not exclusive, and the 
 infant himself may maintain such suit by a 
 guardian ad litem, duly appointed, yet the gen- 
 eral guardian may, in such case, be appointed 
 guardian ad litem. — Supreme Ct., (2d Dept.,) 
 Sept., 1878. Segelken v. Meyer, 14 Hun 593. 
 
 5. Objections to responsibility of >per- 
 sons appointed. The defendant, upon the 
 commencement of an action against him, by an 
 infant, is entitled to an appearance by such in- 
 fant by a guardian ad litem, who is pecuniarily 
 responsible for his costs. It is the duty of a 
 defendant to raise this question as soon as ap- 
 prised of who is the person appointed as guar- 
 dian, and if he does not then question his re- 
 sponsibility, he acquiesces in his suflicienty to 
 
ClUARDIAN AD LITEM— GUARDIAN AND WARD, I., II., III. 191 
 
 4)Ct' in that capacity. — Com. Pleas, June, 1877. 
 Wiee V. Commercial Ins. Co., 7 Daly, 258. 
 
 6. Liabilities of the guardian, gen- 
 •erally. Where, by reason of the invalidity 
 ■of the proceedings in a partition suit, the pur- 
 •chasers cannot be compelled to complete their 
 purchase,. and the money of the estate is insuf- 
 ficient to pay the commissioners' fees and the 
 -amounts expended by the purchasers in exam- 
 ining the title, the parties lo the suit must make 
 up the deficiency, and a guardian ad litem of an 
 infant party is personally liable for his ward's 
 share of such deficiency. — Swpreme Ct., {Sp. 21,) 
 JVoK., 1878. MuUer v. Struppman, 6 Abb. N. 
 Cas. 343. 
 
 7. — iu respect to costs. After judg- 
 ment in his "favor, the defendant may have an 
 .attachment for his costs, as a matter of right, 
 against the person of the guardian ad litem of 
 an infant plaintiff. — Com. Pleas, April, 1877. 
 Wice V. Commercial Fire Ins. Co., 8 Daly 70. 
 And see Schoen v. Schlessinger, 57 How. Pr. 490; 
 S. C, 7 Abb. N. Cas. 399. . _ _ 
 
 8. Where an infant commenced a suit in his 
 'Own name, and a guardian ad litem was appointed, 
 and during the suit plaintiff arrived at majority, 
 assumed the management of the case, and was 
 ■defeated — Seld, that the guardian ad litem was 
 not liable to pay a judgment for the costs entered 
 by defendant. — Superior Ct., {Sp. T.,) March, 
 1879. Sparmann v. Keim, 6 Abb. N. Cas. 353. 
 
 9. Whether the guardian ad lilem of an in- 
 fant plaintiff can be compelled to give security 
 for costs, see Wice d. Commercial Fire Ins. Co., 
 -8 Daly 70, 
 
 10. Effect of the appointment on 
 time to enter judgment. Code of Civ. Pro., 
 4 1218, requiring twenty days to elapse between 
 ihe appointment of the guardian ad litem and 
 the entry of judgment against the infant, only 
 applies to the entry of judgments by default. — 
 Apreme Ct., (2d Bept.,) Dec., 1879. Newins 
 «. Baird, 19 Hun 306. 
 
 As to the appointment, powers, and duties of 
 ■Special guardians to sell lands of infants, see 
 Infants, 6. 
 
 GUARDIAN AND WARD. 
 
 I. Appointment; and Natuee op the 
 
 Trust. 
 II. PowEKS AND Domes op the Guabdian. 
 III. Accounting; and Liability op Suee- 
 
 3. Appointment; and Natube op the 
 Tbust. 
 
 1. Necessity of appointment— effect 
 •of foreign letters. Letters of guardianship, 
 granted by the courts of a foreign state, do not 
 operate to give the guardian a strict right to 
 -control assets of his ward situated within this 
 -state. In order to be fvilly recognized as the 
 legal representative of an infant, a guardian 
 must be appointed within this state. — Swpreme 
 ■a., {Sp. T.,) Oct., 1878. Trimble v. Dzieduz- 
 jiki, 57 How. Pr. 208, 209. 
 
 2. Necessity of a bond. Letters of 
 ^uardiansliip will not be issued to a guardian 
 appointed in a foreign state of a non-resident 
 anfant, with a view to the removal of the in- 
 
 fant's property from this state, save upon the 
 application of such foreign guardian himself; 
 and it must appear that he has given a bond in 
 such foreign state, and that the removal of the 
 ward's property from here there, will not con - 
 flict with the ward's ownership. It is not suf- 
 ficient that the foreign guardian has entered 
 into a mere covenant, with sureties, for the faith- 
 ful performance of his trust ; he must have 
 given a hand. — Wesic. Surr. Ct., May, 1877. 
 Matter of Fitch, 3 Eedf. 457. 
 
 3. Testamentary guardians. Since the 
 passage of Laws of 1871, ch. 30, the father may 
 appoint a testamentary guardian without the 
 consent of the mother in writing, as required by 
 the act of April 10th 1862, which is repealed bv 
 the act of 1871.— -Sitpreme Ct., {Sp. T.,) Feb'., 
 1876. Thomson v. Thomson, 55 How. Pr. 494. 
 
 II. Powebs and Duties of the Guabdian 
 
 4. Power to extend time to pay 
 mortgage. An extension of four years' time 
 within which to pay a mortgage, granted by the 
 guardian of two infant mortgagees, one eighteen 
 and the other ten years of age, in consideration 
 of the payment to him of four years' interest in 
 advance, sustained on the absconding of the 
 guardian, there being no evidence or collusion, 
 or that the money received was not applied to 
 thebenefitof the wards. — Supreme Ct., {IstDept.,) 
 May, 1879. Willick v. Taggart, 17 Hun 511. 
 
 5. Power to sue. An action may be 
 maintained by a general guardian in his own 
 name, to recover a debt due to his ward. — /Su- 
 preme a., {Sp. T.,) Feb., 1880. Hauenstein v. 
 KuU, 59 How. Pr. 24. 
 
 6. Where the decree of a surrogate directs the 
 personal representative to pay to the general 
 guardian of infants, a certain sum " for each of 
 said infants, as the distributive shares " of each 
 of them, a separate action may be brought by 
 the general guardian of one of the infants for her 
 separate share, lb. 
 
 in. Accounting ; and Liability op Sueeties. 
 
 7. Accounting. A guardian cannot, upon 
 his accounting, compel his ward's property to 
 contribute to pay a tax assessed upon him in- 
 dividually.— iSitweme Ct., (3d Bept.,) Nov., 1879. 
 Wilcox V. Van Schaick, 19 Hun 279. 
 
 8. Liability of sureties. A married 
 woman is not liable upon a guardian's bond, ex- 
 ecuted by her as surety, when there is nothing 
 expressed therein showing an intention to charge 
 her separate estate. The fact that the bond was 
 executed in compliance with an order of the 
 court, and that the law requires two sufficient 
 sureties, does not make her liable. So also the 
 making of an affidavit, on her part, that she 
 possessed enough estate to make her a sufficient 
 surety, does not incorporate into her contract an 
 expression of intent to bind her separate estate. 
 — Ct. of App., March, 1877. Gosman v. Cruger, 
 69 N. Y. 87 ; affirming 7 Hun 60. 
 
 O. Where, on the appointment of a guardian 
 by the surrogate, a bond with sureties is taken 
 for the faithful performance of the guardianship, 
 and to render an account, &c., an action cannot 
 be maintained upon the bond until an actual 
 accounting outside of judicial proceedings, or as 
 
192 GUARDIAN AND WARD, III.— HABEAS CORPUS. 
 
 the result of such proceedings, has been had. 
 But where the bond is so full and specific that 
 the rights of the parties can be determined by 
 it alone, without resort to facts aliunde, it is not 
 necessary to allege or prove an accounting by 
 the guardian before holding the surety liable 
 upon the bond. — Supreme Ct., {Monroe Sp. T.,) 
 
 Oct., 1879. Girvin v. Hickman, 58 How. Pr. 
 
 244. 
 
 GUESTS. 
 
 Inns and iNN-zEEPKRe, 1, 2 
 
 H. 
 
 HABEAS CORPUS. 
 
 1. Construction of amendatory stat- 
 ute. Habeas corpus to admit to bail. 
 Laws of 1873, ch. 663, amending the prior stat- 
 utes relating to writs of habeas corpus, by provi- 
 ding that where proceedings commenced under 
 such acts are removed into the Supreme Court, 
 or whenever an appeal may be taken by the ac- 
 cused to the CJourt of Appeals " and the offence 
 with which such prisoner stands charged is one 
 for which such prisoner may be admitted to bail, 
 by the laws of this state," the court may admit him 
 to bail, merely renders the review of those eases in 
 which the writ could be lawfully prosecuted 
 under the provisions of the Revised Statutes al- 
 ready in force, more complete and effective ; it 
 was not intended to increase the number of cases 
 in which bail might be taken, nor the cases 
 which might be reviewed upon habeas corpus. — 
 Supreme Cl., (1st Dept.,) April, 1878 People, 
 ex rel. Phelps, v. Oyer and Terminer, 14 Hun 21. 
 
 2. The habeas corpus act does not apply to 
 cases in which the prisoner is held by virtue of 
 a judgment or decree of a competent tribunal 
 having jurisdiction to make it, or by virtue of an 
 execution issued thereon, lb. 
 
 3. As to the power of the Supreme Court, in 
 a criminal proceeding, to grant a stay of pro- 
 ceedings and admit a prisoner to baU, in hAeas 
 corptts, see People, ex rel. Cowley, v. Bowe, 58 
 How. Pr. 393. 
 
 4. Power to issue the •wrrit. Neither a Su- 
 preme Court justice at chambers nor a county 
 judge has jurisdiction to grant a writ of luibeas 
 corpus upon the application of a wife, living 
 separate from her husband, to obtain the custody 
 of a minor chUd. — Supreme Ct., (Onondaga Sp. 
 T.,) Jan, 1879. People, ex rel. Ward, v. Ward, 
 59 How. Pr. 174. 
 
 5. The application must be made to the Su- 
 preme Court, and it must not only be granted 
 by, but returnable before the court. lb. 
 
 0. The provision in the habeas corpus act re- 
 stricting the application for a writ to a judge or 
 officer within the county where the prisoner is 
 detained, or an adjoining county, does not apply 
 to the Supreme Court or one of its justices. The 
 plain reading of ? 37 is that an application may 
 be made to the Supreme Court, or to one of ite 
 justices anywhere, but when it is made " to any 
 officer who may be authorized to perform the 
 duties of a justice of the Supreme Court at 
 chambers," that officer must be or reside " with- 
 in the county where the prisoner is detained," 
 unless there " be no such officer within such 
 county, or if he be absent, or for any cause be 
 incapable of acting, or have refused to grant such 
 
 T/nAt."— Supreme Ct., (Sp. T.,) Aug., 1880. People, 
 ex rel. Bosenthal, v. Cowles, 59 How. Pr. 287. 
 
 7. Requisites of the petition. A pe- 
 tition which fails to state the locality of the con- 
 finement is defective. The locality should he- 
 stated so that the discretion of the court or judge, 
 as to the place of the return of the writ, may be: 
 exercised. lb. 
 
 8. The petition must state "that such pris- 
 oner is not committed or detained by virtue of 
 any process, judgment, decree or judgment spe- 
 cified in the preceding twenty-second section " 
 A detention for one of the causes specified in 
 said section should be negatived. The petitiun 
 should show the party detained to be without 
 the exception. lb. 
 
 9. "What questions may b© ex- 
 amined. Where the return shows that the re- 
 lator is held under a commitment issued by a 
 Court of Special Sessions, after trial and convic- 
 tion, the only question presented is, whether such 
 court had jurisdiction to try the relator and issue 
 the commitment. — Supreme Ct., (id Dept.,) Dec., 
 1878. People, ex rel. Catlin, v. Neilson, 16 Hun 
 214. 
 
 10. The fact that the conunitment does not 
 contain the names of the witnesses or the testi- 
 mony given by them is not fatal ; if it contains 
 a brief statement of the offence charged and the 
 conviction and judgment thereon it is sufficient. 
 lb. 
 
 11. A prisoner, charged with an offence, de- 
 manded an examination before the police jus- 
 tice, whereupon the proceedings were adjourned. 
 On the adjourned day he waived an examina- 
 tion, and offered bail to appear before the Gen- 
 eral Sessions. The justice refused bail, and 
 proceeded with the examination, whereupon a. 
 writ of certiorari was issued by a Supreme Court 
 justice, under the habeas corpus act, and, on the 
 hearing had on the return thereto, it was or- 
 dered that the police justice at once fiilly com- 
 mit the prisoner for trial, with or without bail, 
 or fully discharge him. Held, that no such or- 
 der was authorized by the habeas corpug act. — 
 Supreme Ct., (1st Dept.,) April, 1878. People, 
 ex rel. Phelps, v. Donohue, 14 Hun 133. 
 
 As t o the proper remedy in such a case, see lb. 
 
 12. "When a discharge is proper. Oa 
 the hearing of a writ of habeas corpus to inquire 
 into the legality of the imprisonment of a per- 
 son for failure to give the security required by 
 the act in relation to disorderly pei-sons, (2 Eev. 
 Stat. (6th ed.) 893,) a commitment issued by a 
 police justice, which simply states that the pris- 
 oner " has been duly convicted before me," &c., 
 without stating any facts showing that the con- 
 viction was duly had, is insufficient,, and the 
 
HABEAS COEPUS— HIGHWAYS, I. 
 
 193 
 
 prisoner must be discharged. — Swpreme Ct,, {Alb. 
 Oyer and T.,) July, 1878. Matter of Travis, 65 
 How. Pr. 347. 
 
 13. Discretionary powers of the 
 court as to the custody of children. 
 Considerations affecting tlie health and welfare 
 of a child may justify a court in withholding 
 the custody of it temporarily even from its legal 
 guardians ; and tliey are so purely matters of 
 discretion with the court of original jurisdic- 
 tion, that this court will not review the conclu- 
 sions thereon, unless some manifest error or 
 abuse of discretion is made to appear. — Ct. of 
 App., Sept., 1878. Matter of Welch, 74 N. Y. 
 299. 
 
 As to imprisonment on Oimt process, see Ex- 
 ecution, II.; Impbisonment. On Oriminal 
 commitment, see Punishment. 
 
 HANDWRITING. 
 
 Evidence, 131; Witnesses, 125, 135-137. 
 
 >HAZARDOUS AND EXTRA-HAZARDOUS. 
 Insubance, 34-36. 
 
 HIGHWAYS. 
 
 I. Establishment and EEPAnt. Discon- 
 
 TINITANCE. 
 
 II. Use op Highways. 
 III. Obstbuctions and Encboachmenjs. 
 
 I. Establishment and Eepaie. Discon- 
 tinuance. 
 
 1. What is a highway. A highway can- 
 not be said to be opened and worlced, within the 
 meaning of the statute, (1 Eev. Stat. 520, J 99, 
 as,amended by Laws of 1861, ch. 11,) imposing 
 liability on towns, respecting bridges over 
 streams crossing highways, unless it is passable 
 for public travel for its entire length. — d. of 
 App., Sept., 1877. Becljwith v. Whalen, 70 N. 
 Y. 430. 
 
 2. As to whether, when a part of a highway 
 is opened and worlced, within six years after it 
 is laid out, so as to be passable, and the residue 
 is not, the whole road ceases to be a highway, 
 or whether that part which has been opened 
 and worked, will remain a highway, quaere. lb. 
 
 3. Liabilities of commissioners for 
 failure to repair. That commissioners of 
 highways are liable individually for an injury 
 resulting from their neglect to repair a high- 
 way, if they have funds in their hands for that 
 purpose, but that such a commissioner cannot 
 bind the town for his misconduct or neglect, see 
 Ct. of App., Nov., 1878. People, ex rel. Loomis,' 
 V. Town Auditors, 75 N. Y. 316. 
 
 4. Rights and powers of overseers. 
 An overseer of highways cannot, upon his own 
 motion, continue to litigate an action brought 
 against him for an official act, after judgment 
 has passed against him on trial, and demand in- 
 demnity from the town for the costs thereafter 
 
 incurred, if the subsequent litigation should 
 prove unsuccessful. — Ct. of App., Sept., 1878^ 
 People, ex rel. Van Keuren, v. Town Auditors,. 
 74 N. Y. 310 ; affirming 10 Hun 551. 
 
 5. The relator, an overseer of highways, un- 
 der the direction of tlie commissioner of high- 
 ways of the town, removed obstructions from 
 what was claimed to be a public highway. The 
 owngr of the land brought an action of trespass, 
 which the relator, without notice to the town or 
 any of its officers, defended, and a judgment for 
 $25 damages was rendered against him ; he ap- 
 pealed to the General Term and the Court of 
 Appeals ; the judgment was affirmed. The re- 
 lator then presented a claim to defendants for 
 $2711.47 for his expenses and disbursements, 
 which the board refused to allow. Held, that 
 he was not entitled to a mandamus compelling 
 the audit and allowance of the claim. Jb. 
 
 6. Proceedings to open new roads — 
 bofro'wing nloney. The provision (Laws 
 of 1873, ch. 323,) requiring that, where a pro- 
 posed highway will pass through an incorpo- 
 rated village, the consent of a majority of the 
 village trustees shall be obtained before the 
 board of supervisors authorizes the borrowing 
 of money on the credit of the town to lay out or 
 improve the road, does not require the trustees 
 to act as a board and by vote ; if a majority of 
 them join in a written request to the board of 
 supervisors, it is sufficient to authorize the loan 
 to be made.— Supreme Ct., (2d Sept.,) May, 1879. 
 People, ex rel. Weeks, v. Supervisors, 18 Hun 4. 
 
 "7. The legislature has power to authorize 
 money to be borrowed upon the credit of a 
 town, to be used in laying out and improving 
 roads therein, though such roads do not pass 
 through any of the villages in the town. lb. 
 
 8. The application. It is not essential 
 to the valid laying out of a highway that there 
 should have been a written application there- ■ 
 for ; the highway commissioner of the town may 
 act of his own motion. — Supreme Ct., (4(A Dept.,) 
 Jan., 1880. McCarthy v. Whalen, 19 Hun 
 503. 
 
 9. The order. Kequisites of order laying 
 out a highway ; necessity that survey be incor- 
 porated therein ; and how the record thereof 
 may be impeached, see Pratt v. People, 13 Hun 
 664. 
 
 10. What is a sufficient incorporation of the 
 survey in the order laying out a highway ; and 
 what is sufficient proof of the consent of the 
 abutting owners, see McCarthy i;. Whalen, supr-a. 
 
 11. Sale of lands for non-payment of 
 assessments. Laws of 1871, ch. 670, § 12, 
 authorizing the opening of an avenue in Hock- 
 land county, construed, as respects the power 
 given to the commissioners to sell lands for non- 
 payment of assessments. — Supreme Ct., (2d 
 Dept.,) May, 1879. Nichols v. Voorhis, 18 
 Hun 33. 
 
 12. Appeals from commissioners- 
 notice of appeal. Under the provision of 
 the statute regulating appeals from decisions of 
 commissioners of highways, altering or discon- 
 tinuing highways, (1 ,Eev. Stat., 518, i 86,) a 
 notice of appeal specifying that the order of the 
 commissioners is unlawful and erroneous, is 
 sufficient to give the county judge jurisdiction 
 to appoint referees ; it is not necessary to state 
 all or any of the reasons tending to show the 
 order to be erroneous or illegal. — Ct. of App., 
 Sept., 1879. Eector v. Clark, 78 N. Y. 21. 
 
 3 
 
194 
 
 HIGHWAYS, I., II., III. 
 
 13. A notice of appeal stated, as the ground 
 ■upon which the appeal was made, that the de- 
 terminatioa and order of the commissioners was 
 " unlawful and erroneous for the reasons follow- 
 ing, among others." The reasons assigned were : 
 1st. That the alleged highway was never laid 
 out or recorded. 2d. That to widen it would 
 take a strip of the appellant's garden or door- 
 yard necessary to the use and enjoyment o£ his 
 dwelling-house. 3d. That no certificate of free- 
 holders had been obtained. Hdd, that if the 
 general allegation of error was not sufficient, 
 the reasons specified were amply sufficient to 
 confer .jurisdiction. lb. 
 
 14. The hearing— powers of the 
 referees. The appeal is in the nature of a 
 new proceeding ; the referees do not sit in re- 
 view of the evidence or proceedings before the 
 commissioners, but proceed to a hearing de novo, 
 and the case is to be heard upon facts existing 
 at the time the hearing is had. lb. 
 
 15. Upon such hearing the appellant cannot 
 attack the regularity of the proceedings before 
 the commissioners. lb. S. P., Svpreme Ct., 
 (3d Dept.,) Nov., 1878. People, ex rel. Bailey, 
 0. Sherman, 15 Hun 575. 
 
 19. Fees of referees, -when a county 
 charge. The term 'reversed," as used in 
 Laws of 1847, ch. 455, ? 9, providing that when, 
 on appeal, the determination of the commission- 
 ers la reversed, the fees of the referees shall be 
 a county charge, embraces a case where the re- 
 versal is in part, as well as where it is entire. — 
 Supreme Ct, {2d Dept.,) Feb., 1880. People, 
 ex rel. Scott, v. Supervisors, 20 Hun 196. 
 
 Ml. The referees appointed to hear an appeal 
 applied for a mxmdamus to compel the board of 
 supervisors to audit and allow their fees, as a 
 county charge. The application was denied 
 because it appeared from the papers that the 
 appeal was taken from the whole of the deter- 
 mination of the commissioners, and that such 
 determination had been affirmed in part and 
 reversed in part. Afterwards another applica^ 
 tion was made on papers showing that, in fact, 
 the appellant had appealed from a part only of 
 the determination of the commissioners and 
 had been wholly successful on such appeal. 
 
 Hdd, 1. That the denial of the first applica- 
 tion was not a bar to the second one. 
 
 2. That as the determination of the commis- 
 sioners had been reversed as to the part ap- 
 pealed from, the fees' of the referees were a 
 county charge. lb. 
 
 18. Review of referees' decision. The 
 decision of the referees, or that of any two of 
 them, is final, and is not subject to review either 
 by certiorari or appeal. People, ex rel. Bailey, 
 V. Sherman, supra. 
 
 A decision made by only two of the referees, 
 the other being present, is valid. lb. 
 
 19. The referees are not county officers within 
 the meaning of 1 Eev. Stat., 384, I 6, and can- 
 not in any event be personally charged with 
 costs, on a certiorari issued to review their de- 
 cision, lb. 
 
 20. When the decision of the referees, re- 
 versing the determination of the commissioners 
 refusing to lay out a road, will be reversed, be- 
 cause the order to lay out the road, made by the 
 referees, is too uncertain as to the description of 
 the road to be sustained, see People, ex rel. 
 Waters, v. Diver, 19 Hun 263. 
 
 n. Use or Highways. 
 
 21. Bights of travelers, generally. A 
 person traveling upon a highway is, as a gene- 
 ral rule, justified in assuming that it is safe ; 
 and, where he is injured in consequence of a 
 defect therein, the fact that he had previous 
 knowledge of the existence of the defect, does 
 not, per se, establish negligence on his part. — 
 Ci. of App., March, 1879. Weed v. Village of 
 Ballston Spa, 76 N. Y. 329. 
 
 22. Law of the road. A traveler upon 
 a common public street or highway is not bound 
 to give way for another, traveling in the same 
 direction, who desires to go by him, if there be 
 room on either hand for the other to pass with- 
 out way being given. ' He is only bound to yield 
 the way enough for one behind him to pass, 
 when it is practicable and he is requested so to 
 do, and when, by keeping in his place, he will 
 prevent the one desiring to drive faster from 
 going by. He is not bound, therefore, to look 
 hack or to listen for the coming of another so 
 as to make clear the way for him. — Gt. of App., 
 April, 1879. Adolph v. Central Park, &o., R. 
 E. Co., 76 N. Y. 530, 533. 
 
 in. OBSTRtrcnoNS aub Enceoachments. 
 
 23. Enjoining obstructions. The high- 
 way commissioners of a town have no power to 
 bring an action to enjoin the construction of a 
 permanent obstruction in the highway. — Sii- 
 preme Ct., (4iA Dept.,) Jan., 1878. Coykendall 
 V. Durkee, 13 Hun 260. 
 
 24. Removal of encroachments. The 
 notice , to remove an encroachment (a fence) 
 upon a highway, in proceedings instituted under 
 the Revised Statutes, as amended by Laws of 
 1870, ch. 125, must specify the breadth the 
 highway was originally intended to have. — Su- 
 preme Ct., (4(/i Dept.,\ June, 1879. Cook v. 
 Covil, 18 Hun 288. 
 
 25. The highway commissioners made an 
 order requiring plaintifif to remove a fence, 
 alleged to be an encroachment. A copy of the 
 order was served upon plaintifiT, but he did not, 
 as required by statute, within five days, serve 
 upon the commissioners a written notice deny- 
 ing the encroachment. Plaintiff sued to recover 
 damages for the tearing down of the fence, and 
 ofifered to show that the commissioners, in lay- 
 ing out the highway in question changed the 
 old highway, thereby taking from plaintiff a 
 portion of his land, and that such action was 
 void for want of jurisdiction. The court de- 
 cided that, by reason of his failure to serve upon 
 the commissioners a written notice denying the 
 encroachment, plaintiff was estopped from deny- 
 ing that the fence was an encroachment. Seld, 
 error. — Supreme Ct., (2d Dept.,) Dec, 1878, 
 Borries v. Horton, 16 Hun 139. 
 
 For rules relative to Plank roads and Turn- 
 pikes, see Plank Road Companies; Tcbn- 
 FiKE Companies. 
 
 HOLDING OVER. 
 
 Landlobd and Tenant, 9-13, 62, 65, 66. 
 
HOMICIDE, I., II. 
 
 195 
 
 HOMICIDE. 
 
 I. The Criminal Offence ; . and how 
 
 Prosecuted. 
 II. The Crra, Action for Causing Death. 
 
 I. The Criminai Offence; and how 
 Prosecuted. 
 
 1. What killing is murder in first de- 
 gree. "Where a person engaged in the com- 
 mission of the crime of rape, by means of any 
 force or violence employed by him for the pur- 
 pose of accomplishing his object, causes the 
 . death of the female, although he did not intend 
 to kill, he is guilty of murder in the first de- 
 gree ; it is a killing " perpetrated by a person 
 engaged in the commission of a felony," within 
 the meaning of the statute defining that degree 
 of murder. (2 Eev» Stat. 656, g 5, subd. 3, as 
 amended by Laws, 1876, ch. 333.)— Q. o/ App., 
 Nov., 1879. Buel v. People, 78 N. Y. 432; 
 •affirming 18 Hun 487. 
 
 S. P., where the killing was by one engaged 
 in committing larceny. — Smreme Ol., {IslDept.,) 
 Dec., 1879. Cox v. People,* 19 Hun 430. 
 
 2. Form and requisites of the indict- 
 raent. Some of the counts in an indictment 
 for murder charged that the killing was done 
 ■while the accused was engaged in stealing cer- 
 tain specified articles alleged to belong to the 
 deceased, a married woman, and others charged 
 that he killed her while stealing certain prop- 
 erty belonging to her husband. It appeared on 
 the trial that all the articles were taken at one 
 time, that part of them had been given to the 
 deceased, and the balance were part of her per- 
 sonal ornaments, and presumably the property 
 of her husband. 
 
 Held, 1. That it was proper to allege the own- 
 ership, in some counts, in her, and in others in 
 her husband. 
 
 2. That it was not error to set out several 
 common law counts for murder. — Supreme Ct., 
 {1st Dept.,) Dee., 1879. Cox v. People, 19 Hun 
 430. 
 
 3. Evidence for the prosecution. On 
 trial of an indictment for murder, where the 
 ■deceased was shot, a piece of paper claimed to 
 be the wadding of the gun was produced, and a 
 witness who testified that he was familiar with 
 ihe appearance of wadding shot from a gun, 
 ■was asked whether the paper had that appear- 
 ance. This was objected to as not being the 
 subject of expert testimony. The objection was 
 overruled, and the witness answered that the 
 paper had that appearance. The General Term 
 Iield this error, and reversed the judgment of 
 •conviction. The Court of Appeals held the 
 •ease a border one ; that while ordinarily a judg- 
 ment would not be reversed because of the re- 
 ■ception of such evidence, yet it being a capital 
 case they would give defendant the benefit of 
 the doubt, and so sustained the reversal. — Ct. 
 of App., Oct., 1879. People v. Manke, 78 N. Y. 
 611. 
 
 4. Admissibility and effect of dying 
 ■declarations. On the trial of an indictment 
 iox murder It appeared that the deceased was 
 :shot on a Thuisday evening, and from that time 
 
 *Aflarmed in the Court of Appeals, AprU 6th, 1880. 
 
 Wa^i apprehensive that the wound was fatal ; on 
 Friday he repeatedly stated that he would not 
 recover, and on Saturday morning he was so in- 
 formed by his physician; he subsequently on 
 that day, made certain statements, and soon 
 thereafter became unconscious, and died the 
 next day. Held, that the evidence sufficiently 
 showed that the ante mortem declarations were 
 made under a sense of impending death, to 
 authorize their admission as evidence. — Gt. of 
 App., Nov., 1878. Brotherton v. People, 75 N. 
 
 y:i59. 
 
 5. The prisoner approached the deceased, 
 who was his son-in-law, and intimately ac- 
 quainted with him, disguised as a tramp. The 
 dying declarations were, in substance, that he 
 {deoease4) at first did not recognize the prisoner, 
 but when the latter drew his pistol and " com- 
 menced his pranks." he knew that it was the 
 prisoner. Held, that the declarations were not 
 mere expressions of opinion, but were state- 
 ments of facts, and so were competent, lb. 
 
 6. Evidence in defence — violent 
 character of deceased. On a trial for 
 murder, the violent character of the deceased 
 cannot be proved by showing particular acts of 
 misconduct in no way connected with the ac- 
 cused. — Supreme Gt., {1st Dept.,) Oct., 1879. 
 McKenna v. People, 18 Hun 580. 
 
 7. Instructions to the jviry. In capital 
 cases the court, though requested, is not required 
 to read or instruct the jury in regard to all the 
 sections of the statute relating to homicide. Its 
 duty is discharged by reading or instructing as 
 to those within which the case, under the evi- 
 dence, may fall. — Supreme Ct., (3d Dept.,) Sept., 
 1879. Buel I). People, 18 Hun 487, 494. 
 
 II. Thb CrviL Action for Causing Death. 
 
 8. Operation of the statute. "When 
 an action lies. Jurisdiction. Under the 
 statute, which gives a right of action for caus- 
 ing death by wrongful act or neglect, an action 
 can be maintained for thus causing a death on 
 the high seas, on hoard of a vessel hailing from 
 and registered in a port within this state and 
 owned by citizens thereof; the person whose 
 death was so caused being also a citizen of this 
 state, the vessel being at the time employed by 
 the owners in their own business, and their 
 negligence being alleged to have caused the 
 death.— Cl!. of App., Sept., 1879. McDonald v. 
 Mallory, 77 N. Y. 546, 550; S. C, 7 Abb. N. 
 Cas. 84 ; reversing 44 Superior 80. 
 
 9. The death of plaintiff's intestate was 
 caused in the State of New Jersey, by the neg- 
 ligence of the defendant, a foreign corporation. 
 At the time of the accident there was in New 
 Jersey a similar statute to that of this state, 
 giving to the personal representatives of a per- 
 son killed by the negligence of any other per- 
 son a right of action for damages. Held, that 
 the right of action given by the New Jersey 
 statute was enforceable in the courts of this 
 state by an administratrix appointed here. — Svr 
 preme Cl., {lat Dept.,) March, 1878. Stallknecht 
 V. Pennsylvania R. R. Co., 13 Hun 451. 
 
 10. Evidence. In an action brought to 
 recover damages for the death of the wife of a 
 tenant who occupied rooms in the rear of a 
 house which was not provided with a fire-escape, 
 and which was destroyed by fire, causing such 
 death, it appeared that if a fire-escape had been 
 
196 
 
 HOMICIDE, II.— HUSBAND AND WIFE, I. 
 
 placed at the rear of the house the deceased 
 could, and probably would, have escaped ; there 
 was no proof as to where fire-escapes are usually 
 placed, or whether the front or rear of this house 
 would have been the most suitable place for one. 
 Beld, that it was proper to assume from the 
 structure of the house and of fire-escapes, that 
 one would probably have been placed in the 
 rear; and that the jury were justified in finding 
 that the deceased would have escaped had the 
 defendant discharged his duty. — Ct. 'of App., 
 Sept., 1879. Willy v. MuUedy, 78 N. Y. 310. 
 
 11. Defendant had once provided a ladder to 
 reach the scuttle in the roof, but there had been 
 none there for many months before the fire ; the 
 evidence tended to show that the deceased knew 
 where the scuttle was, that she had time after 
 nolice of the fire to reach it, and that, as she was 
 making efforts to escape, she probably tried to 
 escape in that direction and "failed for want of 
 the ladder. Hdd, that this was suflicient to au- 
 thorize a verdict for plaintiff lb. 
 
 12. Burden of proof as to contribu- 
 tory negligence. The plaintiff is bound to 
 show, affirmatively, that the intestate did not 
 contribute to the result, and that the defendant's 
 negligence was the sole cause of the accident. — 
 Superior Ot., Nov., 1879. Schappert v. Eingler, 
 45 Superior 345. 
 
 13. Instructions to the jury. On the 
 trial of an action for causing the death of plain- 
 tiff's intestate, the court refused to charge that 
 the jury, in estimating the damages, might take 
 into consideration the fact that plaintiff would 
 be entitled to the property of the deceased as 
 her next of kin. Hdd, no error. — Ct. of App., 
 Oct., 1879. Terry v. Jewelt, 78 N. Y. 338 ; 
 affirming 17 Hun 395. 
 
 14. M., plaintiff's intestate, was on board of 
 a canal boat, in tow of a steamer, going down 
 the Hudson river ; the boat was sunk by a coIt 
 lision with a schooner in tow of another steamer 
 going up the river, and M. was drowned. In 
 an action against the owners of the two steamers 
 for alleged negligence, the court charged, in 
 substance, that the respective managers of the 
 two steamers were bound to exercise proper 
 care and diligence in the management of their 
 vessels, whether such care required an observ- 
 ance or departure from the general rules or not, 
 and irrespective of their force if the contest was 
 between themselves. Hdd, no error; that al- 
 though in a contest between the two steamers 
 the one might be precluded by way of estoppel 
 from insisting upon negligence in the other, in 
 acquiescing in the course indicated by its own 
 signals, plaintiff's right of action was not affec- 
 ted thereby.— CS. of App., Nov., 1878. Cooper ii. 
 Eastern Transportation Co., 75 N. Y. 116. 
 
 15. Amount of recovery. The statute 
 requiring compensation for causing death by 
 wrongful act, or neglect or default, does not 
 limit the recovery to the actual pecuniary loss 
 proved on the trial. If the jury is satisfied that 
 pecuniary injury resulted from the death, they 
 are at liberty (within the statutory limitation) 
 to fii the compensation according to their sense 
 of justice and right. — Superior Ct, April, 1878. 
 Cornwall v. Mills, 44 Superior 45. 
 
 16. The direction An Laws of 1847, ch. 450, 
 as amended by Laws of 1870, ch. 78, to the effect 
 that the damages recovered in such an action 
 shall draw interest from the time of the death 
 of such deceased person, and shall be added to 
 
 the verdict, and inserted in the entry of judg- 
 ment, is not in conflict with the constitution, lb, 
 17. It appeared in evidence that the deceased 
 was a young man, about twenty-one, earning $25 
 per month ; that he was unmarried, had no 
 children, and left a father, mother, two brother* 
 and a sister living in Germany. JSdd, that a 
 verdict of $5000 should not be set aside as ex- 
 cessive. — Supreme Ot., (,3d Depl., ) Nov., 1878. 
 Bierbauer v. New York Central, &c., B. B. Co., 
 15 Hun 559 ; affirmed, 77 N. Y. 588. 
 
 HORSE RAILROADS. 
 
 Bailroas Companies, V. 
 
 HUSBAND AND WIFE. 
 
 [See, also, Curtksy ; Divobce ; DowsB.] 
 
 I. Marhlage; and Agreements, and 
 Promises in Beiation to Marriage. 
 
 1. The marriage contract. 
 
 2. Marriage settlements. 
 
 II. Bights and Powers op the Husband. 
 
 III. Liabilities or the Husband. 
 
 IV. Bights and Disabilitibs op the 
 
 Wipe. 
 V. Separate Estate op the Wipe. 
 VI. Eppect op the Eelation on the 
 
 Tenure and Transfer op Land. 
 VII. Contracts and Dealings between 
 them. 
 Vni. Actions by, Against or Between 
 Husband and Wipe. 
 
 I. Marriage ; and Agreements, and Prom- 
 ises IN Belation to Marriage. 
 
 1. The marriage contract. 
 
 1. What is a valid marriage, gener- 
 ally. Where it is shown that the parties went 
 before a clergyman to be married, and had a 
 marriage cermony performed by him betweea 
 them, it does not invalidate the marriage that, 
 they did not give their correct names, or con- 
 cealed their proper names for some purpose of 
 their own. — Cbm. Pleas, June, 18'77. Davis v. 
 Davis, 7 Daly 308, 317. 
 
 2. Effect of prior marriage, divorce, 
 &c. Where more than five years after the hus- 
 band's disappearance, the wife, knowing nothing, 
 of his whereabouts, marries again, and the hus- 
 band, returning, procures a divorce on account 
 of her adultery with the man so married, the 
 decree forbidding her to marry again, such 
 second marriage is void, and she cannot have 
 letters of administration on the estate of the man 
 so married. — Kings Surr. Ct., Aug., 1877. Oram 
 V. Oram, 3 Eedf. 300. 
 
 3. No solemnization necessary — pre- 
 sumption as to foreign laws. All that 
 is essential to constitute a marriage between 
 parties competent to contract it is their mutual 
 consent to enter into the marital relation, ex- 
 
HUSBAND AND WIFE, I., II. 
 
 197 
 
 f tressed in such a. way and by such acts as to 
 eave no room for doubt upon the subject. No 
 particular ceremony or form of words is neces- 
 sary, nor is co-habitation essential to its validity. 
 This is the public and general law, which will 
 be regarded as recognized and prevailing in 
 ■every civilized country, unless it is shown to be 
 ■qualified and restricted by the law of the par- 
 ticular country. — Com. Pleas, June, 1877. Davis 
 *. Davis, 7 Daly 308. Nov. 1879. Hynes v. 
 McDermott, 7 Abb. N. Cas. 98. 
 _ 4. Proof of marriage. Where, in an ac- 
 tion for erim. mn., the former wife of the plain- 
 tiff, after testifying to the performance of a mar- 
 iTiage ceremony between her and tlie plaintiff in 
 Prussia, was asked whether that was the usual way 
 •of marriage in that country ; this was objected to 
 as incompetent, immaterial, and that no foun- 
 dation was laid, the objection was overruled. 
 Seld, no error ; that the evidence was material 
 as tending to prove a valid marriage, that no 
 foundation or preliminary proof was required. — 
 ■Ct. of App., Nov., 1877. Wottrick v. Freeman, 
 71N. Y. 601. 
 
 5. C, a widower, after living for several years 
 •with a mistress, in 1804 brought E. to his house 
 and lived with her for threeor four years, during 
 which time she had a son by him. E. had pre- 
 viously had two illegitimate children by different 
 men, with one of whom she had lived and co- 
 iabited for some time. C. called E. his wife, 
 introduced her and treated her as such while 
 they lived together, and said, even after their 
 separation, that they were married. His and 
 her relatives stated frequently that they were 
 married, and in the community they were recog- 
 nized as man and wife. No record of their mar- 
 jriage appeared, and no witness was present. 
 They separated ; E. returned to her relatives, C. 
 giving to her what money he had ; no articles of 
 separation were executed. C. was thereafter 
 formally and openly married to S., a respectable 
 widow, with whom he lived and co-habited for 
 thirty-five years until his death. After their 
 :separation, E. joined with C. in a deed of his 
 farm, at the request of the purchaser ; C. was 
 also procured, as father, to join in articles of ap- 
 prenticeship of the son of E. E., after the sepa- 
 tion, continued to bear the name of C, and as- 
 serted their marriage, but she never made any 
 claims upon C. as her husband. She sur- 
 vived him, but claimed no share in his property 
 •as his widow. S. was recognized by the sur- 
 rogate as his widow, and her children shared in 
 his estate, and she drew a pension to which his 
 widow was entitled. About 1820, C. made an 
 ■«ntry in his Bible, under the head of " A Begister 
 ■of my Children," which contained the names of 
 his children by his first wife, and of those by S., 
 ■but did not include his son by E. B., a son of 
 ■C. by his first wife, in his will, called the son of E., 
 ids brother. Held, that while the evidence given 
 to show a marriage with Jl. was sufficient to 
 make out a, prima facie case, it was overcome by 
 the opposing evidence ; and taken together, the 
 <«vidence established that C. was lawfully mar- 
 ried to S., not to B.—Ct. of App., Dec., 1877. 
 ■Chamberlain v. Chamberlain, 71 N. Y. 423. 
 
 2. Marriage settlements. 
 
 6. Ante-nuptial settlements. While 
 ;an ante-nuptial contract, by which the future 
 wife releases all claims against the estate of her 
 
 husband upon his decease, will be sustained 
 when fairly made, yet, from the confidential re- 
 lations between the parties, it will be regarded 
 with the most rigid scrutiny; and whelre the 
 circumstances establish that the woman has been 
 deceived, or induced by false pretences to enter 
 into the contract, it will be held null and void. 
 —Ct. of App., Nov., 1877. Pierce v. Pierce, 71 
 N. Y. 154. 
 
 Y. That the presumption is against the validity 
 of such a contract, and that the burden of proof 
 is cast upon the husband, or his representatives, 
 to show perfect good faith ; and that strict proof 
 will be required, particularly where the provi- 
 sion made for the wife is inequitable and unrea- 
 sonably disproportionate to the means of the 
 husband, see lb. 158. 
 
 8. An antenuptial conveyance, whereby the 
 grantor renders himself insolvent, that fact be- 
 ing known to the intended wife and grantee, is 
 void as against creditors. The fact that she 
 gives up a lucrative business for the purpose of 
 marrying the grantor is not a sufficient consid- 
 eration for such a conveyance. — Oity Ct. of Brook- 
 lyn, May, 1879. Keep v. Keep, 7 Abb. N. 
 Cas. 240. 
 
 9. Post-nuptial agreements between 
 husband and wife, though void in law, will be 
 upheld in equity if made bona fide, and upon good 
 consideration. An additional portion brought 
 by the wife after marriage is a sufficient consid- 
 eration both against creditors and purchasers. 
 If the husband has received a fair and reasonable 
 consideration for the thing settled, that repels the 
 presumption of fraud. So the relinquishment 
 of the wife's dower will be deemed a sufficient 
 consideration. — Supreme Ct., (2d Dept.,) Jan., 
 1880. Syracuse Chilled Plow Co. v. Wing, 20 
 Hun 206, 208, 209. 
 
 II. KiG-HTS AND Powers op the HtrsBAND. 
 
 10. Right to ■wife's earnings. The 
 
 provision of the act of 1860 (Laws of 1860, ch. 
 90, I 2,) " concerning the rights and liabilities 
 of married women," which authorizes a married 
 woman " to perform any labor or service on her 
 sole and separate account," does not wholly ab- 
 rogate the rule of the common law entitling the 
 husband to the services and earnings of the 
 wife ; she may still allow him to claim and ap- 
 propriate the fruits of her labor, and in the 
 absence of an election on her part to labor on 
 her own account, or of circumstances showing her 
 intention to avail herself of the privilege con- 
 ferred by the statute, the husband's common law 
 right is unaffected. — Ct. of App., Sept., 1878. 
 Birkbeck v. Ackroyd, 74 N. Y. 356 ; affirming 
 11 Hun 365. 
 
 11.. Where, therefore, the husband and wife 
 are living together and mutually engaged in 
 providing for the support of themselves and 
 their family, and there is nothing to indicate an 
 intention on the part of the wife to separate her 
 earnings, the husband may maintain an action 
 in his own name to recover them. lb. 
 
 12. — to dividends on -wife's stock. 
 Law of place. The right of the husband to 
 receive dividends on bank stock owned by his 
 wife must be determined by the law of the 
 country where the bank is located, and not by 
 that of the country where the husband and wife 
 are domiciled. — Svpreme Ct., {1st Dept.,) March, 
 
198 
 
 HUSBAND AND WIFE, II., III., IV. 
 
 1880. Graham v. First Nat. Bank of Norfolk, 
 20 Hun 326. 
 
 13. Bight of action for enticing a'way 
 ■wife. An instruction to the jury on the trial 
 of an action by the husband against the wife's 
 father for enticing away the wife, that, even 
 if the husband's treatment of his wife was not 
 improper, in fact, yet if such complaints were 
 made to the defendant by the wife and others, 
 as induced him to believe that she was cruelly 
 treated by her husband, and he acted in good 
 faith in taking her home, the plaintiff could not 
 reco'ver — Hdd, correct. — Supreme Ot., (4iA Dept.,) 
 Jan., 1878. Smith v. Lyke, 13 Hun 204. 
 
 14. — for loss of wife's services, so- 
 ciety, &c. The original plaintiff in an action 
 to recover damages for the loss of the services 
 of plaintiff's wife by reason of an injury to her 
 resulting from defendant's negligence, having 
 died, the action was revived by his administra- 
 tor. Upon the trial, the court instructed the jury 
 that, in awarding damages, they might consider 
 the loss sustained by the deceased, up to the 
 time of his death, by the deprivation " of regu- 
 lar attendance, services and comfort of his wife's 
 society." Meld, a proper instruction. — Supreme 
 Ct., (2d Dept ,) Dec., 1879. Cregin v. Brooklyn 
 Cross-town E. E. Co., 19 Hun 341. 
 
 III. Liabilities or the Husbaitd. 
 
 15. Liability for necessaries during 
 co-habitation. Where husband and wife 
 are living together, it is presumed that he as- 
 sents to contracts made by his wife for necessa- 
 ries s'upplied for the use of the family, which 
 can be repelled only by proof of express notice of 
 previous dissent, or a notice not to supply the 
 wife, and even if he had expressed his dissent, 
 and afterwards knows that necessaries have been 
 fiimished to her, and promised to pay for them, 
 the p^romise is regarded as a recognition that 
 they were supplied with his consent and appro- 
 bation.— Cbm. Pleas, Feb., 1880. Mott a. Gruu- 
 hut, 8 Daly 544, 546. 
 
 10. — after abandonment by her. 
 Where a wife whose husband is able and will- 
 ing to provide her with propei: and suitable 
 maintenance if she will live with him, leaves 
 him at the instigation of her parent, against his 
 will, and without justifiable cause, and goes to 
 live with such parent, the latter cannot main- 
 tain an action against the husband for board or 
 necessaries furnished her, in the absence of evi- 
 dence of a request on his part that they be fur- 
 nished, or of a promise to pay for them. — Cl. of 
 App., April, 1877. Catlin v. Martin, 69 N. Y. 
 393. 
 
 17. Nor can a recoveiy be had in such ac- 
 tion for board of the wife during the pendency 
 of an action for divorce, brought by the wife 
 after she had thus left her husband ; there is no 
 implied promise to pay under such circumstances, 
 and the wife has a perfect remedy for support 
 pemdente lite by application for alimony in the 
 action for divorce. lb. See, also, Noe v. Noe, 
 13 Hun 436. 
 
 18. Criminal proceedings to compel 
 support. The husband cannot be made a dis- 
 orderly person and held amenable under the 
 statute because he fails to comply with any con- 
 dition in reference to support which the wife 
 may see fit to impose ; and the reasonableness 
 of the conditions cannot be referred to the deci- 
 
 sion of a jury. — Ct. cf App., Sept., 1878. People- 
 V. Pettit, 74 N. Y. 320. 
 
 19. The husband has a right to select his own 
 residence ; and the support the statute was in- 
 tended to secure is the .necessaries of life, or 
 such as the parties have been accustomed to,, 
 and the husband is able to provide, lb. 
 
 20. If the husband offers to support the wife- 
 if she will live with him, andshe refuses because- 
 of alleged fear of personal violence, to make the 
 husband amenable to the statute there must be 
 a reasonable and substantial apprehension of 
 violence, based upon sufficient facts, to enable 
 the court to see that it is well founded. lb. 
 
 21. That this summary statute was designed 
 to enforce actual physical support only, not to 
 interfere with the marital relations, and that 
 when such support is tendered the husband can- 
 not be made liable under it, although he has- 
 been guilty of acts entitling the wife to an abso- 
 lute divorce, see lb. 
 
 22. Proceedings instituted under Laws of 1861 , 
 ch. 127, to secure the conviction of a husband 
 as a disorderly person, for neglecting to support 
 his family, are criminal in their nature. The 
 complaint may be made by the wife. — Supreme 
 Ot., (4th Dept.,) April, 1879. People v. Crandon, 
 17 Hun 490. 
 
 But she is not a competent witness against her 
 husband in such proceedings. lb. 
 
 23. The pro-vision (Laws of 1871, ch. 395,) 
 relating to persons who abandon or threaten to> 
 abandon their families in the county of Kings, 
 is confined to that county ; and the facts that ai 
 htisband has abandoned his wife and children- 
 in some other county or state, and that the wif& 
 has subsequently come to and resides in Kings- 
 county, does not authorize proceedings against 
 the husband under that provision. — Supreme Ct., 
 (2d Dept.,) May, 1878. Bayne v. People, 14 Hua 
 181. 
 
 24. Upon proof that a husband has aban- 
 doned his wife and family, and that they are 
 likely to become a county charge, a police jus- 
 tice may issue a warrant to the commissioners- 
 of charities and corrections, directing them to 
 seize any money of the husband's on deposit in 
 any savings bank within the county. — Ct. cf 
 Oen. Sess., Nov., 1878. Bourgeois' Case, 7 Abb> 
 N. Cas. 260. 
 
 As to the requisites of the warrant in siichi 
 case, see lb. 
 
 25. Liability for ■wife's ■wrongful 
 acts. Where the wife, during her husband's- 
 absence in a neighboring state, set fire to a 
 house belonging to her separate estate, thereby 
 destroying furniture belonging to the plaintifi). 
 a tenant of the house — Held, that it was a tort 
 committed by the wife in the management of her 
 separate estate, and that the husband was not 
 liable for the damages sustained by plaintiff 
 thereby. — Chemung t'o. Ct., March, 1880. Lan- 
 sing V. Holdridge, 68 How. Pr. 449. 
 
 IV. 
 
 Eights and Liabilities of the 
 Wife. 
 
 26. In respect to policy in her favor 
 on husband's life. A policy of insurance on 
 the life of the husband in favor of his wife, and 
 payable to her or her personal representatives, 
 is not assignable by the wife if the premiums be- 
 paid by the husband. — Com. Pleas, [Sp. T.,) 
 March, 1879. Brummer v. Cohen, 6 Abb. N.. 
 
HUSBAND AND WIFE, IV., V. 
 
 199 
 
 Cas. 409 ; S. C, 57 How. Pr. 386 ; affirmed, 58 
 How. Pr. 239. S. P., Fowler ». Butterly, 44 Su- 
 perior, 148. But see Wilson v. Lawrence, 76 
 jSr. Y. 585 ; affirming 13 Hun 238. 
 
 27. The husband of plaintiiF applied for and 
 received a policy on his life for plaintiff as her 
 agent. HM, that he had no power or authority 
 to surrender or rescind it without her consent. — 
 Ct. ofApp., Feb., 1878. Stilwell v. Mutual Life 
 Ins. Co., 72 N. Y. 385. 
 
 28. Plaintiff was informed of the surrender 
 on the day it was made, and did not notify de- 
 fendant of her dissent to the surrender until 
 after the death of the insured. His liealth, how- 
 ever, continued to fail rapidly from the time of 
 the surrender until his death, and plaintiff's at- 
 tention was constantly required in taking care 
 of him. Hdd, that the evidence justified a find- 
 ing that there was no ratification of the surren- 
 der. i6. 392. 
 
 20. Plaintiff indorsed the check received for 
 the, returned premium. She testified that she 
 wrote her name at the request of her husband, 
 without knowing what it was, and the court so 
 found. Beld, that the finding was conclusive, 
 and that the indorsement was not a ratification. 
 lb. 
 
 30. Liability for husband's acts. A 
 wife who merely aids her husband in the com- 
 mission of a forgery, having no concern with or 
 interest in the fruits of the crime, is not liable 
 in an action ex contractu for money advanced 
 upon the forged instrument. — Gt. of App., April, 
 1879. Nat. Trust Co. of New York v. Gleason, 
 77 N. Y. 400, 409. 
 
 31. — on ground of agency. A mar- 
 ried woman carrying im a saw-mill business 
 through the agency of her husband, clothes him 
 with appiarent authority to purchase materials 
 to repair the mill, and she is estopped from dis- 
 puting such authority where others have been 
 induced to act upon the faith of it, altliough he 
 has disregarded her instructions in respect to 
 the person from whom to purchase. — Supreme 
 Ct., (Zd Dept.,) Sept., 1878. Treman „. Allen, 
 15 Hun 4. 
 
 32. A married woman who carries on busi- 
 ness through the agency of her husband, to 
 whom she has given a power of attorney, may 
 ratify and adopt any act of his in the business, 
 even though it be not within the strict letter of 
 the power of attorney. — Supreme Ct., {1st Dept.,) 
 April, 1878. Wilcox & Gibbs Sewing Machine 
 Co. V. Elliott, 14 Hun 16. 
 
 V. Separate Estate of the Wife. 
 
 33. "Wliat is a valid charge upon it, 
 generally. The promise of a married woman 
 is valid when it is given as a part of a trans- 
 action, the purpose and end of which is to create 
 for her a separate estate. — Ct. of App., JSov., 
 1877. Herrington v. Kobertson, 71 N. Y. 280. 
 
 34. Where; therefore, the father of a married 
 woman advanced $4000 toward the purchase of 
 a farm for lier, upon her promise that the same 
 should be repaid, in case of her death during an 
 approaching confinement. Held, that the promise 
 was valid; and the event provided for having 
 happened, that, her separate estate was liable, 
 and performance could be enforced against it. 
 lb. ; affirming 7 Hun 368. 
 
 35. This action was brought against the ex- 
 ecutoi* of the deceased daughter to recover the 
 
 advance, and against her husband, to whom she 
 had devised the farm, the complaint asking that 
 the advance should be charged as an equitable 
 lien upon the farm. There was no demand by 
 defendants for a jury trial. The complaint 
 was dismissed as to the husband, and judgment 
 for the amount of the advance was rendered 
 against the executor. Held, no error ; that as 
 the complaint presented a case of equitable cog- 
 nizance, the court obtained jurisdiction, and 
 could, althougli the plaintiff failed to establish 
 his right to a lien, give judgment for breach of 
 the promise, payable ont of the property of. the 
 testator in due course of administration, lb. 
 
 36. In an action, upon contract, against a 
 married woman, the burden is upon plaintiff 
 not only to prove the contract, and that it was 
 made by her or her authorized agent, but that 
 it was a contract she was capable of making. — 
 a. of App., Nov., 1877. Nash v. Mitchell, Jl 
 N. Y. 199 ; S. C, 3 Abb. N. Cas. 171. 
 
 37. Where no express charge upon her sepa- 
 rate estate is created by the contract, it must be 
 made to appear that it was in or about a trade 
 or business carrieJ on by her, or that it was for 
 the benefit of such estate. lb. 
 
 38. Proniissory notes. Indorsement. 
 Where a married woman, having a separate es- 
 tate, borrows money for the avowed purpose, on 
 her part, of applying the same to the benefit of 
 her estate, and the loan is made and her promis- 
 sory note taken for the amount, in reliance upon 
 such representation, her estate is liable, and 'an 
 action may be maintained against her upon the 
 note, although the money borrowed was not in 
 fact applied for the benefit of such estate. — Ct. of 
 App., Sept., 1877. McVey v. Cantrell, 70 N. Y. 
 295 ; affirming 6 Hun 528. 
 
 39. Where, at the time of the execution of a 
 promissory note, in the usual form, by a married 
 woman, she executes another paper appended 
 thereto, declaring her intent to charge her sepa- 
 rate estate with the payment of the note, the two 
 instruments are to be construed as one, and 
 the note may be enforced against her. — Ct. of 
 App., Feb., 1879. Treadwell v. Archer, 76 N. Y. 
 196. 
 
 39 a. A note made by a married woman, for 
 valne received, payable to the order of her hus- 
 band sixty days after date, contained a condition 
 that if within that time she should execute a 
 mortgage to bis indorsees, (the plaintiffs) on her 
 real estate, for the face of the note, the same 
 should be surrendered to her. It was also 
 stated that the note was to be a lien upon her 
 separate estate. — Held, that the note was, in sub- 
 stance, the note of both husband and wife, given 
 to the plaintiffs for value, on which the husband 
 was liable generally, and the wife, because she 
 had charged her separate estate. — Supreme Ct., 
 {i^. T.,) Jan., 1880. Little v. Eawson, 8 Abb. 
 N. Cas., 253. 
 
 40. Where the holder of a note indorsed by 
 a married woman in form to charge her separate 
 estate, agreed with the maker for an extension of 
 time, it being part of the agreement that the indor- 
 ser should indorse a new note, and she thereupon 
 executed an instrument stating, in substance, that 
 in consideration of the agreement she consenteil 
 to the extension, and waived all defences she 
 might have in consequence thereof — Hdd, that 
 this was a valid agreement on her part, based 
 on a sufficient consideration, and was binding ;^ 
 that the indorsement being in form a charge 
 
200 
 
 HUSBAND AND WIFE, V. 
 
 upon her separate estate, she could deal with 
 the obligation as if she were a feme sole; and 
 that, therefore, the extension was no defence in 
 an action upon the indorsement. — Ct. of App., 
 AprH; 1878. Third Nat. Bank v. Blake, 73 N. 
 Y.260. 
 
 41. An authority to insert in a promissory 
 note made by a married woman, a clause bind- 
 ing her separate estate, must be express. — Sw- 
 preme Cl., {1st Dept.,) Oct., 1878. Messmore v. 
 Haulenbeek, 15 Hun 494. 
 
 42. Conveyances. Under the statutes as 
 they now exist, a married woman, as incident to 
 the right to acquire property and hold it to her 
 sole and separate use, may purchase property 
 upon credit and bind herself by an executory 
 contract to pay the consideration money; and 
 any obligation entered into by her, given to 
 secure the purchase price of property acquired 
 and held for her separate use, may be enforced 
 against her the same as if she was feme sole; and 
 this, although she had no antecedent estate to 
 be benefited, and although the purchase was not 
 made for the purposes of a trade or business. — 
 Ot. of App., Nov., 1878. Cashman v. Henry, 75 
 N. Y. 103, 115 ; S. C, 5 Abb. N. Cas. 230. 
 
 43. Where, therefore, a married woman as 
 grantee, by the terms of her deed, assumed and 
 agreed to pay a mortgage upon the premises con- 
 veyed, as part of the consideration of the con- 
 veyance — Held, that she was personally liable 
 to pay the mortgage debt ; that a grantee from 
 her, who in the same manner assumed and 
 agreed to pay said debt, was also Hable ; and 
 that in an action for the foreclosure of the mort- 
 gage a judgment against him for a deficiency 
 was proper. lb.; reversing 4:i Superior 93. 
 
 44. Under Laws of 1860, ch. 90, | 3, provi- 
 ding that "any married woman possessed of 
 real estate as her separate property may bargain, 
 sell and convey sucli property, and enter into 
 any contract in reference to the same, but no 
 such conveyance or contract shall be valid with- 
 out the assent in writing of her husband," such 
 assent need not be given prior to, or at the time 
 of the delivery of the deed. — Supreme Ot., (2d 
 Deipt.,) Feb., 1878. Wing v. Schramm,* 13 Hun 
 377. 
 
 45. Bond and mortgage. To render a 
 married woman liable on a bond secured by a 
 mortgage on her separate estate and given for a 
 debt of her husband, she must expressly charge 
 her separate estate therein. — Supreme Ct., (2d 
 Dept.,) May, 1879. McKeon v. Hagan, 18 Hun 
 65. 
 
 But see, as to such bond not given for the hus' 
 band's debt, 2d Dept, Dec, 1879. William- 
 son V. Duffy, 19 Hun 312. 
 
 46. Chattel mortgage. The wife, to 
 secure a loan made to her husband, executed a 
 chattel mortgage upon her separate property. 
 Sdd, that she could not maintain an action to 
 have the same canceled, on the ground that the 
 loan was usurious unless she first tendered to 
 the lender the amount actually loaned, and so 
 alleged in her complaint. — Supreme Ot., [Ist 
 Dept.,) Dee., 1878. Alden v. Diossy, 16 Hun 
 311. 
 
 47. Guardian's bond. A married woman 
 is not liable on a bond of a guardian executed 
 by her as surety, which does not express an in- 
 
 *Said to have been affirmed in the Court of Appeals, 
 Deoember 9th, 1879. 
 
 tent to charge her separate estate. — Ct. of App., 
 March, 1877. Gosman v. Cruger, 69 N. Y. 87. 
 
 48. Undertakings and recogni- 
 zances. A married woman is not disqualified 
 from executing, as surety, an undertaking upon 
 appeal ; and where she contracts in such form 
 as to make the undertaking binding upon her 
 separate estate, the obligation may be enforced 
 in an action at law ; a resort to a court of equity 
 is not required. — Ot. of App., June, 1878. Wool- 
 sey V. Brown, 74 N. Y. 82 ; affirming 11 Hun 
 52. 
 
 49. A married woman cannot bind hereelf as 
 security on a recognizance conditioned for the ap- 
 pearance of the principal at a Court of General 
 Sessions to answer any indictment that may be 
 found against him ; at least, where she does not 
 in the recognizance charge her separate estate, 
 and it is not benefited by giving the recogni- 
 zance. — Ornn. Pleas, April, 1879. People v. Wil- 
 liams, 8 Daly 264. 
 
 50. Simple contracts, purcliases, &c. 
 Plaintiff" sold to defendant, a married woman, 
 residing with and supported by her husband, 
 dry-goods which were used in the family, and on 
 acc.iunt of which her husband paid $150. De- 
 fendant had a separate estate, of which plain- 
 tiffs were informed, and they sold the goods re- 
 lying thereon; but she did not charge he? sepa- 
 rate estate with the payment of the bill, 
 although she afterwards promised to pay it. 
 Held, that an action would not lie against her to 
 recover the balance unpaid. — Supreme Ct.,'{\.st 
 Dept.,) May, 1879. Johnston v. Peugnet, 17 
 Hun 540. 
 
 51. Liability of separate estate for 
 debts incurred in carrying on business. 
 The management of her lauded property by a 
 married woman — i. e., the receipt and disposal 
 of the rents and income thereof— is not the car- 
 rying on of a trade or business within the mean- 
 ing of the statute authorizing married women 
 to carry on trade or business. — Ot. of App., Nov., 
 1877. Nash v. Mitchell, 71 N. Y. 199, 203; S. 
 C, 3 Abb. N. Cas. 171. 
 
 52. — for debts incurred by busband 
 as her agent. Defendant, a married woman, 
 executed to her husband a power of attorney, 
 authorizing him " to make, sign, indorse and 
 accept all checks, notes, draffs and bills of ex- 
 change" for her, which power of attorney was 
 deposited with a bank where she kept an ac- 
 count. Defendant was the owner of real estate, 
 from which she received rents, but was not car- 
 rying on a trade or business. The husband gave 
 to plaintiffs a post-dated check in the defendant's 
 name in exchange for their check, payable to 
 his order. The check so given by the husband 
 was presented at maturity, and payment was re- 
 fused. In an action thereon — Held, that the 
 power granted to the husband was to deal with 
 the moneys and choses in action, pai-ts of defend- 
 ant's separate estate, not to create a debt, or to 
 charge such estate for a debt; and that the 
 transaction was not within the terms of his au- 
 thority, lb. 
 
 53. In the absence of proof that the debt was 
 contracted for the benefit of the defendant's es- 
 tate, or that plaintiff^ so supposed, the check 
 could not have been charged on said estate had 
 it been drawn and delivered by defendant in 
 peraon. lb. ; reversing 8 Hun 471. 
 
 54. A married woman owned a farm of 
 three hundred and thirty acres, on which she 
 
HUSBAND AND WIFE, V., VI., VII. 
 
 201 
 
 lived with her husband. He had no prop- 
 «rty, but carried on the farm for her, buy- 
 ing and selling whatever he pleased, and 
 «sing her money by her consent. " She gave 
 a note, the proceeds of which, as soon as re- 
 -ceived, were given by her to her husband, and 
 were not used by him for her benefit or that of 
 her separate estate. Hdd, that she was engaged 
 in carrying on the business of farming through 
 her husband, acting as her agent, and that she 
 Tvas liable" on the note. — Supreme Gt., (3d Dept,,) 
 Jan., 1878. Smith v. Kennedy, 13 Hun 9. 
 
 55. As to the liability of a married woman 
 caiTying on business, on promissory notes given 
 by her husband as her agent, see Freiberg v. 
 Branigan, 18 Hun 344. 
 
 VI. Effect of the Kelation on the Ten- 
 
 tire AND Transfer of Land. 
 
 56. Tenancy of land by husband 
 a,nd -wife as joint o^wners. Where, since 
 the passage of the act of 1860, concerning the 
 rights and liabilities of husband and wife (Laws 
 ■of 1860, ch. 90,) lands have been conveyed to a 
 husband and wife, jointly, without any statement 
 in the deed as to the manner in which the 
 grantees shall hold, they are tenants in common. 
 —Ct. of App., Feb., 1879. Meeker v. Wright, 76 
 N. Y. 262 ; S. C, 7 Abb. N. Caa. 299 ; reversing 
 11 Hun 533. 
 
 57. Even if, under such a, conveyance, they 
 are tenants of the entirety, not tenants in com- 
 mon, a conveyance by the husband for a valua- 
 ble consideration of his interest in the lands to 
 the wife, is good ; and a bond and mortgage, exe- 
 ■cnted by her to secure part of the purchase 
 money, are valid. lb. 
 
 58. Conveyances by busband and 
 ■wife, jointly. When the wife, by joining 
 with her husband in a conveyance of property, 
 upon which she holds a mortgage, will not, by 
 «o doing, release the premises from the lien of 
 the mortgage, see Van Amburgh v. Kramer, 16 
 Hun 205. 
 
 59. — by husband, of ■wife's lands. 
 When the wife will be bound by a contract of 
 fiale of her land by her husband in his own 
 name, though she is not named in the contract; 
 and what acts on her part will estop her from 
 maintaining ejectment for such land, after the 
 death of her husband, see Hensler v, Sefrin, 19 
 Hun 564. 
 
 60.^ — to ■wife, on husband's pur- 
 chase. A husband purchased land, on which 
 diere was a mortgage, and directed the deed to be 
 made out in the name of his wife, his intention 
 being to make her a gift of the land. The deed 
 •contained a covenant, on the part of the grantee, 
 to pay the mortgage. The wife was ignorant of 
 the whole transaction. The husband paid the 
 consideration money and discharged the taxes 
 and assessments with his own funds. Held, that 
 the wife was not liable for any deficiency arising 
 on the foreclosure of the mortgage. — Supreme 
 •Ct., (Sp. T.,) Dee., 1878. Munson v. Dyett, 56 
 How. Pr. 333. 
 
 VII. CoNTEAcars and Dealings between 
 
 THEM. 
 
 61. Extent of the right to contract 
 .'with each other. The rights of a husband 
 and wife to make contracts with each other are 
 only such as necessarily arise from the separate 
 ■ownership of property by the wife. — Supreme 
 
 Ct., (3d Dept.,) Sept., 1879. Kelley v. Case, 18 
 Hun 472. 
 
 62. Oo-partnership agreements. A 
 valid business partnership may be formed be- 
 tween a husband and his wife, and the husband 
 may use as a firm name, his own name followed 
 by " & Co.," the " Co." representing the wife. — 
 Com. Pleas, June, 1879. Zimmermann v. Erhard, 
 58 How. Pr. 11 ; S. C, 8 Daly 311. 
 
 63. Transfers of personal property 
 made by the husband direct to his wife, without 
 the intervention of an intermediate party, are 
 valid, as between themselves. Choses in action 
 may pass by delivery from one to the other, 
 even without a written assignment. — Superior 
 Ct., May, 1878. Seymour v. Fellows, 44 Su- 
 perior 124. 
 
 64. In an action by a married woman upon 
 a claim for work and labor, assigned to her by 
 her husband, defendant cannot question the valid- 
 ity of the assignment, as by claiming it to have 
 been made directly from the husband to plain- 
 tiff.— a. of App., April, 1879. Seymour v. Fel- 
 lows, 77 N. Y. 178. 
 
 65. Conveyances of real property. 
 A release by the wife of her inchoate right of 
 dower is a good consideration for the husband's 
 promise to pay her therefor, and a conveyance 
 of property to her in pursuance of such agree- 
 ment is valid, except as to existing creditors, 
 and even as to them to the extent of the value 
 of such inchoate right of dower. — Supreme Ct., 
 {3d Dept.,) May, 1878. Smart v. Haring, 14 
 Hun 276. 
 
 66. A deed of lands directly from husband 
 to wife, upheld, in a case where the money with 
 which the lands were originally purchased, was, 
 in a great measure, furnished out of the profits 
 of a business conducted principally by the wife. 
 —Supreme Ct., (1st Dept.,)- Nm., 1879. Mason v. 
 Libbey, 19 Hun 119. 
 
 67. For an instance of an agreement by a 
 wife with her husband, conveying her lands to 
 him for life, and over on his death — Held, void 
 for want of consideration of blood or marriage, 
 and for want of a seal, see Lossee v. Ellis, 13 
 Hun 635. 
 
 68. — through the medium of a trus- 
 tee. A trustee who has taken lands under a 
 deed from a husband in trust to convey to his 
 wife, or her appointee, cannot, after having con ■ 
 veyeld to the appointee, and after the latter has 
 conveyed to the wife, obtain any right, by forc- 
 ibly taking the deeds from the wife's possession, 
 to hold the property until he is repaid by her 
 the expenses incurred by him as trustee ; nor is 
 he entitled to a peaeonal judgment against her 
 for such expenses. Such a trust is executed, 
 and ceases when a proper deed has been executed 
 and delivered to the appointee, although the 
 same may not have been recorded. — Com. 
 Pleas, April, 1877. Krekeler v. Thaule, 7 Daly 
 152. 
 
 69. It seems, that where real estate is con- 
 veyed by a debtor through a third person to his 
 wife, with intent on the part of all the parties 
 to defraud his creditors, and the wife receives 
 her conveyance after the filing of a lis pendens 
 in an action by a creditor against the husband, 
 wherein an attachment is issued, on the ground 
 that the real estate has been fraudulently trans- 
 ferred, this is constructive notice to her of the 
 defect in her title, and of the equitable lien of 
 the creditor : and she cannot claim the benefit 
 
202 
 
 HUSBAND AND WIFE, VII., VIII. 
 
 of sntsequent improvements made by her 
 thereon, at least where it would defeat the claim 
 of the creditor.— Oi!. of App., Nov., 1877. Shand 
 0. Hanley, 71 N. Y. 319. 
 
 70. Agreements for separate main- 
 tenance. In articles of separation between 
 husband and wife, through the intervention of a 
 trustee, the covenant, on the part of the hus- 
 band, to pay a stipulated sum for her support, 
 and that of her trustee to indemnify the hus- 
 band from liability for her debts, are not illegal 
 or contrary to public policy. — Com. Pleas, (Sp. 
 T.,) Bee., 1878. Dupre v. Kein, 56 How. Pr. 
 228, 230; S. C, 7 Abb. H. Cas. 256. 
 
 Vm. Actions by. Against, or Between 
 Husband ajid Wipe. ^ 
 
 71. "When the husband should sue. 
 The title to the paraphernalia of a wife, which 
 has been paid for and furnished by the husband, 
 is, in the absence of evidence of a gift thereof 
 to the wife, in him, and for an injury to it, he 
 is the proper party to bring an action. — Ct. of 
 App., June, 1878. Curtis v. Delaware, &c., K. 
 E. Co., 74 N. Y. 116. 
 
 72. The husband is the proper party plain- 
 tiff in an action against the executor of the 
 wife's lather for services rendered by the wife 
 in attending upon her father during his last ill- 
 ness, she being then married and living with 
 her husband. — Supreme Ct., {3d Dept.,) Jan., 
 1878. Cuck V. Quackenbush, 13 Hun 107. 
 
 73. "When the wife may sue alone, 
 generally. A married woman may sue 
 another woman for damages for enticing her 
 husband away from her. — City Ct. of Brooklyn, 
 (Gen. T.,) Nov., 1879. Breiman v. Paasch, 7 
 Abb. N. Cas. 249. 
 
 And this without her husband's consent, or 
 making him a party to the record. lb. 
 
 74. The husband of plaintiff, as her agent, 
 but in his own name, entered into a contract 
 under seal with defendant for the sale by the 
 latter of certain real estate. Plaintiff was pres- 
 ent during the negotiations. She received the 
 deed from defendant, paid the consideration and 
 took possession of the land. Held, that an 
 action could be maintained by plaintiff for fraud 
 in the sale on the part of defendant. — Ci. of 
 App., May, 1877. Beardsley v. Duntlfiy, 69 N. 
 Y:577. 
 
 75. — for services rendered. A mar- 
 ried woman, who is separated from her husband, 
 and supports herself without aid or assistance 
 from him, may sue for services rendered in her 
 own name. — Supreme Ct., (Hh Dept.,) Jan., 1880. 
 Pursell V. Fry, 58 How. Pr. 317 ; S. C, 19 Hun 
 595. 
 
 76. That a married woman may sue in her 
 own name for services rendered to the defend- 
 ant by her as a feme sole, with her husband's 
 consent, see Suow v. Cable, 19 Hun 280. 
 
 77. "When one may sue the other. A 
 wife who leaves her husband without good 
 cause, and lives separate and apart from him, 
 may maintain replevin against him for articles 
 of personal property belonging to her, which 
 were left in his house and possession. — Supreme 
 Ct., (3d Dept.,) April, 1880. Howhmd ». How- 
 land, 20 Him 472. 
 
 78. A husband may maintain an action 
 against his wife for taking and converting his 
 property. — Supreme Ct., (2d Dept.,] Nov., 1879. 
 
 Berdell v. Berdell, 58 How. Pr. 102 ; S. C, »m& 
 nom. Berdell v. Parkhurst, 19 Hun 358. 
 
 79. Service of process. In the foreclosure 
 of a mortgage, made by a husband and wife on- 
 the husband's land, to secure his debts, service- 
 upon the husband is good service on both him- 
 and his wife. — Supreme Ct., {Sp. T.,) Dec., 1877^ 
 Nagle V. Taggart, 4 Abb. N. Cas. 144. 
 
 80. The complaint. Where a compljint 
 upon a bond shows it to be the obligation of .t 
 married woman, it is essential to allege that it; 
 was given for some purpose which would make 
 it binding upon her ; it is, prima fa^, a nullity, 
 and without such averments the complaint does- 
 not state a cause of action.— C(. of App., April, 
 1879. Broome v. Taylor, 76 N. Y. 564; re- 
 versing, on this point, 13 Hun 341. 
 
 81. The complaint alleged that defendants 
 executed their bond under seal, a copy of which 
 was set forth, and alleged that there was due- 
 plaintiff a specified sum thereon, for which judg- 
 ment -was demanded. The bond was joint andi 
 several; in it the obligors were described as 
 husband and wife, as they were also in the title 
 of the cause. Defendants demurred separately. 
 Seld, that as to the husband, the complaint was 
 good and the demurrer was frivolous; but that, 
 as to the wife, a cause of action was not stated, 
 and her demurrer was well taken. lb. 
 
 82. When the husband and wife unite in 
 bringing an action, and the complaint shows 
 that one alone should bring it, a demurrer will 
 lie upon the ground that the complaint does not 
 state facts sufficient to constitute a cause of ac- 
 tion. — Supreme Ct., {Oswego Sp. T.,) June, 1875. 
 Eumsey v. Lake, 55 How. Pr. 339. 
 
 83. Requisites of complaint in foredosure 
 against a married woman, to entitle plaintiff to 
 judgment for deficiency against her, personally, 
 see Manhattan Life Ins. Co. v. Glover, 14 Hun 153. 
 
 84. Appearance by -wife. In an action 
 to foreclose a real property mortgage, the wife 
 of the mortgagor may appear and defend, by 
 her own attorney, as though she were single. 
 (Code of av. Pro., ? 450.)— Supreme a., (1st 
 Dept.,) June, 1880. Janinski v. Heidelberg, 21 
 Hun 439. 
 
 85. The answer. Since, by statute, a mar- 
 ried woman -may make a valid promissory note 
 in or about a trade or business carried on by her, 
 it is not a sufficient answer to a complaint on a 
 note made by a woman, to allege that at the time 
 of making it she was married ; she must also 
 aver that it was not made in or about the carry- 
 ing on of any trade or business by her, or plain- 
 tiff will be entitled to judgment on the plead- 
 ings. — Crnn. Pleas, Jam., 1879. Ferris v. Holmes, 
 8 Daly 217. 
 
 86. Waiver of defect of parties by 
 not pleading it. In an action by a married 
 woman to have canceled a bond and mortgage 
 made by her husband and herself, and fraudu- 
 lently assigned by one to whom it had been de- 
 livered for accommodation merely, plaintiff's 
 husband was not made a party. At the opening 
 of the trial the defendant's counsel objected to 
 proceeding, on the ground that the husband was 
 a necessary party. Held, that the defect not 
 having been taken by answer or demurrer, must 
 be deemed to have been waived, and that there 
 was no mistrial. — Ct. of App., April, 1877. Davis 
 V. Bechstein, 69 N. Y. 440, 443. 
 
 87. Evidence. While a married woman 
 cannot recover for personal injuries, on the 
 
HUSBAND AND WIFE, VIII.— IMPKISONMENT. 
 
 205 
 
 ground of her inability to render services which 
 are due or belong to her husband, yet she may 
 recover for the loss of such as are personal to 
 herself, and to that end evidence as to who com- 
 posed her family, and as to what she did before 
 her injury, and how she was affected by it, and 
 as to the pain and suffering she endured, is com- 
 petent.— iSMpreme Ct., {3d Dept.,) Nov., 1879. 
 Minick v. City of Troy, 19 Hun 253. 
 
 88. In an action to foreclose a mortgage on 
 the wife's land, given by husband and wife to 
 secure the husband's debt, the wife alleged in 
 her answer " that the notes and mortgages men- 
 tioned in the complaint were obtained from this 
 defendant by the agent of the plaintiff (and 
 others in collusion with him) by duress of this 
 defendant." Held, that she could not prove upon 
 the trial that she was coerced to execute the 
 
 " mortgage by duress and constraint of her hus- 
 band unknown to the plaintiff. — Supreme Ct., {3d 
 Dept.,) Sept., 1879. Lord v. Lindsay, 18 Hun 
 484. 
 
 89. Plaintiff and J., her husband, who was 
 an alien, entered into an arrangement that he 
 should make purchases of real estate with his 
 own money, taking deeds therefor in her name ; 
 when he sold, she was to execute the deeds, and 
 he to receive the purchase money. Under this 
 arrangement, J. purchased and paid for certain 
 real estate, which was deeded to plaintiff; this 
 was subsequently sold to defendant, «nd plaintiff 
 conveyed to the purchaser. A note for a portion 
 of the purchase price, payable to plamtiff's 
 order, was executed by defendant and delivered 
 to J., to whom defendant subsequently paid it. 
 In an action upon the note — 
 
 Seld, 1. That evidence of the arrangement 
 was competent ; and that, as there had been full 
 performance of it, and a restoration to J. of his 
 investment, in property, which he, as an alien, 
 could lawfully hold, the note was his property, 
 and his jight thereto was not affected by the 
 statute against secret trusts. 
 
 2.. That J., being the owner of the note, and 
 receiving payment, it was immaterial whether 
 it was paid by cash or by application of the 
 amount upon a prior indebtedness from him to 
 the maker. — Ci. of App., Jan., 1878. Dunn v. 
 Hornbeck, 72 N. Y. 80. 
 
 90. In addition to the question of ownership^ 
 the court submitted to the jury the question of 
 J.'s agency to act for plaintiff, and to receive 
 paymelit of the note, charging, in substance, that 
 unless they found either the one question or the- 
 other against plaintiff, she was entitled to re- 
 cover. Plaintiff testified that she never, at any 
 time, authorized her husband to receive pay- 
 ment. She, however, testified that he always 
 did her business: that he received the money- 
 paid for her, and that payments made on ac- 
 count of the properties were made to him and 
 invested in other real estate, always with her 
 consent. Held, that this evidence, together with 
 proof of the agreement under which^the whole 
 business was transacted, authorized a submission' 
 of the question of agency to the jury. lb. 
 
 91. fiistructions to the jury. Plaintiff's 
 counsel requested the court to charge that the- 
 fact that J. had not the notein his possession at 
 the time defendant paid it was sufficient to put 
 him on inquiry; the payment, therefore, was- 
 made at his own risk, and "is not good as against 
 plaintiff." The court refused to charge differ- 
 ently from what it had charged. Held, no error ;: 
 that the charge made was substantially as re- 
 quested, save as to the last clause of the request, 
 because conceding the payment was at defend- 
 ant's risk, he was simply bound to show agency ;. 
 and, as to the last clause, such a charge would 
 have been erroneous. lb. 
 
 92. Appeals. Where ajudgment is rendered 
 on an alleged joint liability of husband and 
 wife, and it appears on appeal that the wife is 
 not liable, the judgment cannot be reversed as- 
 to the wife, and sustained as to the husband, but 
 the plaintiff may be allowed to discontinue as 
 to the wife, in which case the judgment as to the- 
 husband will be affirmed. Pollock v. Webster,. 
 16 Hun 104. 
 
 As to Oifts between husband and wife, see 
 Gifts, 7-12. 
 
 As to Dissolution of the marriage contract, Beer 
 Divorce. 
 
 IV, 
 
 HYPOTHECATION. 
 
 Bailment, 6-14 ; Debtor and Cbediiob,. 
 
 ILLEGALITY. 
 
 Contracts, 43-46; Deeds, 17, 18; Mort- 
 gages, U. ; Sales, I. 
 
 IMPANELING JURORS 
 Trial, 19, 87-92. 
 
 IMPEACHMENT. 
 
 Of Qmsiderdtion of contracts, see Contracts, 
 12 ; of Witnesses, see Witnesses, 63-72. 
 
 IMPOTENCE. 
 
 Divorce, 1, 2. 
 
 IMPRISONMENT. 
 
 [Includes only imprisonment on civil process. Im— 
 pnaonment as a punishment for crime, is treated un- 
 der PTJfflSHMENT. Suoll titles, also, as ABREST, BAILf. 
 
 ExEOHTios, Insolvency and Recognizance should! 
 be consulted for a full view of this subject.] 
 
 1. Bond for jail limits. Where the hus- 
 band, defendant, in an action for divorce, has- 
 been committed to jail for his failure .and refusals 
 
204 
 
 IMPRISONMENT 
 
 to pay money to enable plaintiff to prosecute the 
 3«;tion, and for her support during its pendency, 
 ie is not entitled to the jail liberties — Supreme Ot., 
 iSp. T.,) March, 1880. Allen v. Allen, 58 How. 
 Pr. 381 ; S. C, 8 Abb. N. Cas. 175 ; 59 How. Pr. 
 :27 ; Matter of Clark, 20 Hun 551. 
 
 2. Po'wer to grant discharge. An ap- 
 plication by an insolvent debtor for exoneration 
 or discharge from imprisonment, under the 
 provisions of the Eevised Statutes, (2 Eev. Stat., 
 p. 28, et seq.,) must be made to one of the officers 
 specified, (2 Eev. Stat. 34, J 1); it cannot be 
 made to any court. — Ct. of App., May, 1877. 
 Matter of EobeilB, 70 N. Y. 5. 
 
 3. Where the officer by whom the order to 
 -show cause is issued, as prescribed by said arti- 
 <!le, (§ 2), is not in attendance on tlie return day 
 thereof, the proceedings cannot be continued by 
 a justice of the Supreme Court not residing in 
 the county whereiij the debtor resides or is im- 
 prisoned ; and in case they are so continued all 
 fiubsequent proceedings are void. lb. 
 
 4. Where the proceedings are commenced by 
 a justice of the Supreme Court, another justice 
 holding court in the county is not a "successor 
 in office " of the one before whom the proceed- 
 ings were commenced, within the meaning of 
 the statute, (2 Eev. Stat. 35, § 5,) and unless he 
 possesses the qualification of residence he cannot 
 ^jontinue the proceedings. lb. 
 
 5. Proceedings commenced before a judge of 
 the Court of Common Pleas for the discharge 
 of a debtor from imprisonment under the above 
 provisions, may be continued and terminated be- 
 fore another judge of that court. — Com. Pleas, 
 (Sp. T.,) July, 1878. Matter of Eoberts, 8 Daly 
 
 -S5. 
 
 6. Such power discretionary. An 
 -order made by the proper officer upon an appli- 
 -cation by an insolvent debtor, for discharge from 
 imprisonment, i.s not appealable to the General 
 Term or to the Court of Appeals. — Ot. of App., 
 May, 1877. Matter of Eoberts, 70 N. Y. 5. 
 
 7. The application, how made. 
 Where an order of arrest has been granted on 
 the ground that defendant was guilty of fraud 
 in contracting the debt sued on, and a body exe- 
 cution has been issued on the judgment, an ap- 
 plication for defendant's discharge from imprison- 
 ment must be made under article 5, ch. 5, part 
 ■2, title 1 of the Eevised Statutes, and not under 
 cuticle 6 thereol— Supreme Ol., (M Dept.,) Feb., 
 
 1880. Devlin v. Cooper, 20 Hun 188. 
 
 8. "When defendant is entitled to be 
 discharged. The court is without power to re- 
 lease a defendant held under a body execution 
 because of his inability to endure the imprison- 
 ment. — Supfeme Ct., (ls< JDept.,) Jan., 1880. 
 Moore ». McMahon, 20 Hun 44. 
 
 9. Code of Pro., § 302, authorizing the re- 
 lease of a person committed for a contempt, in 
 case of his inability " to endure the imprison- 
 ment," is not applicable to one who is sufTering 
 from a malarial fever, but contemplates the case 
 
 -of one suffering from a disease in the nature of 
 a slow wasting, a steady diminution of the vital 
 forces, lending, unless arrested by sunlight, open 
 ^ir, proper exercise, and the enjoyment of free- 
 'dom, to a complete destruction of his constitui 
 tion, and, as a not remote consequence, death. 
 lb. 
 
 10. A defendant surrendered by his bail, is 
 .entitled to be discharged upon tendering a new 
 'bail bond, similar in form to the first one. The 
 
 sheriff cannot compel him to give a limit bond 
 before execution, except in a case where bail to 
 pay the debt is required. — N. Y. Marine Ct., 
 (Sp. T.,) Dec., 1879. McCallum v. Barnard, 58 
 How. Pr. 169. 
 
 11. Objections to the discharge. The 
 fact that the defendant has converted money 
 received in a fiduciary capacity will not prevent 
 his discharge in a proper case. — Supreme Ct, (Is* 
 Dept.,) Jan., 1880. Suydam v. Belknap, 20 Him 
 87. 
 
 12. The fact that the judgment, under which 
 the debtor, seeking a discharge from imprison- 
 ment under the insolvent law, was imprisoned, 
 was obtained in an action for fraudulent repre- 
 sentation as to the solvency of a third person to 
 whom credit was given, is no objection to grant- 
 ing his discharge, where it sippears that the 
 debtor obtained no pecuniary advantage thereby. . 
 —Cmn. Pleas, April, 1880. Matter of Fowler, 8 
 Daly 548 ; S. C , 59 How. Pr. 148. 
 
 13. 'WTien a discharge will be re- 
 fused. Where, upon the examination of the 
 petitioner in the proceedings for his discharge 
 from imprisonment, it appears that his proceed- 
 ings have not been "just and fair " towards a 
 creditor under whose judgment he is imprisoned, 
 the petition will be denied. — Supreme Ct., 
 (Sp. T.,) Feb., 1880. Matter of Fmck, 59 
 How. Pr. 145. 
 
 When hi% proceedings are not "just and fair," 
 see Matter of Eoberts, Id. 136. 
 
 14. A debtor imprisoned for removing and 
 disposing of his property, with intent, to defraud 
 his creditors, is not entitled to a discharge under 
 the provisions of the Eevised Statutes relating 
 to voluntary assignments. — Supreme Ct., {lat 
 Dept.,) March, 1880. Bradford v. People, 20 
 Hun 309. 
 
 15. Where it is shown that all the property 
 the judgment debtor had when arrested in this 
 action, has been taken away from him without 
 his fault and against his will, he will not be re- 
 fused a discharge under the fourteen-day act 
 on that account. Otherwise in cases of volun- 
 tary bankruptcy. — Com. Pleas, {Sp. T.,) Dec., 
 1878. Matter of Fitzgerald, 5 Abb. N. Cas. 
 357 ; S. C, 56 How. Pr. 190 ; 8 Daly 188. 
 
 For decisions upon what constitutes False 
 imprisonment, and the remedy therefor, see that 
 title. 
 
 IMPROVEMENTS. 
 
 Landlobd AMD Tenant, II. ; MoRTOAais, HI. 
 
 INCAPACITY. 
 
 To make Contract, see Husband and Wife^ 
 26 ; Infauts, 1-3 ; Insane Pebsons, 1, 2. 
 
 INCORPORATION. 
 
 CoBFOBATiONS, I. ; and the titles of the vari- 
 ous distinct corporate bodies. 
 
INDIANS-INDICTMENT, I., II., Ill 
 
 205 
 
 INCUMBRANCES. 
 
 Covenant against, Bee Covenants, 10 ; Ven- 
 BOK AND Purchaser, I. 
 
 INDIANS. 
 
 1. Validity of leases by Seneca In- 
 dians. The act of congress, passed February 
 19th, 1875, authorizing the Seneca Nation of 
 Indians, in this state, to lease lands within their 
 reservations, and confirming existing leases, was 
 intended to give validity to all existing leases 
 given by Indians to white persons, for the period 
 of at least five years from the passage of the act, 
 and to render them binding upon the 'parties 
 thereto, and upon the Seneca Nation. — Swpreme 
 Ot., {4th Dept.,) Jan., 1880. Eyan v. Knorr, 19 
 Hun 540. 
 
 2. If the act was in conflict with prior treaties 
 between the United Slates and the Indians, then 
 it superseded such treaties, and the consequences 
 arising from such conflict are beyond the sphere 
 of judicial cognizance. lb. 
 
 3. Prior to the passage of the act above men- 
 tioned, an Indian leased the same land to two 
 different persons. Held, that the one hav- 
 ing the prior lease had the better title. lb. 
 
 INDICTMENT. 
 
 [Consult, also, the titles of the various crimes, such 
 
 BB ABSON ; BUKGLAKY ; EMBSZZLSUElirr ; FALSE 
 
 Pretences; Forgery ; Homicide; Larceny; Per- 
 jury ; Bafe, &c. ; also, Cbluinal Law, IL] 
 
 I. 
 
 n. 
 in. 
 
 The Finding. 
 Form and Contents. 
 Motion to Quash. 
 
 I. The Finding. 
 
 1. Necessary concurrence of grand 
 jurors. If an indictment is found without 
 the concurrence of twelve grand jurors, the 
 prisoner, on being arraigned, and before plea, 
 may move to quash. — Buff. Superior Ot., {Orim. 
 T.,) June, 1878. People v. Shattuck, 6 Abb. N. 
 Cas. 33. 
 
 II. Form and Contents. 
 
 2. The caption. When an indictment is 
 removed from a superior to an inferior court, a 
 caption is unnecessary. — Supreme Of., {ith Dept.,) 
 Jan., 1880. Loomis v. People, 19 Hun 601. 
 
 3. Charging the offence, generally. 
 An indictment charging an offence in different 
 ways in several counts, but all under the same 
 statute and relating to the same transaction, is 
 good ; and it matters not that the offence alleged 
 in one count is of a different grade from that 
 alleged in another, and calls for a different pun- 
 ishment. — Ot. of App., Dec., 1878. Hawker v. 
 People, 75 N. Y. 487. 
 
 - 4. Following the words of the stat- 
 ute. An indictment for a statutory offence, 
 which avers the offence as the statute defines it, 
 
 is sufficient. All the circumstances which con- 
 stitute the definition of the offence, as given in 
 the statute must be stated, but no others are re- 
 quired.— OK. <)/■ .4pp., Feb., 1878. Phelps r. 
 People, 72 N. Y. 334, 349 ; affirming 6 Hun 401. 
 
 5. Averment of time when offence- 
 was committed. In an indictment under- 
 Laws of 1876, ch. 122, § 4, to prevent and pun- 
 ish wrongs to children, for endangering a child's- 
 health by a series of omissions to provide proper 
 food, care and medical attendance — Held, proper 
 to aver that the offence was committed upon a. 
 particular day, after the consequences of the 
 neglect were developed. — Supreme Ot., (Isf 
 Dept.,) May, 1880. Cowley v. People, 8 Abb. 
 "N. Cas. 1. 
 
 6. — of value. When the value of a thing- 
 which is the subject of the offence, is necessary 
 to fix the grade of the offence, it is a proper 
 mode of stating it to aver that the thing is of, 
 or more than, the value prescribed by the stat- 
 ute.— G(. of App., Feb., 1878. Phelps v. People,. 
 72 N. Y. 834, 350. 
 
 "7. Misnomer. An indictment is not viti- 
 ated by misnomer of a person other than the- 
 accused, if either of the two names by which 
 such person is designated is one by which he is 
 commonly known. — Supreme Ot., {1st Dept.,) 
 May, 1880. Cowley v. People, 8 Abb. N. 
 Cas. 1. 
 
 8. Duplicity. Whether the objection of 
 duplicity is fatal, either on motion in arrest of 
 judgment or on writ of error, see Polinsky v.. 
 People, 73 N. Y. 65, 72. 
 
 III. Motion to Quash. 
 
 9. The right to ruove to quash. Where- 
 there is a misjoinder of counts, the first count 
 charging a misdemeanor and the second a felony, 
 the proper remedy is to put the district attorney 
 to his election, or to ask the court to give proper 
 instructions to the jury ; such misjoinder doe» 
 not entitle defendant to have the indictment 
 quashed, except in the discretion of the court. 
 — Supreme Ot., {1st Dept.,) March, 1878. People,, 
 ex rel. Phelps, v. General Sessions, 13 Hun 
 395. 
 
 10. Practice on the hearing. Upon the- 
 hearing of a motion to quash, grand jurors may 
 be examined as witnesses before the court, as to- 
 whether twelve of the panel actually concurred 
 in the finding. — Buff. Superior Ot., {Orim. T.,) 
 June, 1878. People v. Shattuck, 6 Abb. N. Cas. 
 33. 
 
 11. Upon such hearing, affidavits cannot be 
 read to contradict or explain the allegations in 
 the indictment, without the district attorney's- 
 consent. — Ohautauqua Oounty Sessions, March, 
 1879. People v. Clews, 57 How. Pr. 245. 
 
 12. A prisoner under indictment need not be 
 present in court during the argument of a mo- 
 tion to quash. — Oyer and T., {Zd Dept.,) March, 
 1879. People v. Vail, 6 Abb. N. Cas. 207 : S. 
 C, 57 How. Pr. 82. 
 
 INDIVIDUAL LIABILITY. 
 
 Of Officers and stockholders in corporations,^ 
 see Corporations, 27-37 ; Manufacturing- 
 Companies, II., III. 
 
206 
 
 INFANTS— INJUNCTION, I. 
 
 INDORSEMENT. 
 
 Of Commercial pwper, see BrLi-s or Exchange, 
 ■7-9 ; PaOMissoRY Notes, 12-19. * 
 
 Of BUI of lading, see Bills of Lading, 7-12. 
 
 INFANTS. 
 
 1. Conveyances by infants : right to 
 <lisa£Bmi. Where a eon, during infancy, con- 
 veys his real estate to his father, receiving and 
 expending, or wasting, the consideration there- 
 for before his arrival at full age, and has no 
 other property with which to replace it, he may 
 ■disaffirm his deed after he arrives of age, with- 
 out restoring or offering to restore the considera- 
 tion. — Cl. of App., May, 1877. Green v. Green, 
 €9 N. Y. 553 ; afjirming 7 Hun 492. 
 
 2. A re-entry by the son for the purpose of 
 disaffirming the deed, with notice of such intent, 
 is sufficient to avoid it, and an action of trespass 
 cannot be maintained by the father because of 
 such re-entry. lb. 
 
 3. "WTiat is an afOrraance, or ratifi- 
 cation. Mere acquiescence by the son, with- 
 out any affirmative act, for three years after his 
 arrival at full age, is not a ratification of the 
 conveyance. 
 
 4. Power to order sale of infant's 
 lands. Under the statute authorizing the sale 
 of the real estate of an infant, (2 Rev. Stat. 194, 
 ^ 70,) the court has jurisdiction to direct the sale 
 of a remainder in fee, vested in interest in an 
 infant ; the term " real estate," as used in the 
 statute, includes every freehold estate and inter- 
 est in lands ; and where there is a vested re- 
 mainder in fee there ia.a seizin in law, which 
 answers the requirement of the statute that the 
 infant shall be " seized " of the estate. — Ct. of 
 App., April, 1878. Jenkins v. Fahey, 73 N. Y. 
 855, 361 ; reversing 11 Hun 351. S. P., Matter 
 of Haight, 14 Hun 17«. 
 
 5. As to the power of the Supreme Court to 
 order the sale of infants' lands, and when such 
 an order may be made, see Muller v. Strupp- 
 man, 6 Abb. N. Cas. 343. 
 
 6. Duties of special guardian in pro- 
 ceedings to sell. The special guardian ap- 
 pointed to sell an infant's lands may not, after 
 his appointment, so use an invalid claim, held 
 by him against the real estate, as to put a pur- 
 chaser from him of such claim in possession of 
 the lands, rendering an action of ejectment by 
 the one lawfully entitled necessary to regain 
 possession ; and for the damage arising for so 
 doing he may be required to make full com- 
 pensation. — Ot. of App., Sept., 1878. Matter of 
 Spelman v. Terry, 74 N. Y. 448; affirming 8 
 Hun 205. 
 
 7. An action for breach of promise 
 "to marry will not lie against an infant, even 
 though the plaintiff may, by reason of such 
 promise, have been induced to allow him to 
 have connection with her. — Supreme Ct, {1st 
 Dept.,) June, 1880. Leiohtweiss v. Treskow, 21 
 Hun 487. 
 
 INFRINGEMENT. 
 
 Of Authoi's right in unpublished manuscript, 
 see Injunction, 19 ; of Franchise, see Ferries, 
 
 1 ; of Injunction, see Contempt, 8 ; Injunc- 
 tion, 42, 43 ; of Trade-marh, see Injunction, 
 24-29 • Tbade-mabks, 8-14. 
 
 INJUNCTION. 
 
 I. General Principles. 
 II. Use op the Writ in Particulak Cases. 
 
 III. Granting and Dissolving. 
 
 IV. Damages on Dissolution. Eemedt on 
 
 Bond or Undertaking. 
 
 I. General Principles. 
 
 1. 'When the writ will be granted, 
 generally. Where the mortgagor remaining 
 in possession, after a sale in foreclosure, but be- 
 fore confirmation, attempts to remove machinery, 
 claimed by the purchaser to be a part of the 
 realty, an injunction may properly issue under 
 Code of Civ. Pro., ? 604, to restrain him from 
 so doing. — Smreme Ct:, {2d Dept.,) July, 1879. 
 Mutual Life Ins. Co. v. Nat. Bank of Newburgh, 
 18 Hun 371. 
 
 2. An agreement between a telegraph com- 
 pany, whose business it was to procure and fur- 
 nish to its customers from day .to day, quotations 
 of the prices of gold and stocks sold in New 
 York city, and its subscribers, provided that the 
 latter should not sell or give away, in whole or 
 in part, the information so obtained, nor permit 
 any third person to copy such quotations for use 
 or publication. Held, that an attempt by a 
 subscriber to violate such provision was properly 
 restrained by injunction. — Supreme Ct., {1st 
 Dept.,) May, 1879. Gold and Stock Teleg. Co. v. 
 Todd, 17 Hun 548. 
 
 3. When it will be refused. An equita- 
 ble action cannot be sustained to restrain an 
 officer of the American Society for the Preven- 
 tion of Cruelty to Animals, appointed by a 
 sheriff to make arrests, and who has threatened 
 to arrest plaintiff for an alleged violation of the 
 statute, from making such arrest, on the ground 
 that the acts complained of were not a violation 
 of the statute, and that plaintiff would suffer 
 great damage in his business if the threat was 
 carried into execution. — Ct. of App., Dee., 1878. 
 Davis V. Amer. Soc. for Prevention of Cruelty 
 to Animals, 75 N. Y. 362. 
 
 4. Whether, as matter of fact, a person is 
 guilty of a violation of the statute cannot be de- 
 termined in such an action. The guilt of a per- 
 son accused of a crime is to be determined m a 
 common law court by a jury, and the people as 
 well as the accused have the right to have it so 
 determined. lb. 
 
 5. That to test the legality of a village corpora- 
 tion under Laws of 1870, en. 241, a legal action 
 in the nature of a qy/> warranto is an appropriate, 
 if not the only remedy, and an injunction will 
 not liei see People, ex rel. Eingsland, v. Clark, 
 70 N. Y. 518. 
 
 6. Staying proceedings. To prevent 
 injustice and oppression, the courts will enjoin 
 a party to an action (a divorce case) pending in 
 this state from prosecuting a suit subsequently 
 commenced in another state, where the matters 
 litigated, and the relief obtainable are substan- 
 
INJUNCTION, I., II. 
 
 207 
 
 illy the same in both suits. — Com.'Pleas, {Sp. 
 .,) April; 1878. Kittle v. Kittle, 8 Daly 72. 
 
 7. Equity disfavors a multiplicity of suits for 
 le same substantial ends. If full relief can be 
 id in one suit no other should be allowed. — 
 tipreme a., {Sp. T.,) April, 1878. Conklingj). 
 ecor Sewing Machine Co., 55 How. Pr. 269, 
 73. 
 
 8. An injunction restraining the prosecution 
 f a certain action in the Marine Court, or any 
 ;eps to recover the money claimed therein — 
 Teld, not to enjoin the plaintiff in the Marine 
 lourt action from collecting costs awarded_ by 
 liat court prior to the issuing of the injunction. 
 -Cl. of App., March, 1880. German Savings 
 5auk «. Habel, 58 How. Pr. 336. 
 
 I. Use op the Wbit in Particular Cases. 
 
 9. Alienation or removal of property. 
 
 iVhere, in a controversy as to title to land, it is 
 dear that the title descended to and vested in 
 he plaintiff, and the only claim of defendants 
 who are aliens) is under a treaty between the 
 iJnited States and a foreign country, and it is 
 lot clear what rights they have under such 
 Teaty, and there is danger that the rents and 
 profits of such land may be removed beyond the 
 jurisdiction of the courts, and of the state, a 
 proper case for an injunction is made. — Superior 
 Ot., Feb., 1879. Eennerj;. MuUer, 44 Superior 
 535, 537. 
 
 10. Diversion or pollution of running 
 water. The plaintiff, a mill owner, sought to 
 restrain defendant from diverting the water of 
 the creek, which supplied his mill, by pipes 
 conducting it to tanks and reservoirs used in 
 supplying defendant's locomotives, and to re- 
 cover damages for such diversion. It appeared 
 that defendant's acts had materially diminished 
 the power of plaintiff's mlll,-and occasioned him 
 damage to the extent of $500. 
 
 Hdd, ]. That plaintiff was entitled to a pli-- 
 petual injunction restraining such diversion, 
 and to the amount of damages sustained. 
 
 2. That the question whether or not such use 
 by defendant was a reasonable one, was immate- 
 rial.— ;SMpreme Ot., {4th Dept.,) April, 1879. Gar- 
 wood V. New York Central, &c., E. B. Co., 17 
 Hun 356. 
 
 11. M. being the owner of a farm, upon which 
 was a spring, deeded a portion thereof to C, 
 with " the privilege of raising the water at the 
 spring " and carrying the same to the premises 
 conveyed, in such quantities as should be neces- 
 sary to supply a tannery to be erected on the 
 premises, or for other necessary uses thereon, 
 reserving to M. water necessary for the uses of 
 his farm. Plaintiff, who succeeded to the rights 
 of C, built a dam upon land formerly a part of 
 the farm, twenty-five feet below the spring, the 
 intervening space being used as a pond to retain 
 the waters from the spring and also of other 
 springs above, the effect whereof was to flood 
 the spring and to render the water unfit for do- 
 mestic purposes. In an action to recover dama- 
 ges for tearing down the dam, and for an injunc- 
 tion — Hdd, that plaintiff's right to raise the 
 water was confined to the spring itself; that he 
 had not the right to flood other land, still less 
 to intercept the water from other sources, using 
 defendants' land for accumulating and holding 
 it, nor had he the right to impair the character 
 of the water ; that, therefore, plaintiff was not 
 
 justified in building the dam and could not 
 maintain his action.— Ot. of App., May, 1878. 
 Merrill v. Calkins, 74 N. Y. 1; affirming 10 
 Hun 495. 
 
 12. What acts of acquiescence on the part of 
 the owner of a farm through which runs a, 
 stream of water, will- not estop him from main- 
 taining an action to restrain the proprietors of a 
 cheese factory, just above him on the same stream, 
 from polluting the water thereof by throwing in 
 refuse, washings and whey, thereby rendering 
 the water unwholesome, offensive and unfit for 
 use on plaintiff's farm, see Snow v. Williams, 
 16 Hun 468. 
 
 13. Levying and collection of taxes 
 and assessments. An action in equity will 
 not lie to review the proceedings of munidpal 
 boards and officers, or to correct irregularities 
 and errors which may have been coinmitted by 
 them in laying out, opening or improving streets, 
 or in levying assessments and taxes therefor. 
 The equity powers of the court cannot be in- 
 voked to prevent an apprehended injury, save 
 where its exercise is necessary to prevent a mul- 
 tiplicity of suits, or an irreparable injury tothe 
 freehold, or to remove a cloud upon a title. 
 The fact that an assessment is divided into a 
 number of installments does not bring the case 
 within the first exception, as a decision as to one 
 installment would be effective upon aU. The 
 freehold is not injured, although it may be ille- 
 gally assessed and taxed. — Ot. of Am}., May, 
 1877. Guest o. City of Brooklyn, 69 N. Y. 
 506, 511. 
 
 14. When, in an action by lax-payers, to re- 
 strain the levy and collection of a village tax — 
 a portion of the tax having been collected and 
 disbursed after the commencement of the action, 
 but before the issuing of the preliminary in- 
 junction — plaintiffs should have leave to file a 
 supplemental complaint setting up these facts, 
 and praying not only that a further levy be re- 
 strained, but also that those of the defendants, 
 wlio received the money disbursed, be compelled 
 to refund the same to the village, see Latham v. 
 Richards, 15 Hun 129. 
 
 15. In what cases equity will restrain tlie 
 collection of a tax or assessment, and what must 
 be alleged in the complaint to obtain such relief, 
 see Pacific Mail Steamship Co. v. Mayor, &c., 
 of New York, 57 How. Pr. 511. 
 
 16. Nuisances. An injunction against the 
 maintenance of a, structure claimed to be a 
 common nuisance will not be granted, unless 
 plaintiff's actual or threatened injury is other or 
 greater than that sustained by the rest of the 
 community in the neighborhood ; nor will it be 
 granted even when that is shown, unless the in- 
 jury, actual or threatened, be of a serious or ir- 
 reparable character, and plaintiff has used 
 diligence in applying. — Com. Pleas, April, 1877. 
 Nmth Ave. E. E. Co. v. New York Elevated E. 
 E. Co., 7 Daly 174. "... 
 
 17. To authorize an injunction to restrain the 
 making of a noise, the noise must not only be 
 such as produces actual physical discomfort in 
 persons of ordinary sensibiuties, but it must be 
 unreasonably made. — Com, Pleas, (Sp. T.,) 
 Pool V. Coleman, 8 Daly 113. 
 
 18. Defendant erected on his own premises 
 a dam across a small stream, a short distance 
 from the house of plaintiff; the water of the 
 pond made by the dam was stagnant, and be- 
 came filled with unwholesome matter, which 
 
20S 
 
 INJUNCTION, II. 
 
 poisoned the atmosphefe, rendered the use of 
 plaintiff's premises dangerous to life and health, 
 and depreciated its value. 
 
 SM, 1. That an equitable action was main- 
 tainable to restrain defendant from continuing 
 the dam, and to compel him to remove it. 
 
 2. That the fact that plaintiff, by permission 
 of defendant, took ice from the pond one or two 
 winters, did not constitute such an acquiescence 
 in the continuance of the dam as to estop her 
 from claiming that it was a nuisance, especially 
 when thereafter its effects were more clearly 
 discoyered. — Ct. of App., March, 1879. Adams 
 V. Popham, 76 N. Y. 410. 
 
 Nor did the fact that plaintiff and her hus- 
 band had, by suggesting improvements and 
 otherwise, made efforts to have the pond ren- 
 dered innocuous, prevent her from resorting to 
 an action- for its abatement. lb. 
 
 19. Protection of literary property. 
 To protect a person in the possession of an un- 
 published manuscript, the law does not require 
 that it shall bethe exclusive work of one indi- 
 vidual. It nxay be that of one or many acting 
 in co-operation, and whichever may be the ca-ie, 
 the right is substantially the same, and equally 
 entitled to the protection of courts of justice. 
 The same reasons that will induce security to 
 the individual will extend it to all whose joint 
 action may contribute to the result finally at- 
 tained. — Supreme Ct., [Sp. T.,) Aug., 1878. 
 French v. Maguire, 55 How. Pr. 471, 478. 
 
 20. PubUoations. A court of equity has 
 no jurisdiction to restrain the publication of 
 libelous matter.— Com. Pleas, May, 1877. New 
 York Juvenal, &c., Soc. v. Boosevelt, 7 Daly 
 188. 
 
 21. Defendant, who had letters-patent for a 
 " carpet exhibitor," issued circulars setting 
 forth that plaintiffs, who also held letters-patent 
 for a carpet exhibitor, " or other irresponsible 
 parties," professed to have " a new carpet exhibi- 
 tor, intending to make considerable profit before 
 legal proceedings put a stop to their nefarious 
 effi)rts," and that plaintiffs had no right "to 
 make, sell or lease any carpet exhibitors," and 
 threatening legal proceedings against any 
 one " purchasing, leasing or using such exhibi- 
 tor." It appeared that no suit for infringement 
 of patent had been commenced, and it did not 
 appear that defendant intended to commence 
 any. Held, that a state court had jurisdiction 
 to enjoin defendant from issuing the circulars, 
 and that there was sufficient shown to authorize 
 an injunction. — Supreme Ct., (Chamb,) June, 
 1880. Croft V. Richardson, 22 Alb. L. J. 152 ; 
 S. C, 59 How. Pr. 356. 
 
 22. Railroads. An injunction is proper to 
 restrain the continuous unlawful use of plain- 
 tiff's land by a railroad company. — Ct. of App., 
 May, 1878. Murdock v. Prospect Park, &c., R. 
 R. Co., 73 N. Y. 579. Compare Troy and Boston 
 B. R. Co. V. Boston, &c., R. B. Co., 13 Hun 60. 
 
 23. W., being the owner of a tract of land, 
 for the purposes of sale, laid out a street there- 
 on, which he dedicated to the public use as a 
 highway, and laid out the adjoining lands into 
 village lots. Defendant, without the consent of 
 W., and without making compensation to him, 
 cut down the street from one to three feet, and 
 laid'down railroad tracks thereon for the pur- 
 poses of its business, with a view to a permanent 
 occupation of the premises for those purposes, 
 whereby the value of the lots was depreciated. 
 
 W. brought an equitable action to restrain de- 
 fendant from such use of the street, to recover 
 damages^ &c. W. died, and his executors and 
 devisees were substituted as plaintiffs. All of 
 the lots had been conveyed by W., or by the 
 present plaintiffs, before trial, reserving all 
 claims against defendant for damages. Held,. 
 that the action was maintainable ; that in the 
 exercise of its equitable jurisdiction the court, 
 or a referee acting in its place, could give full 
 relief — any relief to which plaintiff would ia 
 any action and before any tribunal be entitled 
 to ; and so, that an allowance as an item of 
 damages of the amount of the depreciation im 
 value of the lots was proper, as was also a pro- 
 vision in the judgment that if plaintiffs tender 
 to defendant a conveyance of the interest W. 
 had at the time of his death in the land so oc- 
 cupied by defendant's tracks, and release it fronn 
 all claim for damages, except the item above 
 stated, that it should pay a fiirther sum, or in 
 default that it should be enjoined from using its- 
 railroad upon said lands. — Ct. of App., Nov.,. 
 1879. Henderson v. New York Central, &c., R. 
 R. Co., 78 N. Y. 423. 
 
 24. Trade-marks. Equitable jurisdiction 
 to restrain the use of a name, or a trade-mark, 
 or letters, rests upon the ground of plaintiff's 
 property in his name, trade-mark, or letters, and 
 of the unlawful use thereof. — Superior Ct., {Sp~ 
 T.,) Jan., 1878. Mauger v. Dick, 55 How. Pr.> 
 132, 134. 
 
 25. While a person has a right to use his- 
 own name to designate an article produced by 
 him, yet where it is shown that he does so for 
 tlie purpose of leading the public to believe that . 
 the article he sells is made by a prior user of 
 the same name, thus depriving the latter of his 
 profits, such use may be enjoined. The test is 
 the fairness and honesty of his motive in so 
 using the name. — Cam. Pleas, (Sp. T.,) Aprils 
 IfgS. England v. New York Publishing Co., 8 
 Daly 375 ; Enoch Morgan's Sons' Co. v. Schwa- 
 chofer, 5 Abb. N.Cas. 265. 
 
 26. An imitation of the packages, labels and 
 manner of dressing goods of plaintiff will be re- 
 strained where defendant has combined these- 
 things in such a manner as to invade plaintiff's- 
 rights, secured by their first adoption in com- 
 bination, and in a way calculated to deceive- 
 purchasers. — Supreme Gt., (Sp. T.,) June, 1880. 
 Electro-Silicon Co. v. Levy, 59 How. Pr. 469. 
 
 27. In an action for an injunction against an 
 imitation of a trade-mark or label, plaintiff, al- 
 though his label contains a registered trade- 
 mark, need not prove an imitation thereof. If 
 the general effect of the defendant's label con- 
 stitutes a wrongful imitation of plaintiff's, al- 
 though the defendant may have replaced the 
 "trade-mark" with a different device, it is 
 enough. Enoch Morgan's Sons' Co. v. Schwa- 
 chofer, supra. 
 
 28. Instances. A firm having dissolved 
 on the retiring of one of its members, the others 
 continued the business at the old stand. The- 
 retiring partner started another store on thfr 
 same block, about fifty feet off, and put up a. 
 sign in three lines, the first of which was his in- 
 dividual name, the second " of the late firm of " 
 in small letters only a third as large as the last 
 line, which was the name of the old firm. Seld^ 
 that such use of the firm name should be en- 
 joined. — City Ct. of Brooklyn, (Sp. T.,) Dec.,, 
 1877. Smith v. Cooper, 5 Abb. N. Gas. 274. 
 
INJUNCTION, II., III. 
 
 209 
 
 29. In an action to restrain the infringement 
 of plaintiffs' trade-mark, the complaint illeged 
 that plaintiffs manufa.ctiired brandy which they 
 put up and sold in " quart andpinf bottle,s,'' and 
 upon the bottles put the trade-mark in question. 
 The court found that defendants pirated plain- 
 tiiBs' trade-murk, but found that plaintiffs did 
 not use quart or pint bottles as alleged in their 
 complaint, but falsely and deceitfully used bot- 
 tles pretended and represented to be " quart and 
 pint," which did not hold that quantity, and 
 that the trade-mark was designed and used to 
 protect the fraud, and upon this ground dis- 
 missed the complaint. This ground was not set 
 up in the answer, and did not appear to have 
 been litigated on the trial. Notliing appeared 
 «pon the bottles, which were transparent, to in- 
 dicate the quantity contained, nor did it appear 
 that such bottles were used in the trade as mea- 
 sures of quantity, or that purchasers did not 
 understand perfectly their capacity, or that 
 plaintiffii ever represented that they contained 
 quarts and pints, or that they ever deceived any 
 one, or that the trade-mark was or could be 
 used to deceive. It appeared that plaintiffs' 
 brandy was imported, and was entered at the cus- 
 tom-house with the true quantity stated, and that 
 the bottles were of the ordinary size used in the 
 trade. Setd, that the findings of fact and con- 
 clusion therefrom were erroneous. — Ct. of App., 
 April, 1877. Hennessy v. Wheeler, 69 N. Y. 
 271. See, also, title Teade-makks. 
 
 30. Trespasses. Although the general 
 rule is that an injunction will not be granted to 
 restrain a mere trespass, without special equit- 
 able features in the case, it is well settled tliat 
 such equitable features exist when there is vex- 
 ation from repeated or continued trespass in the 
 nature of a nuisance, or when the wrongful acts, 
 continued or threatened to be continued, might 
 become the foundation of adverse rights, and 
 would occasion a multiplicity of suits to recover 
 damages.— (Supreme «., {ith Dept.,) Jan., 1878. 
 Johnson v. City of Rochester, 13 Hun 285. 
 
 30 a. When a tresspass on lands leased for 
 the purpose of boring oil wells therein, will be 
 restrained by injunction, see Allegany Oil Co. 
 V. Bradford Oil Co., 21 Hun 26. 
 
 III. GEANTOra AND DlSSOLVEfG. 
 
 31. Jurisdiction and po'wers of the 
 court. The Supreme Court has jurisdiction to 
 grant an injunction at the suit of a resident 
 plaintiff to restrain a non-resident defendant 
 from exhibiting a drama in another state, in 
 violation of plaintiff's rights, where service is • 
 made on the defendant while (temporarily in this 
 sta,te.— Supreme Ct., (Sp. T.,) August, 1878. 
 French v. Maguire, 55 How. Pr. 471. And see, 
 also, Widmer v. Greene, 56 How. Pr. 91. 
 
 32. The fact that the object of an action may 
 be defeated by refusing a temporary injunction 
 is not of itself sufficient to deprive the court of 
 all discretionary power in the matter. — Ot. of 
 App., Jan., 1879. Young v. Campbell, 75 N. 
 Y. 525. 
 
 33. When a temporary injunction 
 will be grahted. A notice of an intention 
 to violate the covenant creating an easement, 
 given by one succeeding to the title of the gran- 
 tee to an owner of a lot for whose benefit the 
 covenant was made, is sufficient to authorize the 
 
 interference of a court of equity to restrain 
 such violation ; and if the intended violation is 
 of a character to be entirely harmless, it de- 
 volves upon the defendant to show it. — Ot. of 
 App., Jan., 1878. Lattimer v. Livermore, 72 
 KT. 174. 
 
 34. The fact that the owner of another lot,, 
 who acquired title under a deed containing the 
 same covenant, has violated it, is no defence to- 
 such an action; it does not release defendant 
 from the performance of the covenant in his 
 deed, so long as it remains of any value to the 
 plaintiff. lb. 
 
 35. "WTien a mandatory injunction 
 "will be granted. On the breach of a cove- 
 nant against building certain structures in a 
 given place, the restoration of things to their 
 former condition may be enforced by a man? 
 datory injunction. — Superior Ct., March, 1879. 
 Du Bois V. Darling, 44 Superior 436. 
 
 36. Parties. An action was commenced 
 against certain persons who had signed the 
 notice required by the general act prodding for 
 the incorporation of villages, (Laws of 1870, ch. 
 241,) and the ofiicers of the town who would be 
 inspectors of election, to restrain them from pro- 
 ceeding under said act to incorporate a village. 
 A temporary injunction was obtained but was 
 dissolved, the proceedings for incorporation 
 completed, village officers chosen, and the cor- 
 poration went into operation. These facts were 
 set up in a supplemental complaint, and judg- 
 ment demanded that such acts should be de- 
 clared null and void. Held, that, upon the facts 
 as disclosed upon the trial, defendants were not 
 necessary or proper parties to the action, and no 
 effectual judgment Could be rendered therein, 
 as an injunction restraining defendants would 
 hive no practical effect upon the corporation ; 
 that the village itself, or the trustees as exer- 
 cising the franchises, were necessary parties. — 
 Ot. of App., Sept., 1877. People, ex rel. Kings- 
 land, v. Clark, 70 N. Y. 518. 
 
 37. Requisites of moving aflldavit. 
 The rule that an injunction should not be 
 granted on an affidavit which is entirely upon 
 information and belief, like mjny other general 
 rules, cannot be of universal application. An 
 exception to it has always existed in cases 
 where it was made to appear that the affidavit 
 of the informant could not be obtained. — Su- 
 preme Ct., {Sp. T.,) Aug., 1878. French v. Ma- 
 guire, 55 How, Pr. 471, 475. Compare Perry v. 
 Volkening, 44 Superior 332. 
 
 38. The order, and how construed. 
 An injunction order, unless the words are dear, 
 will not be construed as restraining acts which 
 will be beneficial to the plaintiff. — Ct. of Am., 
 FA., 1878. Wilkinson v. First Nat. Fire fns. 
 Co., 72 N. Y. 499, 506. 
 
 39. Gt-rounds for dissolving. A tem- 
 porary injunction restraining the initiation of 
 members into the Tammany Society, dissolved, 
 on the ground that a summary application to 
 settle the election of such members, under 1 
 Rev. Slat. 603, \ 5, was the appropriate remedy. 
 —Supreme Ct., {1st Dept.,) March, 1879. Thomp- 
 son V. Society of Tammany, 17 Hun 305. 
 
 40. An injunction to restrain a religious 
 board from proceeding to elect a trustee of a re- 
 ligious society, dissolved, in a particular case, 
 on the ground that inasmuch as prospective in- 
 jury to plaintiff could be redressed in another 
 manner, the case was not a proper one for an in- 
 
 14 
 
'210 
 
 INJUNCTION, III., IV. 
 
 junction.— %)reme Ct., {Oneida Sp. T.,) May, 
 1878. Clinton Liberal Inst. a. Fletcher, 55 
 How. Pr. 431. 
 
 _41. — for (Jontinuing. In what case an 
 injunction restraining a trustee of mortgage bond- 
 holders from carrying into effect an agreement 
 changing the terms of the mortgage as to time 
 and rate of interest will be continued pendeiaie 
 lite, see Eeinach v. Meyer, 55 How. Pr. 283. 
 
 42. PunishrQerit for violating the 
 order. In order to punish a violation of an 
 injunction order, the order must clearly embrace 
 and prohibit the act complained of. — Ct. of App., 
 March, 1880. German Savings Bank v. Habel, 
 58 How. Pr. 336. 
 
 43. Where an attorney has two clients, one of 
 whom is enjoined, and the other, who is in an in- 
 dependent position, having or claiming different 
 rights or interests, is not enjoined, such attorney 
 cannot ordinarily be cliarged with violation of 
 the injunction in advising or acting profession- 
 ally for the client not enjoined ; his being en- 
 joined as attorney for one client does not limit 
 or restrain his professional action for others. — 
 Ct. of App., Nov., 1878. Slater v. Merritt, 75 N. 
 Y. 268 
 
 rv. Damages on Dissolution. Eimedt on 
 Bond or Undertaking. 
 
 44. The right to damages. That with- 
 out some security given before the granting of 
 an injunction order, or without an order requir- 
 ing some act on the part of the plaintiff equiva- 
 lent to the giving of security, such as a deposit 
 of money in court, or unless the conduct of 
 plaintiff has been such as to give ground for an 
 action for malicious or vexatious prosecution, 
 the defendant has no remedy for any damages 
 which he may sustain from tlie issuing of the 
 injunction, see Palmer v. Foley, 71 N. Y. 106, 108. 
 
 45. Duty of defendant to keep down 
 damages. Wliile it is the duty of a defend- 
 ant, in an action wherein a temporary injunc- 
 tion has been granted, to do nothing to enhance, 
 and to do all that he reasonably can to diminish 
 the damages thefefrom, he is not bound to incur 
 any hazard, and is not responsible if, adopting 
 such course as experienced and competent men 
 would deem prudent and proper under the cir- 
 cumstances, another course might liave been 
 taken, equally safe and proper, which would 
 have reduced the damages. — Q. of App., April, 
 1878. Eoberts v. White, 73 N. Y. 375 ; affirm- 
 ing 43 Superior 455. 
 
 46. "When reference to ascertain 
 damages is proper. An order of reference 
 to ascertain the damages sustained by defend- 
 ant, by reason of an injunction, recoverable 
 upon an undertaking given under the code of 
 procedure (Old Code, | 222,) cannot be granted 
 until it has been determined by judgment or 
 other decision of the court that plaintiff was 
 not entitled to the injunction ; it is not sufficient 
 that this appears by the facts developed upon 
 the trial.— Cl!. of App., Feb., 1879. Benedict v. 
 Benedict, 76 N. Y. 600 ; affirming, 15 Hun 305. 
 S. P., Nov., 1877. Palmer v. Foley, 71 N. Y. 
 106, 110, 
 
 47. A reference to assess damages by reason 
 of an injunction should not be granted, after 
 appeal from the judgment, until final decision 
 upon the appeal. — Supreme Ct., {1st Dept.,) 
 Yvly, 1880, Howard v. Park] 59 How. Pr. 344. 
 
 Cl. of App., FA., 1879. Musgrave ». Sherwood, 
 76 N. Y. 194. 
 
 48. Instances. A temporary injunction 
 order was granted herein, restraining defendant 
 from intruding into the office of deputy cham- 
 berlain of New York city, or performing any 
 of its functions, or exercising its powers ; the 
 order was subsequently modified by the court 
 by allowing defendant to institute legal pro- 
 ceedings to test his claim to the office. Under 
 an act of the legislature, passed during the 
 pendency of the action, plaintiff was deposed 
 from the office of chamberlain, which he held 
 at its commencement. Leave was granted de- 
 fendant to put in a supplemental answer, setting 
 up the statute and plaintiff's removal thereun- 
 der, and to plaintiff to discontinue, in ten days 
 thereafter, on payment of costs. Plaintiff did 
 not discontinue within the time specified y. but 
 thereafter, on stipulation of the parties, and on 
 payment of $100, an order of discontinuance 
 was entered. Held, that this was not equiva- 
 lent to a final decision of the court that plain- 
 tiff was not entitled to the injunction order 
 when it was granted ; that there was no breach 
 of the condition of the undertaking and no 
 right of action thereon ; and that, therefore, an 
 order directing a reference to ascertain defend- 
 ant's damages, sustained by reason of the in- 
 junction, was improperly granted. Palmer v. 
 Foley, supra. 
 
 49. In an action to enforce specific performance 
 of a parol agreement made by defendant to re- 
 convey certain real estate conveyed by plaintiff 
 to him, for which he had not paid, two prelimi- 
 nary injunctions were granted. The referee 
 found the agreement void, but that plaintiff had 
 a lien for the purchase money and directed a 
 sale thereof. In neither the report nor the 
 judgment entered , thereon was any reference 
 made to the injunctions. Seld, that an order of 
 reftrence to assess defendant's damages by reason 
 of the injunctions was improperly granted, as it 
 had not been decided by the court that plaintiff 
 was not entitled thereto. Benedict d. Benedict, 
 eupra. 
 
 j^O. That defendant might have moved, be- 
 fore the entry of judgment, that a clause be in- 
 serted therein to the effect that plaintiff was not 
 entitled to the injunctions, or that he could have 
 moved after judgment, upon the findings of the 
 referee, for an order setting aside the injunctions, 
 see lb. 
 
 51. The report of a referee assessing the 
 damages in consequence of an injunction, when 
 duly confirmed, is, in the absence of fraud, con- 
 clusive upon the sureties to the undertaking 
 given on the granting of the injunction, although 
 they had no notice of the proceedings. It is, 
 however, the safer and fairer course to give the 
 sureties notice. — Ct. of App., Jan., 1878. Jor- 
 dan V. Volkenning, 72 N. Y. 300, 305. 
 
 52. The granting of an order of reference, 
 to ascertain defendant's damages by reason of a 
 temporary injunction, before the enrollment 
 and entry of a judgment in his favor, is irregu- 
 lar ; it is an irregularity, however, which may 
 be waived by plaintiff, and if he "permit the 
 referee to proceed to a final report without ob- 
 jection, or if, although objection is made, he 
 does not withdraw from .the reference, but pro- 
 ceeds therewith, the irregularity is cured. — Ct. 
 of App., Ap-U, 1878. Roberts v. White, 73 N. 
 Y. 375 ; affirming 43 Superior 455. 
 
INJUNCTION, IV.— INSANE PEESONS, I. 
 
 211 
 
 53. Upon the coming in of the repori of a 
 a-eferee, appointed under and by an order so 
 irregularly entered, the court referred the mat- 
 ter back to the same referee, directing him to re- 
 port the evidence taken upon the first reference, 
 with liberty to either party to introduce further 
 •evidence. Held, no error; that it was within 
 the power and the discretion of the court to 
 j)ermit the evidence formerly taken to be sub- 
 mitted on the re-hearing. Ih. 378. 
 
 54. Evidence in action on under- 
 taking'. In an action upon an undertaking 
 given upon the granting of an injunction, to re- 
 cover the damages assessed by a referee whose 
 report was duly confirmed, the papers used by 
 defendants upon a motion to set aside the report, 
 and an order denying the same, were offered in 
 evidence by plaintiff' and received under objec- 
 tion. Sdd, error; that they were not compe- 
 tent to rebut evidence of fraud or to justify the 
 rejection thereof; and, if the allegations of 
 fraud were entirely unsustained, they were im- 
 material, as, in that case, the report was con- 
 dusive. Jordan v. Volkenning, supra. 
 
 55. Amount recoverable — items of 
 damages. In an action brought to deter- 
 mine the rights of the parlies to a wall, claimed 
 by plaintiff' to be a party wall, the complaint 
 -alleged, and it appeiared that defendants had be- 
 gun to tear down the buildings on their premises, 
 including the wall, for the purpose of erecting 
 a, new building. A temporary injuction was 
 grafted, restraining defendant from tearing down 
 the wall ; a delay was thereby occasioned in the 
 •completion of defendant's building. Hdd, that 
 the items of damages, by reason of the injunc- 
 tion, properly allowable, were : 1st Loss in 
 rent; 2d. Increased cost in building; 3d. Coun- 
 sel fees on motion to dissolve injunction, and on 
 appeal from order of dissolution. Koberts ». 
 White, supra. 
 
 As to injunctions m. Supplementary pvoceedings, 
 see ExECDTiON, V. 
 
 As to the jurisdiction and procedure in Courts 
 of equity, generally, see Equity. 
 
 -^, INJURY. 
 
 To the Person, see Assault ; Carriers, 31, 
 •36 ; Municipal Corporations, III. ; Neoli- 
 •GENCE ; Railroad Companies, IV., V. 
 
 To Property, see TRESPASS ; Trover. 
 
 To Reputatian, see Libel ; Slander. 
 
 To Vessels, by collision, see Shipping, V, 
 
 As to the right of action for Injuries causing 
 ■death, see Homicide, II. 
 
 INNOCENCE. 
 
 When Presumed, see Evidence. 22. 
 
 INNS AND INNKEEPERS. 
 
 1. Who is a guest. In the fall of 1873, 
 iplaintiff' engaged rooms for himself and family 
 in defendant's hotel, until the following summer, 
 agreeing to pay $365 per month if meals were 
 jfnmished, or $265 per month for the rooms, and 
 extra for meals, at his option. The following 
 spring, while paying the $265 per month for the 
 
 rooms, and extra for such meals as were ordered, 
 certain articles were stolen from plaintiff^'s 
 rooms. In an action for their value — Held, 
 that the relation of innkeeper and guest existed, 
 and that plaintiff' could recover. — Supreme Cl., 
 {1st Dept.^ March, 1879. Hancock v. Rand, 17 
 Hun 279. 
 
 2. "Wlio is not. Defendant issued invita- 
 tions for a "fourth of .Tuly party" at his inn. 
 He furnished music, a supper, and stabling for 
 horses, for $2. Plaintiff attended the party, 
 stabled his horse with defendant, danced, had 
 supper, paid the $2, and drank at the inn, pay- 
 ing for the liquors in addition to the $2. In an 
 action to recover or an injury to his horse — 
 Hdd, that the relation of innkeeper and guest 
 did not exist. — Supreme Ot., {3d Dept.,) Jan., 
 1879. Fitch v. Casler, 17 Hun 126. 
 
 INQUEST 
 
 By Coroner, to ascertain cause of death, see 
 
 COBONEBS, 1. 
 
 INSANE PERSONS. 
 
 I. Disabilities op Insane Pebsons. 
 II. The Inquisition. Appointment or Com- 
 mittee, &c 
 
 I. Disabilities oe Insane Febsonb. 
 
 1. Liability on contracts. A mortgage 
 for money borrowed by an insane person, where 
 the mortgagee deals with him in good faith and 
 for a full consideration ; without advantage taken 
 of the lunatic, without knowledge of the in- 
 sanity, and without such information as would 
 lead a prudent person to a belief of the incapa- 
 city; and when there has been no finding of in- 
 sanity by a commission de lunatico inqwirendo, 
 will be enforced as against the lanatic. — -Su- 
 preme Ct., {2d Dept.,) May, 1878. Mutual Life 
 Ins. Co. V. Hunt,* 14 Hun 169. 
 
 2. In what cases a court of equity will set 
 aside a contract made by one not wholly nan 
 compos, though no committee has been appointed, 
 and no inquisition has been had, considered, — 
 Supreme (%., (4«A DepJ.,) Jan., 1880. Riggs e. 
 American Tract Soo., 19 Hun 481. 
 
 _ 3. Sale of lunatic's lands. The jurisdic- 
 tion given to the court under the provisions of 
 the Revised Statutes, in reference to the sale of 
 the real estate of a lunatic, (2 Rev. Stat., 54 
 ct seg.,) being a special statutory one, can only 
 be exercised as the statute directs. The require- 
 ment of the statute (? 12) that the petition ''shall 
 be referred," etc., is substantial and cannot be 
 dispensed with ; an omission to refer constitutes 
 a fatal defect in proceedings under the statute. — 
 Ct. of App., Jan., 1878. Matter of Valentine, 
 72 N. Y. 184. 
 
 4. A purchaser under such defective proceed- 
 ings may move to have his title perfected by 
 new or amended proceedings, or to have the 
 purchase money refunded. lb. 
 
 *&s\d to have been affirmed in the Court of Appeala, 
 January 13th, 1880. ' , ^ 
 
212 
 
 INSANE PERSONS, I., II.— INSOLVENCY. 
 
 5. As to whether there is any substantial 
 difference in the steps required to be taken by 
 the act of 1864, in reference to such sales, (Laws 
 of 1864, ch. 417,) from those required by the 
 Berised Statutes, quosre. lb. 
 
 II. The Inquisition. Appointment of Com- 
 mittee, &c. 
 
 6. The petition. While the usual course 
 is to ret^uire the petition for the appointment of 
 ii committee to be accompanied by the affidavit 
 of a physician before a writ de lunatico inquirendo 
 will issue, yet the court, in its discretion, may 
 dispense with such affidavit, and issue the writ 
 upon the affidavit of a layman. — Supreme Ct., 
 {ith Dept.,) Oct., 1878. Matter of Zimmei^ 15 
 Hun 214. 
 
 "7. The sufficiency of the allegations of the 
 petition cannot be questioned after the return 
 of an inquisition finding sufficient facts. lb. 
 
 8. Proceedings before the jury— ver- 
 dict. Where the jury in their verdict of in- 
 sanity, recommend that the alleged lunatic, 
 from the consequences of long confinement, may 
 require some temporary guardianship, such 
 recommendation is proper, and does not im- 
 pair the legal eflTect of the verdict. — Supreme 
 Ct., (lat Dept. Sp. T.,) 1879. Matter of Dickie, 
 7 Abb. N. Cas. 417. 
 
 In such a proceeding the alleged lunatic may 
 appear and testify before the jury. lb. 
 
 9. "Who may be appointed com- 
 mittee. Heirs and next of kin are not in- 
 elegible to the appointment of committee of a 
 lunatic, simply because they would benefit by 
 his death, but the court will exercise care and 
 drcnmspeclion in appointing them.— Cbm. Pleui, 
 April, 1877. Matter of Page, 7 Daly 155. 
 
 10. Appointment of committee by 
 referee. The selection of a committee by a 
 referee appointed for that purpose, is a matter of 
 judicial discretion which the appellate court 
 should not interfere with, unless an improper 
 person or one who is disqualified, or one wliose 
 situation is such as to warrant the belief that 
 the interests confided to him may not be properly 
 attended to, has been selected. — Com. Pleas, 
 April, 1877. Matter of Page, 56 How. Pr. 100. 
 
 11. An order confirming the report of a 
 referee, as to who is a suitable person to be 
 appointed a committee of the person and estate 
 of a lunatic, is appealable. lb. 
 
 12. Costs, and -who must pay them. 
 Where the inquisition in proceedings de lunatico 
 is found in favor of the alleged lunatic, the 
 court cannot grant him an allowance for counsel 
 fees, expert witnesses, etc., and charge the same 
 upon the petitioner. — Supreme Ot., (2d Dept.,) 
 Dee., 1879. Matter of McAdams, 19 Hun 292. 
 
 INSOLVENCY. 
 
 1. Suijremaoy of national banferupt 
 law. There is an irreconcilable conflict be- 
 tween the federal system of bankruptcy and the 
 state insolvent laws, and the latter are obliged 
 to yield.— Com. Pleas, {Sp. T.,) Dee., 1878. Mat- 
 ter of Fitzgerald, 5 Abb. N. Cas. 357. 
 
 2. The assignment. An assignment by 
 an insolvent debtor, purporting to have been 
 
 made, under the provisions of the Eevised Stat- 
 utes "relating to voluntary assignments made^ 
 pursuant to an application of an insolvent and 
 his creditors" (2 Kev. Stat. 16, et sea.,) is in- 
 valid as a conveyance of tlie insolvenrs estate, 
 at least as against one who is not a 6ima_/J(ie pur- 
 chaser from the assignee for value without 
 notice, where the prelinunary proceedings upon 
 which it is based are void because not in con- 
 formity with the statute. — Gt. of App., April,. 
 1877. Eockwell v. McGovem, 69 N. Y. 294. 
 
 3. The mention of a nominal pecuniary con- 
 sideration in the assignment, does not validate' 
 it, where it appears by the assignment itself that 
 the intention was to create a statutory trust, and 
 to convey no other estate or interest than was 
 necessai-y for that purpose. lb. 
 
 4. The inventory. Under the general 
 assignment act of 1877, if no inventory is filed 
 within thirty days, the assignment is void not 
 only as to creditors but as between the parties, 
 and no proceedings either under the act of 1877 
 or that of 1878, for the removal of the person 
 named in such assignment as assignee, or for an 
 accounting by him, can be maintained. — Cirni. 
 Pleas, (Sp. T.) Matter of Leahy,. 8 Daly 124. 
 
 5. There was a defective statement of one of 
 many debts in an inventory, attadied to the ap- 
 plication of an insolvent debtor for a discharge 
 from imprisonment, all his other debts being^ 
 sufficiently set forth and described. Held, that 
 the inventory was sufficient to give the officer to 
 whom the application was made jurisdiction, 
 and that a discharge granted by him would pro- 
 tect the sherifl"- in releasing the debtor from im- 
 prisonment. — Supreme Ct., (2d Dept.,) Feb., 1880.. 
 Devlin V. Cooper, 20 Hun 188. 
 
 6. Subsequent rights of debtor. A 
 debtor who has made a full assignment under 
 the statute, without preference, cannot enjoin or 
 stay the prosecution of actions against him by 
 his creditors, pending the settlement of his 
 estate, even where the assets will be sufficient, if 
 undisturbed by litigation, to pay all in full. — 
 County Ct., (St Lawrence Co.,) March, 1878. But- 
 ler V. Thompson, 4 Abb. N. Cas. 290. 
 
 "7. Powers of the assignee. An as- 
 signee under the act of 1877, has no authority 
 to compromise debts owing to the estate. The 
 county judge alone can determine whether the- 
 debt should be compromised, and upon what 
 terms ; he cannot make a general order allowing 
 the assignee to compound such claims as he may 
 think proper. — Cbm. Pleas, {Sp. T.,) June, 1878>^ 
 Matter of Kansom, 8 Daly 89. 
 
 8. The act of 1858, (Laws of 1858, ch. 314,> 
 which authorizes an assignee or other trustee of 
 an estate of an insolvent, for the benefit of credit- 
 ors and others interested, to disaffirm and treat as 
 void all transfers in fraud of their rights, and to 
 maintain all necessary actions for that purpose,, 
 dispenses with the necessity of any special or 
 other lien in behalf of individual creditors;: 
 and an action by such a trustee to annul a fraud- 
 ulent transfer and to recover the property or its 
 avails, may be brought for the benefit of simple- 
 contract creditors. — Ct. of App., Feb., 1878. 
 Southard v. Benner, 72 N. Y. 424. 
 
 9. Dividends. Under the act of 1877, all 
 creditors whose names appear in the schedules, 
 with the proper statement of their claims, and 
 whose claims are not contested, are entitled to 
 dividends whether their claims are presented to 
 the assignee after advertisement, or not. — Com. 
 
INSOLYENCY— INSURANCE, I., II. 
 
 213 
 
 I'kaa, {Sp. T.,) Oct., 1878. Matter of Currier, 
 « Daly,119. 
 
 lO. Accounting by assignee. The only 
 .mode in which an assignee may be relieved of 
 his trust, where there has been a composition 
 between the assignor and his creditors, is on a 
 [proceeding for an accounting under Laws of 
 1877, ch. 466, § 20. The accounting can in no 
 ■case be dispensed with unless there has been a 
 clear, distinct and undoubted waiver of it by 
 ■every creditor who could in any way be affected 
 by the assignee's discharge. — Com. Pleas, FA., 
 1879. Matter of Horsfall, 8 Daly 190 ; S. C, 
 •59 How. Pr. 265 ; 5 Abb. N. Cas. 289. And see, 
 also, Ludington's Petition, 5 Abb. N. Cas. 307. 
 _ 11. The disciiarge. Po'were of tlie 
 judge. Upon a certiorari to review a discharge 
 'Under the insolvent act, granted by tlie city judge 
 of Brooklyn, the court may review all questions 
 ■of jurisdiction, power and authority to do the 
 acts complained of, and all questions of the 
 regularity of his proceedings. — Supreme Ct., (2d 
 Dept.,) Dec, 1878. People, ex rel. Kenyon, v. 
 Sutherland, 16 Hun 192. 
 
 12. He cannot grant a discharge until proof 
 ■of service of notice of the proceedings upon 
 •each of the creditors of the insolvent, is given 
 •to his satisfaction, lb. 
 
 13. Although the act only requires proof of 
 •such fact to be made "to the satisfaction " of the 
 •city judge, yet that does not authorize him to 
 receive any other than legal evidence of the 
 iact, or to dispense with any formality necessary 
 to render the proof offered admissible, accord- 
 ing to the settled rules of evidence. Ih. 
 
 14. To show service of notice, a paper was 
 produced, purporting to be an affidavit, signed 
 with the name of one B., but no deponent was 
 named in the body thereof, a blank having been 
 left for that purpose. Hdd, that the affidavit 
 was insufficient. lb. 
 
 INSPECTION. 
 
 As to Inspection of hooks and papers, see Dis- 
 
 ■COTEBY AND iNSPBCTIOlf. 
 
 As to the powers and duties of Inspeelora of 
 ■deetion, see Elections, 2, 3. 
 
 INSTRUCTIONS. 
 
 Of PrineipoH, to agent, see Pbincipal and 
 Aqent, II. ; of Court, to jury, see Triai,, VI., 
 VIII. ; and the titles of the various forms and 
 causes of action, and criminal offences. 
 
 INSURANCE. 
 
 I. Genbbai, Pbinciples. 
 II. EtRE Insubance. 
 HI. Life Insttbance. 
 IV. Marine iNauBANCE 
 V. Actions on Instjeance Policies. 
 Vr. I^suBANOE Companies. 
 
 1. (hrganiiation, powers amd 
 
 2. Officers and agents ; and their power 
 
 to bind the company. 
 
 3. Dissolution, receiver, winding up, &c. 
 
 1. General Pbinciples. 
 
 1. Agreement for insurance. A parol 
 agreement for insurance, made by an incorpo- 
 rated company, whose charter does not limit its 
 powers of insuring to written policies, is valid ; 
 and if the charter provides that it may insure, 
 and that all policies shall be subscribed and 
 countersigned by certain of its officers, it has 
 power to make a parol contract of insurance. 
 When such an agreement, made by a principal 
 clerk of the company, will bind it, determined. 
 — Com. Pleas, April, 1878. Cooke v. MUia, Ins. 
 Co., 7 Daly 555. 
 
 2. Waiver of condition as to proofs 
 of loss. Where a policy is forfeited by failure 
 to furnish proofs of loss, as required, the fact 
 that the company refused to pay, assigning 
 another reason, is not a waiver of the forfeiture 
 or an estoppel from claiming it. — Ct. of App., 
 June, 1877. Brink v. Hanpver Fire Ins. Co., 70 
 N. Y. 593. 
 
 3. A charge to the jury, that if they find that 
 defendant at any time objected to the payment 
 of the loss, on the ground of fi-aud, it was not 
 essential for the plaintiffs to serve proofs of loss ; 
 that if defendant said that it would not pay the 
 claim at all, that would, in law, be a waiver of 
 the proofe of loss; that if defendant said it 
 would not pay the claim, because it was- satis- 
 fied that a fraud had been perpetrated, that 
 would be a waiver of the defence as to prelimi- 
 nary proofs of loss — Held, erroneous. lb. 
 
 4. — as to time of serving proofs of 
 loss. No new consideration is required to sup- 
 port a waiver by an insurance company of a 
 condition in a policy in respect to the time of 
 serving proof of loss. A waiver may be estab- 
 lished by proof of acts or conduct indicating an 
 intention to waive such condition, occurring sub- 
 sequent to the breach of the condition, although 
 there is no new consideration, and although 
 there may be no technical estoppel. — Ct. of App., 
 June, 1879. Prentice ». Knickerbocker Life 
 Ins. Co., 77 N. Y. 483. S. P., May, 1878. Good- 
 win V. Massachusetts Mut. Life Ins. Co., 73 N. 
 Y. 480, 496. 
 
 5. — of defects in the proofs. When 
 the preliminary proofs are formally defective, 
 and the defect could have been supplied if ob- 
 jected to at the time, a fefusal to pay, put upon 
 another ground, or generally, no reason being 
 given, is a waiver by the insurer of such defect 
 in the proofs of loss. — Com.^ Pleas, Jan , 1880. 
 Graham v. Firemen's Ins. Co., 8 Daly 421. 
 
 II. Fire Insubance. 
 
 6. Insurable interest, generally. One 
 of two or more joint owners or owners in com- 
 mon of property, may insure his interest sepa- 
 rately against loss by fire ; and, in case of loss, 
 is entitled to recover and retain the insurance. 
 — Ct. of App., March, 1879. Harvey v. Cherry, 
 76 N. Y. 436 ; affirming 12 Hun 354. 
 
 7. Plaintiff having a lien upon certain premi- 
 ses, entered into an arrangement with other en- 
 cumbrancers, among them defendant C, that C. 
 should bid off the premises on a foreclosure sale 
 
214 
 
 INSURANCE, II. 
 
 for the benefit of the parties to the arrangement. 
 C. accordingly became the purchaser, and there- 
 after executed a declaration of trust, declaring, 
 among other things, that the purchase was for 
 the benefit of plaintiff, to the extent of his lien ; 
 that C. was to manage the property for the bene- 
 fit of all, and ultimately to sell and divide the 
 proceeds. C. having refused, when requested 
 by plaintiff, to insure the, property to an amount 
 desired by him, he procured certain policies of 
 insurance in the name of C. as the insured, but 
 loss payable to plaintifi" " as his interest may 
 appear ;" he paid the premium ; a loss occurred. 
 In an action to determine who was entitled to 
 the insurance money — Hdd, that plaintiff had 
 an insurable interest, and only that interest was 
 covered by the policies ; that C. had no right to 
 the money in law or equity ; and that the fact 
 that plaintifi" had an interest in common with 
 others in the preservation of the property did 
 not, under any principle of public policy, pre- 
 vent him from insuring his interest separately, 
 or require him to turn over the moneys to the 
 trustee. lb. 
 
 8. The rule prohibiting j^e standing in the 
 same relation with others to property, or stand- 
 ing in a fiduciary relation with others, from tak- 
 ing a title or advantage to their prejudice, has 
 no application to such case. lb. 
 
 9. One claiming title to real or personal prop- 
 erty under conveyances to and by a fictitious 
 person, has no insurable interest in such prop- 
 erty, if not in possession thereof at the time the 
 poUcy is issued. — Oiiy Ct. of Brooklyn, Oct., 1879. 
 David V. Williamsburgh City Fire Ins. Co., 7 
 Abb. N. Gas. 47. 
 
 'lO. — of mortgagee. There can be no 
 question that a mortgagee has an interest separ- 
 ate and independent of any other interest, which 
 may be the subject of insurance generally or 
 specially, and in case of loss the insurer, having 
 paid to the mortgagee the amount of his debt, 
 may be subrogated to the rights of the mortga- 
 gee. — Ot. of App., May, 1877. Foster v. Van 
 Seed, 70 N. Y. 19, 24. 
 
 11. Where a mortgagor has procured an in- 
 surance for his own benefit — loss payable to the 
 mortgagee — ^the mortgagee may, by an indepen- 
 dent contract with the insurer, protect his inter- 
 est against the acts of the mortgagor, upon such 
 terms and conditions as he may secure from the 
 insurer, provided they do not impair or affect 
 the rights of the mortgagor. — Ct. of App., March, 
 1878. Ulster Co. Savings Institution v. Leake, 
 73 N. Y. 161. 
 
 12. Plaintiff held a mortgage upon certain 
 real estate, containing a clause requiring the 
 mortgagor to procure an insurance for the bene- 
 fit of the mortgagee. The owner of the real es- 
 tate procured an insurance, " loss payable to the 
 mortgagee." Plaintiff had an independent con- 
 tract with the insurance company, by the terms 
 of which all policies of the company assigned 
 to or held by plaintiff as mortgagee should be 
 binding and its interest absolutely insured, and 
 providing for subrogation in case the policy 
 should be void as to the mortgagor. By breach 
 of a condition in the policy, it became forfeited 
 as to the owner. A loss having occurred, the 
 company paid the loss to plaintiff, taking an 
 assignment of so much of the mortgage subject 
 to the payment of the balance due plaintiff. In 
 a contest as to surplus moneys arising on the sale, 
 under a judgment in an action brought to fore- 
 
 close the mortgage— JHeW, that the agreement 
 between plaintiff and the insurer, and the as- 
 signment thereunder, were valid, and the latter 
 was entitled to the surplus; that the owner, 
 having forfeited her rights under the policy^ 
 was not entitled' to the benefit of the payment, 
 and was not injured by the assignment ; that it 
 could not be inferred that the insurer waived 
 the forfeiture and so paid the insurance, as from, 
 the fact that it exacted and procured the assign- 
 ment to which it was entitled under its contract 
 with plaintiff, the conclusion was irrestible that 
 it simply paid in compliance with the obliga- 
 tions of that contract, lb. 
 
 13.- Plaintiff, who held a mortgage upoifr 
 premises owned by an infant, procured a policy 
 insuring the infant, as owner, and himself a* 
 mortgagee, loss payable to plaintiff. In an ac- 
 tion on the policy, plaintiff having furnished 
 proofs of loss^- 
 
 Held, 1. That the plaintiff was primarily in- 
 sured. 
 
 2. That if he had the power to take the con- 
 tract for himself a*i8 for the owner, the case- 
 was one of joint insurance, and the act of plain- 
 tiff in furnishing proofs of loss was the act oC 
 both. 
 
 3. That if he had no power to take out the- 
 policy in the name of the infant, then, though 
 his act was of no legal effect as to the infant,, 
 yet it was good and valid as to himself, in the 
 absence of ^fi-aud or misrepresentation. — Sui- 
 preme Ct., (2d Dept.,) Feb., 1879. Graham v. 
 Phoenix Ins. Co., 17 Hun 156. 
 
 14. — of lessee ■with, right to pur- 
 chase. M. conveyed certain property to- 
 secure a debt, taking back a lease for eight 
 years, with the privilege of purchasing dur- 
 ing the term on payment of a sum equal, 
 to the amount of the debt. The premises- 
 were worth more than twice the amount of 
 the debt. M. procured a policy upon his in- 
 terest as " lessee," the company having notice- 
 of his right of redemption. Before the expira- 
 tion of the lease, and before M. had elected 
 to purchase, the premises were burned. Held, 
 that the right of M. to purchase or redeem 
 was insurable. — Swpreme Ct., (3d Dept^) Jam.^. 
 1879. Creighton v. Homestead Fire Iiis. Co., 
 17 Hun 78. 
 
 15. The policy, and ho-w construed, 
 generally. Where ». policy was issued to V. 
 & Co. " as interest may appear " — BeZd, that it 
 covered any insurable interest that V. & Co.. 
 might have in the insured buildings, and was a 
 waiver of conditions requiring a specific state- 
 ment of the interests of the insured. — Swpreme^ 
 a., (2d Dept.,) Dec, 1878. De Wolf v. Capital 
 City Ins. Co., 16 Hun 116, 
 
 16. The application, -when part or 
 the policy. To constitute an application a 
 part of a policy of fire insurance, there 'must be 
 some reference to it in the policy which evinces 
 that the parties understood and accepted it as 
 such.— a. of App., Feb., 1878. Vilas v. New 
 York Central Ins. Co., 72 N. Y. 590: affirmina 
 9 Hun 121. 
 
 17. Upon the expiration of a policy of insur- 
 ance issued by the W. F. I. Co., plaintiff wrote 
 to the agents through whom the policy was ob- 
 tained, to insure the property in a good company- 
 The application for the expired policy, which 
 was numbered 1234, was on tile with the agents. 
 Without other application said agents procured. 
 
INSURANCE, II. 
 
 215 
 
 policy from defendant which contained a pro- 
 isioh requiring from the applicant a survey, 
 escription, and certain representations, and de- 
 [aring them to be part of the policy and a war- 
 inty. After a statement in the policy of the 
 ifferent buildings and the amounts insured, 
 'as added the words '' as per application No. 
 234." In an action upon said policy — Hdd, 
 \xa,t' this was not a sufficient reference to the ap- 
 ilication to the W. F. I. Co. to make it part 
 f the policy ; that no presumption could be in- 
 ulged that reference was had thereto ; and that 
 be only application binding upon plaintiff was 
 lis letter to the agents. Ih. 
 
 18. Upon the back of the application to the 
 V. F. I. Co. was a diagram of the buildings in- 
 ured ; by the printed directions accompanying 
 he policy of that company, its agents were re- 
 |uired to draw the diagram. Held, that even 
 f the application could be regarded as obliga- 
 ory in any sense upon plaintiff, he was not 
 )ound by the diagram, as in the absence of evi- 
 lence that he had something to do with it, it 
 vas to be presumed that it was drawn by an 
 igent of the W. F. I. Co. lb. 
 
 19. A policy referred to " an application or 
 lurvey, bearing even date herewith, and which 
 s hereby referred to as forming part of the pol- 
 cy." It appeared that the agent of the com- 
 aany, without authority from plaintiff, and witli- 
 )ut his knowledge, had forwarded to the company 
 m application, in which the risk was errone- 
 jusly described, the company knowing tliat 
 plaintiff's name thereto was in the iiandwriting 
 )/ the agent. Held, that such application 
 brmed no part of the policy, and tliat plaintiff 
 naa not Sound thereby. — Supreme Ct., {3d 
 Dept.,) Nov., 1879. Landers v. Watertown Fire 
 [ns. Co., 19 Hun 174. 
 
 20. Condition against sale, or trans- 
 fer of interest in property insured : 
 wrbat is a tareaoli. A policy of fire insur- 
 ance contained a provision declaring it void 
 " if, without the written consent of the company 
 first had and obtained, the said property shall 
 be sold or conveyed, or the interest of the parties 
 therein be changed in any manner, whether by 
 the act of parties or by operation of law." The 
 insured died, leaving a. will devising and be- 
 queathing his estate, real and personal, and 
 thereafter a loss occurred. In an action upon 
 the policy — Held, that there was a change of 
 interest, within the meaning of the provision, 
 ivhicli avoided the policy. — Ct. of App., April, 
 1878. Sherwood v. Agricultural Ins. Co., 73 
 N. Y. 447 ; affirming 10 Hiin 593. 
 
 21. — ■what is not. An executory con- 
 tract for the sale of premises, without change of 
 possession, is not a breach of a condition in a 
 policy, forfeiting it in case of any sale or trans- 
 fer, or any change in title or possession ; such a 
 condition applies only to a legal transfer, which 
 iivests tlie insui-ed of title to or control over the 
 property. — Ct. of App., Dec, 1877. Browning 
 J. Home Ins. Co., 71 N. Y. 508. 
 
 22. Where a policy of fire insurance upon 
 partnership property contains a. condition th^t 
 I sale or transfer of the property, or any change 
 n title or possession will render the policy void, 
 he policy is not avoided by the appointment, 
 n an action to dissolve the partnership, of one 
 )f the co-parlneis as a receiver pendente lite of 
 ;he pai-tnership property ; such an appointment 
 vorks no change in the title, nor does the exclu- 
 
 sive control thus given the receiver over the 
 property constitute a change of possession with- 
 in the meaning of the policy. — Ct. of App., Dec,, 
 1877. Keeney v. Home Ins. Co., 71 N. Y. 396, 
 402. 
 
 23. A partition sale of the premises insured 
 does not, of itself, change the interest of the in- 
 sured, inasmuch as the sale is not absolute until 
 confirmed by the coaA— Supreme Ct., (Zd 
 Dept.,] May, 1878. Terpenning v. Agricultural 
 Ins. Co., 14 Hun 299. 
 
 24. Condition as to disclosure of in- 
 terest of insured. Where, to the name of 
 the insured, in a policy of fire insurance, are 
 added the words, " as interest may appear," this 
 indicates uncertainty, not only as to the extent, 
 but as to the quality or character of the inter- 
 est ; the use of the phrase .authorizes the insured, 
 in case of loss, to show what his interest was ; 
 and the policy has the same effect as if the facts 
 as to the interest, as subsequently shown, were in- 
 serted in the policy. If, therefore, it thus ap- 
 pears that the insured, although not the owner, 
 had an insurable interest, there is no breach of 
 a condition of the policy forfeiting it iri case the 
 interest of the insured is not truly stated in the 
 policy, or, if the interest is less than absolute 
 ownership, and it is not so represented in the 
 policy. — Ct. of App., April, 1879. Scully ». San- 
 ders, 77 N. Y. 598. Compare Lasher v. North 
 Western Nat. Ins. Co., 18 Hun 98. 
 
 25. It seems, that one in possession of lands 
 under a contract of purchase by him, and of sale 
 by the owner of the fee, is the owner in equity; 
 a statement, therefore, in an application for a 
 policy of insurance that he is the owner is not 
 untrue ; nor is the omission to state the nature 
 of the interest a breach of a condition in the 
 policy, forfeiting it in case the interest of the as- 
 sured is other than " the entire, unconditional 
 and sole ownership," and it is not so represented 
 to the company. — Ct. of App., April, 1 879. Pel- 
 ton V. Westchester Fire Ins. Co., 77 N. Y. 605. 
 
 26. The facts that by the contract under 
 which the insured holds, it is provided that the 
 vendor may declare it forfeited in case of failure 
 to perform on the part of the vendee, and that 
 at the time of the issuing tlie policy the vendee 
 was in default, do not render the policy invalid, 
 where it appears that the vendor had not de- 
 clared the contract forfeited, but still recognized 
 the rights of the vendee tind,er it — lb. ; affirming 
 13 Hun 23. 
 
 27. B. & Co. drew two drafts on K. for $3000 
 each, attaching to eacli draft a warehouse receipt 
 for a quantity of grain in their warehouse, part 
 of a large mass stored there. In the receipts 
 they acknowledged to have received the grain 
 specified from, and to hold the same subject to 
 E.'s order, loss by fire or heating at owner's 
 risk. No separation of the grain was ever made, 
 or bill of sale given, but the intent was to hold 
 the grain in the warehouse as security for the 
 payment of the drafts. B. & Co. insured the 
 grain specified in each receipt, in defendants' 
 company, to them as owners, loss payable in the 
 one case to whom it might concern, and in the 
 other to R., the policies containing a condition 
 that if the interest of the assured was other than 
 as represented the policies should be void. After 
 a loss by fire, the policies were assigned to E., 
 whose executrix brought suit tBereon. Hdd, 
 that at the time the policies were issued the 
 legal title to the grain was in B., and B. & Co. 
 
216 
 
 INSUEANCE, II. 
 
 had an equity of redemption, merely, the con- 
 cealment of which fact from defendants' agents 
 avoided the policy. — Supreme Ot., Oct., 1878. 
 Bichmond v. Niagara Fire Ins. Co.,* 15 Hun 
 248. 
 
 28. Condition against encumbran- 
 ces. A judgment against the assured, which 
 is a lien upon a portion only of the premises in- 
 sured, is not a breach of a condition against 
 "encumbering the property in anyway." — Svr 
 preme Cl., {ith Dept.,) Jan., 1879. Bailey o. 
 Homestead Fire Ins. Co.,t 16 Hun 503. 
 
 29. The mere filing of a mechanics' lien, 
 with no proceedings taken to enforce the same, 
 does not create an encumbrance within the 
 meaning of such condition, and the policy will 
 not be avoided thereby. — Supreme Cl., (4(A Dept.,) 
 April, 1879. Green v. Homestead Fire Ins. Co.j 
 17 Hun 467. 
 
 30. That the giving of a mortgage for a sum 
 greater than that permitted or stated in the poli- 
 cy, is a breach of the condition against encum- 
 brances, regardless of the insured's intent, see 
 Sentell ». Oswego Co. Farmers' Ins. Co., 16 Hun 
 516 ; Gould v. Holland Purchase Ins. Co., Id. 
 538. 
 
 31. Condition as to disclosirre of 
 facts material to the risk. A neglect on 
 the part of the insured to make known the fact 
 that a building described as a "dwelling-house" 
 is vacant and unoccupied, is not a'breach of a 
 condition in the policy, avoiding it in case of 
 any omission to make known every fact mate- 
 rial to the risk.— Ct. of App., Dec., 1877. Brown- 
 ing V. Home Ins. Co., 71 N. Y. 508. 
 
 32. In the absence of fraud, such a condition 
 is not violated by a failure on thfi part of the 
 
 nsured to disclose facts, in regard to which no 
 inquiry is made. lb. 
 
 33. Condition against acts increas- 
 ing the risk. A policy of insurance upon a 
 dwelling-house contained a condition to the ef- 
 fect that any increase of hazard or material 
 change, without consent, should avoid the policy. 
 At the time it was issued the dwelling was occu- 
 pied by a tenant ; it thereafter became vacant, 
 and remained unoccupied about two months, 
 when it was burned. On the trial of an action 
 upon the policy, three persons engaged in the 
 business of insurance, called as witnesses by de- 
 fendant, tesiified that unoccupied buildings were 
 more exposed to the hazard of fire than if occu- 
 pied, and they were classed as more hazardous, 
 as they had not the care which occupied build- 
 ings had, and were more exposed to be "burned 
 by tramps and children. No testimony directly 
 contradictory was introduced by plaintiff, but he 
 gave evidence showing the location and condi- 
 tion of the premises, and the character of the 
 neighborhood. Held, that the question as to 
 whether there had been a breach of the condi- 
 tion was properly submitted to the jury: that 
 the question as to increase of risk was one of 
 fact, as to which the testimony of experts was 
 competent, but not controlling — Ct. of Afp., 
 Sept., 1878. Cornish v. Farm Buildings Fiie 
 Ins. Co., 74 N. Y. 295; affirming 10 Hun 
 466. 
 
 34. Condition respecting use of haz- 
 ardous articles. A policy contained a clause 
 prohibiting, unless by special agreement in- 
 dorsed on the policy, " the generating or evapo- 
 
 *Ssid to have been reversed, December 16bh, 1879, 
 t Said to have been afflrmed, January 27th, 1880. 
 
 rating within the building, or contiguous there- 
 to, of any substance for a burning gas, or the use 
 of gasoline for lighting." PJaintiflS, after the 
 issuing of the policy, constructed works fifty feet 
 from the building for the manufacture ra gas 
 from gasoline. The gas was conducted to the 
 building by pipes. In an action upon the policy 
 ^Hdd, that the gas works were not contiguous 
 to the building, within the meaning of said 
 clause ; nor could it be considered that the use 
 of gaa made from gasoline was in violation of it, 
 in the absence of evidence that gas aud gasoline 
 were substantially the same, or that gasoline may 
 not be burned in some other manner than as gas 
 manufactured from it ; and that, therefore, the 
 facts shown did not work a forfeiture of the 
 policy. — Ct. of App., Api-il., 1877. Arkell v. Com- 
 merce Ins. Co., 69 N. Y. 191 ; affirming 7 Hun 
 455. 
 
 35. A policy provided that the insurer should 
 not be liable for loss occasioned by the use of 
 kerosene oil as a light in any bam or out-build- 
 ing. In an action upon the policy — 
 
 Held, 1. That the condition was not simply a 
 provision against the habitual use of the oil, but 
 that its use upon a single occasion, if it caused 
 a losSj i. e., if loss would not have resulted if 
 other oil had been used, forfeited the policy. 
 
 2. That the condition contemplated and pro- 
 vided against the danger resulting from the 
 upsetting or breaking, by some intervening ac- 
 cident, of a lamp filled with the oil named, as 
 well as to a direct and immediate efiect there- 
 from, such as an explosion. — Ct. of App., April, 
 1878. Matson v. Farm Buildings Ins. Co., 73.' 
 N. Y. 310 ; reversing 9 Hun 415. 
 
 36. A clause in a policy, declaring the policy 
 void if " camphene, burning fluid, or refined coal 
 or earth oils " are " used " on the insured premi- 
 ses, will not be construed to intend the ordinary 
 use of kerosene oil for illuminating purposes. — 
 Com. Pleas, April, 1879. Bennett v. North Brit- 
 ish, &c., Ins. Co., 8 Daly 471. 
 
 37. Condition requiring premises to 
 be occupied. A condition in a policy of fire 
 insurance avoiding it in case the premises be- 
 come " vacant and unoccupied," is to be con- 
 strued in view of the situation and character of 
 the property insured, and the ordinary incidents 
 and contingencies affecting the use to which it 
 and other property of like character, similarly 
 situated, is subject. So, where the insurance is 
 upon a saw-mill run by water-power, delays and 
 interruptions incident to that business, such as 
 low water, diminished custom, or derangement 
 of machinery, causing a temporary discontinu- 
 ancd of the active use of the mill, do not come 
 within the terms of the condition. — Ct. of App., 
 Jan., 1878. Whi-tney v. Black Elver Ins. W)., 
 72 N. Y. 117. 
 
 38. A dwelling-house in charge of servants, 
 with all its furniture, cooking utensils, beds, 
 mattresses and summer clothing of the owner 
 and his family, is not vacant, although neither 
 the owner nor any member of his family is in 
 personal occupation. — Swperior Ct., March, 1879. 
 Herrman v. Merchants' Ins. Co., 44 Superior 
 444. 
 
 39. Instances. A policy issued by defend- 
 ant upon plaintiff's saw-mill and machinery 
 contained such condition. By the breaking of 
 a journal the last of February, 1873, a gang of 
 saws were rendered temporarily useless, and the 
 condition of the water making it difficult, re- 
 
INSURANCE, II. 
 
 217 
 
 pairs were not made; the other saws continued 
 to run until the last of March, when the sawyer 
 left. He returned the first week in April, did 
 some sawing, and some sawing was donethelast of 
 April. A Ire occurred May 16th. No sawing 
 had been done for sixteen or eighteen days be- 
 fore. There were logs in the mill-yard and 
 elsewhere, which plaintiff intended to saw ; and 
 lumber was kept in the yard and mill, from 
 which Sfiles were made — ^the last one the day 
 before the fire. Held, that the evidence justified 
 a finding that the mill had not become " vacant 
 and unoccupied" within the meaning of the 
 policy. Whitney v. Black Eiver Ins. Co., 
 
 40. The policy also contained a condition 
 avoiding it in case the premises " shall be occu- 
 pied or used so as to increase the risk." At the 
 time of the insurance there was a planer in the 
 mill, which was used occasionally to plane lum- 
 ber cut in the mill. This use was continued 
 after the policy was issued. 
 
 Held, 1. That this did not forfeit the policy ; 
 that the condition only prohibited a new and 
 different use from that to which the property 
 was Eipplied when the policy was issued, by 
 which the risk is increased. 
 
 2. That, in the absence of fraud or conceal- 
 ment, it was immaterial that defendant did not 
 know of the use of the planer when the policy 
 was issued. lb. 
 
 41. The policy covered several buildings and 
 their contents, and contained this clause : " If 
 the above-mentioned premises shall become 
 vacant or unoccupied, and so remain for more 
 than thirty days, without notice to and consent 
 ■of this company in writing, * * * this 
 policy shall be void." It appeared that the 
 ■awelling-honse that was burned had been unoc- 
 ■cnpied, so as to fall within this clause, while 
 another building, used as a dwelling-house, and 
 /orming a part ^ the premises insured, had been 
 
 occupied continuously. Held, that the word 
 " premises " in this condition covered the whole 
 property insured — dwellings, out-houses and ap- 
 purtenances together forming one establishment 
 — and unless the whole premises became unoccu- 
 pied, the condition of the policy remained un- 
 broken. — Superior Ot., Nov., 1879. Herrman v. 
 Adriatic Fire Ins. Co., 45 Superior 394. 
 
 , 42. The insured, for some time previous to 
 the fire, slept in the adjoining house, which be- 
 longed to her daughter, but had never abandoned 
 the premises ; her furniture and wearing apparel 
 remaining there, and returning and spending 
 the day there. Held, that the house was not 
 unoccupied within the meaning of the condi- 
 tion. — Supreme Ct., {ith Dept.,) April, 1878. 
 Oibbs V. Continental Ins. Co., 13 Hun 611. 
 
 43(^ A policy upon a dwelling-house provided 
 that if it should cease to be occupied by the 
 •owner or occupant in the usual and ordinary 
 manner in which dwelling-houses are occupied 
 as such, the policy should be void. The house 
 was occupied by a tenant, who, one day before 
 the fire, commenced to move out, and removed 
 most of his furniture and all of his family. 
 No person was left in the house. Held, that 
 whether or not the house was unoccupied at the 
 time of the fire, within the meaning of the con- 
 dition, was a question for the jury.— (Supreme Ct., 
 (2d Dept.,) Feb., 1878. Wait v. Agricultural 
 Ins. Go., 13 Hun 371. 
 
 44. Condition against change of oc- 
 
 cupation. What change of tenants in an in- 
 sured building, will not be deemed a breach of a 
 condition in the policy against change of occu- 
 pation, see Miller v. Oswego, &e., Ins. Co., 18 
 Hun 525. 
 
 45. Condition against ftaud and 
 false STwearing. The policy provided that 
 all fraud or attempt at fraud, by false swearing 
 or otherwise, should avoid it. Held, that an 
 overvaluation by the insured in making out 
 proofs of loss, of an article destroyed by the fire, 
 did not constitute a breach of the condition, 
 even though she knew or ought to have known 
 that the valuation was excessive, unless such 
 overvaluation was made with a fraudulent intent; 
 —Supreme Gt., (4«A Dept.,) April, 1878. Gibbs v. 
 Continental Ins. Co., 13 Hun 611. 
 
 40. Condition as to payment of pre- 
 mium. A policy of fire insurance containing 
 a condition discharging the company from 
 liability unless the premium be paid within 
 thirty days from its date, may be canceled by 
 the company on or after the expiration of that 
 period, without notice to the insured; and if 
 the company is a foreign one, baving no office 
 in this state, to prevent a forfeiture, the insured 
 must go to the company, or its authorized agent, 
 and make the payment within the time limited. 
 — Oity Ct. of Brooklyn, June, 1877. Eedfield v. 
 Paterson Fire Ins. Co., 6 Abb. N. Cas. 456. 
 
 47. The fact that the premium was unpaid 
 at the time of the fire will not defeat plaintiff's 
 right to recover, if the acts of the company 
 show an intention on its part to treat the policy 
 as valid and enforce payment of the overdue 
 premium. — Supreme Gt., {2d Dept.,) Jidy, 1879. 
 Eobinsou v. Pacific Kre Ins. Co., 18 Hun 395. 
 
 48. Condition against furtlier or 
 other insurance. When a subsequent policy 
 does not cover the same property, so as to avoid 
 a former policy thereon containing a condition 
 against further insurance, seeSunderliu v. jEtna 
 Ins. Co., 18 Hun 522. 
 
 49. The policy in suit provided that if the 
 insured should have any other insurance, not 
 indorsed on the policy or consented to by it, it 
 should be void. At the time of issuing the 
 policy the premises were insured in another 
 company, by a policy which provided that " if 
 the insured shall hereafter make any other in- 
 surance on the property * * * without the 
 consent of the company written hereon, * * * 
 then this policy shall be void." Held, that the 
 last-mentioned policy was vitiated, but that the 
 policy in suit was valid. — Supreme Gt., {3d 
 Dept.,) Nov., 1879. Landers v. Watertown Fire 
 Ins. Co., 19 Hun 174. 
 
 50. Defendant issued a policy of fire insur- 
 ance to S., upon her dwelling-house ; the policy 
 contained a clause declaring, in substance, that 
 in case of other insurance, the insured could 
 only recover upon the policy its proportionate 
 share of any loss. Plaintiffs held a, mortgage 
 upon the premises and subsequent to the issuing 
 of the policy defendant made an indorsement 
 thereon to the effect that a loss, if any, was 
 payable to plaintiff, and annexed thereto a 
 ■' mortgage clause," in substance, that the insur- 
 ance as to the interest therein of the mortgagee 
 only, should not be invalidated by any act or 
 neglect of the mortgagor or owner ; and that 
 whenever the company should pay the mort- 
 gagee any sum for loss, clai ming that as to the 
 mortgagor or owner no liability therefor existed 
 
218 
 
 INSURANCE, II. 
 
 the company should be subrogated to all the 
 rights otthe mortgagee in any securities held for 
 the mortgage debt, not affecting, however, the 
 right of the mortgagee to recover the whole of 
 his_ claim ; or that the company might, at its 
 option, pay the whole of said claim and take an 
 assignment at the time of the issuing of the 
 policy and of the indorsement. S. had other 
 insurance upon the building, of which plain- 
 tiffs and defendant were ignorant. In an action 
 upon the policy — 
 
 Meld, 1. That the mortgage clause operated 
 as an independent insurance of the mortgagees' 
 interest ; it gave them the same benefit as if 
 they had taken out a separate policy, free from 
 the conditions imposed upon the owner, and 
 making them responsible only for their own 
 acts ; and that, therefore, the clause of the 
 policy limiting defendant's liability in case of 
 other insurance did not apply, as the mortgagees ■ 
 had procured no other insurance, and plaintiffs 
 were entitled to recover the whole of a loss, with- 
 out regard to the additional insurance procured 
 by S. 
 
 2. That a provision in the "mortgage 
 clause " requiring the mortgagees to notify de- 
 fendant of any change of ownership or increase 
 of hazard, as SoOn as it came to their knowledge, 
 was not inconsistent with, and did not affect, the 
 interpretation so given to said clause. — Ot. of 
 App., March, 1878. Hastings v. Westchester 
 Fire Ins. Co., 73 N. Y. 141 ; affirming 12 Hun 
 416. 
 
 51. — and how -^aived. The verbal 
 consent of the agent of the company, if he was 
 authorized to give it, will operate as a waiver 
 of a condition in the policy, avoiding it if other 
 insurance is made without being indorsed 
 thereon. — Supreme Ct., {2d Dept.,) Sept., 1878. 
 McCabe v. Dutchess Co. Mut. Ins. Co., 14 Hun 
 599. 
 
 52. A policy issued to run for one year con- 
 tained a clause providing that, " if the insured 
 shall have, or shall hereafter make any other 
 insurance on the property hereby insured, or 
 any part thereof, without the consent of this 
 company written hereon, * * * this policy 
 shall be void." At the time of issuing the 
 policy, there were two other policies upon the 
 same property, of the existence of which notice 
 had been given to defendant's agent, and by him 
 to the company. Held, that these facts consti- 
 tuted a waiver of the condition. — Supreme Ot., 
 (1st Dept.,) Oct., 1878. Richardson v. West- 
 chester Fire Ins. Co., 15 Hun 472. 
 
 53. "When breach of condition as to 
 one of several items insured -will not 
 avoid policy as to others. Where, by a 
 policy upon several separate and distinct classes 
 or species of property, each of whict is 
 separately valued, the sum total of the valua- 
 tions is insured on payment of a premium in 
 gross, the contract is severable ; and a breach of 
 a condition avoiding the policy as to one of the 
 items does not affect it as to the others ; at least 
 when there is nothing in the teims, in the 
 nature of the contract or of the different sub- 
 jects of the insurance, or in the surrounding 
 circumstances, from which it can be inferred 
 that the insurer would not have been likely to 
 have assumed the risk on one or several of the 
 subjects of the insurance, unless induced by the 
 profit, or advantage of having a risk upon all. 
 [Reviewing many authorities.] — Ot. of App., 
 
 May, 1878. Merrill v. Agricultural Ins. Co., 7$ 
 N. Y. 452, 458 ; affirming 10 Hun 428. S. P., 
 Supreme Ot,, Jan., 1879. Holmes v. Drew, 16 
 Hun 491. 
 
 54. "What constitutes a -warranty. 
 Plaintiff signed a blank form of application,, 
 which was filled up by defendant's agent with- 
 out any knowledge or dictation from plaintiff; 
 there were false answers and statements therein, 
 occasioned by the carelessness, mistake or inad - 
 vertence of the agent. The policy contained a 
 clause that he who procured the insurance 
 should be held by contract to be plaintiff's 
 agent; also a condition that the application, 
 must be made out by defendant's a'lthorizel 
 agent. Held, that there was no warranty bind- 
 ing upon plaintiff, and consequently no breach- 
 — Ot. of App., March, 1877. Sprague?). Hollan(i 
 Purchase Ins. Co., 69 N. Y. 128. 
 
 55. Where, in a policy of fire insurance, a 
 building insured is described as a "dwelling- 
 house," this is not, in the absence of evidence 
 showing misrepresentation or concealment as to 
 the fact of occupation, a warranty that the 
 building is occupied as a dwelling. — Ot. of App.^ 
 Dec., 1877. Browning v. Home Ins. Co., 71 N. 
 Y. 508. 
 
 56. Breach of ■warranty. In an appli- 
 cation for a policy of fire insurance, were these- 
 questions and answers. " What is your title to- 
 the property ? Contract." " How much insured 
 in other companies ? None." In an action 
 upon the policy — Held, that the fair interpreta- 
 tion of the questions and answers was that 
 plaintiff held the property by a contract for the 
 purchase thereof, and had himself no other in- 
 surance ; and that the fact that plaintiff's 
 vendor had an insurance upon his interest did 
 not constitute a breach of warranty. — Sprague 
 u. Holland Purchase Ins. Co., supra. 
 
 5*7. In answer to the following question in an 
 application for fire insurance, "What is yonr 
 title to or interest in the property ? " the answer 
 was, " Deed." HeM, that this was not a war- 
 ranty that the applicant had a grant in fee 
 of a freehold estate ; but if she had an interest 
 in the land based primarily upon a deed, or 
 some title derived from a deed, there was no 
 breach.— Ci!. of App., May, 1878. Merrill ». 
 Agricultural Ins. Co., 73 N. Y. 452, 456. 
 
 58. Where a mortgage has been paid in full, 
 the fact that it is not discharged of record does 
 not constitute a breach of warranty against en- 
 cumbrances, in a policy of fire insurance. Jffr. 
 457. 
 
 59. The description in the policy of the busi- 
 ness carried on by the insured firm in the building 
 specified therein, was the manufacture of bath- 
 tubs. The firm carried on, upon itdjoining- 
 premises, the business of sawing and planing 
 lumber ; the shavings were carried therefrom by 
 a tube to the boiler-room of the building referred 
 to in the policy and were used for fuel. Held, 
 assuming the description in the policy to be a 
 warranty that only the business of manufacturing 
 bath-tubs would be carried on on the premises,, 
 no breach of the warranty was shown. — Ct. of 
 App., Dec., 1877. Keeney v. Home Ins. Co.^ 
 71 Sr. Y. 396. 
 
 60. Representations. A clerk of the 
 agent of the insured stated to defendants' agent 
 that another company had accepted a risk on 
 the premises sought to be insiired in the defend- 
 ant company. This statement was untrue, but 
 
INSURANCE, II. 
 
 21» 
 
 the clerk did not know it to be so, but his em- 
 ployer did. In an action upon the policy, the 
 falsity of this statement was insisted upon as a 
 defence. The judge instructed the jury that if 
 the clerk made the statement absolutely as a 
 fact, the policy was void ; but if he stated it 
 merely as a matter of opinion, the policy was 
 valid. Seld, correct. — Supreme Ct., (2d Dept.,) 
 Sept., 1878. Standard Oil Co. ti. Amazon Ins. 
 Co.,* 14 Hun 619. 
 
 61. An agreement to rene-w a policy of 
 fire insurance, in the absence of evidence that any 
 change was intended, implies that the terms of 
 the existing policy are to be continued, — Ct. of 
 App., May, 1879. Hay v. Star Fire Ins. Co., 77 
 N. Y. 235, 239. 
 
 62. Effect of renewal to -waive 
 breada of condition in policy renewed. 
 When the act of the company in renewing a 
 policy in the name of the insured, with know- 
 ledge of his death, leaving a will disposing of 
 the insured property, is a waiver of a condition 
 avoiding the policy in case of any transfer of 
 the interest of the insured without the writ- 
 ten consent of the company, see Kobiuson v. 
 Pacific Fire Ins. Co., 18 Hun 395. 
 
 63. Defendant issued to plaintiff afire policy 
 which contained conditions as follows : that if the 
 property insured should be sold, or if the interest 
 of the assured was not truly stated, the policy 
 should become void ; that anything less than a 
 distinct, specific agreement, indorsed on the 
 policy, should not be construed as a waiver of 
 any condition therein ; and that any person who 
 may have procured the insurance to be taken 
 " snail be deemed to be the agent of the assured, 
 and not of the company under any circum- 
 stances whatever, or in any transaction relating 
 to this insurance." The policy was procured 
 through one H., who countersigned it as defend- 
 ant's agent. It was renewed twice; each re- 
 newal receipt, which was signed by defendant's 
 president and secretary, contained this clause: 
 "Not valid unless countersigned by the duly 
 authorized agent of the company." Each was 
 countersigned by H. as agent ; he received the 
 premiums and forwarded them to defendant, by 
 whom they were received. On applying for a 
 third renewal plaintiff informed H. that he had 
 sold the premises, and that his interest was as 
 mortgagee. H. received the premium, gave an- 
 other renewal certificate, and said he would 
 "make it all right.'* H. was the duly authorized 
 agent of defendant. In an action upon the policy, 
 for loss occuring after the last renewal — HeU, 
 that in the renewal of the policy H. was the 
 agent of the defendant, for whose acts it was 
 bound ; that there was a valid waiver of the con- 
 ditions of the policy, and it remained in force 
 for another term, insuring plaintiff's interest 
 as mortgagee. — Cl. of Ajtp., March, 1879. 
 Whited V. Germania Fire Ins. Co., 76 N. Y. 
 415; affirming IZ Hun 191. 
 
 64. Necessity of notice and proofs 
 of loss. The loss under a policy was not pay- 
 able until sixty days after due notice and proof 
 of thesame should have been made by the assured 
 and received at the office of the company, in ac- 
 cordance with the terms and provisions of the 
 policy. By the terms and provisions of the 
 policy, persons sustaining loss or damage were 
 required to " forthwith give notice o'f said loss to 
 
 *Said to have been affirmed, January 13th, 1880. 
 
 the secretary of the company, and within thirty- 
 days after said loss " to " render to the secretary a 
 particular account of such loss," contaming cer- 
 tain specified matters. Held, that the giving of 
 such notice and the rendering of such account 
 were conditions precedent. — Superior Ct., Nov., 
 1878. McDermott v. Lycoming Fire Ins. Co ,. 
 44 Superior 221. 
 
 65. Sufladency of the notice of loss. 
 A policy required that the assured should 
 " forthwith" give notice to the general agent of 
 the company in the city of New York of any loss,. 
 and "as soon after as possible," furnish proo& 
 of loss. A fire occurred November 23d. Plain- 
 tiffs notified defendant's agent, through whona. 
 they liad received the policy, on the 25th, 
 and he at once notified defendant. Held, 
 that this was a substantial compliance with the 
 requirement of the policy, as to notice. — Ot. of 
 App., June, 1877. Brink v. Hanover Fire Ins.- 
 Co., 70 N. Y. 593. 
 
 66. A policy contained a provision requiring: 
 the assured to " forthwith give notice " of a loss,. 
 and as soon after as possible render a particular 
 account of such loss. The owner of i;he prop- 
 erty was an infant, under fourteen years of age. 
 A loss having occurred, a notice of loss, signed, 
 by the mother of said infant, stating that the- 
 property insured by said policy, which was de- 
 scribed by its number, had been destroyed by 
 fire, was served upon defendant. No objectiore; 
 or offer to return the same was made. Held,, 
 that this was a sufficient notice. — Ct. of App., 
 March, 1879. O'Brien .;. Phoenix Ins. Co., 76.. 
 N. Y. 459. 
 
 67. Who should make proofs of loss. 
 The owner is not bound to furnish proofs of loss 
 where the policy is for the benefit of, or made pay- 
 able to the mortgagee. The latter may do so iuo 
 such case on the owner's refusal, unless the- 
 policy expressly provides otherwise. — Com- 
 Pleas, Jan., 1880. Graham v. Firemen's Ins. Co.,. 
 8 Daly 42l. See also, to same effect, Graham v. 
 Phoenix Ins. Co., 77 N. Y. 171 ; affirming 12. 
 Hun 446. 
 
 68. SufiQoiency of the proofs. When 
 proof of loss on one of several policies issued by- 
 the same company, covering the same property,, 
 and payable to the same person, is sufficient for 
 all, see Dakin v. Liverpool &c., Ins. Co., 13 Hun. 
 122;a#™ed77N. Y.600. 
 
 69. The policy provided that the loss should 
 not be payable, until the assured should have- 
 produced a certificate under " the hand and seal, 
 of a magistrate or notary public nearest to the- 
 place of fire." The certificate furnished was- 
 signed by a notary who resided in the vil- . 
 lage in which the insured property was situated,, 
 and whose office was distant about twenty-five 
 rods therefrom; several justices of the peace, 
 resided and had places of business nearer the 
 burned buildings by a few rods, but neither of the 
 justices nor any notary had any office, as such 
 magistrate or notary, nearer than the office of ■ 
 the certifying notary. Held, that the certificate- 
 was not signed by the magistrate or notary 
 
 " nearest to the place of fire," and that plaintifi's 
 failure to produce such a certificate, was fatal to- 
 liis right to recover. — Supreme Ct., {Sd Dept.,) 
 Jan., 1880. Gilligau o. Commercial Ins. Co.,. 
 20 Hun 93. 
 
 70. Time of service of proofs. Tha 
 property insured consisted of the furniture and. 
 stock in a hotel, consisting of many items. The.- 
 
220 
 
 INSURANCE, II. 
 
 loss occurred March 8tli, 1876. Proofe of loss 
 "were prepared by L., an insurance agent, and 
 fcy the mother of the owner, an infant, who was 
 lifter the fire appointed general guardian of the 
 owner, and who occupied the premises. She 
 «wore to the afiidavit attached April 18th, 1876, 
 and left the papers with L. to serve. He re- 
 "tained them for the purpose of satisfying him- 
 self that the statements were correct, until May 
 16th, 1876, when he caused them to be served. 
 "The proofs were not returned, nor was any notice 
 given that they were not satisfactory. Held, 
 that the omission to serve the proofs at an 
 earlier period was not, under the circumstances, 
 a, direct breach of the provision requiring proofs 
 as soon as possible, and an absolute bar to a re- 
 covery ; but the question as to whether the delay 
 was unreasonable or not was one of fact for the 
 jury. O'Brien v. Phcenix Ins. Co., supra. 
 
 71. Service by mail. Where proofe of 
 loss, under a policy, are prepared and duly 
 mailed to the company, with the postage pre- 
 paid, the presumption is, in the absence of evi- 
 "dence to the contrary, that they were received 
 •by the company in due course of mail delivery. 
 — Supreme Ot., (3d Dept.,) Nov., 1879. Bell v. 
 Lycoming Fire Ins. Co., 19 Hun 238. 
 
 •72. Waiver as to time of service of 
 proofs. Where proofs of loss are not delivered 
 until after the expiration of the time limited by 
 the policy therefor, the company does not, by 
 Tetaining them without objection, waive the 
 :iight to insist that the condition of the policy, in 
 regard thereto, was not complied with. Bell v. 
 Lycoming Fire Ins. Co., supra. S. P., Superior 
 Cl., Nov., 1878. McDermott v. Lycoming Fire 
 Ins. Co., 44 Superior 221. 
 
 73. — of defects in the proofs. What 
 ■delay on the part of the company in objecting 
 to proofs of loss, will be deemed a waiver of ob- 
 jection to such proof, see Keeney v. Home Ins. 
 •Co., 71 N. Y. 396, 403. 
 
 "74. Provision for ascertaining 
 amount of loss by arbitration. The 
 policy in suit provided that " in case differences 
 shall arise touching any loss or damage, after 
 proqf has been received in due form, the matter 
 shall, at the vnitten request of either party, be sub- 
 mitted to impartial arbitrators, whose award in 
 writing shall be binding on the parties as to the 
 amount of such loss or damage, but shall not 
 -decide the liability of the company under this 
 policy." It also provided that "no suit or ac- 
 tion against this company for the recovery of 
 any claim by virtue of this policy, shall be sus- 
 tainable in any court of law or chancery, witU 
 ^fter an award shall have been obtained fixing the 
 amount of such claim in the manner above provided " 
 In an action on the policy, the company de- 
 fended on the ground that no award had been 
 made as required by the last provision above 
 •<luoted. Neither party had requested that the 
 matter be submitted to arbitrators, either in 
 writing or otherwise. Held, that by the terms 
 ■of the provision first above quoted, no obliga- 
 tion to submit the amount of the loss to arbitra- 
 tors arose, until a written request so to do had 
 been made by one of the parties. — Supreme Ot., 
 (ith Bept.,) April, 1878. Gibbs v. Continental 
 Ins. Co., 13 Hun 611. 
 
 "75. A policy provided as follows : " If difier- 
 -ences of opinion should arise between the par- 
 -ties hereto, as to the amount of loss or damage 
 upon property damaged, the subject shall be re- 
 
 ferred to two disinterested and competent men, 
 each party to select one (and in case of disagree- 
 ment they to select a third), who shall, under 
 oath, ascertain, estimate and appraise such par- 
 tial loss or damage upon each article separately, 
 and their award in writing shall be binding on 
 the parties hereto." Hdd, not to apply to a 
 case where there was no difference of opinion as 
 to the amount of the loss or damage, but in 
 which defendant denied all liability under the 
 policy. — Supreme Ct., (3d Dept.,) May, 1879, 
 Lasher v. North Western Nat. Ins. Co., 18 Hun 
 98. 
 
 76. Subrogation of insurer to rights 
 of mortgagee. Where, by the terms of a 
 mortgage, the mortgagee, in case of failure on 
 the part of the mortgagor to keep the buildings 
 upon the mortgaged premises insured, is author- 
 ized to make such insurance, and it is declared 
 that the premiums paid shall be deemed 
 secured by the mortgage, the provision does not 
 prohibit or prevent an insurance by the mort- 
 gagee directly of his interest ; and he may make 
 such terms with the insurer as they may agree 
 upon. Where, therefore, the holder of such a 
 mortgage takes out a policy upon his interest as 
 mortgagee, with a provision therein that, in 
 case of loss, the assured shall assign to the in- 
 surer an interest in the mortgage equal to the 
 amount of loss paid, the insurer is entitled to 
 the subrogation provided for ; the contract of 
 insurance is paramount to and independent of 
 the contract between the mortgagor and mort- 
 gagee, and the rights uf the insurer cannot be 
 affected thereby. The consent of the mortgagor 
 is not essential to the validity of such a provi- 
 sion for subrogation. — Cl. of App., May, 1877. 
 Foster v. Van Reed, 70 N. Y. 19. 
 
 77. Where such a policy had been issued by 
 defendant, and a loss having occurred, it paid to 
 the holder of the mortgage the amount thereof, 
 together with the premiums paid, and took an 
 assignment of the mortgage^ 
 
 Held, 1. That in an action to foreclose the 
 mortgage, the mortgagor or his grantee could not 
 claim an application of the amount of the insur- 
 ance as payment upon the mortgage. 
 
 2. That knowledge on the part of de- 
 fendants, at the time of issuing the policy, of the 
 terms of the mortgage, did not affect its contract, 
 
 3. That the fact that the policy did not pro- 
 vide expressly for the assignment of the bond 
 secured by the mortgage, but only specified the 
 latter, did not establish that the assignment of 
 the former also could not have been compelled 
 by the insurance company, and so that the_ pay- 
 ment to the mortgagee was in liquidation of the 
 bond ; the evident intent was to include both 
 bond and mortgage in the transfer. lb. 
 
 78. The fact that by the declarations of the 
 mortgagee in such case the mortgagor was pre- 
 vented from insuring on his own behalf, canpot 
 affect the rights of the insurer. If the mort- 
 gagee was in a position where he could not law- 
 fully enter into the contract which he made with 
 the insurer, the latter was not bound, and being 
 under no obligation to pay a loss, by the assign- 
 ment, after such payment, it became the owner 
 of the entire interest in the mortgage. lb. See, 
 also, Phoenix Ins. Co. v. Floyd, 19 Hun 287. 
 
 79. Recovery over against -wrong- 
 doer. If a loss under a policy of fire insurance 
 is occasioned by the wrongful act of a third per- 
 son, the insurer, npon payment, is subrogated to 
 
INSURANCE II., III. 
 
 22B 
 
 the rights and remedies of the assured, and may 
 maintain an action against the wrong-doer. And 
 if the assured receives the damages from the 
 ■wrong-doer before payment by the insurer, the 
 amount so received will be applied pro tanlo in 
 discharge of the policy. — Ct. of App., Api-il, 
 1878. Connecticut Kre Ins. Co. v. Erie By. Co., 
 73 N. Y. 399. 
 
 80. If the insurer, after payment of the dam- 
 ages by the wrong-doer to the assured, volunta- 
 rily pays the policy, he cannot maintain an ac- 
 tion against the wrong-doer. But, if the wrong- 
 doer pays the assured after payment by the in- 
 surer, with knowledge of that fact, it is a fraud 
 upon the latter, and will not protect the wrong- 
 doer from liability to him. lb. 
 
 81. Plaintiff issued a policy of insurance for 
 $1500 to M. upon certain buildings which were 
 subsequently destroyed by fire through the neg- 
 ligence of defendant ; the buildings were worth 
 $3400. M. received from defendant $1800 for 
 his damages, he executing a release of all claims 
 and demands for the loss ; the release contained 
 a statement that the settlement was not intended 
 to discharge plaintiff from any claim of M. 
 against it, but simply as a fiill settlffement and 
 discharge of defendant. Plaintiff thereafter 
 paid the amount of the insurance. In an action 
 to recover the amount paid — Held, that the 
 clause in the release as to the claim against 
 plaintiff was in the nature of a proviso or ex- 
 ception from the general purview of the release, 
 limiting its effect to a release of the balance, 
 retaining the claim against plaintiff and except- 
 ing its right to a remedy over ; and, therefore, 
 as to the plaintiff, the release was of no eflect, it 
 could not have interposed it as a defence upon 
 the policy, and its right to subrogation was not 
 affected thereby. lb. ; reversing 10 Hun 59. 
 
 III. Life Insurance. 
 
 82. Insurable interest. A father has 
 an insurable interest in the life of his son. — Su- 
 preme Ct., (3d Dept.^ Sept., 1878. Grattan v. 
 Nat. Life Ins. Co., 15 Hun 74. 
 
 83. If it appears that the relation, whether 
 of consanguinity or affinity, between the insured 
 and the person to whom the loss is payable, is 
 such as to warrant the conclusion that the latter 
 has an interest, whether pecuniary or arising 
 from dependence or natural affection, in the life 
 of the insured, it is sufficient to uphold the 
 policy. lb. 
 
 84. The application. To a question in 
 an application calling for the name of any medi- 
 cal attendant, and the disease for which his ser- 
 vices were required, an answer giving the name 
 of the physician and the disease is sufficient ; in 
 the absence of a particular inquiry, it is not 
 necessary to state the mode of treatment adopted 
 by the physician. — Of. of App., Nov., 1879. 
 Plynn «. Equitable Life Ins. Co., 78 N. Y. 568 ; 
 affrmihgXb Hun 521. 
 
 SQ. Defendant applied for a policy in the 
 plaintiff company, in Herkimer county, and the 
 application and necessary papers were prepared 
 ■ and signed, to be sent to the company in New 
 York for acceptance. Four days thereafter de- 
 fendant being dissatisfied with the financial 
 standing 'of the company, wrote to the agent 
 that he had concluded not to take out the policy. 
 In an action for the premium — Held, that de- 
 
 fendant was entitled to withdraw his application) 
 at any time before its acceptance, and having- 
 done BO he was not bound to accept the policy 
 subsequently made out and tendered by the com- 
 pany.— Supreme Ct., (4(A Dept.,) Jan., 1880. 
 Globe Mut. Life Ins. Co. v. Snell, 19 Hun 
 560. 
 
 86. The policy, and how construed-. 
 The principles controlling the construction of 
 "endowment policies," and the rights of the: 
 beneficiaries thereunder, fully considered in the 
 opinion at special tei'm. — Superior Ct., June,. 
 1879. Douglas i;. Knickerbocker Life Ins. Co., 
 45 Superior 313; affirming 55 How. Pr. 104. 
 
 87. Wager policy. When a policy of 
 life insurance upon the life of a third person i& 
 not a wager policy, see Goodwin v. Massachu- 
 setts Mut. Life Ins. Co., 73 N. Y. 480. 
 
 88. Conditions. A question in an appli- 
 cation for a policy of life insurance as to- 
 whether the applicant uses any intoxicating 
 liquors, directs the mind, and will be construed 
 to refer to customary and habitual use ; not to a 
 single or incidental one.— Cl!. of App., June,. 
 1877. Van Valkenburgh v. Am. Pop. Life Ins. 
 Co., 70 N. Y. 605 ; affirming 9 Hun 583. 
 
 89. Where a policy of life insurance con- 
 tains a condition forfeiting it in case the insured 
 dies of a disease induced or aggravated by in- 
 temperance, it is a condition subsequent, and ia 
 an action upon the policy, plaintiff is not re- 
 quired to prove that the policy was not thus 
 forfeited ; but, if a forfeiture is claimed, the 
 burden is upoa. defendant to show a breach of 
 the condition. lb. 
 
 90. In an action upon a policy containing a 
 condition avoiding it if the insured should " die- 
 in consequence of a duel, or of the violation of 
 the laws of any nation, state, or province," it 
 appeared that, in pursuance of a preconcerted 
 scheme, the insured and his brother attacked 
 one B., the brother holding B. from behind, and 
 the insured attacking him in front; that B. 
 drew a pistol, whereupon the insured ran away 
 some thirty feet, crying to his brother to hold 
 B., when the latter shot hira, inflicting a mortal 
 wound. Held, tliat whether or not the affray 
 had actually terminated at the time the insured 
 was shot, was a question for the jury, and that 
 a verdict for plaintiff would not be disturbed.—^ 
 Supreme Cl., ( 2d Dept.,) Dee , 1879. Murray v. 
 New York Life Ins. Co., 19 Hun 350. 
 
 91. Provisions respectingr residence^ 
 tra-vel, &c. A condition to the effect that if 
 the party whose life is insured, shall, without 
 the written consent of the company, travel upon 
 the seas, or pass beyond the civilized settle- 
 ments of the United States (excepting the Brit- 
 ish provinces, &c.,) the policy should be void,, 
 is an important condition, and if violated, the 
 contract is terminated between the parties by its 
 own limitation, unless continued in force by 
 some other provision, or by the waiver of the 
 violation by the insurance company. — Superior 
 Ct., June, 1879. Douglas v. Knickerbocker 
 Life Ins. Co., 45 Superior 313; affirming 55- 
 How. Pr. 104. 
 
 92. "Warranties. Ans-wers to ques- 
 tions as to previous sickness. Where, 
 by a policy of life insurance, the answers of the 
 insured are made warranties, if a question is not 
 answei-ed there is no warranty that there was 
 nothing to answer ; and in the case of a partial 
 answer the warranty cannot be extended beyond 
 
222 
 
 INSUEANCE, III. 
 
 the answer. — Q. of App., April, 1877. Dilleber 
 4). Home Life Ins. Co., 69 N. Y. 256. 
 
 93. Warranties in policies of insurance are 
 strictly construed ; they will not be extended to 
 include anything not necessarily implied in 
 their terms. Fraud may be predicated upon a 
 suppression of truth, but warranty must be 
 based upon the affirmation of something not 
 true. Therefore where the answers contained 
 in the application "were warranted to be full, 
 correct and true," and where, in answer to ques- 
 tions as to whether the insured had had any 
 :sickness or disease within ten years, and if 
 so to give name of physician, he answered that 
 he had an attack of typhoid fever nine years 
 ago, and gave the name of the attending phy- 
 sician — Held, that the fact that he had had 
 -other sicknesses, and had been attended by other 
 physicians, did not establish a breach of war- 
 ranty, lb. 
 
 94. A temporary ailment cannot be consid- 
 •ered a disease, within the meaning of a war- 
 ranty against disease in a policy of life insur- 
 ance, unless it be such as to indicate a vice in 
 the constitution, or so serious as to have some 
 bearing upon general health and the continu- 
 ance of fife, or such as, according to common 
 understanding, would be called a disease. 
 Therefore, where the warranty was that the in- 
 sured had not had "disease of the liver" — 
 Held, that proof that he had had slight and 
 temporary attacks of congestion of the liver, 
 from which he had recovered, did not establish 
 a breach of warranty as matter of law, but that 
 the question whether the congpstion was of such 
 a character as to constitute a disease was one of 
 fact for the jury. — Ct. of App., June, 1877. Cush- 
 man v. United States Life Ins. Co., 70 N. Y. 72. 
 
 95. — as to insanity and hereditary 
 diseases. In an application for a policy, the 
 insured answered " No " to a question as to 
 whether any member of his family " had died 
 or been afflicted with insanity * * * or 
 other hereditary disease." It was stated, how- 
 ever, tliat his father had died of a brain dis- 
 ease, caused by a hurt. In an action upon the 
 policy, defendant claimed the answer to be un- 
 true, and gave in evidence copies of entries in the 
 records of a probate court of Ohio, determining the 
 father of the insured to be insane, and ordering 
 him to be sent to a lunatic asylum ; also records 
 of the asylum, showing that he had been ad- 
 mitted therein. The mother of the insured tes- 
 tified that her husband received an injury on 
 his head in childliood ; that for many years be- 
 fore his death he was afflicted with pains in his 
 head, of which he complained, referring to the 
 hurt he had received ; that later he showed 
 signs of weakening of mental powers, ' which 
 continued and increased until his death, but 
 that to the end he knew what was going on ; 
 that he was sent to the asylum by friends for 
 quiet and treatment. It did not appear that he 
 was subject to any delusions or acted irration- 
 ally. After death an autopsy disclosed that his 
 disease was hardening of the brain. Seld, that 
 the records were not conclusive, as against plain- 
 tiff, as to the insanity of the father ; nor did 
 the evidence authorize the court to determine, 
 as a question of law, that the answer was un- 
 true. — Ct. of App., March, 1879. Newton v. 
 Mutual Benefit Life Ins. Co., 76 N. Y. 426 ; 
 ■affirming 15 Hun 595. 
 
 96. Where an application contained the fol- 
 
 lowing question : " Have the person's parent.-;, 
 uncles, aunts, brothers or sisters been afflicted 
 with consumption, scrofula, epilepsy, diseases of 
 the heart, or other hereditary diseases f" — Held, 
 that the words in italics limited the generality 
 of the question, and confined the inquiry to 
 those eases in which the specified diseases were 
 of an hereditary nature ; and, the question 
 having been answered in the negative, and it 
 appearing upon the trial that the person's 
 mother had had three attacks of insanity, not 
 of an hereditary character, Jhat no breach of 
 warranty was shown. — Supreme Ot, (4th Dept,) 
 Oct., 1878. Peasley v. Safety Deposit Life Ins. 
 Co., 15 Hun 227. 
 
 97. — as to name and residence of 
 family physician. " A breach of warranty, 
 as upon the affirmajnce of an untruth, cannot 
 be alleged in respect of an answer in an appli- 
 cation for life insurance, which does not profess 
 to state any fact. The words of the answer can- 
 not be extended by implication in aid of a de- 
 fence founded upon a technical breach of war- 
 ranty, beyond the fair import of its language, 
 and the intent of the party as indicated by its 
 terms. It is always in the power of the insurer 
 to have an explicit and clear affirmation as to 
 every fact material to the risk, and if the an- 
 swers to the interrogatories are not full, and do 
 not give the information called for, they cannot 
 be treated as affirmations of facts not stated, al- 
 though called for by the interrogatories. So 
 held, where-the interrogatory was : " Name and 
 residence of the family physician of the party, 
 or of one whom the party has usually employed 
 or consulted ?" and the answer was : " Eefer to 
 Dr. A. T. Mills, Corning, N. Y."— Ot. of App., 
 May, 1878. Higgins v. Phoenix Mutual Life 
 Ins. Co., 74 N. Y. 6 ; affirming 10 Hnn 459. 
 
 98. It appeared that the applicant had no 
 family physician ; that one Dr. Bryan had been 
 called to his house, in his absence, to see other 
 persons ; had once visited him, and had been 
 called in once by a messenger sent for a physi- 
 cian, no particular one being designated. ~ The 
 applicant had consulted Dr. Mills casually on 
 two or three occasions, and he had prescribed 
 for slight ailments. Held, that if the statement 
 of the applicant should be regarded as a full 
 and complete answer, it was not so manifestly 
 untrne as to authorize a direction of a verdict 
 for defendant. lb. 
 
 99. The answers to the interrogatories were 
 prepared and written by defendant's agent ; he 
 dictated or suggested the answer in question, 
 after a statement to him by the applicant of the 
 facts as they existed. JHeW, that defendant could 
 not object to the correctness of the answer. lb. 
 
 100. In answer to a question in an applica- 
 tion made in 1872, calling for the name of his 
 "usual medical attendant," the insured an- 
 swered, " Dr. P." The insured was a single 
 man, who had always lived in his father's family. 
 Dr. P. had been for many years the family phy- 
 sician ; had frequently attended members of the 
 family, and had been frequently consulted by 
 the insured, but had never been called to attend 
 him at his house. One Dr. G. attended him in 
 a sickness in 1867 for about two weeks, and Dr. 
 O. attended him during two slight attacks of ill- 
 ness in 1870 and 1871. Held, that the answer 
 was correct ; or, at least, it was a question for 
 the jury. — Ct.. of App., June, 1877. Cushmah v. 
 United States Life ftis. Co., 70 N. Y. 72. 
 
INSURANCE, III. 
 
 223 
 
 lOL To constitute a medical attendance, it is 
 not necessary that a pliysioiaii sliould attond a 
 patient at liis house ; attendance at the office of 
 the physician is sufficient. 75. 
 
 102. Dr O. attended upon the insured during 
 his last illness. In accordance with the require- 
 ment of defendant, a statement of Dr. O. wag 
 attached to the proofs of loss, in which, in an- 
 swer to the question, " How long have you been 
 the attendant or family physician ?" he answered, 
 " Five years." Sdd, that this answer did not 
 necessarily show that the answer in the applica- 
 tion was absolutely untrue ; also, that plaintiff 
 was not responsible for any mis-statements of 
 Dr. O. not caused by himself. lb. 
 
 103. — as to occupation. The answer 
 of the insured to the question, in the applica- 
 tion, "Occupation? Please state definitely," 
 was " Manf 'g." Sdd, that no breach of war- 
 ranty was shown by proof that the insured, at 
 the time the answer was given, was keeping a 
 billiard saloon, it appearing that he had for 
 years previous been a manufacturer of soda 
 water, and was about to resume that business. — 
 Oom. PZeos, June, 1877. Mowry v. World Mut. 
 l/ife Ins. Co., 7 Daly 321. 
 
 104. Pajrment of premiums, gene- 
 Tally. Plaintiff had a policy of insurance upon 
 ihe life of her husband, issued by the H. L. Ins. 
 Oo., the annual premiums upon which were 
 payable September 8th of each year. Defend- 
 ant, in consideration of the delivery to it of the 
 promissory note of plaintiff's husband, payable 
 forty days from date, executed and delivered to 
 plaintiff a written agreement dated November 
 26_th, 1872, by which, after acknowledging re- 
 ceipt of the H. L. Ins. Co. policy, it agreed to 
 issue in exchange for it one of its own of the 
 «ame amount, " and deliver the same within a 
 reasonable time, and in the meantime keep the 
 insurance." In an action upon' the agreement — 
 
 Held, 1. That it was not competent to show 
 hy parol that there was a condition to the agree- 
 ment by which the note and policies were to be 
 held until the premium was paid. 
 
 2. That the note received by defendant, being 
 that of a third person, the presumption was that 
 it was received as payment, and in the absence 
 of proof to the contrary, its non-payment when 
 due did not affect the agreement. — Ot. of App 
 Am-a, 1877. Shaw v. Eepublio Life Ins. Co., 69 
 Jn. Y. 286. ' 
 
 105. Prior to the time when the annual pre- 
 mium for 1873 became due under the original 
 policy, a tender of payment of the note was 
 made to defendant, which it refused to receive, 
 and repudiated the contract, refusing absolutely 
 to carry it out. Held, that by a failure to pay 
 •or to tender payment of a premium in Septem- 
 ber, 1873, plaintiff did not forfeit her right to 
 •enforce the contract; but that defendant was 
 •entitled to credit for the amount of the premium. 
 lb. 
 
 106. "What will excuse payment of 
 tender of premiums. Defendant having 
 refused to receive overdue premiums upon a 
 policy issued to plaintiff upon the life of her 
 Jiusband, upon the ground that the policy had 
 lapsed, she brought an action and obtained judg- 
 ment adjudging the policy to be in force upon 
 her paying the premiums within forty days or 
 at her election that a paid-up policy should' be 
 issued to her. She elected to take a paid-up 
 ax)licy, and returned her policy to defendant, with 
 
 an instrument canceling the same, and demanded 
 .Tiipaid-up policy ; defendant retained the papers, 
 but made no response to plaintiff's demand. 
 Defendant appealed to the General Term, where 
 the judgment was modified by striking out the 
 provision in reference to a paid-up policy. The 
 insured soon thereafter died. After such death, 
 and after the expiration of the forty days, plain- 
 tiff demanded a return of the policy and the 
 deed of cancellation, but received no answer. 
 Defendant subsequently appealed to tliis court, 
 where the judgment was affirmed. In an action 
 upon the policy — Held, that plaintiff was not 
 bound to tender the premiums until the defend- 
 ant should return the policy and deed pf cancel- 
 lation, or evince a disposition to return them, or 
 should advise her of its determination to require 
 payment of the premiums; and that plaintiff 
 was entitled to recover the amount of tlie policy, 
 less the amount of the unpaid premiums, witii 
 interest. — Ct. of App., April, 1877. Hayner v. 
 American Pop. Life Ins. Co , 69 N. Y. 435. 
 
 107. "WTiat will not. That the fact that 
 the insured became insane, and by reason of 
 such insanity forgot to pay, and did not pay the 
 premium, is no excuse for its non-payment, see 
 Wheeler v. Connecticut Mut. Ins. Co., 16 Hun 
 317. 
 
 108. Extension of time to pay pre- 
 mium. "Waiver of forfeiture for non- 
 payment. To render valid an extension of the 
 time for the payment of a premium after the 
 time of payment haa elapsed, there must be 
 some valid consideration for the extension or 
 waiver of the condition of payment, or there 
 must be something said or done by, or in behalf 
 of, the insurance company, while the party bound 
 to make the payment has still time and oppor- 
 tunity for so doing, by which the insured is in- 
 duced to believe that the condition is waived, 
 or that a strict compliance will not be insisted 
 on. — Supreme Ct., {ith Dept.,) Jan., 1879. Mar- 
 vin V. Universal Life Ins. Co., 16 Hun 494. 
 
 109. The insured failed to pay the premium 
 falling due April 13th. April 27th defendant's 
 a^ent told the insured that if he paid the pre- 
 mium the next day he would receive it. He 
 called next day, but finding the insured sick, 
 refused to take the premium, saying he would 
 do so when he got well, and that he would keep 
 the policy in force. The insured died in the 
 following September. The premium due in 
 July was not paid, as the company had notified 
 him that the policy was canceled. In an action 
 upon the policy — Held, that plaintiff could not 
 recover. lb. 
 
 110. Defendant issued a policy upon the life 
 of _M., plaintiff's intestate, the premium to be 
 paid quarterly ; the policy became forfeited by 
 reason of default in a payment falling due Feb- 
 ruary 28th, 1874. On May 29th, 1874, defendant 
 wrote to M., that if he would send a certificate, 
 from a physician named, of his good health, and 
 a remittance for premium due May 28th, with 
 that of February; it would re-instate the policy. 
 M. thereupon procured a certificate of the phy- 
 sician, which he sent to defendant, with the 
 premiums, Jun£ 6th, 1874, in a letter stating 
 that the certificate was as to his present state of 
 health. Defendant returned the money and 
 certificate, with a statement that they were re- 
 turned upon the ground that the time during 
 which he was allowed the privilege of reviving 
 his policy expired May 28th. In an action 
 
224 
 
 INSURANCE, III. 
 
 upon the policy— JTeW, that defendant had the 
 right to waive the forfeiture, and M. having 
 taken the action prescribed by it to revive the 
 policy, it was bound, and the policy became 
 again in force ; that M. had a reasonable time in 
 which to accept and comply with defendant's 
 proposition ; that he took no unreasonable time, 
 and that the reason given by defendant for re- 
 fusal to accept was not good. — Ct. of App., Jan., 
 1879. Miesell v. Globe Mut. Life Ins. Co., 76 
 N. Y. 115. 
 
 111. The certificate was rejected by defend- 
 ant's medical board ; it was not given in evi- 
 dence, and the reason for its rejection did not 
 appear. HM, that if it could be inferred that 
 the rejection was because of lack of sufficiency of 
 the certificate, it was hot permissible in this 
 case,_ as defendant did not take that ground, but 
 put its refusal to accept upon another and en- 
 tirely different one ; but that the inference from 
 the circumstances was that the certificate was 
 STiffident ; that if it should be assumed that the 
 certificate was to be satisfactory to defencfent, 
 the objection would not avail, as the return was 
 not put upon that ground ; and, if taken, it was 
 for defendant to show that it had reasonable 
 grounds therefor. lb. 
 
 112. The court found that M. did not make 
 tender of premiums subsequently accruing upon 
 the policy, in consequence of defendant's refusal 
 to receive the premium so tendered ; there was 
 no express testimony as to this. HeJd, that it 
 was a legitimate inference, and that M. was not 
 required to make further tender. lb 
 
 113. Defendant issued a policy of insurance 
 upon the life of D. for the term of one year, 
 commencing December 22d, 1858, with a cove- 
 nant therein that the same might be continued 
 until the death of D., provided the insured paid 
 the annual premium on or before December 22d 
 in each year, and a condition that the premium 
 must always be paid on or before the day it falls 
 due. D. paid the first year's premium by giving 
 his notes. He did not pay the premium for 
 1859 within the time limited. In April, 1860, 
 he called at defendant's office and stated to de- 
 fendant's president and general agent that he 
 wanted to give up the policy, that he could not 
 pay the premium. They replied : " You must 
 not give up tliis policy; * * * you must 
 keep it alive, and if you can't pay it when it be- 
 comes due, we will give you what accommoda- 
 tion is necessary ;" and " they agreed by hav- 
 ing accommodations to keep it alive and carry 
 it along." D thereupon gave a note for the 
 premium, which became due December 22d, 
 1859. For fifteen years thereafter he paid his 
 premiums, sometimes by note, sometimea in 
 cash; seven times he paid from one to eight 
 days after maturity. On December 24th, 1875, 
 he tendered the premium due on December 22d, 
 which was refused. D. died January 1st, 1876. 
 In an action upon the policy — Hdd, that if the 
 omission to pay within the time prescribed by 
 the policy was by the consent of or in accordance 
 with an agreement with defendant, the policy 
 was not forfeited ; that the evidence authorized 
 a finding that there was an agreement relating 
 to the entire life of the policy, or"until such time 
 as defendant should give notice that the agree- 
 ment must end, giving the insured a right to 
 pay the premiums within a reasonable time after 
 they became due ; that the ofiicers named had 
 authority to make the agreement ; and that it 
 
 might be shown by parol, notwithstanding » 
 provision in the policy that any agreement not 
 signed by the president and secretary and bear- 
 ing the seal of the company, should be void ; 
 also, that there was a sufficient consideration to- 
 support such an agreement. — Ct. of App , April, 
 1879. Dilleber v. Knickerbocker Life Ins. Co.,. 
 76N. Y.567. 
 
 114. Premium for temporary insur- 
 ance. An unpaid premium upon a policy of 
 life insurance is not an " indebtedness," within 
 the meaning of the statute of -Massachusetts pro- 
 viding for the continuance and validity of such 
 a policy for a limited period after failure to pay 
 the premium, and for ascertaining the period in> 
 each case ; the unpaid premium, therefore, can- 
 not be deducted from the net value of the policy 
 in determining the amount of premium for tem- 
 porary insurance. — Ot. of App., May, 1878. 
 Goodwin v. Massachusetts Mut. Life Ins. Co., 
 73 N. Y. 480, 486. 
 
 115. " Paid-up policies." The policy ia 
 suit provided " that if, after the payment of twO' 
 or more annual premiums upon this policy, the 
 same shall cease and determine by default in 
 the payment of any subsequent premium where 
 due, then, notwithstanding such default, this 
 company will grant a ' paid-up policy ' (payable 
 as above) for such amoimt as the then present 
 value of this policy will purchase as a single 
 premium, provided that this policy shall be 
 transmitted to and received by this company, 
 and application made for such ' paid-up policy ' 
 within one year after default in the payment of 
 premium hereon shall first be made." Held, 
 that the application for a paid-up policy must 
 be made during the lifetime of the insured, and 
 could not be made after his death, by the then 
 owner of the policy. — Supreme Ot., {ist Dept.,} 
 Bee., 1878. Wheeler v. Connecticut Mut. Life- 
 Ins. Co., 16 Hun 317, 327. 
 
 116. That such an application cannot b& 
 made after forfeiture of the original policy for 
 non-payment of premiums, and after the disso- 
 lution of the company issuing the policy, and 
 the appointment of a receiver in proceedings to 
 wind it up, see People v. Widows' and Orphans' 
 Life Ins. Co., 15 Hun 8. 
 
 117. Plaintiff, being in arrears for premiums,, 
 surrendered his policy and received a " paid-u[> 
 policy," giving to defendant at the same time are 
 interest-bearing note for the unpaid premiums, 
 which note was made a lien upon the paid-up. 
 policy. It was also made a condition that if the 
 interest or any part of the principal of hi^ not* 
 was not paid when due, then the policy should 
 become void without notice. 
 
 Held, 1. That plaintiff was not entitled to no- 
 tice of the time when the interest on the note 
 fell due (even though it was the practice of the 
 company to give notice in such cases), and that 
 his failure to pay the interest when due worked 
 a forfeiture of the policy, against which eqiyty 
 would not relieve. 
 
 2. That the fact that plaintiff supposed that 
 the policy, being called a "paid-up policy," re- 
 quired no more payments to keep it alive, was 
 no ground for relieving him, no fraud or mutual 
 mistake being shown. — Com. Pleas, March, 1878> 
 Hein v. Metropolitan Life Ins. Co., 7 Daly 636. 
 
 118. Death, and proof thereof. De- 
 fendant issued a policy of insurance upon the 
 life of M. A condition in the policy provided 
 that defendant should be notified forthwith of 
 
INSURANCE, III., IV. 
 
 225' 
 
 the death of the insured ; also, that full proofs 
 of loss should " be presented within twelve 
 months from the time the loss occurs or the 
 claim will be forfeited." M., in December, 
 1867, with the knowledge and assent of defend- 
 ant, assigned the policy to plaintiff, who there- 
 after paid the premiums. In July, 1872, plain- 
 tiff being about to go to Europe, paid to defend- 
 ant's general agent, in advance, the premium 
 for that year falling due in August. The ques- 
 tion being raised as to the position of the parties 
 in case the insured should die before such pre- 
 mium became due, said agent stated that defend- 
 ant had agents who would know of the death 
 before he could ; if he advanced the money it 
 would be returned, " and that there was no 
 trouble at all in regard to that whole thing." 
 Plaintiff returned in October, 1872. M. died in 
 July, 1873, but his death did not become known 
 to the parties until about July, 1875. Plaintiff 
 paid the premiums for 1873 and 1874, upon re- 
 ceiving the usual notices from defendant of the 
 day they would fall due ; and defendant exe- 
 cuted and delivered the usual renewal receipts. 
 Immediately after being advised of M.'s death, 
 plaintiff notified defendant of the fact, and upon 
 application was furnished with blanks for proofs 
 of loss, which proofs he prepared, stating therein 
 the time of death, and delivered them to defend- 
 ant July 9lh, 1875. Defendant received and 
 retained the proofs until some time in October, 
 1875, without objection, and then took the 
 ground that the claim was forfeited, because 
 proofs were not furnished within twelve months, 
 making no offer to return the premiums received 
 after the death, until after commencement of 
 this action. Held, that the circumstances justi- 
 fied a finding of a waiver of the forfeiture, and 
 by such waiver defendant was precluded from 
 insisting upon the forfeiture as a, defence. — 
 Gl. of App., June, 1879. Prentice v. Knicker- 
 bocker Life Ins. Co., 77 N. Y. 483; affirming 43 
 Superior 352. 
 
 110. Suicide — effect of insanity. 
 Where a person who, although aware that a 
 certain act will terminate his life, yet does the 
 act under the control of an insane impulse, 
 caused by disease and derangement of his intel- 
 lect, which deprives him of the capacity of gov- 
 erning his own conduct in accordance with 
 reason, the act cannot be regarded as voluntary. 
 Such an act, therefore, is not within the pro- 
 vision of a policy avoiding it in case the insured 
 "die by his own hand." — Ot. of App., March, 
 1879. Newton v. Mutual Benefit Life Ins. Co., 
 76 N. Y. 426 ; affirming 15 Hun 595. 
 
 120. The sanity of every individual is pre- 
 sumed, and insanity cannot be presumed &om 
 the mere fact of suicide. Where, therefore, a 
 policy contains a clause declaring it null and 
 void, in case the insured dies by his own hand, 
 and the insured commits suicide, it is incumbent 
 upon a party seeking to enforce the policy to 
 prove that the self-destraction was not the con- 
 scious, voluntary act of one responsible for his 
 actions, but the involuntary act of an insane 
 person. Acts and incidents which are as con- 
 sistent with sanity as insanity, will not authorize 
 the submission of the question to a jury. — Ct. of 
 App., Sept., 1877. Weed v. Mut. Benefit Life 
 Ins. Co., 70 N.Y. 561. 
 
 121. In an action upon a policy containing 
 said clause, it appeared that the deceased com- 
 mitted suicide, and that the act was the result 
 
 of an intention deliberately formed. The de- 
 ceased had a severe attack of congestion of the 
 brain some seven years prior to his death, and 
 for several years before, and up to the time of 
 his death, periodical attacks of severe nervous 
 headache, arising from indigestion or some- 
 functional derangement, and slight evidence was 
 given that at times he was incoherent in answers- 
 to questions. Up to the time of his death he 
 was engaged in and transacted large business 
 operations. It did not appear that he was im- 
 prudent or indiscreet in business matters, or 
 that he was at any time suspected of being in- 
 competent. His physician, who visited him a 
 few hours before his death, saw no symptoms of 
 insanity, and never discovered or suspected any 
 impairment of mental faculties. Hdd, that the 
 evidence did not authorize the submission to the 
 jury of the question as to the insanity of the in- 
 sured, and that plaintiff was properly non-suited. 
 lb. 
 
 IV. MABINB IlSrSTTEANCE. 
 
 122. The policy, and now construed. 
 A policy " on advances on vessel and cargo, free 
 of general and particular average, and without 
 reclamation " — Hdd, not to require the advances 
 to be made upon vessel and cargo jointly, but 
 that it covered advances made upon the vessel 
 and cargo separately and independently. — Sii- 
 preme Ct., (1st Dept.,) March, 1880. Wright v. 
 Williams, 20 Hun 320. 
 
 123. As to the effect of the clause " as inter- 
 est may appear," see Dakin v. Liverpool Ins Co., 
 13 Hun 122 ; affirmed 77 N. Y. 600. 
 
 124. Open, or running policies. The 
 general rule is that the property insured must 
 be specified in the policy. But open or running 
 policies are an exception to this rule. They 
 were brought into use to enable merchants to in- 
 sure their goods shipped at distant ports, when 
 it is impossible for them to know the precise 
 quantity or character of the goods, or the par- 
 ticular ship in which they are shipped, and thus 
 unable to describe accurately or particularly 
 the subject of insurance. — Cl. cf App., Sept., 1879. 
 Arnold v. Pacific Mut. Ins Co., 78 JST. Y! 7, 12. 
 
 125 Condition as to occupancy. A 
 marine policy provided that " if the premises 
 should be vacated, in whole or in part, and 
 shall remain unoccupied for the space of twenty 
 days, * * -* this policy shall be of no effect 
 unless the company shall be immediately noti- 
 fied and shall signify its assent thereto on the 
 policy." Seld, that " premises " meant the ves- 
 sel insured, and leaving her vacant and unoccu- 
 pied for more than twenty days avoided the 
 Tpolicy.— Supreme Ct., (2d Dept.,) Dec., 1879. 
 Eeid V. Lancaster Fire Ins. Co., 19 Hun 284. 
 
 126. Double insurance. The owner of 
 a canal boat prochred a policy thereon, " loss, if 
 any, payable to A., as his interest appears." 
 The policy provided that it should be void if 
 any other insurance should be made upon the 
 boat. A. held a mortgage on the boat, but this 
 fact was not communicated to the insurers. The 
 owner subsequently procured another policy on 
 the boat in a different company, without the 
 knowledge or consent of A. Held, that the first 
 policy was thereby avoided ; that it was not a 
 case of two policies issued upon two different 
 insurable interests, but that both policies cov- 
 ered the same interest, i. «., that of the owner. — 
 
 15 
 
226 
 
 INSUKANCE, IV. 
 
 Swpreme Ct., {4th Dept,) June, 1878. Van Als- 
 tyne v. iEtna Ins. Co., 14 Hun 360. 
 
 127. 'Warranties. A policy issued in 
 New York on a vessel contained the following 
 provision: "Warranted not to load more than 
 her registered tonnage wilh lead, marble, coal 
 •or iron on any one passage." The registered 
 tonnage of the vessel was nine hundred and six- 
 teen tons. JfeM, that the' word ton, as used in 
 the warranty, was not limited to two thousand 
 pounds, but meant such weight as was recognized 
 by the laws of congress, or by established com- 
 mercial usage at the time, viz., two thousand two 
 hundred and forty pounds. — Supreme Ct., {1st 
 Sept.,) Dec., 1878. Beck v. Phoenix Ins. Co., 16 
 Hun 344. 
 
 128. Perils insured against. 'What 
 is -within the risk. A steamboat was in- 
 sured " while plying on Jamaica Bay, bay and 
 harbor of New York, * * * or while lying 
 at anchor, or at any bulk-head, dock or pier." 
 At the time of her loss she had been beached 
 and holes opened in her hull to allow the water 
 to run in and out with the rise and fall of the 
 tide. A cable from her bow was fastened to a 
 piece of iron sunk in the beach, and another 
 from her stern was attached to an achor. Held, 
 that she was not " lying at anchor," within the 
 meaning of the policy. — Supreme Ct, (2d Dept.,) 
 Dec., 1879. Keid v. Lancaster Fire Ins. Co., 19 
 Hun 284. 
 
 129. A policy of insurance upon a ship, as it 
 appeared in the record in an action upon it, 
 contained the usual terms, covenants and con- 
 ditions, used in policies, on voyages from port 
 to port ; the names of the ports, were however 
 left in blank ; the risk was described as " port- 
 risk in the port of New York." 
 
 Hdd, 1. That it was to be presumed that a 
 common printed form designed for voyage poli- 
 cies was used, but that the parties did not in- 
 tend, and the insurer did not take a risk for a 
 voyage; that the written words "port-risk iu 
 the port of New York " controlled the printed 
 part of the policy, and limited and defined the 
 risk insured against. 
 
 2. That the term "port-risk" was a technical 
 term, the meaning of which, as used by under- 
 writers in policies of marine insurance, might 
 be proved by experts in the business. — Ct. of 
 App., Dec, 1877. Nelson v. Sun Mut. Ins. Co., 
 71 N. Y. 453. 
 
 130. The testimony of experts on both sides 
 concurred, and was to the effect that the term 
 "port-risk" meant a risk upon a vessel while 
 lying in port, and before she had taken her de- 
 parture on another voyage. It appeared that 
 the vessel cleared for another voyage, and left 
 the pier at which she was lying in tow of a tug, 
 for the purpose of proceeding upon the voyage ; 
 a short distance from the pier she struck a rock 
 and was injured. Held, that as the vessel had 
 taken her departure, and begun her voyage 
 when the accident happened, the policy had 
 ceased to be operative ; and that the complaint 
 was properly dismissed. lb. 
 
 131. "When the policy attaches. De- 
 fendant issued to plaintiff an open policy cover- 
 ing one-sixth of all goods consigned to the lat- 
 ter upon vessels from Santos "to New York, 
 Baltimore or Boston direct, or via Hampton 
 Boads for orders." The rate of premium was 
 stated to be "one (net throughout the year) 
 per cent." Risks were to be reported for in- 
 
 dorsement <m the policy as soon as known. 
 Plaintiff's agent shipped at Santos, on board of 
 a barque chartered for that purpose, a large 
 cargo of coffee. The charter-party specified a 
 voyage from Santos to New York, Philadelphia 
 or Baltimore via Hampton Koads for orders. 
 Plaintiff's agent, by mistake, reported the risk 
 to defendant as from Santos to New York direct, 
 and it was so entered upon the policy. The 
 barque arrived safely at Hampton Roads, and 
 there remained at anchor for eighteen days, 
 when she was sunk and the cargo lost. In an 
 action upon the policy — Held, that in the ab- 
 sence of any proof of damages occasioned to 
 defendant by the mistake, plaintiff was not 
 bound by an insurance upon the risk as re- 
 ported ; that the moment the cargo was loaded 
 for the voyage the policy attached, and unless 
 damage to the underwriters could be shown, the 
 erroneous declaration could be corrected even 
 after a loss, and the case was to be treated as if the 
 proper declaration and indorsement had been 
 made ; and that, therefore, there was no deviation 
 in going into Hampton Roads for orders. — Ci!. 
 of App., Sept., 1879. Arnold v. Pacific Mut. 
 Ins. Co., 78 N. Y. 7. 
 
 132. Deviation. Delay not expressly pro- 
 hibited by the policy for a reasonable time, for 
 the purpose of the adventure, must always, in 
 cases of open or running policies, be allowed ; 
 and whether the delay be reasonable or not, 
 must be determined, not by any positive or 
 arbitrary rule, but by the state of things exist- 
 ing at the time. lb. 17. 
 
 133. Where the assured has a right to stop 
 at a port of call, a mere intention -formed before 
 reaching that port to go to an unauthorized port 
 of discharge, is not a deviation. To constitute 
 such deviation the vessel must have entered 
 upon her voyage to the unauthorized port. lb. 
 
 134. "What amounts to a total loss 
 of the vessel. The underwriter is not liable 
 upon an insurance of a vessel " against actual, 
 total loss only," where the vessel, after a dis- 
 aster, remains a vessel, and as such reaches her 
 place of destination afloat. — Ct. of App., Oct., 
 1879. Burt v. Brewers, &c., Ins. Co., 78 N. Y. 
 400. 
 
 135. The complaint in an action for a total 
 loss alleged that the vessel became, "by the 
 perils of the sea, so greatly and seriously dam- 
 aged and disabled, that she was obliged, for the 
 safety of her crew and cargo, to put into Bahia, 
 in the Empire of Brazil, and that, after having 
 arrived at said Bahia, the said bark was found 
 to be irreparable, unfit and unable to proceed on 
 her. said voyage, and on or about the 6th day of 
 December, 1867, was duly condemned and sold." 
 Held, a sufBcient averment of a total loss. — 
 Supreme Ct., {1st Dept.,) March, 1880. Wright 
 t.. Williams, 20 Hun 320. 
 
 136. — of fteight. An actual total loss of 
 freight arises only where the circumstances are 
 such as to render the ultimate earning of freight 
 absolutely impossible or practically hopeless. 
 The mere loss of the vessel does not produce 
 this result, as the master may still earn the 
 freight by forwarding the cargo by other means 
 of conveyance ; and it is his duty to the insurer 
 on freight so to do, if in his power. If the 
 owner neglect to do this, tlie insurer on freight 
 is chargeable only in the same way and to the 
 same extent as if the duty had been performed, 
 and the loss will be partial or total according to 
 
INSURANCE, IV., V. 
 
 227 
 
 'the amount so adjusted. — Ct.ofApp., Sept., 1878. 
 Hubbell V. Great Western Ins. Co., 74 N. Y. 246! 
 
 137. The question, therefore, whether the 
 loss of freight is total, does not depend upon 
 whether the ship is totally lost, but upon 
 whether there is a chance of being able to earn 
 the freight by forwarding the cargo, lb. 
 
 138. The ship, at the time it went on shore, 
 had nearly accomplished her voyage from Cal- 
 -cutta to New York. The hope of getting her 
 off was not given up until about seven weeks 
 thereafter, during which time she remained 
 -aground, entire, with ample opportunity to take 
 out and tranship her cargo. The owner, who 
 was also owner of cargo, made no efforts so to 
 do, but, on condemnation of the ship, permitted 
 the Coast Wrecking Company, without objection 
 ■or claim for freight, to take possession of the 
 •cargo, tranship and deliver it at New York to 
 the insurers on cargo, subject to a .claim for sal- 
 vage, which was adjusted at $18,743..50. The net 
 proceeds of sale were $46,858.95. The freight, 
 ■at the rate insured, on the portion of the cargo 
 delivered, was $16,019. There was no proof that 
 the owner was unable to tranship the cargo, or 
 that he offered so to do, or that the amount paid 
 the wrecking company was a reasonable claim. 
 JSdd, that, in the absence of proof of aban- 
 donment of freight to defendant, the evidence 
 <lid not, as matter of law, establish a total loss 
 •of freight. lb. ; reversing 10 Hun 167. 
 
 139. Necessity of abandonment. 
 While the total loss of a vessel short of her 
 port of destination involves a constructive total 
 loss of freight, justifying the owner in abandon- 
 ing to his insurers on freight, and thereupon 
 claiming as for a total loss, yet, without abandon- 
 ment, he can recover the whole sum insured only 
 when there is an absolute or actual total loss. lb. 
 
 140. By a clause in a policy on freight it was 
 ^provided that no claim for a total loss should be 
 made unless in case of loss of more than fifty 
 per jCent. of the freight on board, and also the 
 -actual and technical total loss of the vessel. 
 Held, that this clause simply declared what 
 should constitute a constructive total loss, and 
 did not authorize a claim for a total loss without 
 -abandonment, whei'e there was not an absolute 
 total loss, lb.; reversing 10 Hun 167. 
 
 141. If the owners of the cargo, or their in- 
 surers, in case of a loss of the ship, are willing 
 to take charge of the goods at the place of the 
 wreck, the master may still earn his freight by 
 
 ■offering to carry on the goods. If they insist on 
 taking them, they must pay full freight ; and if, 
 after such an offer, the goods are by mutual con- 
 sent delivered up to the owners or abandonees 
 of cargo, freight pro rata is earned. lb. 
 
 142. T?he master or ship-owner is not justified 
 in such case in giving up the cargo without 
 taking measures to secure freight, and then 
 claiming indemnity from his insurers, unless by 
 due abandonment he enables them to protect 
 •themselves. lb. 
 
 143. Adjustment. Average. Where, 
 by the perils of the sea, the cargo of a vessel is 
 placed in a situation of danger, extra expenses 
 necessarily incurred for saving or taking care of 
 it are not chargeable against the ship-owner or 
 the freight, but against the cargo; and although 
 such expenses, added to the cost of oompleting 
 the transportation, exceed the amount of freight 
 for the whole voyage, they do not prevent the 
 
 ■earning of freight, provided the selling price of 
 
 the goods at the port of destination would be 
 sufficient to cover all the expenses. lb. 
 
 144. Where a vessel, having rea;ohed the 
 coast, is stranded, and persons without previous 
 i-equest, claiming to act as salvors, save the 
 cargo and deliver it at the port of destination, 
 the ship-owner can ratify and adopt their acts, 
 and thus entitle himself to the benefit of them ; 
 and, as between himself and the insurer on 
 freight, he is bound to interpose his claim and 
 adopt such course as to secure the freight and 
 procure a proper adjustment of salvage. If he 
 fails in this, and the freight is thereby lost, the 
 loss will not fall on the insurer. lb. 
 
 145. Where the owner of the ship is also 
 owner of the cargo, by insuring the freight sep- 
 arately he assumes the same relations to his in- 
 surers as though he had no interest in the cargo, 
 and is bound to pursue the same course for the 
 purpose of saving freight, lb. 
 
 146. In daee of an accepted abandonment of 
 the ship to its insurers before completion of its 
 voyage, if the cargo is carried to its destination 
 in the ship, the freight must be apportioned 
 pro rata Uineris, and the part earned before the 
 disaster belongs to the ship-owner or the insurer 
 on freight, and only that subsequently earned 
 to the abandonees of the ship. If the trans- 
 portation is completed by a substituted vessel, 
 the original vessel being wholly disabled, its 
 owners are entitled to the freight; the aban- 
 donees of the ship have no right to any portion 
 thereof. The difference in these respects be- 
 tween the rule in this state and that in England, 
 stated, lb. 
 
 14Y. Extent of the insurer's liability. 
 In an action upon a policy of marine insurance 
 upon freight, it appeared that the ship went 
 ashore and was a total loss. About two-thirds 
 of the cargo was taken out, transhipped and 
 safely delivered at the port of destination, where 
 it was sold, and the proceeds received by the 
 insurers on cargo, to whom an abandonment had 
 been duly made. The court charged in substance, 
 among other things, that if the juiy found that 
 there was no formal abandonment of the freight, 
 but also that no part of the cargo reached the 
 plaintiff at the port of destination in specie, that 
 there was a total loss of the freight. Held, error ; 
 that if a part of the cargo saved reached the in- 
 surers thereof, to whom the owner had aban- 
 doned it, this, so far as the earning of freight 
 was concerned, was equivalent to its reaching 
 the owner, as, by the abandonment, the insurers 
 were put in the place of the owner ; that the 
 owner of the cargo could not, by abandoning to 
 his insurerSf^disablethe ship-owner from earning 
 freight, and if the latter, by voluntarily surren- 
 dering the cargo to the abandonees without pay- 
 ment of freight, where freight was due or might 
 have been saved, lost such freight, he could not 
 resort to the insurers on freight. lb. 
 
 V. Actions on Insitrancb Policies. 
 
 148. "Who may maintain an action, 
 generally. Where a life insurance company, 
 after the death of a person insured, settles with 
 the pledgees of the policy, paying them the 
 amount of the pledge, and agreeing, as part of 
 the settlement, to pay the surplus due on the 
 policy to those lawfully entitled to it, the as- 
 signee of the executor of the insured may re- 
 cover such surplus in an action on the policy. — 
 
228 
 
 INSURANCE, V. 
 
 Com. Pleas, June, 1877. Earle v. New York 
 Life Ins. Co., 7 Daly 303. 
 
 149. Where a policy of life insurance is 
 made payable to the executor of the insured, in 
 trust for another person, the executor is the trus- 
 tee of an express trust, and may maintain an 
 action on the policy. — Supreme Ct., (3d Dept.,) ' 
 Sept., 1878. Grattan v. Nat. Life Ifls. Co., 15 
 Hun 74. 
 
 150. Where a policy is issued to the owner, 
 loss payable to others named therein, " as their 
 interest may appear," a joint action will 'lie by 
 the assured and those to whom the loss is made 
 payable. — Supreme Ct., (3d Dept.,) May, 1879. 
 Lasher v. North Western Nat. Ins. Co., 18 Hun 
 98 ; S. C, 57 How. Pr. 222 ; reversing 55 Id. 324. 
 
 151. Instances. Plaintiff effected an in- 
 surance on his life with the C. L. A. Co. 
 That company re-insured its risks with defend- 
 ant, the latter agreeing to pay the policy-holders 
 "all such sums" as said company "may, by 
 force of such policies, become liable to pay." 
 The C. L. A. Co. thereafter refused to ac- 
 cept payment of the premiums falling due on 
 plaintiff's policy. In an action upon the agree- 
 ment between the two companies — Hdd, that 
 plaintiff could maintain an action thereon ; and 
 that the agreement included a policy-holder 
 seeking compensation in damages for a failure 
 of the C. L. A. Co. to keep alive its poli- 
 cies by receiving payments of premiums when 
 tendered, as it was by force, of the policy that 
 it became liable. — C*. of App., March, 1877. 
 Fischer v. Hope Mut. Life Ins. Co., 69 N. Y. 
 161. 
 
 152. Plaintifi^ before bringing this action, 
 commenced an action against the C. L. A. 
 Co., the defendant, and another company, to 
 Bet aside the contract of re-insurance as fraudu- 
 lent and void, and to have a receiver appointed 
 of the assets of the former company, judgment 
 wherein was rendered in favor of defendant. 
 Hdd, that said judgment was no bar to this ac- 
 tion. 1 b. 
 
 153. Defendant issued to plaintiff a policy of 
 fire insurance " loss, if any, payable to B., mort- 
 gagee." The policy contained a clause giving 
 defendant the option to repair or rebuild upon 
 giving notice to the assured; and the loss, was 
 made payable in sixty days after notice and 
 proof of loss, unless the company " have given 
 notice of their intention to rebuild or repair." 
 The premises insured were destroyed by fire and 
 defendant gave notice to plaintiff of intention to 
 rebuild, which was accepted. Held, that hav- 
 ing exercised its option, defendant was bound, 
 as upon a contract to build, which superseded 
 the contract to insure ; that the legal title to the 
 substituted contract was in plaintiff, not in the 
 mortgagee ; that the obligation of defendant to 
 the latter was simply to pay the loss to him in 
 money in case no notice of intention to rebuild 
 was given, and that the action was upon the sub- 
 stituted contract and was properly brought in 
 the name of plaintiff. — Gt. of App., Nov., 1878. 
 Heilmann v. Westchester Fire Ins. Co., 75 N. 
 Y. 7. 
 
 Whether, in such case, the mortgagee might 
 intervene in equity, in case of insufficient se- 
 curity to prevent the payment of the money to 
 the mortg^or, or its misappropriation, see lb. 
 
 154. Who may not. Where a fire policy 
 names the ostensible owner of the property as 
 
 the person insured, and declares the damages 
 payable, in case of loss, to another person ; or, 
 when the policy is formally assigned and an ac- 
 tion is brought by the assignee, the person to 
 whom the loss is payable, in the one case, or 
 the assignee, in the other, cannot recover, where 
 the conditions of the policy have been broken 
 by the assured. — Supreme Ct., (4(A Dept.,) Oct., 
 1878. Richmond v. Niagara Fire Ins. Co.,* 15 
 Hun 248. 
 
 155. The holder of a lapsed policy cannot 
 maintain an action against the company for 
 premiums paid. Mere suspicion of insolvency 
 and abuse will not justify the lapsing of hi» 
 policy, and there is no trust relation between 
 the policy-holder in a mutual company and the 
 company.— Cbm. Pleas, {Sp. T.,) 1880. Taylor 
 V. Chater Oak Life Ins. Co., 59 How. Pr. 468. 
 
 156. Right to maintain action to de- 
 termine conflicting claims to policy. 
 Plaintiff, under duress, coercion, and undue in- 
 fluence on the part of her husband, assigned, in 
 blank, two policies of insurance issued by de- 
 fendant, the M. L. Ins. Co., upon the life of her 
 husband, which were subsequently filled up so 
 as to assign the policies to defendant B., and de- 
 livered to the latter to secure a debt of the hus- 
 band. Under an arrangement with an agent of 
 the insurance company, the policies were, with- 
 out plaintiff's knowledge, nominally forfeited 
 by failure to pay the premiums, and new poli- 
 cies were, upon the payment of the unpaid pre- 
 miums and surrender of the old policies, issued 
 direct to B. for the same amounts, bearing the 
 same numbers, referring to the same registers ia 
 the company's books, for the same premiums, 
 and based upon the same applications as the- 
 original policies, without a new examination. 
 A portion of the premiums was also paid by 
 dividends on the old policies. In an action to 
 determine the conflicting claims to the policies^ 
 and to compelpayment of the amounts insured 
 to plaintiff— .aeW, that the assignments were 
 invalid and conveyed no legal or equitable title 
 to B., who, therefore, had no right to surrender, 
 cancel, or impair the policies ; that plaintiff had 
 the right to expect that either B. or her husband 
 would keep the policies in life by payment of 
 the premiums ; at least, they owed her a duty to- 
 apprise her Of what was being done with the- 
 policies; that the substance of the transaction 
 was but a substitution of the new for the oldl 
 policies, and that plaintiff was entitled to the- 
 money payable on the substituted policies. — 08. 
 of App., Nov., 1877. Barry v. Brune, 71 N. Y. 
 261 ; affirming 8 Hun 395. 
 
 157. After the commencement of this action^ 
 W., the asignee of B., to whose rights defendant 
 H. succeeded, commenced an action against the 
 M. L. Ins. Co., in the United States Circuit 
 Court for the district of Maryland, upon the new 
 policies. The company set up the pendency of 
 this action as a defence. Judgment was re- 
 covered by plaintiff in said action. By the 
 judgment in this action it was determined that 
 plaintiff was entitled to the moneys due upon 
 the policies ; that payment thereof by the M. L. 
 Ins. Co. would operate pro tanto in satisfaction 
 and discharge of said judgment recovered by W.p 
 and B. and H. were enjoined from collecting or 
 attempting to enforce said judgment, except as- 
 to the residue, if any, after payment of the- 
 
 * Said to have been reversed, December 16th, 1S79.. 
 
INSUEANCE, V. 
 
 229 
 
 amount found due herein on the policies. Held, 
 no error, that it was proper to determine in this 
 action the conflicting claims, and to protect the 
 insurance company from double payment. lb. 
 
 158. — to have canceled policy re- 
 instated. An action lies against an insurance 
 •company, in a proper case, to have a policy can- 
 •celed by it, reinstated and declared valid. — 
 Supreme Cl., {1st Dept.,) March, 1879. Mans- 
 bach V. Metropolitan Life Ins. Co., 17 Hun 340. 
 
 159. A suit in equity, to have a policy of 
 life insurance declared existing and in force, is 
 maintainable where the insurer refuses to re- 
 ceive the premium when tendered, basing the 
 refusal upon an unfounded claim that the policy 
 has been forfeited and canceled. — Gt. of App., 
 May, 1878. Meyer v. Knickerbocker Life Ins. 
 Co., 73 N. Y. 516, 524. 
 
 160. Defendant issued a policy of insurance 
 to plaintiff upon the life of her husband ; by 
 the terms of the policy it was forfeited by a fail- 
 ure to pay any annual premium on the day it 
 fell due. Plaintiff was entitled to dividends 
 ■which were applied towards the premiums ; in 
 ■consequence of this and of the mode of dealing 
 between the parties, plaintiflf had no knowledge 
 of the exact amount of premium for any year 
 until advised, and it had been the habit of de- 
 fendant to furnish each year before the premium 
 ■became due a statement of the amount required. 
 Plaintiff not having received a statement for the 
 year 1874, wrote to the defendant asking for the 
 requisite information, and inclosing a post-office 
 ■order for what she supposed would be required. 
 The letter was received by defendant in sufficient 
 time before the premium for that year became 
 ■due to have enabled plaintiff, had it been an- 
 swered, to make the payment. Defendant did 
 not answer until some three months after receipt 
 of the letter, and then returned the order with a 
 ■statement that the policy was canceled for non- 
 payment of premuim. Plaintiff thereafter ten- 
 dered the amount due, which was refused. In 
 an action to have the policy declared valid — 
 Held, that defendant could not claim the for- 
 feiture, and the action was maintainable ; also 
 that it was not necessai-y for plaintiff, after the 
 refusal to accept the premium, to continue to 
 make formal tenders of premiums on each suc- 
 ceeding pay-day, but that it was sufficient for 
 ihe judgment to provide for the payment of past 
 |)remiums, with interest from the time they fell 
 due respectively. lb. 
 
 161. — for reformation of policy. 
 Plaintiff having an insurance with defendant 
 of his interest as mortgagee, took another mort- 
 gage upon the same premises, and applied to de- 
 fendant for a renewal of the first policy with an 
 increase of the insurance to the amount of both 
 mortgages ; this was agreed to, and a new policy 
 was issued, which contained a clause, not in the 
 first policy, to the effect that, in case of loss, the 
 assured should assign to defendant all her right 
 to receive satisfaction from any other person, 
 and that the loss should not be payable until 
 after the enforcement of the original security, 
 and defendant should only be liable for so much 
 as could not be so collected. This policy was 
 renewed from time to time ; plaintiff did not 
 •discover the change until after a loss. Both 
 mortgages contained the usual insurance clause, 
 and it was agreed thereby that the mortgagors 
 shouldpay the premiums and have the benefit 
 ■of the policy in payment of the debt. In an ac- 
 
 I tion to reform the policy and to recover thereon 
 as reformed — 
 
 • Held, 1. That the relief asked for was prop- 
 erly granted ; that it was bad faith on the 
 part of defendant to so change the terms without 
 notice, and to deliver the new policy as simply 
 a renewal of the old one. 
 
 2. That negligence of plaintiff in not dis- 
 covering the change, and laches in not sooner 
 seeking relief, were questions making the pro- 
 priety of granting the relief discretionary ; and 
 that this discretion was properly exercised. — 
 Ct. of App.,- May, 1879. Hay ». Star Fire Ins. 
 Co., 77 N. Y. 235 ; affirming 13 Hun 496. 
 
 162. The policy contained a clause that no 
 suit against the company " for the recovery of 
 any claim by virtue of this policy shall be sus- 
 tainable until after an award shall have been 
 obtained fixing the amount of such claim," nor 
 unless the suit shall have been commenced 
 within twelve months after the loss. Defendant 
 claimed that the action was barred by this 
 clause. Held, untenable : 1st. It was at least 
 doubtful whether, in strictness, the limitation 
 applied, except in case an award was made. 2d. 
 The clause sought to be struck out was entirely 
 inconsistent with the limitation. 3d. The ac- 
 tion was not for " a claim by virtue of this po- 
 licy," but to compel the giving of a policy in 
 accordance with the agreement. 4th. The lim- 
 itation should be construed as commencing whea 
 the loss was due and payable, not from the time 
 of the fire. lb. 242. 
 
 163. Liraitations of time to sue. A 
 policy contained a provision that no suit for the 
 recovery of any claim thereunder should be sus- 
 tainable unless commenced within twelve 
 months after loss or damage. In an action upon 
 the policy, wherein this provision was set up by 
 defendant as a bar, to avoid the defence plaintiff 
 showed that in an action brought by a third per- 
 son against the holders of the policy and the in- 
 surance company, an injunction order was 
 granted, restraining the company from paying 
 and the holders from receiving the loss or damage 
 arising under the policy. Held, that the injunc- 
 tion did not restrain the bringing of an action 
 upon the policy.— a^ of App., Feb., 1878. Wil- 
 kinson V. First Nat. Fire Ins. Co., 72 N. Y. 499, 
 506,- affirming QUnn 522. 
 
 164. A provision in a policy of fire insurance 
 limiting time for bringing suit thereon, is not 
 waived by the receipt of costs in a former action 
 on the policy, where the complaint was dis- 
 missed, or by a stipulation therein, extending 
 time. — Of. of App., Nov., 1879. Arthur v. Home- 
 stead Fire Ins. Co., 78 N. Y. 462. 
 
 165. Matters of defence. Where a 
 mortgagee is insured " as interest may appear," 
 the fact that the mortgage covered property 
 sufficient to answer the mortgage debt, notwith- 
 standing the fire, is no defence to the company ; 
 the property burned, not the mortgage debt, was 
 
 . covered by the policy. — Supreme Ct., {2d Dept.,) 
 Dec., 1878. De Wolf w. Capital City Ins. Co., 16 
 Hun 116. _ . 
 
 166. It is no defence to an action on an in- 
 surance policy, that the company has been en- 
 joined from exercising its corporate powers, or 
 paying any money except salaries of employees, 
 in proceedings by the attomey-geijeral to wind 
 up the company in insolvency. The injunction 
 does not operate against the prosecution of their 
 claims by creditors, pending the proceedings to 
 
230 
 
 INSUEANCE, V. 
 
 ■wind up the affairs of the company. — Supreme 
 Gt., {2d Dept,,) Oct., 1877. Whritner v. Univer- 
 sal Life Ins. Co., 4 Abb. N. Cas. 23. See, also, 
 Bedell v. No. Amer. Life Ins. Co., 7 Daly 273. 
 
 167. It is no answer to a defence of fraud in 
 an action upon a policy of life insurance, that 
 defendant has not returned the premiums paid ; 
 the principle that a party seeking to rescind a 
 contract for fraud must return what he has re- 
 ceived has no application to such a case. — Ot. of 
 App., Nov., 1879. Flynn v. Equitable Life Assur. 
 Soc, 78 N. Y. 568 ; affirming 15 Hun 521. 
 
 168. Instances. In May, ' 1872, the 
 E. Co. issued to plaintiff a policy of in- 
 surance upon the life of her husband. De- 
 fendant having contracted to assume all the 
 risks of said company, issued to plaintiff a 
 policy which recited the surrender of the former 
 policy, and made the application and represen- 
 tions therefor a part of the defendant's policy, 
 and the same were warranted true. In an action 
 upon the policy — 
 
 Held, 1. That the warranty of the truth of the 
 representations related to the date of the appli- 
 cation to the E. Co., not to the date of defend- 
 ant's policy. 
 
 2. That, in the absence of proof, it was not to 
 be presumed that plaintiff or her husband ap- 
 plied to defendant for a policy, or made repre- 
 sentations as inducements for it to issue the 
 same, but rather that they yielded passively to 
 the result of the agreement between the two 
 companies; and that, therefore, if the repre- 
 sentations were true when made, although they 
 would not have been true if made at the date of 
 defendant's policy, there was no breach of 
 warranty. 
 
 3. That it was no defence that the risk was, 
 at the time defendant's policy was issued, one 
 that it was not safe or proper to take, as it was 
 taken under the contract obligating defendant 
 to take all the risks of the E. Co., without right 
 to discriminate or reject. — Ct. of App., April, 
 1877. Cahen v. Continental Life Ins. Co., 69 
 N. Y. 300. 
 
 169. Plaintiff's complaint did not set up the 
 agreement between the companies, but counted 
 on defendant's policy, a copy of which was an- 
 nexed and made part thereof It was claimed 
 by defendant that the complaint did not present 
 the fact that^the policy in suit was issued in 
 place of the former policy, and not upon an 
 original application to defeildant. Held, un- 
 tenable ; that plaintiff was not bound to antici- 
 pate the defence, and to set up facts to meet 
 it. lb. 
 
 170. Defendant had notice, but refused to 
 produce the contract between it and the E. Co. 
 On the trial parol evidence was given that a con- 
 tract was made concerning the assumption by 
 defendant of all the outstanding risks of tlie E. 
 Co, Held, that as defendant by its retiisal had 
 incurred the penalty of having all inferences 
 from the proof taken most strongly against it, it 
 might be inferred from this evidence, and from 
 the fact of the issuing of the policy to plaintiff, 
 with the recitals therein, that tlie contract was 
 one not merely in reference to, but of actual as- 
 sumption of, such outstanding risks. lb. 
 
 171. Pleading. A defence to an action on 
 a policy of life insurance, that it is a wager policy, 
 must be pleaded.^-Ci5. of App., May, 1878. 
 Goodwin V. Massachusetts Mat. Life Ins. Co., 73 
 N. Y. 480, 496. 
 
 172. As to the sufficiency of the allegation.* 
 in an answer setting up a false statement in the- 
 application for the policy sued on, see Studwell 
 V. Charter Oak Life Ins. Co., 17 Hun 602. 
 
 173. Evidence of -waiver of condi- 
 tion. ■ Where the defence is violation of a con- 
 dition against other insurance, evidence that an 
 agent of defendant knew of such other insur- 
 ance, and offered him the policy in suit in ad- 
 dition to such prior insurance, and that plain- 
 tiff agreed and accepted the policy in ignorance 
 that the condition was contained in it, is com- 
 petent.— jSitpreme Ct., {2d Dept.,) Sept., 1878.. 
 McCabe V. Farm Buildings Fire Ins. Co., 14 
 Hun 602. 
 
 174. — of authority of agent. C, aa 
 agent of defendant, sent to V., its medical ex- 
 aminer, blank applications for life insurance, re- 
 questing him to take the examination of F., 
 plaintiffs' intestate ; V. was also F.'s medical at- 
 tendant. F. gav& correct answers to the ques- 
 tions in the application. V., who filled out the- 
 applications, changed the answers so that they 
 were in some respects untrue ; F. signed without 
 reading. It appeared that C. held himself out 
 and acted to some extent as general agent, and, 
 he appeared to be an occupant of defendant's 
 principal office. By the policy the statements 
 in the application were made warranties. la 
 an action upon the policy — Held, that the evi- 
 dence was sufficient to cast upon the defendant the- 
 burden of showing the real relations between it 
 and C, and in the absence of any such proof on 
 its part, to justify a finding that he was author- 
 ized to employ V. to take the application iii. 
 question ; and, so, that defendant was chargeable- 
 with the acts and omissions of V. in the per- 
 formance of his duty as agent ; and, in the ab- 
 sence of fraud or collusion, that it was estopped 
 from denying the truth of the answers. — Ct. of 
 App., Nov., 1879. Flynn v. Equitable Life- 
 Assur. Soc, 78 N. Y. 568. 
 
 175. — of coercion, inducing surren- 
 der of policy. In an action to compel the re- 
 storation of a policy of insurance issued by de- 
 fendant to plaintiff upon the life of her hus- 
 band, upon the ground that defendant's agent,, 
 by persuasions, intimidation and threats, in- 
 duced and coerced the husband, when his healtlii 
 and mind were impaired, to surrender the- 
 policy, it appeared, and the court found, that at 
 the time of the surrender, although the health, 
 and mind of the husband was somewhat im- 
 paired, yet he was of sound and disposing mind 
 and metaory ; he died about a month thereafter- 
 The agent, called as witness on the part of 
 plaintiff, testified in substance that learning that 
 the insured had a malformation which seriously 
 affected his health, he told him of it, and stated 
 to him that by the concealment of the fact ia. 
 the application he had done himself, the com- 
 pany and his family, a great injury; that it 
 would constitute a defence to the policy, and the 
 company would probably defend it, and advised 
 him to surrender it, offering to return the pre- 
 mium ; that he told the insured to think of it 
 over night, and if he decided to surrender the- 
 policy, to bring it next morning ; that the in- 
 sured came the next morning and brought the 
 policy, when the agent told him that he must 
 act on his own judgment and decide for himself, 
 and the insured finally stated he would surren- 
 der the policy, and gave it up, receiving a check 
 for the premium. Held, that the evidence was- 
 
INSURANCE, y., VI 
 
 231 
 
 insufficient to sustain a finding of coercion by 
 threats, etc.— CiS. of App., Feb., 1878. Stilwell 
 . V. Mutual Life Ins. Co., 72 N. Y. 385. 
 
 176. —to show payment of pre- 
 mium. Defendant issued ajoint policy upon the 
 lives of plaintiff and her husband ; the latter 
 was clerk in the office of a general agent of de- 
 fendant, and with defendant's knowledge and 
 approval transacted most of the office business. In 
 an action upon the policy the defence was that a 
 premium due prior to the death of plaintiff's hus- 
 band was not paid. The only evidence to show 
 payment was a receipt for the premium, signed 
 by defendant's secretary, and countersigned by 
 the deceased on behalf of the general agent. 
 The receipt, with others, was delivered to the 
 agent for collection. 
 
 Held, 1. That the deceased occupied the same 
 legal relation to defendant, in respect to busi- 
 ness properly belonging to his duties, as did the 
 general agent ; but that the receipt alone, while 
 it might have been prima fade evidence of pay- 
 ment in favor of third persons, was insufficient 
 to establish the fact of payment in favor of the 
 deceased himself; that plaintiff could not claim 
 any greater benefit from the acts of her hus- 
 band than he could, had she died and he 
 brought the action. 
 
 2. That the fact that prior payments were 
 made and receipted by the deceased in the same 
 manner which were recognized by defendant, 
 did not materially strengthen the force to be 
 given to the receipt alone ; and that if the 
 proof could be regarded in any sense prima facie, 
 the general agent and the officers of defendant 
 having testified that the premium was not in 
 fact paid, a non-suit was proper. — Ct. of App., 
 April, 1877. Neuendorff v. World Mut. Life 
 Ins. Ck)., 69 N. Y. 389. 
 
 177. Evidence in defence, generally. 
 Where, in a former action, the company alleged 
 in their answer, that their agent had inserted a 
 certain clause in the policy sued on without au- 
 thority, they cannot, in a subsequent suit on the 
 same policy, by the same plaintiff, (the first suit 
 having been discontinued) prove on the trial 
 that the agent was authorized to insert such 
 clause. — Supreme Ct., (3d Dept.,) May, 1879. An- 
 drews V. iEtna Life Ins. Co., 18 Hun 163. 
 
 178. By his application for policies of life 
 insurance,"!), warranted that he was then in 
 good health and of sound body, that he usually 
 enjoyed good.health, and that he had not during 
 seven years previous liad any severe disease. 
 D. died within three years after the last appli- 
 cation was made. Upon the trial of an action 
 upon the policies issued upon such application 
 it appeared that the death of the insured was 
 caused by nervous apoplexy. Defendant then 
 offered to prove what causes produce that 
 disease ; also, that death thereby is the result of 
 some disease or diseases of long standing — not 
 from any.sudden cause ; this was objected to and 
 rejected. Seld, error ; that the evidence rejected 
 was competent as bearing upon the warranties. — 
 Ct. of App., Sept., 1879. Edington v. jEtna 
 Life Ins. Co., 77 N. Y. 564, 567. 
 
 179. A physician testified as a witness for 
 defendant that he became acquainted with D. 
 in the winter of 1862 ; that he attended him 
 professionally during the next spring and sum- 
 mer, and then ceased to attend or prescribe for 
 him professionally, but his acquaintance con- 
 tinued until the death of D. The witness was 
 
 then asked if D. was cured when he left his 
 hands ; if, in his opinion, D. was in good health, 
 of sound body, and one who usually enjoyed good 
 health in 1867, when the first application was 
 made, and whether in his opinion, excluding any 
 knowledge or information obtained while treat- 
 ing D , and judging from his appearance from 
 that time until 1867, D. was in good health, etc. 
 These questions were objected to and excluded. 
 Held, error ; that they were such as could 
 properly be put to a physician under the pro- 
 vision of the statute (2 Rev. Stat. 406, § 73,) 
 prohibiting a physiiian from disclosing any in- 
 formation necessary to enable him to prescribe, 
 acquired while attending upon a patient profes- 
 sionally, lb. 568; reversing 13 Hun 543. 
 
 180. To questions in the applications as to 
 whether other applications had been made for in- 
 surance, and with whatresult, D. answered : " Yes, 
 and always successful," and "Yes, accepted.'' 
 Defendant proved by the agent of another com- 
 pany that D. applied to him as such agent for 
 a policy, and signed an application, which was 
 presented to the medical examiner of the com- 
 pany, who had previously attended upon D. pro- 
 fessionally ; he declined to pass him, stating that 
 an examination would be a farce, as D. was not 
 insurable ; this the agent communicated to D. 
 Upon this evidence, which was unquestioned, 
 defendant moved for a non-suit, which was 
 denied. Held, error ; that the delivery of the 
 application to the agent was a delivery to the 
 company ; that the medical examination formed 
 no part of it ; that the action of the medical ex- 
 aminer was a rejection of the application ; that 
 the answers were untrue, and, however inno- 
 ceutly made, avoided the policies. lb. 571. 
 
 181. Admissions and declarations. 
 Where, by a policy upon a building issued to 
 the owner, any loss is made payable to a mort- 
 gagee, admissions and declarations made by the 
 owner after a loss, are not competent evidence 
 in an action by the mortgagee upon the policy. 
 — Ct. of App., Dec., 1877. Browning v. Home 
 Ins. Co., 71 N. Y. 508. 
 
 182. Declarations made by the insured in 
 respect to his health, after the issuing of a policy 
 upon his life in favor of his wife, cannot affect 
 her rights, and are not competent evidence in 
 favor of defendant in an action by her on the 
 policy. — Com. Pleas, June, 1878. McGinley u. 
 United States Life Ins. Co., 8 Daly 390. • 
 
 As to the -declarations made by his family 
 physician, on that subject, such physician having 
 since died, see McNair v. National . Life Ins. 
 Co., 13 Hun 144. 
 
 VI. Instjbance Companies. 
 
 1. Organization, powers and liabilities, generally. 
 
 183. Paying in capital. Liabilities 
 of corporators. Under the provision of the 
 general insurance act of 1849, (Laws of 1849, 
 ch. 308, J 19,) making the " corporators " of a 
 stock company organized under the act "jointly 
 and severally liable until the whole amount of 
 the capital raised by the company shall have been 
 paid in and a certificate thereof recorded," etc., 
 it is not necessary that the whole amount of the 
 capital of the company shall be paid in, and a 
 certificate to that effect filed in orcier to relieve a 
 corporator from liability. The certificate re- 
 ferred to is that required by ? 11 of the act, i. e., 
 
232 
 
 INSURANCE, VI. 
 
 a certificate of the comptroller, or of an examiner 
 appointed by him, that at least an amount 
 specified in ? 5 (8150,000 if the company is or- 
 ganized in the county of New York or Kings, 
 $50,000 if organized in any other county); or, 
 in case of a life or health insurance company, the 
 full amount required by § 6 (3>100,000) has been 
 paid in.— Ct. of Am., April; 1879. Chase v. 
 Lord, 77 N. Y. 1 ; S! C, 6 Abb. N. Cas. 259 ; 
 reversing 16 Hun 369. 
 
 184. The object of ?§ 5 and 6 is to provide a 
 preliminary fund to megt losses occurring before 
 there are sufficient accumulations from premiums 
 to meet them; § 11 requires no examination 
 further than to see that at least the sum specified 
 in 2 5 or 6 (according to the character and locality 
 of the company to be organized) has been paid 
 in; when' this appears, the comptroller is re- 
 quired to ^ive the certificate, without regard 
 to the nominal capital of the company. Upon 
 filing properly certified copies of this certi- 
 ficate and of the charter, as prescribed by J 11, 
 the company is authorized to commence busi- 
 ness ; and thereafter the corporators are released 
 from personal liability. lb. 
 
 The comptroller is not bound by the act, nor 
 can he be required to give more than one certi- 
 cate ; and another, if given, is of no validity. lb. 
 
 185. The word " corporators," as used in § 
 19, does not include stockholders ; corporators 
 are the associates engaged in organizing the 
 company, whose functions cease with its organi- 
 zation ; tlien stockholders come in : and after 
 their functions thus cease the corporators can- 
 not be further held liabl^. lb. 
 
 186. Annual statement of assets, &o. 
 Since the passage of Laws of 1859, ch. 366, the 
 statement required by Laws of 1853, ch. 463, to 
 be filed in the office of the comptroller of the 
 state, must be filed with the superintendent of 
 the insurance department ; and such statement 
 must show, among other things, the " amount of 
 assets, and manner in which they are invested, 
 specifying what amount in real estate, on bond 
 and mortgage, stocks, loans on stocks, premium 
 notes, credits or other securities." — Supreme Ct, 
 {Isl Dept.,) July, 1878. Case v. People, 14 Hun 
 503 ; reeen-sed, on other grounds, 76 N. Y. 242 ; 
 S. C, 6 Abb. N. Cas. 151. 
 
 187. Bond of agent of foreign com- 
 pany. The penalties recoverable from an 
 agen* of a foreign fire insurance company, for 
 failure to file a bond, under Laws of 1876, ch. 
 359, amending Laws of 1875, ch. 465, con- 
 ditioned to pay %2 on every f 100 on premiums 
 received, cannot be collected after the $2 per 
 $100 in premiums has been paid. Laws of 1879, 
 ch. 153.— Supreme Ot., {Alb. ar.,) May, 1879. 
 Fire Dept. of West Troy v. Ogden, 59 How. 
 Pr. 21. 
 
 188. Dividends. The charter of a stock 
 life insurance company contained a provision to 
 the effect that, after paying to the stockholders 
 certain specified semi-annual dividends, and at 
 intervals of three years, the net profits should be 
 paid, twenty per cent, to the stockholders and 
 eighty per cent, to the poliey-holders^JireM, 
 that such sharing in the profits did not make 
 the policy-holders partners ; that any dividend 
 to them under this provision could, in no proper 
 sense, as to them, be called profits, but was sim- 
 ply an equitable adjustment of premiums paid. 
 ~Ct. of App., Sept., 1879. People v. Security 
 Life Ins., &c., Co., 78 N. Y. 114. 
 
 2. Offiaerg and agents; and their power to bind the 
 company. 
 
 189. The president of an insurance com- 
 pany who, knowing that the statutory prerequi- 
 sites to its organization have not been complied 
 with, issues and signs policies and places them 
 in the hands of agents, who, to his knowledge^ 
 induce people to take them by representing that 
 the company is legally authorized to transact 
 business, is guilty of a fraud, and is liable in an 
 action to recover back the money paid. — Su- 
 preme a., {2d Dept.,) Feb., 1879. Belding v. 
 Floyd, 17 Hun 208. 
 
 190. Appointment of agents. Where, 
 in an action upon a policy of life insurance, the 
 defence is breach of wafranty, based upon state- 
 ments in the application, and it is claimed, upon 
 the part of plaintifi', that such statements were 
 inserted by defendant's agent, without collusion 
 or fraud upon the part of the insured, and so, 
 that defendant is estopped from claiming their 
 error or falsity as a breach, it is not necessary, 
 in order to establish the agency, to show that 
 the alleged agent had a written appointment, or 
 had previously acted as agent, or that defendant 
 knew that the application was filled up by him. 
 [f the person who did fill up the application is 
 adopted and recognized by defendant as its agent 
 in procuring the risk, this is sufficient, and the 
 doctrine of estoppel applies. — Ot. of App., Sept., 
 1878. Mowry v. Kosendale, 74 N. Y. 360. 
 
 191. Who is deemed an agent of a fire in- 
 surance company, ciothed with power to waive 
 condition in policy as to occupation of premises 
 insured, see Davis v. Lamar Ins. Co. of New 
 York, 18 Hun 230. 
 
 192. The effect of a clause in a policy pro- 
 viding that any person, other than the assured, 
 who may procure the insurance, shall be 
 deemed the agent of the assured, and not the 
 agent of the company, as to all transactions re- 
 lating to the insurance, considered. — Sv/preme 
 Ct, {3d Dept ,) Jan., 1879. Partridge v. Com- 
 mercial Fire Ins. Co., 17 Hun 95. Nm., 1879. 
 Bell V. Lycoming Fire Ins. Co., 19 HUn 238. 
 
 193. WTien tlie company is bound 
 by act of agent, generally. One W., an 
 insurance broker at Flushing, was in the habit 
 of accepting risks in the defendant's company, 
 taking the premium, which he would forward to 
 defendant's agent at Brooklyn, who would ob- 
 tain a policy of the date of the acceptance of 
 the risk by W., and send it to him. Plaintiff 
 obtained insurance from W. on a barn, and paid 
 the premium Nov. 3d ; W. sent the risk to de- 
 fendant's agent the same day, and the latter 
 sent the policy to W. on the 6th, who delivered 
 it to plaintiff. The barn was burned on the 4th 
 of November. In an action on the policy — 
 Held, that plaintiff was entitled to recover. — 
 Supreme Ct., {2d Dept.,) Sept, 1878. Collins d. 
 Phoenix Ins. Co., 14 Hun 534. 
 
 194. Where the agent of a life insurance 
 company, to whom correct answers are given, en- 
 ters in the application incorrect answers, and 
 the applicant signs without knowledge, the 
 company is estopped from denying their truth. 
 —Ct. of App., Nov., 1879. Flynn v. Equitable 
 Life Ins. Co., 78 N. Y. 568. 
 
 195. — by knowledge of agent. The 
 knowledge of a general agent of an insurance 
 company is the knowledge of the company. — 
 Supreme Ct., (4eA Dept.,) Jan., 1879. Sentell v. 
 
INSURANCE, VI. 
 
 233 
 
 Oswego Ck). Farmers' Ins. Co., 16 Hun 516. S. 
 P., McArthur v. Glote Mut. Life Ins. Co., 14 
 Id. 348 ; Broadhead v. Lycoming Ins Co., Id. 
 462; Chase v. People's Fire Ins. Co., Id. 456; 
 Holmes v. Drew, 16 Id. 491 ; Partridge v. Com- 
 mercial Fire Ins. Co., 17 Id. 95 ; Bell v. Ly- 
 coming Fire Ins. Co., 19 Id. 238. 
 
 196. Power of agent to -waive con- 
 ditions in policy. An insurance agent who 
 is authorized to indorse a written consent to 
 further insurance, may waive, orally, the con- 
 dition in the policy requiring such indorsement. 
 —Supreme Ct., (2d Dept.,) Sept., 1878. McCabe 
 ». Dutchess Co. MutTIns. Co., 14 Huu 599. 
 
 19*7. A policy of flie insurance contained, a 
 condition declaring it void in case the premises 
 insured should become and remain vacant for 
 more than fifteen days without notice to the com- 
 pany and consent indorsed on the policy ; also 
 a, provision that no officer, agent or representar 
 live of the company should* be held to have 
 waived any of its conditions unless such waiver 
 was indorsed thereon in writing. In an action 
 upon the policy it appeared that the dwelling 
 insured became and remained vacant for more 
 than fifteen days. On the day it was vacated a 
 general agent of the defendant was notified, and 
 was asked to consent thereto, which he did, and 
 upon being asked if it was necessary to have the 
 consent indorsed upon the policy, replied that 
 it was not ; that it was indorsed upon his book 
 and was all right. The agent did make a 
 memorandum of the consent in his register. No 
 indorsement was made upon the policy, and the 
 agent made no report to the company of the ap- 
 plication for or the giving of consent. JSdd, 
 that the evidence failed to show a valid consent 
 or waiver of the condition, and that plaintiff 
 was properly nonsuited; that, although the 
 agent had apparent autliority to consent, and, 
 in the absence of special restrictions, to waive 
 <!Onditions in the policy, yet, as the mode of 
 giving consent was specified, and the power of 
 the agent to waive the condition was limited 
 to an indorsement on the policy, which limita- 
 tion plaintiff is to be presumed to have known, 
 an oral consent or waiver did not bind defend- 
 ant.— a. ofApp., March, 1878. Walsh v. Hartford 
 Fire Ins. Co., 73 N. Y. 5 ; reversing 9 Hun 421. 
 . 198. Katiflcation of agent's act. A 
 recognition and ratification by the company of 
 the acts of one who solicits a risk and fills up 
 an application, establishes the relation of prin- 
 cipal and agent in respect to such acts, and any 
 errors or omissions of the agent, in the course 
 of such acts, are the errors and omissions of the 
 <!ompany. — Com. Pleas, June, 1877. Mowry v. 
 World Mut. Life Ins. Co., 7 Daly 321. 
 
 199. The company is barred by the acts of 
 its agent, though in excess of his written author- 
 ity, if he has been accustomed to do similar 
 acts and the company has theretofore approved 
 them— Supreme Ct., [M Dept.,) Sept, 1878. 
 McCabe v. Dutchess Co. Mut. Ins. Co., 14 Hun 
 -599. 
 
 200. Compensation of ag-ents. The 
 contract between plaintiff, an insurance agent, 
 and the defendant company, provided that 
 plaintiff's compensation was to be a commission 
 ijpon premiums paid to the company on policies 
 procured by him. It further provided that the 
 company " agrees to advance to the parly of the 
 second part [plaintiff] each month, the sum of 
 $175, in addition to the foregoing commissions, 
 
 such allowance to be charged against his com- 
 mission account." It also provided that upon 
 repaying the sums so advanced, plaintiff should 
 receive an additional commission on premiums. 
 Hdd, that the monthly advances were to be re- 
 ceived by plaintiff absolutely, in addition to his 
 commissions, and were not to be repaid by him, 
 unless he should elect so to do in order to re- 
 ceive the higher commission. — Supreme Ct., (4<A 
 Sept.,) Jan., 1878. Hahn v. North American 
 Life Ins. Co., 13 Hun 195. 
 
 201. By a contract between plaintiff and F., 
 the latter was appointed plamtiff's general 
 agent, with authority to effect assurances upon 
 lives, and to appoint sub-agents. F. was to 
 receive a specified salary and office expenses ; 
 and in addition, as commission, certain per- 
 centages upon original and renewal premiums 
 received by plaintiff upon policies procured to 
 be issued by F. ; when the premiums were col- 
 lected by Other agents, the expenses of collec- 
 tion to be deducted from such commissions. 
 Either party had the privilege of terminating 
 the contract by giving three months' written 
 notice. Plaintiff gave the notice required. In 
 an action upon a bond given by defendants as 
 
 -sureties for F. — Sdd, that the right of F. to 
 commissions upon policies procured through his 
 agency continued after the termination of the 
 contract, and as long as any of the policies were 
 kept in force by renewals ; that as soon as a 
 policy was issued, through F.'s agency, he 
 acquired a right to such commissions dependent 
 upon the collection of the renewal premiums 
 by plaintiff; and that defendants were entitled 
 to have allowed the agreed commissions upon all 
 renewal premiums received by plaintiff. — &. of 
 App., June, 1879. Hercules Mut. Life Assur- 
 ance Soc. V. Brinker, 77 N. Y. 435, 444. 
 
 202. The presumption, in the absence of 
 evidence, was in favor of the existence rather 
 than the lapse or cancellation of a policy ; and, 
 as the facts were in the knowledge of plaintiff 
 and could not be known to defendants, the bur- 
 den was upon plaintiff to show the facts, if any 
 of the policies so procured by F. had lapsed, or 
 if the renewal premiums had not been paid. 
 n. 445. 
 
 3. Dissolution, receiver, winding up, aie. 
 
 203. Jurisdiction. It is questionable 
 whether a suit to wind up a foreign company, 
 or to interfere with its affairs, can be maintained 
 in this state. — Com. Pleax. Taylor v. Charter 
 Oak Life Ins. Co., 59 How. Pr. 468. 
 
 204. Effect of appointment of re- 
 ceiver. Attorneys engaged in proceedings to 
 wind up an insolvent insurance company, can- 
 not, after the appointment of a receiver in one 
 county, by stipulation, obtain an ex parte order 
 changing the place of trial, in order to hamper 
 the receiver and the court whose officer he is. — 
 Supreme Ct., {Alb.Sp. T.,) July, 1879. People v. 
 Globe Mut. Life Ins. Co., 57 How. Pr. 481. 
 
 205. Subsequent rights of policy- 
 holders. Where the assets of an insolvent 
 life insurance company have passed into the 
 hands of a receiver, appointed in proceedings 
 under the general insurance law, the holder of a 
 policy which matured by the death of the in- 
 sured prior to the appointment of the receiver, 
 has no legal right to demand an adjustment and 
 payment of his claim before a distribution of 
 
234 
 
 INSURANCE, VI. 
 
 tne assets among all the creditors entiiled to 
 share therein. If the court has the power to 
 direct the payment of such a claim without 
 awaiting the presentation and liquidation of all 
 outstanding claims, it is within its discretion, 
 and the exercise of this discretion is not review- 
 able here.— Ci. of App-, Nov., 1877. People, 
 ex rel. Att'vGen., v. Security Life Ins. Co., 71 
 N. Y. 222. 
 
 206. It seems, that the court, to whom such 
 an application is presented, should require a, 
 very clear case, not only that tlie claim is a 
 valid, legal demand, but that the assets ready 
 to be distributed, are abundantly sufficient to 
 pay all charges upon the fund. lb. 
 
 207. The pendency of proceedings to wind 
 up an insolvent life insurance company, 
 organized under the general act of 1853, in the 
 Supreme Court, will not prevent the Common 
 Pleas from taking jurisdiction of an equitable 
 action to ascertain and enforce the rights of 
 policy-holders in the company. — Oom; Pleas, 
 June, 1877. Bedell v. North Amer. Life Ins. 
 Co., 7 Daly 273. 
 
 208. Right of receiver to possession 
 of assets. ^ When the securities of an insolv- 
 ent insurance company deposited with the in- 
 surance department have been converted, into 
 money, a receiver appointed under Laws of 1869, 
 ch. 902, is entitled to the money, immediately, 
 and the superintendent of insurance has no right 
 to withhold the same, until the receiver is ready 
 to malce distribution. — Supreme Ct., {Alb. Sp. T.,) 
 June, 1879. Attorney-General v. North Ameri- 
 can Ins. Co., 58 How. Pr. 197 ; affirmed 18 Hun 
 470.* 
 
 But a receiver appointed under Laws of 1853, 
 ch. 463, is not entitled to have tramferred to him 
 the securities so deposited. — Supreme Ct., (3d 
 Dept.,) Jan., 1878. Matter of Reserve Mut. Life 
 Ins. Co., 13 Hun 115 ; affirmed 74 N. Y. 617. 
 
 209. Enjoining suits by policy-liold- 
 ers. The Supreme Court has power, in a pro- 
 ceeding before it,under Laws of 1853, ch. 463, and 
 Laws of 1869, ch. 902, to wind up theafiairs and 
 distribute the assets of an insolvent insurance 
 company, to enjoin an action by a policy-holder 
 against the receiver. The remedy of all the 
 creditors is in the proceeding for dissolution and 
 winding up.— Cf'. of App., May, 1879. Attorney- 
 General V. North American Life Ins. Co., 6 Abb. 
 N. Cas. 293 ; S. C, 56 How. Pr. 160. 
 
 210. Upon application to the Supreme Court 
 by the attorney-general under the general in- 
 surance act, (Laws of 1853, ^ 17, ch. 463 ; Laws 
 of 1869, ch. 902,) against the G. L. Ins. Co , said 
 corporation was dissolved and a receiver ap- 
 pointed. The decree was granted upon return 
 of an order to show cause, service whereof was 
 admitted by the attorney of the corporation, who 
 appeared upon the hearing. At the time of the. 
 appointment an action was pending in the New 
 York Common Pleas, brought by policy-holders 
 against said corporation and others to recover 
 its assets alleged to have been illegally diverted. 
 After the appointment of the receiver he was, 
 upon motion, made a party defendant in said 
 action. He also brought an action to recover 
 the assets so alleged to have been illegally trans- 
 ferred, and upon tiis motion an order was grant- 
 ed perpetually staying proceedings in said action 
 in the Common Pleas. IJild, that the Supreme 
 
 * The General Term decision was affirmed in the 
 Court of Appeals, February 24th, 1380. 
 
 Court acquired jurisdiction of the proceedings^ 
 by the presentation of thj petition of the attor- 
 ney-general, and of the corporation on the ap- 
 pea,rance by its attorneys, and therefore had 
 jurisdiction to grant the decree ; that the right 
 of action to recover said assets vested in the re- 
 ceiver upon his appointment ; that the Supreme- 
 Court had power, in its discretion, to grant the 
 order slaying proceedings ; and that this court, 
 could not interfei-e with its exercise. — Ot. of 
 App., May, 1879. Attorney-General v. Guard- 
 ian Mut. Life Ins. Co., 77 N. Y. 272. 
 
 211. The duties of an actuary appoint- 
 ed by the receiver of an insurance company, 
 pursuant to Laws of 1869, ch. 902, are those- 
 only whic'h are specified in § 8 of tlie act, and 
 terminate with his r^ort, unless continued by 
 the court. His compensation must be-fixed by 
 the court, and is not under the control of thp re- 
 ceiver, superintendent of insurance, or actuary^ 
 himself.— 5'«»reme Gi., {Alb. Sp. T.,) June, 1878. 
 Matter of North American Life Ins. Co., 55 
 How. Pr. 465. 
 
 212. The actuary's report. Where, itt, 
 proceedings instituted by the attorney-general 
 against a life insurance company under the pro- 
 visions of the insurance act of 1869, (Laws of 
 1869, ch. 902, ) the company has been declared 
 insolvent, and its afiairs put into the hands of a 
 receiver, judicial action thereafter must follow" 
 the statute. Where an actuary has been ap- 
 pointed, and has made his report, this court has 
 no power to send it back. — Cl. ofApp.^ May, 1879- 
 Altorney-General v. Atlantic Mut. Life Ins. Co ,. 
 77 N. Y. 336. 
 
 21S. Where the actuary's report shows that 
 the company is not able to go on with its busi- 
 ness, the assets must be turned into money, lia- 
 bilities paid, and the corporate affairs closed up. 
 The Supreme Court cannot order the receiver tO' 
 call for premiums, and keep up the business of 
 the company, nor can it discharge the receiver 
 •arid give back the property to the corporation. 
 lb.; affirming 15 Hun 84; S. C, at Special 
 Term, 56 How. Pr. 391. 
 
 214. As to the power of'the court, on a mo- 
 tion by the receiver of ah insurance company, 
 for instructions, on the coming in of the actua- 
 ry's report that the company is insolvent, in pro- 
 ceedings under Laws of 1869, ch. 902, providing: 
 that on such report the receiver shall " notify 
 the superintendent thereof," &c., see Matter of 
 Atlantic Mut. Life Ins. Co., 55 How. Pr. 77. 
 
 215. Distribution of assets by re- 
 ceiver. A receiver of the aisets of an insolv- 
 ent life insurance company, appointed under the 
 act of 1853, (Laws of 1853, ch. 463, § 17) so far- 
 as relates to his conduct in the distribution of 
 the assets, or any of the proceedings subsequent 
 to his appointment, is governed by the provis- 
 ions of the Revised Statutes in relation to cor7 
 porations, and by the practice of courts of equity. 
 —Ot. of App., Sept., 1879. People v. Security 
 Life Ins., &c., Co., 78 N. Y. 114 ; modifying 7 
 Abb. N. Cas. 198. 
 
 216. Notice to creditors. Where, upoa 
 the application of the receiver, an order is grant- 
 ed, as required by Rev. Slat. 467, ? 56, for the- 
 publication of notice to creditors, and notice is- 
 duly published, claims not exhibited within the 
 time specified in the no'ice are precluded from 
 sharing in the assets. lb. 
 
 217. Relative rights of policy-hold- 
 ers and other creditors. The holders of 
 
INSUEANCE, VI. 
 
 2;3.> 
 
 running or unmatured life policies are not en- 
 titled to have a pro rata portion of the premiums 
 paid hy them refunded before payment to other 
 creditors. The provision of Eev. Stat. 470, § 75, 
 providing for refunding to the holders of open 
 and subsisting contracts in the nature of insur- 
 ance a pro rata portion of the premium, does not 
 apply to life insurance ; it applies only to flre, 
 marine or other insurance having a definite 
 term to run. The holder of an unmatured life 
 policy is, however, a creditor, and is entitled to 
 share with other creditors in the assets ; he is 
 not to be regarded as a partner in the company, 
 at least in the case of a stock corporation. I b. 
 
 218. Ascertaining value of unma- 
 tured life policies. Where a receiver, in 
 fixing the value of unmatured life policies, used 
 the tables annexed to the insurance act of 1868, 
 (Laws of 1868, ch. 623)— ifeM, proper. lb. 
 
 219. The excess of premiums paid during the 
 early years of a policy over the sum required 
 to carry the risk for those years, may be taken 
 by the receiver as the measure of present value, 
 assuming that there lias been no change in the 
 value of the life insured except that caused by 
 efflux of time. lb. 
 
 220. Where the receiver held notes given by 
 policy-holders in part payment of premiums — 
 Seld, that it was proper to off-set the amounts 
 due upon such notes against the value of the 
 policies, and to declare and pay a dividend upon 
 the balance only. lb. 
 
 221. The value of an unmatured paid-up 
 policy is to be computed in the same manner as 
 that of a policy upon which annual premiums 
 are paid. lb. 
 
 222. The referee to whom it was referred to 
 take proof and report as to the disposition of the 
 assets, held that certain annuitants were entitled 
 to receive the present value of their annuities, 
 computed upon the basis of the Northampton 
 tables, with interest at six per cent. Hdd, no 
 error. lb. 
 
 223. — of death claims. Death claims 
 maturing before the dissolution of the company 
 are not entitled to a preference over the claims 
 of holders of unmatured policies ; all are en- 
 titled to share alike in the assets, in proportion 
 to the amount of their claims. lb. 
 
 224. A policy-holder died after the appoint- 
 ment of a receiver, and before tlie time up to 
 which the premium upon his policy had been 
 paid. His administrator served upon the re- 
 ceiver proofs of his death before the expiration 
 of the time, under the published notice, for the 
 presentation of claims. The referee allowed 
 only the reserve value of the policy at the date 
 of the dissolution of the company, computed in 
 the same manner as the values of running poli- 
 cies were computed. Held, error; that the 
 claimant was entitled to be allowed (he present 
 value of the policy at the time of the dissolu- 
 tion of the company, i. e., the sum insured^ess 
 the interest up to the time when, by the terms 
 of the policy, the company was requii-ed to pay 
 it. lb. 
 
 225. Costs — ordering receiver to 
 pay. As to the power of the court to order 
 payment to counsel employed by the company 
 out of funds in the hands of the receiver, 
 though they were unsuccessful in the litigation, 
 see Barnes v. Atlantic Mut. Life Ins. Co., 59 
 How. Pr. 239. 
 
 226. Review of nroceedings to wind 
 
 up. The decision of the Special Term, re- 
 straining a life insurance company from the 
 further prosecution of its business, and appoint- 
 ing a receiver thereof, upon application of the 
 attorney-general under the insurance law (Laws 
 of 1869, ch. 902, § 7,) is not final. It is for the 
 General Term, and for this court, to critically 
 scrutinize the proceedings in every case, and to 
 determine whether good cause existed for inter- 
 ference, and whether there is sufficient reason 
 for continuing it. — Ct. of App., June, 1878. 
 People V. Atlantic Mut. Life Ins. Co., 74 N. Y. 
 177. 
 
 227'. That determination should be based 
 upon the answer, derived from such scrutiny, to- 
 the question, are the assets of the corporation, 
 sufficient to justify the belief that it may con- 
 tinue the business of life insurance with safety 
 to the public? lb. 
 
 228. Where it appeared by the proofs upoA 
 such application that the assets of the company 
 were less than the amount of the values of tl-e 
 outstanding policies by about one-tenth of thiit 
 amount; that the capital was entirely sunk - 
 that the assets were of a kind not readily con- 
 vertible or available ; that a large share of the 
 missels had been kept as a cash deposit with a 
 private banker, who was an ofiicer of the com- 
 pany, without any agreement as to interest and 
 without security against loss ; that the trustees 
 were not in the practice of holding regular 
 meetings, or of supervising the affairs of th& 
 company ; that dividends were paid without a 
 regular meeting or vote of the board of trus- 
 tees, when there had been losses and a depreci- 
 ation in the value of its assets, and when it was 
 impossible to know whether or not the capital 
 had been impaired — Hdd, that there was suffi- 
 cient cause for inlerference, and that the exer- 
 cise of a sound discretion would not authorize a 
 reversal of the order granting the application ; 
 but that a clause in the order dissolving the cor- 
 poration was improper. lb. 
 
 229. Restoration of assets to enable 
 company to resume business. Th& 
 power of the Special Term to permit an insur- 
 ance company to have its assets taken from the- 
 receiver, in order that it may resume the- 
 transaction of business, doubted, unless in an 
 extreme case. — Supreme Ct., [Alb. Sp. T.,) Sept., 
 1878. Attorney-General v. Atlantic Mut. Lifs- 
 Ins. Co., 56 How. Pr. 391. 
 
 For decisions regulating the organization and 
 management of insurance companies In common 
 with other eorporations, see Cokpokations. 
 
 INTENDMENTS. 
 Appbai, 55-59 ; Evidence, 20-42. 
 
 INTENT: 
 
 Evidence of, and when presumed, ' see Evi- 
 dence, 40. 
 
 Assaults with Special intent, see Assault.. 
 8-10. 
 
 When a Question for the jury, see Questions^ 
 OP Law and Pact, 10, 11. 
 
 Effect given to Intent of testator, in construing: 
 will, see Wilis, V. 
 
236 
 
 INTEREST, I., II.— INTERPLEADER. 
 
 INTEREST. 
 
 I. The Eight to Intebest. 
 II. The Bate; and CoMP0TATioif. 
 
 I. The Rioht to Interest. 
 
 1. Advances. That interest may be charged 
 -on advances made to a oontractor by the city of 
 New York while the work progresses, and up to 
 the time of the confirmation of the assessment, 
 aiotwithstanding a previous custom on the part 
 •of the city authorities to charge interest in such 
 cases only until the time of the completion of 
 •ithe work, see Fellowes ii. Mayor, &c., of New 
 Tork, 17 Hun 249. 
 
 2. When interest begins to run on money ad- 
 •»anced by one partner to the firm, determined 
 jn a case depending upon particular facts — Su- 
 preme a., {1st D^t.,) Nov., 1879. Cheever v. 
 Lamar, 19 Hun 130. 
 
 3. Bills and notes. Interest runs on a 
 promissory note, after its maturity, at the rate 
 -specified therein, until tie note is merged into a 
 
 judgment. — Supreme Ct., {ith Bept.,} Oct., 1879. 
 Andrews v. Keeler, 19 Hun 87. 
 
 4. Deposits. A bank which has fraudu- 
 lently permitted funds on deposit belonging to 
 3, trust estate to be transferred to the individual 
 account of the trustee, is properly chargeable 
 with interest from the time of the transfer. — Ct. 
 ■cf App., Jan., 1878. Holden v. New York and 
 
 Erie Bank, 72 N. Y. 286. 
 
 5. When interest on a deposit is not charge- 
 able in the absence of an agreement to that 
 ■effect, see Boughton v. Flint, 74 N. Y. 476. 
 
 6. Insurance policies ; claims under. 
 By the policy a loss was made payable sixty 
 days after due notice and proof thereof. Held, 
 that plaintiffs were entitled to interest after the 
 expiration of sixty days from the time of furnish- 
 ing proof of loss, not from the time the amount 
 •of loss was adjusted and settled. — -Ct. of App., 
 
 March, 1878. Hastings v. Westchester Fire 
 Ins. Co., 73 N. Y. 141, 152 ; affirming 12 Hun 
 416. 
 
 7. Legacies. The rule that a legacy is 
 payable one year after the testator's death, and 
 bears interest from that time, only applies in 
 the absence of a direction in the will, or other 
 
 •decisive indication therein, wMch, interpreted 
 in the light of the surrounding circumstances, 
 shows a different intention on the part of the 
 testator.— a. of App., Sept., 1878. Wheeler 
 V. Ruthven, 74 N. Y. 428 ; affirming 13 Hun 
 630. 
 
 8. The rule that unless there is contained in 
 . a will a very clear declaration to the contrary, 
 
 interest is allowable upon general legacies only 
 from the expiration of one year from the time 
 letters testamentary or of administration are 
 granted, applied to the facts of the particular 
 •case. Kerr v. Dougherty,* 17 Hun 341. 
 
 9. The rule that, the will being silent on the 
 point, a legacy payable at a future day does not 
 draw interest, daes not apply when the testator 
 Tstauds in the place of a parent to the legatee, 
 •who has no property with which to support 
 JiimseK— Supreme Ct., {2d Dept.,) Feb., 1879. 
 irown V. Knapp,t 17 Hun 160. 
 
 * Said to have been affirmed January 13th, 1880. 
 t Said to have been reversed December 2d, 1879. 
 
 10. Services; claims for. Interest 
 should not be allowed upon anunliquidated claim 
 for services performed for the testator, where no 
 price or time of payment was agreed upon, or 
 can be inferred from the &cts, and where there is 
 no proof of any usage on the subject. — Supreme 
 a., {4th Dept.,) Jan., 1880. Pureell v. Fry, 58 
 How. Pr. 318 ; S. C, 19 Hun 595. 
 
 II. The Eate ; and Comptjtation. 
 
 11. 'When computable from com- 
 mencement of action. In an action upon 
 a claim of such a nature that it does not draw 
 interest from an earlier date, interest cannot be 
 allowed from the time of the commencement of 
 the action, unless the claim be such that inter- 
 est could be set running by a demand, in which 
 case the commencement of the action is a suffi- 
 cient demand. — O!. of App., Oct., 1879. White 
 V. Miller, 78 N. Y. 393. 
 
 -The authorities upon the subject of the allow- 
 ance of interest in common law actions, collated 
 and discussed, lb. 
 
 12. Compound interest. When an 
 agreement to pay compound interest on money 
 due under a contract will not be implied from 
 an indorsement to that effect by the creditor on 
 the back of the debtor's copy of the contract, 
 and its return to the debtor so indorsed, and re- 
 ceipt by him without objection, see Jones v. En- 
 nis, 18 Hun 452. 
 
 INTERPLEADER. 
 
 1. WTien proper. When, through a change 
 of public officers, the title to moneys held on de- 
 posit in the name of officials is questioned, the 
 depositary of the funds may interplead the con- 
 testing parties, in order that the funds may reach 
 the proper custody. — Su/preme Ct., (ls( Dept., 
 Sp. T.,) March, 1879. German Exchange Bank 
 V. Commissioners of Excise, 6 Abb. N. Cas. 
 394. 
 
 2. Plaintiff's complaint alleged, in substance, 
 that the county treasurer of S. county, pretend- 
 ing to act under an authority to issue notes for 
 money advanced to the county to the amount of 
 $20,8U0.44, issued seventy-three notes to the 
 amount of $138,631, which were held by fifty- 
 three persons, the defendants herein; that said 
 notes were not valid or legal debts against the 
 county except to the extent of $20,800.44, which 
 the county was willing to pay ; that thirty-one of 
 the defendants had brought separate suits on 
 their notes, and the other defendants intend to 
 do so ; that plaintiff was unable to ascertain who 
 are the rightful owners of the debt owing by the 
 county, or how much thereof is due to either of 
 the defendants, and that a separate litigation 
 with each defendant would subject plaintiff to 
 great expense. Upon demurrer to the com- 
 plaint— 
 
 Hdd, 1 That upon the facts stated a case was 
 made, entitling the plaintiff, upon equitable 
 principles, to implead the holders of the notes 
 for the purpose of having their respective rights 
 and the liability of the county determined in 
 one action ; that the claims were of the same 
 general character, and the action was maintain- 
 able for the purpose of preventing a multiplicity 
 of suits and to protect plaintiff against the haz- 
 ard of a double recovery. 
 
INTERPLEADER— JOINT STOCK COMPANIES. 
 
 237 
 
 2. That the question as to whether, notwith- 
 standing the limitation of authority, persons 
 dealing with the treasurer and advancing money 
 in good faith upon his assurance that the trans- 
 action was a part of the authorized dealing, was 
 not presented by the demurrer. — Ot. of App., 
 May, 1879. Supervisors of Saratoga Co. v. 
 Deyoe, 77 N. Y. 219; S. C, 57 How. Pr. 134; 
 reversing 15 Hun 526. 
 
 3. Substitution of defendants under 
 old code. In replevin, an order of inter- 
 pleader, under the provisions of the old code, 
 substituting in place of a defendant who has 
 possession of the property and refuses to deliver 
 It to the sheriff, a third person who claims the 
 property, but who has not made the affidavit of 
 title and right of possession required by J 216, is 
 improper. — Com. Pleas, Dec., 1878. Lynch v. 
 St. John, 8 Daly 142 ; S. C, 56 How. Pr. 144. 
 
 4. Costs. An order of interpleader allowed 
 
 " the costs of the petitioner herein." Held, that 
 costs in the action to time of motion was meant. 
 —Superior Ct., Nov., 1879. Bowery Savings- 
 Bank v. Mahler, 45 Superior 619. 
 
 INTERPRETATION. 
 
 Of Contraxits, see Bills op ExcHAuaB, 1-3 ; 
 Chattel Mortgages, 1-7 ; Contbaots, IV. ;. 
 Deeds, III.; Mortgages, II. ; Sales, I. ; Ven- 
 dor AND Purchaser, I.. 
 
 Of Corporate charters, see Corporations ^ 
 and the titles of the various distinct corporate- 
 bodies. 
 
 Of Statutes, and CcmstitulioruU provisions, see- 
 Constitutional Law, 8, 9 ; Statutes, IL 
 
 Of Wills, see Wills, V. 
 
 JAIL LIMITS. 
 
 EzEcunoN, 42, 43 ; Imprisonment, 1. 
 
 JOINT DEBTORS. 
 
 Proceedings to bind, by judgment, when Not 
 originally summoned, see Judgment, 4, 5. 
 
 JOINT STOCK COMPANIES. 
 
 1. Organization, and proof thereof. 
 
 It is not necessary to the existence of a joint 
 stock association, consisting of seven members 
 or more, that there should be any subscription 
 in writing by its members ; and, although to en- 
 dure for longer than oile year, it is not within 
 the statute of frauds. The statute requires no 
 greater formalities in that respect for its forma- 
 tion than for the formation of an ordinary part- 
 nership. — Ot. of App., Sept., 1878. Nat. Bank 
 of Schaylerville v. Van Derwerker, 74 N. Y. 
 234. 
 
 2. In an action against alleged shareholders 
 in such an association, it appeared that a meet- 
 ing of the association was held, the name of the 
 association agreed upon, a constitution and by- 
 laws adopted, president and directors appointed, 
 and that under such organization business was 
 conducted for a considerable length of time. 
 Held, the proof was sufficient to establish the 
 existence of the association. lb. 
 
 3. Po-wer to hold land. The right of a 
 joint stock company to hold real estate can be 
 called in question only by the people. — Supreme 
 Ct., [Uh Dept.,) June, 1880. Howell v. Eaip, 
 21 Hun 393. 
 
 4. Rights of members. A member of a 
 joint stock company may maintain an action 
 
 against the company, to recover damages occa- 
 sioned by the maintaining by it of a private- 
 nuisance. — Supreme Ct., (3d Dept.,) May, 1878. 
 Saltsman v. Shults, 14 Hun 256. 
 
 5. How sued. Under Laws of 1849, eh, 
 258, ^ 1, a joint stock association, consisting of 
 seven or more shareholders, is properly sued in 
 the name of its president. Nat. Bank of Schuy- 
 lerville v. Van Derwerker, supra. 
 
 6. Pleading and evidence. The com- 
 plaint in an action against O., " president of the 
 Old Saratoga Union Mercantile Association," 
 alleged that defendant was president of said as- 
 sociation, a joint stock association, consisting of 
 seven or more stockholders, and, as such presi- 
 dent, made his promissory note ; that when said 
 note became due, it was duly presented " to the 
 said defendant " for payment, and that said O.,. 
 as president of said association, defendant, is 
 justly indebted thereon, &c. Held, that the com- 
 plaint sufficiently alleged the making of the 
 note by the association ; and that the debt there- 
 by created was owing from it, and not from 0, 
 personally, lb. 
 
 7. The alleged Indebtedness of the associa- 
 tion was certain promissory notes, which were 
 proved to have been signed by the officers of the- ' 
 association authorized to bind it, and discounted 
 by plaintiff. Held, that it was not necessary to 
 prove that the money lent was actually applied 
 for the benefit of the association. lb. 
 
 8. The judgment and execution thereon, 
 in an action against such an association, is prop- 
 erly against the president as such, and they 
 bind the joint property of the association, not 
 the individual property of the president. Ih. 
 
 JOINT TENANTS. 
 
 Tenants in Common. 
 
238 
 
 JUDGMENT : DECREE, I., II. 
 
 JUDGMENT: DECREE. 
 
 I. Exiles Eelatiye to Parties. 
 II. Rendition and Entry of Judgments. 
 
 III. Interpretation and Effect. Con- 
 
 clusiveness. 
 
 1. In general, 
 
 2. How far conclusive. 
 
 3. Collateral impeachment. 
 
 IV. Lien. Priority. 
 
 V. Satisfaction and Discharge. 
 VI. Opening, Amending and Vacating. 
 VII. Enforcement. 
 VUI. Judgments by Confession. 
 IX. Judgments of Courts of Other 
 States, and of the Federal 
 Courts. 
 
 I. Rules Relative to Parties. 
 
 1. Judgment against defendant not 
 served, and -who does not appear. A 
 valid judgment in personam cannot be obtained 
 against a non-resident of the state who is not 
 personally served with process and does not ap- 
 pear in the action. A state cannot authorize 
 ■such a judgment which will bind property not 
 within the state at the time, and not proceeded 
 against in rem, in satisfaction of the claim. — Ot. 
 ofApp., Jan., 1879. Bartlett v. Spicer, 75 N. Y. 
 528 ; affirming 12 Hun 398. 
 
 2. The court will refuse to permit a judg- 
 ment in an equitable action, affecting partner- 
 ship assets in which creditors are interested, to 
 be entered by consent of plaintiif and one of the 
 •defendants, his co-partner, where another defend- 
 ant, the assignee for benefit of creditors of plain- 
 tiffs interest in the firm, has not had notice of 
 the action or appeared therein, and where the 
 form of judgment consented to would affect 
 ■creditors not before the court, and would give 
 plaintiff's attorney a prior lien upon the assets 
 for costs and counsel fees to an indefinite amount. 
 — Com. Pleas, June, 1877. Plonsky v. Japha, 7 
 Daly 226. 
 
 3. Judgment against joint debtor 
 ■who fails to appear. The power of the Su- 
 preme Court to allow a judgment to be entered 
 against one joint debtor, on his failure to appear 
 and answer, while an issue raised by the answer 
 of another joint debtor is still pending, consid- 
 ered. — Supreme Ot., {ith Dept.,) Jan., 1880. 
 Orleans Co. Nat. Bank v. Spencer, 19 Hun 569. 
 
 4. Proceedings to bind joint debtors 
 not originally summoned. The proceed- 
 ing provided for by Code of Pro., (old code,) 
 J 375, to bind a joint debtor not originally sum- 
 moned, is a special statutory proceeding, and a 
 party defendant is entitled to twenty days' no- 
 tice, even though the suit be in the Marine Court 
 •of the city of New Yoik— Marine Ct., {So. T.,) 
 May, 1880. Kernochan v. Bland, 59 How. Pr. 97. 
 
 5. An action was brought against two persons 
 alleged to be joint debtors. One was sued by a 
 ffctitious name. He did not appear. The other 
 appeared and defended. The judgment record 
 showed a full and absolute judgment entered 
 upon a personal service of the summons and com- 
 plaint on the person designated by the fictitious 
 
 name, and upon verdict as to the other. Hdd, 
 that Code of Pro., I 375, relating to proceedings 
 against joint debtors, &c., did not apply.— Su- 
 perior CI., Nov., 1878. Freeman v. Barrowcliffe, 
 44 Superior 313. 
 
 6. Judgment in favor of one of sev- 
 eral defendants. A final judgment for one 
 of several defendants, upon demurrer to the 
 complaint, is, so far as the causes assigned for 
 demurrer are sustained by the judgment, as 
 complete an adjudication in his favor as would 
 be a judgment of non-suit on trial ; and plain- 
 tiff cannot nullify its effect by obtaining an ex 
 parte order discontinuing the action as to such 
 defendant. — Ct. of App., Jan., 1879. Stanton v. 
 King, 76 N. Y. 585. 
 
 II. Rendition and Entry or Judgments, 
 
 7. Entry of interlocutory judgment 
 in an action for an accounting ; when and how 
 entered ; what may be considered on motion for, 
 see Hathaway v. Russell, 45 Superior 538. 
 
 8. Entry of judgment after death of 
 a party. Distinction between " opin- 
 ion " and " decision." Where, in a case 
 tried by the court, a party dies before the " de- 
 cision " is actually signed or rendered against 
 him, such decision and all subsequent proceed- 
 ings, including the judgment entered thereon, 
 are void under Code of Civ. Pro., § 765, 
 although an opinion in duplicate, directing the 
 findings of facts and conclusions of law, and 
 giving the reasons therefor, has been signed and 
 delivered by the justice to the respective attor- 
 neys before such party's death. — Supreme Ct., 
 {Sp. T.,) July, 1880. Adams v. Nellis 59 How. 
 Pr. 385. 
 
 9. The decision intended by Code of Civ. 
 Pro., U 763, 765, 1010, 1022, is the written find- 
 ings of facts and conclusions of law, with the 
 direction for the final judgment to be entered, 
 which must constitute a part of the judgment- 
 roll, lb. 
 
 10. The cause is not removed from the au- 
 thority of the trial court, but remains within its 
 control until such a decision is signed and filed ; 
 and although the justice may have signed and 
 delivered his opinion stating the facts, conclu- 
 sions of law, and the judgment that Should be 
 entered, other and different findings and con- 
 clusions may properly be made and a different 
 judgment directed from that stated to be proper 
 in the opinion. Jb. 
 
 11. Entry of judgment upon defend- 
 ant's offer to allO'w judgment. An offer- 
 to allow judgment for an amount specified- 
 therein, signed by defendant's attorney, but to 
 which the affidavit required by Code of Civ. 
 Pro., ? 700, is not annexed, is a nullity, and 
 plaintiff is not required either to accept or re- 
 ject it.— Supreme Ct., (Sp. T.,) Jan., 1879. 
 Eiggs V. Waydell, 56 How. Pr. 247. 
 
 12. A consent that judgment be entered, is 
 equivalent to an offer of judgment. — Cl. of App., 
 April, 1878. White v. Bogart, 73 N. Y. 256. 
 
 13. — on finding by the court. A 
 written opinion delivered by a deceased judge,, 
 which does not state, separately, the facts found 
 and the conclusions of law, and which does not 
 direct judgment to be entered thereon, nor in- 
 dicate to which party costs are awardsd, does 
 not authorize another judge to direct the entry 
 
JUDGMENT : DECREE, II., III. 
 
 239 
 
 •of judgment upon it. — Superior Ct., {Sp. T.,) 
 Aug., 1880. Weyman v. Nat. Broadway Bank, 
 -59 How. Pr. 331. 
 
 14. Under Code of Civ. Pro., § 1228, declar- 
 ing that judgments on the decision of the court 
 may be entered " after thfe expiration of four 
 •days from the filing of the decision, * * * 
 and the service upon the attorney of the ad- 
 verse party of a copy thereof, but not before," 
 four full calendar days must elapse after the 
 filing of a decision and notice thereof before 
 judgment can be properly entered. — Ci. of App., 
 JVot., 1878. Marvin v. Marvin, 75 N. Y. 240. 
 
 But an entry of the judgment within the 
 four days, is an irregularity merely ; and when 
 the party against whom the judgment was en- 
 tered has not been prejudiced thereby, it will 
 not be set aside for such irregularity. — Superior 
 <Jt., Nm>., 1879. Kidd v. Phillips, 45 Superior 633. 
 
 15. Fovrev of the clerk to enter judg- 
 ment. In an action of trover, judgment by 
 default can .be entered only on application to the 
 <x>aTt.— Marine a., {Sp. T.,) Sept., 1880. Hor- 
 *on V. La Due, 59 How. Pr. 454. 
 
 16. A paper claimed to be a decree of the 
 ■surrogate of New York, not signed by him, 
 3but indorsed " filed " by the clerk, without any 
 other evidence of its entry in the minutes nor 
 any record of the proceedings — Held, not a valid 
 decree. — Supreme Ct., {1st Dept.,) Dec., 1876. 
 McNaughton v. Chave, 5 Abb. N. Cas. 225. 
 
 17. What relief may be granted. A 
 defendant, by not answering the complaint, does 
 not admit that plaintifi' is entitled to the relief 
 •demanded against him, but only that he is 
 entitled to such relief as the facts properly al- 
 leged' authorize. — Ot. of App., Sept., 1879. Ar- 
 ,gall V. Ktts, 78 N. Y. 239. 
 
 18. Where a complaint alleges facts showing 
 •a cause of action for damages at law, and such 
 damages are prayed for, (equitable relief being 
 also asked for,) and the case is tried without 
 objection as an equity case, the court may award 
 damages, although no equitable relief is given. 
 - — Com. Pleas, Jwne, 1878. Seeley v. Nat. Ex- 
 •change Bank of New York, 8 Daly 400. 
 
 19. In an action to determine conflicting claims 
 ito a policy of life insurance, when a provision in 
 the judgment enjoining the collection of another 
 
 judgment against the insurance company upon the 
 policy, is proper, see Barry s.Brune, 71 N. Y.261. 
 
 20. When, in an action for conversion of a 
 note made by plaintiiF, the judgment should 
 provide for the concellation and surrender of the 
 note in satisfaction of the damages, see Thayer 
 «. Manley, 73 N. Y. 305. 
 
 21. The proper provisions as to payment, in 
 .3. judgment in an action to enforce the individual 
 liability of stockholders, discussed. — Com. Pleas, 
 April, 1878. Agate v. Sands, 8 Daly 66. 
 
 22. Provisions respecting costs. A 
 judgment for costs carries the general costs of 
 the action from beginning to end, except such 
 as are specially adjudged to the adverse party. 
 These should be offiet, and judgment entered 
 for the excess, only.— iSuperior Ct., {&p. T.,) Aug., 
 1880. Bust V. Hauselt, 8 Abb. N. Cas. 148, 
 158 ; S. C, 59 How. Pr. 389. 
 
 III. Inteepeetation and Effect. 
 
 . SIVBNBSS. 
 
 CoNciir- 
 
 1. In general. 
 23. Judgment of no force unless 
 
 court had jurisdiction. Where a court 
 had no jurisdiction to pronounce a decree at the 
 time it was made, the denial of a motion to 
 open it will not make it valid, or constitute res 
 adjudicata so as to bar a subsequent action. — 
 Superior Ct., May, 1878. Chapman v. Phoenix 
 Nat. Bank of New York, 5 Abb. N. Cas. 118 ; 
 S. C, 44 Superior 340. 
 
 24. Effect of recital of jurisdictional 
 flacts. Want of jurisdiction renders void the 
 judgment of any court, whether the same is a 
 court of superior or inferior, of general or 
 limited jurisdiction. The recital of' jurisdic- 
 tional facts in the record of a judgment of any 
 court, is not conclusive, but only prima facie 
 evidence of the facts recited; anil a party, 
 against whom a judgment is ofiered, is not 
 estopped or prevented by the fact of such recitals 
 appearing, from establishing by evidence that 
 those recitals were untrue. lb. 
 
 But such recital is sufficient per se to uphold 
 the judgment if uncontradicted. — Ct. of App., 
 April, 1877. Dayton v. Johnson, 69 N. Y. 419, 
 425. • 
 
 25. A recital in a judgment-roll, in an action 
 for foreclosure, that a defendant was served with 
 process and appeared therein, is not conclusive, 
 and does not preclude such defendant, in an 
 action brought by liim to foreclose a junior 
 mortgage, from showing that he was not m fact 
 served, and that he did not appear. — Ct. of App., 
 Sept, 1877. Ferguson v. Crawford, 70 N. Y. 
 253 ; reversing 7 Hun 25. 
 
 Nor is such defendant precluded by what 
 purports to be an appearance on his behalf, 
 signed by an attorney, attached to the roll, 
 from showing that the paper was a forgery. 
 lb. 
 
 There is no distinction in these respects be- 
 tween the effect of domestic and foreign judg- 
 ments, and the principle applies as well to the 
 records of judgments of courts of general as of 
 limited jurisdiction. 76. 
 
 26. Effect of the reversal of the 
 former judgment. The reversal of a judg- 
 ment destroys its efficacy as an estoppel. — Ct. of- 
 App., May, 1879. Smith v. Frankfield, 77 N. Y. 
 414, 419. 
 
 27. This action was -by a grantee, for an al- 
 leged breach of covenant of seizin and of a good 
 right to convey, contained in his deed. Plaintiff' 
 claimed that, before the deed was executed, de- 
 fendant had contracted to convey the premises 
 to another, which contract was in full force at 
 the time of the execution of said deed. The 
 only proof of the allegation was a judgment in 
 an action brought by B., as the holder of the al- 
 leged contract, against defendant, to enforce the 
 same, whereby it was adjudged that the contract 
 was in force, and a sale of the premises was dir 
 rected. Such action was brought, and lis pendens 
 therein filed before plaintiff' took his convey- 
 ance. Plaintiff) after said judgment, abandoned 
 the premises. Plaintiff recovered judgment, 
 and thereafter, and pending an appeal therefrom, 
 B.'s judgment was reversed on the meajts. 
 Defendant thereupon moved to open the judg- 
 ment herein, on the ground that the reversal of 
 B.'s judgment had deprived it of any force as an 
 estoppel. The General Term vacated the judg- 
 ment and granted a new trial. 
 
 Held, 1. That, assuming B.'s judgment estab- 
 lished plaintiff''s right to recover, the reversal 
 thereof destroyed its efficacy and subverted the 
 
240 
 
 JUDGMENT: DECREE, III. 
 
 ground of recovery herein ; that the court below 
 had power to relieve defendant by vacating the 
 judgment ; that motion for that purpose was in 
 the nature of a motion for a new trial on newly- 
 discovered evidence, and wiis addressed to the 
 discretion of the court below, which discretion 
 was properly exercised here. 
 
 2. That the case was not affected by the fact 
 that plaintiff had, in reliance upon the correct- 
 ness of B.'s judgment, allowed the property to be 
 sold upon mortgages which he had assumed to 
 pay. Xb. ; affirming 13 Hun 489. 
 
 2. Haw far amdnsive. 
 
 28. The general rule. Where the parties 
 in the former suit were the same, or are privies 
 in blood, estate or law, and where the matters 
 coming in question are the same, then the 
 former judgment is, as a plea, a bar, and, as 
 evidence, conclusive. — Ct. of App., Feb., 1879. 
 Verplanck v. Van Buren, 76 N. Y. 247, 257. 
 
 29. Its limits and exceptions. As to 
 whether the doctrine of res adjvdieata \«ll apply 
 to an order made upon special motion, qwzrt. — 
 Ct. of App., Sept., 1877. Boon v. Moss, 70 N. Y. 
 465. 
 
 30. A conclusion of a court is not res adju- 
 dicala when it is not a decision on the merits. — 
 Ct. of App., Sept., 1878. Matter of Spelman v. 
 Terry, 74 N.Y: 448. 
 
 31. What actions are barred. A judg- 
 ment in favor of a carrier, in an action by him 
 to recover freight, is a bar to an action by the 
 owner of the goods shipped to recover damages 
 for destruction of the property, caused by a fail- 
 ure on the part of the carrier to perform his 
 contract of transportation. Where the goods 
 are so destroyed, the shipper is excused freight, 
 the failure to perform is a defence, going to the 
 whole cause of action for freight, and may be 
 proved under the general issue. — Ct. of App., 
 April, 1879, Dunham ». Bower, 77 N. Y. 76. 
 
 32. A judgment in a mechanics' lien case, 
 which decides that certain materials were fur- 
 nished at the request of the contractor, will bar 
 an action by the same parties upon a complaint 
 alleging that such materials were furnished on 
 the owner's request. — Com. Pleas, June, 1877. 
 Toope V. Prigge, 7 Daly 208. 
 
 33. Instances. In an action commenced 
 by a lienee against a lienor, to have his lien ad- 
 judged valid, and enforce payment thereof, the 
 lienor appeared and answered. His answer was 
 struck out by the court, and final judgment 
 given in favor of plaintiff, directing the lienor 
 to pa^ to plaintiff the amount claimed, and ad- 
 judgmg that plaintiff have a lien, as claimed. 
 In an action by the lienee against the lienor, for 
 a conversion of the subject of the lien — Held, 
 that the judgment in the action to have the lien 
 adjudged valid, barred the lienor from contest- 
 ing the existence of the lien or the validity of 
 the contract under which it was claimed. — Su- 
 perior Ct., June, 1879. Hovey v. McDonald, 45 
 Superior 606. 
 
 34. Plaintiffs sued upon various drafts and 
 notes made by defendants, S. & Co., among 
 which was a note, indorsed by defendant M. 
 S. & Co. answered, denying that anything was 
 due to plaintiff on the note indo/sed by M., and 
 offered to allofr judgment to be taken against 
 them, for the amount claimed in the complaint, 
 liter deducting that note, which offer plaintiff 
 
 accepted, and entered judgment on the offer. 
 Subsequently plaintiff sued M. on the note in- 
 dorsed by him. Held, that the action was barred 
 by the judgment entered in the former action. — 
 Supreme Ct., (2d Dept.,) Dec., 1879. Bobinson 
 ■n. Marks, 19 Hun 325. 
 
 35. What actions are not barred. 
 In an action to charge the holder of stock in a 
 manufacturing corporation, issued to pay for 
 property, individually, for the debts of the com- 
 pany, on the ground that the purchase yraa 
 fraudulent, a former action to charge defendant 
 as trustee, with the same debt, because of failure 
 to file the annual report, is no bar. — Ct. of App.,' 
 March, 1878. Douglass v. Ireland, 73 N. Y. 100. 
 
 36. If, after a recovery and satisfaction for 
 one slanderous uttera^ice or libelous publication,, 
 the same defamatory matter is uttered or pub- 
 lished again by the wrong-doer, this is a new 
 injury and another cause of action, and there 
 may be another recovery and satisfaction from 
 him. So if, after a recovery against, two jointly, 
 one of them repeats the wrong there may be 
 another recovery; and a satisfaction of the for- 
 mer recovery is not a satisfaction of the latter. 
 —Ct. of App., Dec., 1878. Woods v. Pangburn,. 
 75 N. Y. 495 ; reoerdng 14 Hun 540. 
 
 3*7. When a mechanic employed at weekly 
 wages and also on commbsion, who is wrong- 
 iiiUy discharged, is not estopped by the judg- 
 ment in a suit for wages, from suing for commis- 
 sions subsequently accruing, see Perry v. Dick- 
 erson, 7 Abb. N. Cas. 466. 
 
 38. Instances. Plaintiff's complaint al- 
 leged that he was duly appointed receiver of th& 
 property of C. ; that C. had entered into a con- 
 tract with defendants Van B., by which they 
 agreed to manufacture brick on tlie lands of C. 
 on shares ; that, for the purpose of defrauding 
 C, the Van B.'s entered into a conspiracy with 
 defendant K., and, in pursuance thereof, madfr 
 fictitious contracts of sale of brick to K. at less 
 than the market price, the brick being then sold 
 in the name of K. at the market price- ; that in 
 an action brought by M., a former receiver of 
 the property of K., for an accounting as to sales,, 
 they proved, presented and reported the con- 
 tracts with K. as a true account of sales, and by 
 so doing, and by concealing the actual sales,. 
 they cheated and defrauded M., as the represen- 
 tative of C, and misled and deceived him, hl» 
 attorney, the court and the referee who tiried 
 said action, they accepting and receiving the 
 fictitious accounts bi sales as true ; and that the- 
 accounting was had on that basis, and judgment 
 rendered for the amount due C, as shown by 
 these false accounts, which judgment was paid 
 and satisfied of record before the discovery of 
 the fraud. Held, that the former judgment was 
 not a bar to an action to recover, as damages re- 
 sulting from the fraud, the share to which C- 
 was entitled, of the sums received on sale of the 
 brick not accounted for, i. e., of the difference 
 between the actual prices for which the brick 
 were sold, and the fictitious prices at which they 
 were accounted for. — CS. of App., Fd>., 1879. 
 Verplanck v. Van Buren, 76 N. Y. 247 ; rexera- 
 ing 11 Hun 328. 
 
 39. The fact that M. was appointed receiver 
 at the instance of, and represented other credi- 
 tors than those who caused .the appointment, 
 did not make the former action one between 
 different parties ; the representative capacity of 
 M. and plaintiff was the same, each representing 
 
JUDGMENT: DECREE, III. 
 
 241- 
 
 the «state and right of C, the one, although ap- 
 pointed at the instance of other creditors, simply 
 succeeding tlie other in title. lb. 
 
 40. Effect of difference in form be- 
 tween present and former action. The 
 principle of the rule as to res adjvdicata, (except 
 in cases of mere motions incidental to an action) 
 has no reference to the form or the object of the 
 litigation in which the particular fact is deter- 
 mined, which is thenceforth to be deemed es- 
 tablished as between the parties to the dispute. 
 The form or object of the prior litigation does 
 not alter the conclusive effect of the judgment 
 or decision. — Com. Pleas, June, 1878. Matter 
 of Eoberts, 59 How. Pr. 136, 143. 
 
 41. Conclusiveness of former judg- 
 ment as to matters not litigated in 
 former action. This action was brought by 
 plaintiff, as assignor for the benefit of creditors 
 of J., for the alleged conversion of goods levied 
 on by defendant R., as sheriff, by virtue of an 
 execution against H., in favor of the other de- 
 fendants. Plaintiff gave in evidence ajudgment- 
 roll in an action brought by him against J., H. 
 and another, to determine the title to the goods. 
 The judgment therein determined that the title 
 to the goods was originally in H. ; that she 
 transferred them to J. as security for money 
 loaned by him, and that by the assignment to 
 plaintiff he acquired J.'s interest. Held, that 
 said judgment established conclusively that title 
 to the property was in plaintiff, good as against 
 the defendants in that action, and every person 
 claiming under them, subsequent to judgment 
 therein ; but that an execution creditor of H. 
 could assail the transfer to J. as fraudulent and 
 void as to him, this not having been adjudicated 
 in the former action ; that defendants therefore 
 were not concluded from showing that the trans- 
 fer to J. was fraudulent in fact, or was fraudu- 
 lent and void, because there was no change of 
 possession, and the written transfer was not filed 
 as a mortgage. — Ct. of App., Oct., 1879. Eay- 
 mond V. Eichmond, 78 N. Y. 351. 
 
 4:Z. The plaintiff, a passenger on the defend- 
 ant railroad, on applying for checks for his 
 trunk, informed defendant's agent that it con- 
 tained articles of merchandise besides his bag- 
 gage, and was required to and did pay extra 
 freight for its transportation. The trunk was 
 lost, and plaintiff brought an action for the value 
 of the contents, describing the articles as "bag- 
 gage." Upon the trial the court refused to 
 allow plaintiff to recover for the loss of the mer- 
 chandiRe, on the ground that it was not included 
 in the word "baggage," used in the complaint. 
 Plaintiff recovered for the loss of his baggage, 
 and brought another action to recover for the 
 merchandise. Seld, that inasmuch as his right 
 to recover for the merchandise was not litigated , 
 in the former action, the judgment therein was 
 not a bar to the prosecution of the subsequent 
 one.— Supreme Q., (2rf Dept.,) Feb., 1880. Mil- 
 lard V. Missouri, &c., K. R. Co., 20 Hun 191. 
 
 43. Conclusiveness of judgment of 
 dismissal. The dismissal of a complaint for 
 failure of proof arising from the absence of a 
 8ub.icribing witness to a writing, the execution 
 of which is in issue, is not a judgment upon the 
 merits, and will not bar a subsequent action. — 
 Com. Pleas, Dec., 1878. Lewis v. Davis, 8 Daly 
 185. 
 
 44. — of justice's judgment. An omis- 
 sion on the part of defendant, sued in a justice's 
 
 court, to appear and plead, or an appearance- 
 and refusal to plead, is not an omission of plain^ 
 tiff's demand ; he must establish it by testimony, 
 the sarpe as if issue had been joined. What- 
 ever, therefore, was requisite to be proved and 
 established as facts by plaintiff in order to ob- 
 tain judgment is, so long as the judgment re- 
 mains unreversed, res adjudimla betii;een the 
 parties, and conclusive upon them. — Ot. of App., 
 Nov., 1878. Blair v. Bartlett, 75 N. Y. 150. 
 
 45. Effect of former adjudication as 
 to persons not parties to former suit. 
 The judgment in an action instituted by the 
 holder of negotiable paper against the indorsers, 
 is not a bar to a subsequent action by the holder 
 against the maker, the latter not having been 
 made a party to the first action, nor notified of 
 its pendency. — U. S. Supreme Gt., Oct., 1879. 
 Brooklyn, &c., E. E. Co. v. Nat. Bank of Eepub- 
 lic, 22 Alb. L. J. 189. 
 
 46. A judgment of ouster, in an action in the 
 nature of a quo warranto, does not conclude one 
 who is in no sense a party to the actibn, and 
 does not take office from, or in any way hold 
 under the defeated party: nor is it competent 
 evidence against him. — Ck. of App., May, 1878. 
 People, ex rel. Gilchrist, v. Murray, 73 N. Y. 
 535, 540 ; reoersing 8 Daly 347. 
 
 47. Doctrine of former adjudication 
 as applied in criminal cases. Plaintiff 
 in error was tried for uttering and publishing a 
 forged check, upon an indictment which was de- 
 fective in alleging that the bank on which the 
 check was drawn, instead of the prisoner, knew 
 of the falsity and forgery of the check. The 
 jury acquitted him. A second indictment, 
 proper in form, was then found, upon which he 
 was tried and convicted, notwithstanding the 
 plea of his former trial and acquittal. — Hdd, 
 that the former acquittal was a bar to a second 
 tnnl.— Supreme Ct., {1st Dept.,) Oct., 1878. Croft 
 V. People, 15 Hun 484. 
 
 3. Oollateral impeachment. 
 
 48. The general rule forbidding it. 
 
 A judgment rendered by a court having power 
 lawfully conferred to deal with the general sub- 
 ject involved in the action, and having juris- 
 dietiction of the parties, although against the 
 facts to sustain it, is not void as rendered with- 
 otit jurisdiction, and cannot be questioned col- 
 laterally. — Suprems Gt., (ith Dept, ) Jan., 1880. 
 Jordan v. Van Epps, 58 How. Pr. 338, 348. 
 
 49. Under the act of 1870 (Laws of 1870, ch 
 359, ? 1,) placing the orders and decrees of the 
 surrogate of the county of New York, upon the 
 same footing as the orders of a court of general 
 jurisdiction, such orders and decrees cannot be 
 questioned collaterally. — Ct. of App., June, 1879. 
 Beams v. Gould, 77 N. Y. 455. 
 
 50. Right to impeach judgment for 
 "want of jurisdiction. He against whom a 
 judgment is relied on, may attack it for want 
 of jurisdiction, and show by evidence dehors the 
 record, the non-existence of jurisdictional facts, 
 and this although the record recites their exist- 
 ence. -Superior Ct., Jan., 1878. Eoderigas v. 
 East Eiver Savings Inst, 43 Superior 217. 
 
 51. — and for fraud. The jurisdiction of 
 a court of another state in which a judgment has 
 been rendefed, is always open to inquiry in the 
 courts of this state, and the judgment may be 
 
 ]6 
 
242 
 
 JUDGMENT : DECREE, III., IV., Y., VI. 
 
 also questioned collaterally for fraud.— Ci. of 
 App., Jan., 1878. Hunt v. Hunt, 72 N. Y. 2!7. 
 
 52. To authorize a disregard of the judg- 
 ment because of fraud, there must have been 
 fraudulent allegations and representations, de- 
 signed and intended to mislead, with knowledge 
 of falsity and resulting in damaging deception. 
 
 AD, ZZl . 
 
 53. That a party not competent as a wit- 
 ness under the laws of the state was permitted 
 to testify in his own behalf is not a fraud, nor 
 does it affect the jurisdiction, and so does not 
 afford reason for questioning the judgment col- 
 laterally, lb. 226. 
 
 54. A gross exaggeration of value, know- 
 ingly and willfully made by a party as a wit- 
 ness in the absence of the adverse party, is suffi- 
 cient evidence of fraud to invalidate a judgment 
 or assessment of damages. — Ct. of App., Jan., 
 1878. Jordan v. Volkenning, 72 N. Y. 300, 306. 
 
 54 o. Where, in an action brought by a hus- 
 band to procure a judgment declaring void the 
 marriage contract, on the ground that a former 
 husband of the wife is still living, and that the 
 former marriage is still in force, it appears that 
 the wife had, before her second marriage, pro- 
 cured, in an action brought by her in a court of 
 this state, having jurisdiction of the person and 
 of the subject matter, a divorce from her for- 
 mer husband on the ground of his adultery, the 
 plaintiff cannot go behind the said judgment 
 and show that it was obtained by the fraud and 
 collusion of the parties thereto, and by false 
 testimony. — Supreme Ct,, [lit Dept,) Jwne, 1880. 
 Kuger V. Heokel, 21 Hun 489. 
 
 IV. Lien. Pbiobity. 
 
 55. Effect of filing transcript to give 
 rise to lien. That the docketing of a trans- 
 script of a judgment in a county other than that 
 in which it was recovered, will make the judg- 
 ment a lien in the county in which the transcript 
 b docketed, notwithstanding the clerk of the 
 county in which the judgment was recovered 
 neglects to enter it on being furnished with the 
 judgment-roll, see Steuben Co. Bank v. Alberger, 
 
 , 78 N. Y. 252. 
 
 56. Priority bet-ween judgment and 
 vendor's lien. When an equitabje lien of 
 the grantor for unpaid purchase money of land 
 
 ■ sold, will take precedence of the lien of a judg- 
 ment against the grantor, which is also a lien on 
 the land, see Lamberton v. Van Voorhis, 15 
 Hun 336. 
 
 57. — between judgment and unre- 
 corded deed. An unrecorded deed has a 
 preference, under the recording act, over a sub- 
 sequent judgment against the grantor, although 
 he remains in possession. — Gt. of App., April, 
 1878. Schroeder v. Gurney, 73 N. Y. 430. 
 
 V. Satisfaction and Dischabgb. 
 
 58. What amounts to a satisfaction, 
 generally. After the holder of a note had 
 recovered judgment against the maker and an 
 accommodation indorser, and had issued an ex- 
 ecution, other judgments were recovered against 
 
 ■ the maker, and executions placed in the hands 
 of the same sheriff. After a levy on personal 
 property of the maker, insufficient to cover the 
 first judgment, the accommodation indorser 
 paid the holder the amount of the first judg- 
 
 ment, and took an assignment thereof. In m\ 
 action to determine conflicting claims to the 
 money realized on the sheriff's sale — Held, that 
 the payment of the judgment by the accommo- 
 dation indorser and the taking of the assign- 
 ment, did not extinguish the judgment, and 
 that he was entitled to have the money in the 
 hands of the sheriff applied upon it. — Supreme 
 Ct., (3d Dept.,) May, 1878. Marsh v. Benedict, 
 14 Hun 317. 
 
 59. Satisfaction by pajrment. This 
 action was upon a judgment; the defence was 
 that the judgment had been settled and dis- 
 charged. It appeared on the trial that, seven 
 years after the rendition of the judgment, de- 
 fendants, who had failed and were negotiating 
 with their creditors for a compromise, agreed 
 with one E., who was the attorney of record for 
 plaintiff, and who assumed to own the judgment, 
 to pay him, in settlement thereof, ten per cent, 
 of the judgment, to procure a release to him of 
 an interest in certain real estate, and to make a 
 settlement of a suit pending against the estate of 
 E.'s father ; they performed their agreement, and 
 E. executed to them a satisfaction of the judg- 
 ment. Evidence was given tending to show thai 
 E. was, in fact, the owner of said judgment; 
 also that plaintiff represented to one of the de- 
 fendants, at the time of the negotiations for a 
 settlement, that E. was the owner and had the 
 right to cancel it, and if defendants settled with 
 him it would be all right, upon which statements 
 defendants relied and acted. 
 
 Held, 1. That the evidence was sufficient to 
 sustain a verdict for defendants ; that plaintiff 
 was estopped by his declaration, even if he re- 
 mained the owner of the judgment. 
 
 2. That the principle that part payment would 
 not amount to a satisfaction and discharge of an 
 entire debt, could not be invoked by plaintiff, as 
 it did not apply when the settlement was part of 
 a general compromise ; also that the release of 
 the interest in the real estate and the settlement of 
 the suits witli the money paid, constituted a full 
 and sufficient consideration ; that even if the 
 settlement was fraudulent as against other 
 creditors, by reason of superior advantages se- 
 cured to plaintiff, he could not complain. — Gt, of 
 App., March, 1877. Blair v. Wait, 69 N. Y. 113. 
 
 60. — by release of debtor held under 
 body execution — While a voluntary dis- 
 charge of defendant, held under a body execu- 
 tion, from arrest, is, in law, a satisfaction of thg 
 judgment, yet where defendant was not arrested 
 before judgment, and disputes plaintiff's 
 right to take him in execution, and moves for 
 his discharge, whereupon plaintiff consents to 
 his release on his stipulating not to sue for false 
 imprisonment, such consent is not voluntary, 
 and the judgment is not thereby satisfied. — Su- 
 preme Ct., (Ist Dept.,) May, 1878. Eawl v. Guil- 
 leaume, 56 How. Pr. 308 ; S. C, 15 Hun 462. 
 
 VI. Opening, Amen'dino and Vacating. 
 
 61. Opening for fraud. A surrogate has 
 power to open a decree made by him on the 
 final accounting of an executor, discharging him 
 from the payment of a legacy, on the ground 
 that a release, upon' which the decree was 
 founded, was obtained by fraud. — Wesic. Surr. Ct., 
 Jan., 1879. Strong v. Strong, 3 Kedf. 477. 
 
 62. Amending. A judgment dissolving 
 a co-partnership and appointing a receiver may 
 
JUDGMENT : DECREE, VI., VII., VIII. 
 
 243 
 
 ibe amended, after appeal therefrom, by the in- 
 ■sertion of a clause directing the receiver to take 
 possession of the partnership property, i>nd 
 ■ordering the parties to deliver the same to the 
 receiver, and by the insertion of a clause autlioriz- 
 ing and directing the receiver to sell and di-i- 
 "pose of the partnership property, " under and 
 puisuant to the usual course and practice of this 
 ■court, and to collect and receive the outstand- 
 ing debts due to the said firm, and to hold and 
 ieep the proceeds of such sales and collections, 
 tintil the final determination of this action or 
 the further order of this coavt— Superior Ot., 
 Nou., 1878. McKelvey v. Lewis, 44 Superior 561. 
 
 63. As to the power of the judge who tried 
 the case, to alter the judgment after its entry, 
 by inserting a provision that the judgment 
 ■creditor hold a portion thereof in trust to pay 
 ■costs of a former suit, see McLean v. Stewart, 14 
 Hun 472. 
 
 63 a. When an application to amend a judg- 
 Tuent in foreclosure, nunc pro tunc, by adding a 
 provision charging a defendant who died pend- 
 ing the suit, with a deficiency, should be denied, 
 see Grant v. Q-riswold, 21 Hun 509. 
 
 64. Time to move to vacate. Where, 
 in an action against partners upon a partnership 
 obligation, separate judgments are entered 
 ■against each of the defendants, instead of a joint 
 
 judgment against all, this is an irregularity 
 merely ; and the court has no power to set aside 
 ■the judgments on motion, unless motion is made 
 -within one year after their rendition. — Ct. of 
 ^PP; April, 1879. Judd Linseed, &c., Co. v. 
 Bubbell, 76 N. Y. 543. 
 
 65. A motion to set aside a judg- 
 ment on the ground of plaintiff's mistake, in- 
 advertence, surprise, or excusable neglect, must 
 be made within one year from the service of a 
 transcript thereof by plaintiff's attorney upon 
 defendant's attorney. The transcript is a notice 
 in writing, and is as effectual as a notice in the 
 ■customary form.— Cfam. Pleas, {Sp. T.,) FA., 1880. 
 Jex V. Jacob, 7 Abb. N. Cas. 453. 
 
 66. Plaintiff recovered $1000 against H. for 
 three libelous publications ; he then brought 
 this action for the same and for two other publi- 
 ■cations in the same newspaper, the five causes 
 ■of action being set forth in separate counts, and 
 a recovery of })4000 was had upon all the counts. 
 Pendingan appeal from thisjudgment the former 
 judgment was paid, and defendant thereupon 
 moved to vacate the latter judgment. Be/d, that 
 the motion was premature. — Ct. of App.,Dec., 
 1878. Woods V. Pangborn, 75 N. Y. 495 ; rever- 
 ing 14 Hun 540. 
 
 6*7. The General Term directed that the 
 judgment be set aside, that the three counts 
 upon the causes of action common to both 
 actions be withdrawn, and a new trial had as to 
 "the others. Sdd, error ; that the court had no 
 power to vacate a judgment in which there was 
 ;no irregularity and which had not been paid in 
 full. lb. 
 
 68. The notice of motion. A motion 
 Jby a judgment debtor to vacate the judgment on 
 the ground that he was an infant at the time of 
 its entry, and was not represented by a guardian 
 •ad litem, is not based upon a mere irregularity, 
 but upon an error in fact, and it is not necessary 
 •on such a motion to specify the error in the notice 
 •of motion, as required by Rule 37, where the mo- 
 tion is based upon an irregularity. — Supreme Ct., 
 il^Dept.,)Ap-il, 1880. Peckj;.Cpler,20Hun534. 
 
 Vn. Enforcement. 
 
 69. By suit — ^leave to sue. An action 
 cannot be maintained on a judgment recovered 
 in a Circuit Court of the United States sitting 
 in this state, where a transcript of the judgment 
 has been filed and the jlidgment docketed in the 
 county clerk's office, witliout first obtaining leave 
 of the court to sue. — Supreme Ct., ( Ulster Oir.,) 
 Jan., 1879. Goodyear Dental, &c., Co. v. Fris- 
 selle, 57 How. Pr. 255. 
 
 TO. Leave to bring an action upon a judg- 
 ment rendered in the Supreme Court between 
 the same parties, may be granted munc pro tunc. 
 —Supreme Ct., [Oswego Sp. T.,) Nov., 1877. 
 Church V. Van Buren, 55 How. Pr. 489. 
 
 71. — by proceedings in contempt. 
 The provision of Code of Civ. Pro., J 1241, de- 
 claring that " a judgment may be enforced " in 
 certain specified cases by piiuishing the judg- 
 ment debtor for a contempt, is not imperative ; 
 the judgment creditor has no claim dejure that 
 the power should be exercised. Its exercise is 
 in the discretion of the court to which applica- 
 cation is made. — Gt. of App., April, 1878. 
 Cochrane v. Ingersoll, 73 N. Y. 613. 
 
 72. — by arrest of defendant about 
 to leave state, &c. Under Code of Civ. 
 Pro., § 2437, before the judgment creditor is en- 
 titledto a warrant of arrest against the judgment 
 debtor, he must establish, to the satisfaction of 
 the judge, by affidavit, that there is danger that 
 the debtor will leave the state or conceal him- 
 self, and that there is reason to believe that he 
 has property which he unjustly refuses to apply 
 to the payment of the judgment. — Supreme Ct., 
 [Sp. T.,) Sept., 1880. Netzel v. Mulford, 59 How. 
 Pr. 452. 
 
 73. Wheye the allegations in the affidavit are 
 ' on belief, and the fact of the defendant's having 
 
 property is a mere matter of inference on the 
 part of plaintiff, based upon the fact that he is a 
 man of extravagant habits, living in the best of 
 hotels, &c., the affidavit is insufficient, lb. 
 
 Vni. Judgments by Confession. 
 
 74. "Who may confess judgment. One 
 
 of several joint debtors cannot confess judgment, 
 so as to bind the^debtors not joining in the con- 
 fession. — Supreme Ct., (Ohamb.,) Dec., 1879. 
 Tripp V. Saunders, 59 How. Pr. 379. 
 
 75. Statement of indebtedness. A 
 confession of judgment in which defendant states 
 the- indebtedness to be "for a debt justly due 
 from me to said plaintiff for moneys to that 
 amount loaned and advanced to me by said 
 plaintiff," is sufficient as between the parties and 
 is only voidable, if at all, in a direct action or 
 motion to vacate it by a junior judgment creditor 
 or bona fide purchaser. — Supreme Ct., (id Dept.,) 
 May, 1879. Terret v. Brooklyn Improvement 
 Co., 18 Hun 6. 
 
 "76. A statement for judgment by confession 
 authorized judgment for the amount of two 
 items, and alleged it was for a debt justly 
 due the judgment creditor ; as to one of the 
 items, it alleged, in substance, that the judgment 
 debtor " had and obtained groceries, provisions, 
 money,'' &c., of one O., to the amount claimed, 
 specifying in a general way, the time. Held, 
 that this was a sufficient statement " of the facts 
 out of which " the indebtedness arose to author- 
 ize a judgment under Code of Pro., § 883, subd. 
 
244 JUDGMENT: DECREE, VIII., IX.— JUDICIAL SALES. 
 
 2; that, although the statement as to time was 
 indefinite, this did not invalidate the statement. 
 — Gt. of App., Oet., 1877. Harrison v. Gibbons, 
 71N.Y.58 
 
 "77. The sufficiency of the statement, as to 
 the other item, was not questioned ; judgment 
 was perfected upon the statement, and upon ex- 
 ecution issued thereon, personal property was 
 levied upon and sold more than sufficient to pay 
 and salLsfy that item. Subsequently real estate 
 of the judgment debtor was sold. A motion on 
 behalf of another judgment creditor, whose judg- 
 ment was perfected after sale of the personal 
 property, to set aside the sale of the real estate, 
 was granted. JHeZd, error ; that conceding that 
 tlie statement was defective as to the contested 
 item, the judgment was valid between the par- 
 ties ; that, in the absence of any special arrange- 
 ment, the law applied the sum realized upon the 
 sale of the personal property generally upon the 
 judgment ; and that the debt, being bona fide, 
 theie was no equity in favor of subsequent judg- 
 ment creditors to have said sum applied to ex- 
 tinguish the item, as to which the statement was 
 sufficient, in order to make the sale of the real 
 estate void. lb. 
 
 IX. Judgments op Cotjbts of Other 
 States, and op the Fedeeai, Courts. 
 
 78. Judgments of courts of sister 
 states. A state may adjudge the status of one 
 of its own citizens towards a non-resident, and 
 may authorize to that end such judicial proceed- 
 ings, as it sees fit ; but the judgment can have no 
 effect within the bounds of another state, so as 
 to fix upon a citizen of the latter a itaius against 
 his will, and without his consent, which is in 
 hostility with the laws of the sovereignty of his 
 allegiance. — Gt. of App., Jan., 1879. People ».« 
 Baker, 76 N. Y. 78, 84. _ 
 
 79. Of their own jurisdiction, so far as it de- 
 pends upon municipal laws, the courts of every 
 country are exclusive judges. The decisions 
 also of the tribunals of another state as to the 
 true construction of its laws, are binding upon 
 the courts of this state. — Gt. of App., Jan., 1878. 
 Hunt V. Hunt, 72 N. Y. 217, 236. 
 
 SO. A judgment of a court of a sister state is 
 only conclusive where it is a definitive judgment 
 upon the same cause of action upon the merits. 
 An interlocutory order upon a special applica- 
 tion in the suit, is not conclusive upon a similar 
 application in an action in this state. — Supreme 
 a., {Erie Sp. T.,) Aug., 1877. Taylor v. Atlan- 
 tic, &c., Ey. Co., 55 How. Pr. 275. 
 
 81. A judgment in a regular trustee process 
 in another state is satisfaction when set up in 
 this state against the claim of the person whose 
 claim was thus trusteed, although by the law of 
 this state, his claim was exempt from such pro- 
 cess.— Supreme Gt., (3rf Depl. Gir.,) 1878. Gray 
 V. Delaware and Hudson Canal Co., 5 Abb. N. 
 Cas. 131. 
 
 82. — of the federal coiirts. When, in 
 an action to charge a defendant as a general 
 partner in a firm, a former judgment of a federal 
 court, in proceedings in bankruptcy, adjudging 
 him to be a special partner in the firm in ques- 
 tion, will be deemed res adjudicata, see Van 
 Dolsen v. Abendroth, 43 Superior 470. 
 
 83. Plaintiff brought an action in another 
 stale on a policy of fire in-<urance, which con- 
 tained a condition forfeiting it in case certain 
 
 articles classed as specially hazardous were kept 
 on the premises. The action was removed to 
 the United States Circuit Court, and was de- 
 fended upon- the ground-that plaintifl' did keep 
 fire-works, which were one of the prohibited 
 articles. The court decided that the terms of 
 the policy prohibited the keeping of fire-works ; 
 rejected proof that tire-works constituted an 
 article in plaintifiT's line of business as stated ia 
 the policy ; and gave judgment for defendant. 
 This judgment was affirmed by the United States- 
 Supreme Court. Held, that the judgment was 
 a bar to an action to reform the contract by in- 
 serting a clause authorizing the keeping of fire- 
 works ; and this although the courts of this 
 state*, had construed a similar policy as allow- 
 ing the keeping of fire-works, and had refused 
 to follow or to be bound by the decision of the 
 United States Supreme Court.^Ci!. ofApp.,Junef 
 1879. Steinbach v. Relief Fire Ins. Co., 77 N. 
 Y. 498 ; affirming 12 Hun 641. 
 
 As to the efiect of a judgment as an Estoppel^ 
 see Estoppel, 12-16. _ 
 
 As to the admissibility and efiect of a judg- 
 ment as a Means of evidence, see Evidence 
 134-139. 
 
 JUDGES. 
 Couets, 2-8. 
 
 JUDICIAL SALES. 
 
 [Consult, also, Atjctiojt; Exbcoxiok, 14-22; 
 
 MOKTOASBa, VI.J 
 
 1. Rights of purcnasers, generally. A 
 purchaser under defective proceedings to sell 
 real estate of a lunatic, may move to have the- 
 title perfected, or to have the purchase money 
 refunded.— 0(. of App., Jan., 1878. Matter of 
 Valentine, 72 N. Y. 184. 
 
 2. Where a stockholder, knowing of the ex- 
 istence of a mortgage upon the property of the 
 corporation, causes a s^e under an eiecutioni 
 issued by him, on a judgment^ in his fayor 
 against the corporation, of all its right, title- 
 and interest in and to the property mor^aged 
 "subject to whatever sum might be due upon 
 the property by virtue of the mortgage," and 
 himself becomes the purchaser at the sale for 
 a trifling sum, he cannot thereafter dispute the 
 existence or validity of the mortgage.— Supreme 
 Ct., {Sp. T.,) April, 1878. Conklin v. Secor 
 Sewing Machine Co., 55 How. Pr. 269. 
 
 3. "When relieved from purchase. 
 A purchaser at a judicial sale will be relieved: 
 from his purchase and his deposit will be re- 
 turned, where it appears that the contract was 
 one which he never intended to make, and which 
 he entered into without any fault or negligence- 
 on his ^iti.— Supreme Ci., (Ghamh.,) Aug., 1880. 
 Fairchild v. Fairchild, 59 How. Pr. 361. 
 
 4. When the purchaser at a judicial sale wilt' 
 not be compelled to complete his purchase, be- 
 cause of a delect in the service of the summons, 
 see Sn.iili i>. Wells, 69 N. Y. 601. 
 
 5. Vacating, or setting aside. When,, 
 on a siile under execution, a failure of the sher- 
 iff" to deliver a certificate of sale does notauthor- 
 
 •Steiiibaeh v. La Fayette Fire Ins. Co., 54 N. Y. 90. 
 
JUDICIAL SALES— JUSTICE QF THE PEACE, L 
 
 245 
 
 aze an order vacating the sale, see O'Brien v. 
 Hashagen, 20 Hun 564. 
 
 6. One who lies by from October in one year 
 until May in the following year, without moving 
 4o set aside a judicial sale, which he claims to 
 have been void or irregular, is guilty of such 
 laches as will cause the denial of his application 
 where the rights of innocent third persons have 
 intervened. — Supreme Ot., {$p. T.,) May, 1879. 
 Lockwood V. McGuire, 57 How. Pr. 266. 
 
 7. Mere inadequacy of price, unattended by 
 other circumstances warranting it, will not au- 
 ithorize an order vacating a sale. lb. 269. 
 
 8. Ordering re-sale. A court of equity- 
 may, in its discretion, set aside a sale made 
 ainder its decree, and may order a re-sale, where 
 fraud is alleged, upon facts casting such a de- 
 gree of suspicion upon the fairness of the sale as 
 to render it, in its judgment, expedient so to do, 
 although the alleged fraud may not be clearly 
 ■established.— Oi. of App., Oct., 1879. Fisher v. 
 Hersey, 78 N. Y. 387. 
 
 JURIES. 
 
 For decisions relative to the right of Trial by 
 jury, see Tbial, 1-13, 78-82. 
 
 As to Impaneling the jury, cliaUenaes, &c , see 
 Tbiai,, 19, 87-92. 
 
 When a New trial will be granted for separa- 
 tion or misconduct of the jury, see New Trial, I. 
 As to the ■Grand jury, see Indictmestt, I. 
 
 JURISDICTION. 
 
 [Treats only of such general rules as are applicable 
 to all courts in common. 
 
 For decisions on the jurisdiction of any particular 
 <ourt, see Courts. Of Appellate courts, see Appeal. 
 •Of courts of JBguity, see l^urrv. Of Justices' amrts, 
 see Jdsticb of the Peace] 
 
 1. General principles. Jurisdiction of 
 the subject matter of an action is a power to ad- 
 judge conceming'the general question involved 
 therein, and is not dependent upon the state of 
 facts which may appear in a particular case, or 
 the ultimate existence of a good cause of action 
 dn the plaintiff therein. — Ct. of App., Jan., 1878. 
 Hunt-!). Hunt, 72 N. Y. 217, 228. 
 
 2. When the governor refuses to act as the 
 Jaw directs, or acts contrary to law to another's 
 injury, or makes an error or mistake in the dis- 
 ■charge of a judicial duty, which the statute 
 might have authorized another to perform ; in 
 any of these cases, the party aggrieved may seek 
 the protection of the courts. — Supreme Ot., (1st 
 Dept.,) Bee., 1879. People, ex rel. Mchols, v. 
 Mayor, &c., of New York, 19 Hun 441, 457. 
 
 3. Bight of court to decide as to its 
 own jurisdiction. If a court had no juris- 
 •diction to pronounce the decree at the time it 
 was made, the decree could not become valid, 
 because of the action of the court subsequently 
 in denying a motion to vacate the same ; such 
 ■denial does not constitute the position of "res 
 ac^udicata" so as to bar an action. Where a 
 statute _ prescribes that some fact must exist 
 before jurisdiction of the court can attach, then 
 «uch fact must appear, or there can be no juris- 
 ■4}iction, and the court cannot acquire it by erro- 
 neously deciding that the fact exists, and that it ' 
 
 has jurisdiction. But where general jurisdic- 
 tion is given to a court over any subject, and 
 that jurisdiction depends upon facts brought 
 before the court and submitted as evidence for 
 its consideration and determination, and the 
 court is required to act upon such evidence, then 
 its decision, upon the question of its own juris- 
 diction, based upon such evidence, is conclusive 
 until reviewed or vacated, so far, at least, as to 
 protect its officers and all other persons who act 
 upon the same in good faith. — Superior Ct., Nov., 
 1878. Chapman v. Phoenix Nat. Bank, 44 Su- 
 perior 340 ; S. 0., 5 Abb. N. Gas. 118. 
 
 4. Jurisdiction once obtained will be 
 retained. When the court has acquired juris- 
 diction in an action to vacate a judgment, it may 
 pass upon the merits of the claim. — Ot. of App., 
 May, 1878. Whittlesey v. Delaney, 73 N. Y. 
 571, 578. 
 
 5. In an action by an assignee in bankruptcy, 
 to set aside a mortgage of the individual prop- 
 erty of one of the' partners in the bankrupt firm, 
 plaintiff claimed that the Supreme Court was 
 not the one to determine the amount and valid- 
 ity of debts, or to marshal the assets of. the 
 bankrupt, and that the proper parties were not 
 before the court for that purpose. Seld, un- 
 tenable ; that plaintiff having gone into the Su- 
 preme Court and invoked its jurisdiction, could 
 not complain that the couit determined all the 
 questions needful for a proper disposition of the 
 case.— C*. of App., Dec., 1878. Hewitt v. North- 
 rop, 75 N. Y. 506. 
 
 _ 6. Questioning jurisdiction. The ques- 
 tion of jurisdiction cannot be tried on a motion. 
 If the want of jurisdiction appears on the face 
 of the complaint, it should be taken advantage 
 of by demurrer ; if it does not so appear, it 
 should be pleaded. — Supreme Ot., {1st Dept.,) 
 April, 1878. Johnson v. Adams Tobacco Co., 14 
 B&n 89. 
 
 7. After a party submits himself to the juris- 
 diction of a court, it is too late for him to ques- 
 tion its jurisdiction in another tribunal. — Supe- 
 rior QS.', June, 1879. Hovey v. McDonald, 45 
 Superior 606. 
 
 JUSTICE OF THE PEACE 
 
 I. ELECMOlir AND JuBISDICTION. 
 II. PK00EDT7RE. 
 
 1. In civil actions. 
 
 2, In eriminal cases, 
 
 III. Appeals pkom Justices' Courts. 
 
 1. Election and Jurisdiction. 
 
 1. Election. As the state constitution (art. 
 VI., § 18,) provides specifically for the election 
 of justices of the peace in the towns of the state, 
 the legislature cannot create that office and pro- 
 vide for an election in a different manner than 
 therein provided, or by any other locality. — Ct. 
 of App., Sept., 1879. Geraty v. Eeid, 78 N. Y. 
 64. 
 
 2. Jurisdiction, generally. A justice of 
 the peace, in an action regularly brought before 
 him to recover a penalty for less than $200, has 
 jurisdiction to pass upon every question involved 
 in the action, including the validity of the law 
 imposing the penalty; and his judgment, so 
 
246 
 
 JUSTICE OF THE PEACE, I., II. 
 
 long as it remains unreversed, is conclusive be- 
 tween the parties upon every question necessa- 
 rily embraced therein. — Ot. of App., April, 1877. 
 Hallock V. Dominy, 69 N. Y. 238 ; reversing 7 
 Hun 52. 
 
 3. Discontinuance on plea of title. 
 The assignee of a tax lease for one thousand 
 years commenced summary proceedings for the 
 recovery of possession, and defendant filed a 
 counter affidavit alleging the tax sale to have 
 been void. The proceeding was adjourned, and 
 on the adjourned day defendant filed an affidavit 
 to the effect that he had acquired title to the 
 land in question, by deed from tlie owner, after 
 the sale, and was in possession thereunder. He 
 filed a bond conditioned to pay the costs of any 
 ejectment suit which the landlord might bring, 
 rents and profits, &c., and with a further condi- 
 tion against waste. Held, that further proceed- 
 ings before the justice were stayed. — Supreme Ct., 
 (2d Dept.,) Dec., 1878. People, ex rel. Vogler, v. 
 Palmer, 16 Hun 136. 
 
 4. As to matters of practice, jurisdiction, &c., 
 on pleq. of title in a justice's court in the city of 
 Buffalo, and the undertaking to be given on in- 
 terposing such plea, see Kohlbrenner v. Elshei- 
 mer, 19 Hun 88. 
 
 5. — for -want of jurisdiction of sum 
 involved. Where a defendant, in an action 
 in a justice's court, procures a discontinuance 
 thereof upon thegi-ound that the accounts of the 
 parties at issue exceed $400, and plaintiff there- 
 upon brings an action in the Supreme Court 
 and recovers less tlian $50, defendant is estop- 
 ped from claiming that the justice had ju- 
 risdiction, and so that he is entitled to costs ; 
 the plaintiff has a right to repose upon the de- 
 cision of the justice, and it is not open for de- 
 fendant in answer to plaintifFs claim for costs to 
 say that such decision was erroneous; having 
 availed himself of it he cannot question it. — Ct. 
 of App., Bee., 1878. Bradner v. Howard, 75 N. 
 Y. 417 ; affirming 14 Hun 420. 
 
 6. The docket of the justice showed the service 
 of summons, the appearance of the parties, the 
 issue, a motion for discontinuance made by de- 
 fendant on the ground that the accounts between 
 the parties exceeded $400, the granting of the 
 motion on that ground, and the items of costs ; 
 it also recited that it satisfactorily appeared 
 from the proof offered that the accounts of the 
 parties exceeded said sum ; it did not, in terms, 
 award judgment of discontinuance with costs 
 against plaintiff. Held, that the docket con- 
 tained all the particulars necessary to constitute 
 a valid judgment of discontinuance for want of 
 jurisdiction. Technical precision in matters of 
 form is not required in justices' courts. lb. 
 
 7. — for failure of justice to attend 
 on adjourned day. A justice of the peace, 
 who does not appear within an hour after the 
 time to which the case has been adjourned, loses 
 jurisdiction, and the action is thereby discon- 
 tinued.— Supreme Ct., (ith Dept.,) Oct., 1878. 
 Flint V. Gault, 15 Hun 213. 
 
 ^ n. Peocedube. ^' 
 
 1. In civil actions. 
 
 8. AflBldavit for warrant of arrest. 
 An affidavit alleging that the defendant is a non- 
 resident of the county, and the plaintiff " has, as 
 he verily*elieves, a good cause of action against 
 
 defendant for wrongful and fraudulent repre- 
 sentations in the exchange of horses, by which 
 this deponent was damaged to a large amount," is^ 
 insufficient; plaintiff's belief that he lias a good 
 cause of action is not sufficient to authorize the 
 justice to issue the warrant of arrest. — Supreme^ 
 a., (3d Dept.,) May, 1878. Wells v. Sisson, 14 
 Hun 267. 
 
 9. — Of attachment. An affidavit, alleg- 
 ing that the defendant is insolvent, that he has 
 turned over portions of his goods amounting to- 
 less than one-half of their respective debts to 
 two of his creditors ; that he refuses to turn over 
 any goods to plaintiffs, or to pay them what is 
 due ; that he is selling off his stock, and that he- 
 is not likely to continue his business, will not 
 authorize a justice of the peace to issue a war- 
 rant of attachment on the ground that defendant 
 has disposed, or is about to dispose, of his prop- 
 erty, with intent to defraud his creditors. — Sur- 
 preme Ct., {2d Dept.,) May, 1878. Horton v. 
 Fancher, 14 Hun 172. 
 
 10. As to the sufficiency of an affidavit for a 
 short oiiacAmeni'against a non-resident in a jus- 
 tice's court, see Garloch v. James, 55 How. Pr. 
 306. 
 
 10 a. A justice's court cannot require a non- 
 resident to give security for costs ; nor can the 
 county court, in an action commenced in a court 
 not of record. — Monroe County Ct., Feb., 1880.. 
 Mellen v. Hutohins, 8 Abb. N. Cas. 228. 
 
 11. The complaint. As to the sufficiency of 
 the complaint in an action for the recovery of 
 personal property, in a justice's court, see Howe- 
 Sewing Machine Co. v. Haupt, 7 Daly 108. ' 
 
 12. Parties — ^remedy for non-joinder. 
 Defendant's proper course, where there is a non- 
 joinder of proper parties, in an action in a jus- 
 tice's court, is to plead such non-joinder ; if the 
 objection is not so taken, it is waived. It cannot 
 be taken by motion for non-suit. — Supreme Ct.^ 
 (3d Dept.,) Sept., 1878. Frazier v. Gibson, 15- 
 Hun 37. • 
 
 13. Offer to allow judgment. What is^ 
 a sufficient acceptance of an offer to allow judg- 
 ment in a justice's court, under Code of Pro., 
 ? 64, subd. 15, see Beecher v. Kendall, 14 Hun. 
 327. 
 
 14. Impaneling jury. As to the proper pro- 
 ceedings on the part of the justice in procuring^ 
 and impaneling a jury, see Becker v. Sitterly, 58 
 How. Pr. 38. 
 
 15. Amendments. - After issue joined in 
 an action on contract, by short summons, against 
 a non-resident, the justice permitted plaintiff,, 
 on the adjourned day, defendant not appearing,, 
 to file an amended complaint in tort, on which 
 he recovered judgment and issued an executioo. 
 against the person. Held, that the amendment 
 was improperly allowed, and that the execution 
 was properly set aside by the county court. — 
 Supreme Ct., (3d Dept.,) April, 1880. Gilmore 
 V. Bamet, 20 Hun 514. 
 
 16. The execution, and how return- 
 ed. A direction in an execution, issued on a- 
 transcript of a justice's judgment, filed in the 
 county clerk's office in New York city, that the 
 same be returned to said county clerk, is not 
 clearly erroneous. — Superior Ct., March, 1879- 
 Ennis v. Broderick, 45 Superior 92. 
 
 2. In criminal cases, 
 
 17. A mittimus issued by a justice of the- 
 
JUSTICE OF THE PEACE, II., III. 
 
 247 
 
 peace on a conviction for petty larceny, need not 
 state jurisdictional facts. A simple statement of 
 the offence, conviction and judgment thereon, is 
 sufficient. — Supreme Ot., {Uhamb.,) Jvly, 1878. 
 Matter of Hogan, 55 How. Pr. 458. 
 
 18. Amending mittimus. A justice may 
 amend his miUimua after the imprisonment of 
 the defendant hy virtue thereof. lb. 
 
 III. Appeals trom Justices' CotntTS. 
 
 19. The notice of appeal. A notice of 
 appeal to the county court, specified as one 
 ground of appeal, that "the justice rejected 
 proper evidence offered by the appellant." 
 Hdd, sufficiently specific to authorize an exami- 
 nation of the question as to the rejection of the 
 evidence — Supreme Ct., (3d Dept.,) May, 1878. 
 Vedder v. Van Buren, 14 Hun 250. 
 
 20. A statement of the grounds of appeal, 
 that the justice's judgment was " against law and 
 evidence," is too vague and general to present 
 any question for review, and too defective to 
 give the appellate court jurisdiction, even for 
 the pni-pose of allowing it to be amended. — Su- 
 preme a., (2d Vept.,) Bee., 1878. Amsdell v. 
 McCaffrey, 16 Hun 255. 
 
 21. A notice of appeal from a judgment in 
 favor of the defendant, stating that the judgment 
 was rendered upon an issue of fact ; that the 
 claim litigated was over $50, and that " the 
 judgment was rendered contrary to the 
 evidence on said trial," sufficiently states the 
 grounds of appeal. — Supreme Ct., (2d Dept.,) 
 Dee., 1879. Andrews v. Long,* 19 Hun 303. 
 
 22. The notice was signed, " John Andrews, 
 plaintiff's attorney," and there was nothing in 
 the case showing his authority to appear for the 
 appellant. Seld, insufficient. lb. 
 
 See, also, as to the sufficiency of the notice of 
 appeal, Doron v. McLoughlin, 14 Hun 628. 
 
 23. Payment of costs belo'w, fees, 
 <5tec. To perfect an appeal to the county court 
 from a justice's judgment, the respondent's costs 
 must be paid, and the justice's fees must be paid 
 or waived by Mm within twenty days from the 
 rendition of judgment; if these payments are not 
 made the appeal will be dismissed. — Supreme 
 Ct., (3d Dept.,) Sept., 1879. Thomas v. Thomas, 
 18 Hun 481. 
 
 24. The undertaking'. No undertaking 
 need be given where a defendant, against whom 
 a judgment for more than $50 has been re- 
 covered, .nppeala upon questions of law only. 
 The undertaking is necessary only where a new 
 trial is to be had in the county courr, or a stay 
 of execution on tlie judgment is desired. — Su- 
 preme a., (2d Dept.^ Feb., 1879. Hallenbeck 
 V. Company E, 17 Hun 234. 
 
 26. What is a sufficient signing and execu- 
 tion of the undertaking by the sureties, to bind 
 them, see Weisbrod v. Marquardt, 8 Abb. N. 
 Cas. 243. 
 
 26. Where, on appeal from a justice's judg- 
 ment, a judgment of affirmance is entered, by 
 stipulation of the parties, on the condition that 
 no execution shall be issued for six months, this 
 will operate as an extension of time, and will 
 release the sureties on the undertaking. — Sur 
 preme Ct., (8d Dept.,) May, 1879. Boss v. Fer- 
 ris, 18 Hun 210. 
 
 27. The justice's return, if fully respon- 
 
 'Said to have been reversed January 20th, 1880. I 
 
 sive to the notice "of appeal, cannot be ques- 
 tioned nor controverted by affidavits on the ap- 
 peal ; nor can a further return, atf to the truth 
 of matters in respect to which the original re- 
 turn is controverted by affidavits, be required. 
 The remedy of the party aggrieved, if the re- 
 turn be false, is by an action against the jiistice. 
 — Supreme Ot., (ith Dept.,) Jan., 1878. Barber 
 V. Stettheimer, 13 Hun 198. 
 
 28. Where the justice's return shows that all 
 the jurisdictional steps were taken necessary to 
 a valid judgment before him ; that he issued a 
 summons which was served on the defendant 
 by a constable personally, enough is stated to 
 raise the presumption of the regularity as to the 
 form of the summons and its due service. If 
 any error occurred, it is the duty of the appel- 
 lant to make it clearly appear to the court on 
 appeal, as no presumption can be indulged in 
 against tlie judgment. — Mofttg. Co. Ct., July, 
 1880. Snyder v. Sohram, 59 How. Pr. 404, 408. 
 
 29. The calendar. Bringing on the 
 argument. Where the judgment appealed 
 from involves questions of law only, and the 
 case has been regularly noticed for argument 
 and placed upon the calendar of the county 
 court, the case will remain upon the calendar 
 at subsequent terms without any further notice, 
 or note of issue by either party ; but it cannot 
 be brought on for argument at any subsequent 
 term, except by motion, of which at least eight 
 days' notice must be given. — Supreme Ct., (4(A 
 Dept.,) June, 1878.* Matthews v. Arnold, 14 
 Hnn 376. 
 
 30. Amendments on appeal. Code of 
 Civ. Pro., § 1303, allowing amendments when 
 an appeal is taken in good faith, does not apply 
 to appeals from justices of the peace to the 
 county court. — Supreime Ct., (3d Dept.,) Jan., 
 1879. McKinstry v. Shaler, 17 Hun 136; 
 Eldridge v. Underbill, Id.- 241.- 
 
 31. What errors are ground for re- 
 versal. In an action in a justice's court, to 
 recover damages for a wrongful sale of certain 
 personal property belonging to plaintiff, he testi- 
 fied that it was worth $12. Defendant offered 
 to show that, upon the sale, the property was 
 bid in by plaintiff or for his benefit for $7.87, 
 which evidence was excluded. Held, error ; 
 that, as the property was bid in by plaintiff, the 
 damages were limited to the amount he bid for 
 il.— Supreme Ct., (3d Dept.,) May, 1878. Ved- 
 der v. Van Buren, 14 Hun 250. 
 
 32. The payee of a promissory note sued the 
 maker in a justice's court, and defendant, on the 
 return day, set up a general denial, payment 
 and set-off. On the adjourned day he moved to 
 amend his answer by alleging that the note was 
 given on the sale of a horse by the payee to 
 him, with a warranty, and setting up a breach 
 thereof, which motion was denied. Held, that 
 as there was nothing to show that the proposed 
 defence was false or put in for delay or vex- 
 ation, it was error to deny the motion. — Supreme 
 Ct., (3d Dept,) Jan., 1879. Walsh v. Cornett, 
 17 Hun 27. 
 
 33. Harmless errors disregarded. A 
 justice's judgment will not be reveraed upon ap- 
 peal for error in the admission or exclusion of 
 evidence, where, upon the whole case, as shown 
 by the return, the court is satisfied that no in- 
 justice has been done. — Com. Pleat, April, 1878. 
 Crook V. Harper, 8 Daly 53. 
 
 34. Costs on appeal. Plaintiff recov 
 
248 JUSTICE OF THE PEACE, III.— LANDLOED AND TENANT, I. 
 
 ered a judgment before the justice of $25.48 
 damages and $7 costs ; in all, $32.48. Upon de- 
 fendant's appeal under Code of Pro., i 371, the 
 county court affirmed the judgment as to $18 
 dams^es and $7 costs, and reversed it as to the 
 residue. Hdd, that plaintiff was entitled to the 
 costs of the appeal.— &ipre7?ie Ct., (3d Dept.,) 
 
 April, 1880. Chapin v. 'Skeels, 20 Hun 
 
 JUSTICES' COURTS IN CITIES. 
 CouETS, 20-26. 
 
 LACHES. 
 
 Effect of, to Bar suit, see Equity, 5, 6; 
 Limitations op Actions, II. 
 
 LANDLORD AND TENANT. 
 
 L The Eelation ; how Constittjted and 
 
 Terminated. 
 II. Eights and Obligations aeising otjt 
 
 or THE Eelation. 
 m. Eent; and Eemedies to Eecoveb it. 
 rV. Eecoteet of Possession by Landlobd. 
 
 I. The Eelation; how Constituted and 
 Terminated. 
 
 1. Ho-w constituted. Where, during the 
 continuance of the term under a lease, under 
 seal, executed by an agent as lessee, in his indi- 
 vidual name, the principal enters and occupies 
 the demised premises, no assignment having 
 been made of the lease, in the absence of evi- 
 dence upon the subject, the presumption is that 
 he entered as sub-tenant. — Ct. of App., April, 
 
 1877. Kiersted v. Orange, &c., E. E. Co., 69 
 N. Y. 343; S. C, 55 How. Pr. 51. 
 
 2. The fact that he furnished the money to 
 pay the rent does not make him tenant of the 
 lessor; and any liability for use and occupation 
 is to the agent, not to the lessor. lb. 
 
 3. When one enters upon and occupies lands 
 with the consent of tlie owner, under a parol 
 lease for more than one year, and so void under 
 the statute of frauds, the occupation inures as a 
 tenancy from year to year ; the agieement regu- 
 lates the relations of the parties, and may be re- 
 sorted to, to determine their rights and duties in 
 all things consistent with a yearly tenancy. — 
 Ct. of App., June, 1877. Eeeder v. Sayre, 70 N. 
 y. 180; affii-mirlg 6 Hun 562. S. P., Craske v. 
 Christian Union Pub. Co., 17 Hun 319. 
 
 4. Where a lessee for a year or longer, holds 
 over the term, the lessor has the option to re- 
 gard him as a trespasser, or to treat him as a 
 tenant for another year, upon the terms of the 
 previous lease. But where mutual acquiescence 
 in a further term at the same rent is inferable, 
 the holding over, to warrant the application of 
 the rule, must be wrongful. — Com. Pleas, Feb., 
 
 1878. Smith v. Allt, 4 Abb. N. Cas. 205 ; S. 
 C, 7Daly 492. 
 
 6. "What is a monthly hiring. The 
 
 statute (1 Eev. Stat. 744, ? 1,) which provides 
 that " agreements for the occupation of lands or 
 tenements in the city of New York, which shall 
 not particularly specify the duration of such 
 occupation, shall be deemed valid until the first 
 day of May next after the possession under such 
 agreement, and shall be payable at the usual 
 quarter days for the payment of rent in the said 
 city, unless otherwise expressed in the said agree- 
 ment," does not apply to a case where a tenant 
 enters without any agreement as to the terms of 
 the hiring and remains for a series of years, pay- 
 ing rent monthly in advance ; it being in such a 
 case a monthly hiring. And where, in such a 
 case, the tenant has vacated the premises after 
 giving a month's notice he is not liable for the 
 rent to the first of May thereafter, or for any 
 further rent. — Com. Pleas, April, 1879. Wilson 
 V. Taylor, 8 Daly 253. 
 
 6. Ho-w terminated, generally. De- 
 fendants executed a lease by which they agreed 
 to take, as lessees, certain premises belonging to 
 plaintiff for the term of five years from May 
 1st, 1870, at the annual rent of $3500. Plaintiff 
 did not execute the lease. Defendants entered 
 and jointly occupied until August 1st, 1872, 
 paying rent monthly at the rate fixed. In an 
 action to recover rent unpaid May 1st, 1873 — 
 Held, that the lease having been executed by 
 the lessees only was void ; that by the entry, occu- 
 pation and payment of rent defendants became 
 tenants from year to year, with the right to ter- 
 minate the lease on the 30lh of April of 
 any year on giving due notice ; that by remain- 
 ing in possession after the 1st of May, in any 
 year, they lost the right to terminate the tenancy 
 before the expiration of a year from that date ; 
 that the fact that the rent was paid monthly 
 could not, in view of the other circumstances, 
 establish a holding from month to month ; and 
 that therefore the lessees having remained in 
 possession after May 1st, 1872, became bound 
 for another year, and could not terminate their 
 liability by abandoning the possession before 
 the expiiation of the year. — Ct. of App., Nov., 
 1878. Laughran v. Smith, 75 N. Y. 205; 
 affirming 11 Hun 311. 
 
 "7. The fiicts that defendant S. ceased to 
 occupy the premises August 1st, 1872, that they 
 were thereafter occupied by defendant G. and 
 another, who succeeded S. in the business, and 
 that plaintiff, with knowledge that defendant 
 liad ceased to occupy, collected and accepted 
 from the occupants rent accruing subseqiient to 
 August 1st, 1872, did not discharge S. from 
 liability ; they did not establish a surrender or 
 a new letting. lb 
 
LANDLORD AND TENANT, I., II. 
 
 249 
 
 8. The plaintiff orally leased premises to the 
 ■defendant for the term of a year, and afterwards 
 his agent for collecting rent, collected a month's 
 rent in advance, and gave a receipt therefor, 
 Avhich stated that the letting was for a month 
 only, and that the term would expire on the 
 1st of the ensuing month. The plaintiff re- 
 ceived the rent so collected, but gave no 
 ■authority to the agent to give such a receipt. 
 Udd, that the clause in the receipt as to letting 
 for a month was not a rescission of the yearly 
 Tenting and a new letting for a month, under 
 which the defendant would have a right to quit 
 the premises at the end of that month and avoid 
 payment of further rent. — Qom. Pleas, May, 
 1877. Davidson v. Blumor, 7 Daly 205. 
 
 O. Notice to quit. Where it is agreed 
 that the lessee shall quit on ten days' notice, 
 such notice must be precise and definite as to 
 time. A notice requiring him to surrender pos- 
 session " as soon as practicable " is insufficient. — 
 Supreme Ci., {Ist Dept.,) Oct., 1878. People, ex 
 rel. Sanford, v. Gedney, 15 Hun 475. 
 
 10. In case of a tenancy from year to year, 
 ■the lessor has a right in any year of the occupancy, 
 by giving a sufBcient notice to quit, to terminate 
 the tenancy on the last day of the rental year. 
 A formal notice is necessary, and it must be for 
 the end of some year of the holding. Eeeder v. 
 Sayre, smpra. 
 
 11. "Who may give the notice. A 
 ■vendee wlio has entered into a contract with the 
 landlord for a purchase of the premises, but 
 'who has not obtained the legal title, cannot give 
 a valid notice to quit. lb. 188. 
 
 12. Plaintiffs entered upon certain premises 
 tmder a parol lease for two years from April 1st, 
 1871, with the privilege of sowing a crop of 
 Tvheat in the fall of 1872, and of harvesting the 
 same. In June, 1872, plaintiffs then being in 
 possession, defendant, witli notice of plaintiffi' 
 rights, entered into a contract witlj T., the 
 owner, for the purchase of the premises. De- 
 fendant, before receiving a deed, served upon 
 plaintifls a notice to quit on April 1st, 1873. In 
 the fall of 1872, and after service of notice, 
 plaintiffs sowed a crop of wheat, which defend- 
 ant harvested and appropriated. In an action 
 for the conversion— ifeW, that the notice given 
 by. defendant was not sufBcient to terminate the 
 tenancy; that plaintiffs' interest in the lands 
 under a valid lease of the same tenor as the 
 lease by parol, would not have ceased entirely 
 until they had harvested and threshed the crop 
 •of wheat sowed in 1872; that therefore they 
 had a right in the lands after April 1st, 1873, 
 which could not be terminated in any other way 
 than by a notice to quit from T., while he was 
 the owner of the legal title ; that as no such 
 ■notice was given, the tenancy was not terminated, 
 and T. and his grantee (the defendant) were 
 •estopped from denying plaintiffs' right to the 
 crop; and that defendant was liable, lb. 
 
 13. Service of the notice. A notice in 
 ■writing given under 1 Eev. Stat. 745, H 7, 8, to 
 terminate a tenancy at will or by sufferance, 
 cannot be served by leaving it at the tenant's 
 place of business, (not being his place of resi- 
 dence,) while he is absent therefrom. A 
 tenancy from month to month, which, by special 
 agreement, can be terminated by a notice of 
 thirty days, is in the nature of a tenancy at 
 ■will, and the notice to terminate it must, there- 
 fore, be given in the manner prescribed by 1 
 
 Rev. Stat. 745, §? 7, 8. In tenancies from month 
 to month, the thirty-day notice does not run 
 from the day of service, but the statute requires 
 the service to be made thirty days before the 
 expiration of a month of tenancy. — Cbnt. Pleas, 
 Jan., 1878. Banks v. Carter, 7 Daly 417. 
 
 II. Eights and Obligations aeising out of 
 THE Eelation. 
 
 14. Rule that tenant cannot deny 
 landlord's title. When the tenant is not 
 estopped from setting up an after-acquired title 
 in opposition to the title of the landlord, see 
 Hetzel V. Barber, 69 N. Y. 1. 
 
 15. When the possession of the landlord is 
 not interrupted by a temporary recognition of a 
 stranger as landlord, see Donahue v. (^Conner, 
 45 Superior 278. 
 
 16. Duty of tenant to repair. Laws 
 of 1860, ch. 345, authorizing tenants to abandon 
 premises which become untenantable, does not 
 change the common law rule requiring tenants 
 to make ordinary repairs ; and if the premises 
 become untenantable through the tenant's neg- 
 lect to make such repairs, he cannot abandon 
 them. — Supreme Ct., (3d Dept.,) May, 1879. 
 Sheary v. Adams, 18 Hun 181. 
 
 17. Duty of landlord to repair. Where 
 the duty of keeping fire-escapes in a tenement- 
 house, in repair, is imposed by law upon the 
 owner of the building, in the absence of any 
 agreement between him and a tenant occupying 
 a room in the building, to the window of which 
 a fire-escape is attached, it is the duty of the 
 owner to keep it in repair. It is not within the 
 range of ordinary repairs which a tenant, in the 
 absence of an agreement to the contrary, is 
 required to make. — Ct. of App., June, 1877. 
 McAlpin V. Powell, 70 N. Y. 126, 130. 
 
 18. The owner, however, owes no duty in 
 such case to the tenant or his family to keep the 
 platform of the fire-escape communicating with 
 the window in such repair that it may be used 
 as a balcony ; and when it bears no indication 
 that it was designed to be so used, and is not so 
 guarded as to make it safe for young children, if 
 a child, without license or permission from the 
 owner, passes out of the window upon the plat- 
 form and is injured in consequence of its being 
 out of repair, the owner is not liable. Such a 
 case does not come within the rule requiring a 
 party to protect a structure on his premises 
 which is dangerous to others. lb. 
 
 19. When the landlord is bound to repair, and 
 when, in consequence of want of repair, the ten- 
 ant is deprived of an easement and abandons 
 the premises, the landlord ciin only recover rent 
 for the period the premises are occupied, see 
 West Side Savings Bank v. Newton, 76 N. Y. 
 616. 
 
 20. Damages for breach of agree- 
 ment to repair. An agreement to repair in 
 no way contemplates, as damages for a breach 
 of the same, such as might result from destruc- 
 tion to life, or injuries to the person or property, 
 that might result from the omission to repair, as 
 provided in the agreement. A landlord is not 
 liable to his tenant as in tort, for his refiisal or 
 neglect to repair the premises as provided in his 
 agreement to repair, &c. — Superior Ct., March, 
 1879. Arnold v. Clark, 45 Superior 252. 
 
 21. As to the damages for neglect to repair, 
 the true rule of damages recoverable is only 
 
250 
 
 LANDLORD AND TENANT, II., III. 
 
 ■what the repairs would have cost if made by the 
 tenant, or the loss of the use of the premises 
 during the period required for the purpose of 
 making such repairs, or the difference iu value 
 of the use of the premises as they are and as 
 the lessor agreed to put them. 1 b. 
 
 21 o. Right of landlord to re-enter. 
 In what cases the lessor is not bound to re-enter 
 to enforce a forfeiture ; and what is a sufScient 
 notice of his intention to re-enter, see Allegany 
 Oil Co. v. Bradford Oil Co., 21 Hun 26. 
 
 22. Right to out-going crops. A ten- 
 ant by parol of farming -land for a year, has not, 
 save by express valid stipulation, or custom of 
 the country, or estoppel in pais, a right to an 
 out-going crop ; the fact that the usual crop of 
 the countiy cannot come to maturity in a year, 
 does not raise by implication a right to hold 
 over. So, also, where a tenant from year to year 
 has received sufficient notice to quit at the end 
 of the year, prior to putting in a crop to be har- 
 vested the next year, he has no right to the out- 
 going crop.-^O. of App., June, 1877. Beeder v. 
 Sayre, 70 N. Y. 180, 184. 
 
 23. Whether it is necessary for the landlord 
 to serve a notice to quit at the end of the term 
 as fixed by the parol agreement, in order to ter- 
 minate the tenancy from year to year, see lb. 
 188. 
 
 24. Raising crops on shares. One in 
 possession of farm land under an agreement to 
 work it on shares for a single crop, cannot main- 
 tain trespass guare clamum against a stranger. 
 — Supreme Ol., {3d Dept.,) Jan., 1879. Decker 
 V. Decker, 17 Hun 13. 
 
 25. Eviction; and subsequent rights 
 of tenant. Where the tenant had a lease for 
 one or five years at his option, and at the end of 
 the first year he decided to continue the lease 
 for the remaining four years — Hdd, that this 
 was a waiver of certain acts on the part of the 
 landlord, committed during the first year of the 
 lease, and which the tenant claimed constituted 
 an eviction.^-/Sfitpreme Ol., Sept., 1878. Edwards 
 V. Candy, 14 Hun 596. 
 
 26. The owner of a market leased a stand 
 therein to plaintiff, and subsequently discon- 
 tinued to use the building as a market, inducing 
 the lessees of the other stands to surrender them, 
 and closing the doors, except one near plaintiff's 
 stand. He also extinguislied all the lights ex- 
 cept those at plaintiff's stand. Seld, an evic- 
 tion, for which tlie measure of damages was the 
 difference between tlie rent received and the 
 value of the stand after eviction, together with 
 the advance rent paid. — Com. Pleas, Jan., 1878. 
 Denison v. Ford, 7 Daly 384. 
 
 2*7. Liability of landlord to third 
 persons. As. to the liability of the landlord 
 to third persons, for personal injuries sustained 
 by reason of defects iii machinery used by the 
 tenant of leased premises, see Ryan v. Wilson, 
 45 Superior 273. 
 
 lit. Eent ; AND Remedies to Recover It. 
 
 28. Obligation of tenant to pay rent. 
 The liability of a tenant holding over his term 
 for a specified rent, under the Revised Statutes, 
 is based upon the fact that the tenant took pos- 
 session originally under a lease legally made. — 
 Superior Ct., Nov., 1879. Davies v. Mayor, &c., 
 of New York, 45 Superior 373. 
 
 29. — . of his sureties. When one sign- 
 ing a lease with the lessee may show that he 
 
 signed as surety only ; and when a surety is not 
 bound by a renewal taken by the lessee by virtue- 
 of a clause in the original lease, see Knowles v. 
 Cuddebach, 19 Hun 590. 
 
 30. "What will release the surety. 
 A surety for a tenant is not released as to rents 
 subsequently accruing, because of a release or 
 anextension of the time of payment of rent duc 
 Suoh a surety has an interest in personal prop- 
 erty mortgaged to the landlord to secure the- 
 rent, and may call upon the latter to account, 
 and hold him responsible therefor where he has^ 
 taken possession and disposed of it. — Ot. of App.^ 
 Jan., 1878. Coe v. Cassidy, 72 N. Y. 133. 
 
 31. The landlord has a right, as agaiust the- 
 surety, to a reasonable time in which to sell the 
 property ; and so long as there, is no unreasona- 
 ble or unjustifiable delay, the surety cannot 
 complain. lb. 
 
 32. While the mortgagee keeps the property 
 he is bound to take reasonable care of it ; and 
 any reasonable expense to which he is subjected 
 in the exercise of such care is a proper charge- 
 against it. lb. 
 
 33. '\Yhere, in such case, the landlord soldth& 
 mortgaged property at private sale to the sure- 
 ty — Sdd, that the latter could not complain that 
 it was sold for less than its value. lb. ' 
 
 34. An agreement to reduce the renl;^ 
 reserved by a lease for the balance of the de- 
 mised term thereafter to ensue, requires a new 
 consideration. — Superior Ct, Nov., 1878. Mc- 
 Master v. Kohner, 44 Superior 253. 
 
 35. In an action to recover rent alleged to be 
 due under and by the terms of a lease under seal 
 iov ten years, defendants gave evidence tending 
 to show that after the expiration of three years- 
 of the tenancy, the parties agreed by parol that 
 the rent should thereafter be reduced llOOO per 
 annum, and that the lessor should have the 
 right to terminate the lease upon giving thre& 
 months' notice. Held, that, assuming the agree- 
 ment to be valid, it did not constitute a new 
 lease, but was simply a modification of the terms- 
 of the original demise, leaving all the other 
 terms and conditions intact ; and that an inten- 
 tion to surrender the existing lease could not be 
 inferred therefrom. — Ct'. of App., Jan., 1878. 
 Coei). Hobby, 72 N.Y. 141. 
 
 36. The agreement for a reduction of the 
 rent, as testified to by one of the defendants, was^ 
 made during the pendency of a suit to recover a 
 quarter's rent past due. The agreement for a 
 contingent surrender of the lease was made at a 
 subsequent time, and had no connection with, 
 the former agreement. Held, that the agree- 
 ment to reduce rent was void for the want of 
 consideration ; tliat the payment of the costs in 
 the action pending, for which defendant was- 
 legally liable,' furnished no consideration, nor 
 did the subsequent agreement, lb. 
 
 37. "What will excuse payment of 
 rent. Where the landlord's authorized a^ent 
 turned off the water from the demised premises,, 
 and forbade the tenant to turn it on again, and 
 the tenant left in consequence — Held, that rent 
 could not be recovered beyond the time the 
 premises were actually occupied. — Ct. of App.r 
 March, 1879. West Side Savings Bank v. Mew- 
 ton, 76 N. Y. 616; S C, 57 How. Pr. 152 p 
 reversing 8 Daly 332. 
 
 38. "What will not. In an action for rent 
 it appeared that defehdant moved away from the 
 premises and sent the keys of the building to 
 
LANDLORD AND TENANT, III. 
 
 251 
 
 plaintiff in a letter ; these were not returned. 
 Hdd, that the retention of the keys was not an 
 acceptance of the surrender of the premises, and 
 that plaintiff was not bound to tender a return. — 
 Ct. ofApp., March, 1877. Thomas u. Nelson, 69 
 N. Y. 118, 121. 
 
 39. There was a defective flue in the build- 
 ing, making the occupancy uncomfortable and 
 inconvenient. Defendant complained thereof, 
 but continued to occupy until an arrangement 
 was made by which he agreed to repair the flue 
 at plaintiff's expense. JSeld, that defendant 
 could not thereafter abandon the premises on 
 account of the flue without making reasonable 
 efforts to repair it. lb. 
 
 40. Effect of eviction to release ten- 
 ant. The defendant (tenant) agreed " to do all 
 the repairs which may be required in and upon 
 said premises at his own cost and expense." 
 He partly fitted up the building, and stored so 
 great a weight of goods therein as to cause the 
 floors to settle. Plaintiff, at defendant's request, 
 had the roof made secure, and in so doing re- 
 moved a portion of the flooring, which was unflt 
 to be relaid. In an action for the rent, the ref- 
 eree held the refusal of plaintiff to relay this 
 floor to be an eviction, and a bar to the action. 
 ffdd, eiroi.— Supreme Ct.,-{2dDept.,) Feb., 1879. 
 McManns. Autenreith, 17 Hun 163. 
 
 41. The demised premises having been sold 
 on foreclosure of a mortgage executed before the 
 lease was given, the tenant voluntarily surren- 
 dered the premises to the purchaser a short time 
 before his lease would have terminated, and 
 before the confirmation of the referee's re- 
 port of sale. Held, not an eviction such as would 
 par an action for rent, under the circumstances 
 of the particular case. — Supreme Ct., {3d Dept.,) 
 May, 1879. Peck v. Knickerbocker Ice Co., 18 
 Hun 183. 
 
 41 o. To constitute a defence, an eviction 
 must not have "been caused by the collusion of 
 the lessee. — Supreme Gl.,(ith Depl.,) April, 1880. 
 Mattoon v. Monroe, 21 Hun 74 
 
 42. The right to sue for rent. Where 
 the lessor agreed with the lessee and other credi- 
 tors of the latter, that the lessee should assign 
 for benefit of creditors, and that the rent up to 
 a certain time should be paid pro rata under the 
 assignment, as a claim against the lessee, and the 
 assignee accepted the trust primarily as trustee 
 of the creditors — Held, that an action could not 
 be maintained by the lessor against the assignee, 
 for rent accruing during the time specified, and 
 while the premises were occupied by the as- 
 signee. Knickerbocker Life Ins. Co. v. Patter- 
 son, 75 N. Y. 589. 
 
 43. What may be set up in defence. 
 A title acquired by the tenant, by purchase at 
 sheriff's sale, during the term, terminates and 
 extinguishes the landlord's title, and may be set 
 up as a bar to an action for rent, or an action to 
 recover possession of the demised premises. — Ot. 
 ofApp., March, 1877. Hetzel o. Barber, 69 N. 
 Y. 1, 15. 
 
 44. As to what amounts to a surrender before 
 the expiration of the term of premises held from 
 month to month, so as to relieve the tenant from 
 payment of rent for the month in which the sur- 
 render was made, see Smith v, Wheeler, 8 Daly 
 135. 
 
 45. What may not be. The abandon- 
 ment of untenantable premises furnishes no de- 
 fence at common law to an action for rent ; and 
 
 where the demised premises are situated in 
 another state, in the absence of a plea and proof 
 of a statute giving such a defence, the common 
 law rule will be presumed to prevail in such 
 state. — Com. Pleas, Nov., 1879. Graves v. Came- 
 ron, 58 How. Pr. 75. 
 
 46. In an action for rent against sureties on 
 a lease of a store, so constructed as to derive- 
 light from a floo&light in a floor above, which 
 was covered by the lessees of the upper floor, 
 and the light excluded from the room below — 
 Held, that this furnished no defence to the 
 action. — Ct. of App., Sept., 1877. Morgan «, 
 Smiih, 70 N. Y. 537 ; affirming 7 Hun 244. 
 
 47. The lease contained a' clause that the 
 lessees would not assign it, or let or under-let 
 the premises without the consent of the lessors^ 
 The latter, subsequent to the execution of the- 
 lease and taking possession thereunder by tlie- 
 lessees, agreed to rent the premises for them at 
 their risk, crediting to them any receipts for 
 rent, with a condition that the agreement should 
 not impair or alter the relations of the parties,. 
 tKe • covenants of the lease, or the security for 
 the rent. Held, that the agreement did not ope- 
 rate to discharge tlie sureties, although they had 
 no knowledge or notice of it ; that the agree- 
 ment, without the condition, was no more iu 
 effect than a consent that the lessees might 
 under-let; and that, under the condition, the 
 rights of the sureties, and consequently their 
 liability, were in no wise affected, lb. 544. 
 
 48. The lessees, upon making the new agree- 
 ment, delivered the'key of the premises to the 
 lessors. Held, that such a delivery was not a. 
 surrender or a taking possession of the premi- 
 ses, but an entrusting of the control thereof tO' 
 the lessors, for the purpose of letting on behalf 
 of the lessees. lb. 546. 
 
 49. A lease executed by plaintiff to defend- 
 ant contained a covenant on the part of plain- 
 tiff to erect a building upon a portion of tlie de- 
 mised premises within a specified time ; it was- 
 not completed, however, within the time, and. 
 defendant brought an action for a breach of the:^ 
 covenant. Plaintiff (then defendant) interposed 
 a counter-claim in said action, for a quarter's 
 rent accruing while he was so in default, but 
 withdrew it on trial, and the court at the request 
 of defendant (then plaintiff,) instructed the jury 
 that no allowance was to be made for the rent • 
 defendant recovered the full value of the use of 
 that part of the demised premises upon which 
 the building was to be erected, during the time 
 he was deprived of the possession by reason of 
 the failure of the plaintiff to perform his cove- 
 nant, without any deduction for the rent In 
 an action to recover the quarter's rent — 
 
 Held, 1. That the recovery by defendant of 
 the whole value of the use of the premises of 
 which he was deprived, was the equivalent of 
 possession ; and it having been paid, that he was 
 liable for the rent, and was estopped from setting 
 up the want ef possession as a defence. 
 
 2. That it was immaterial whether the cove- 
 nant to pay rent was dependent upon the cove- ' 
 nant to complete the building witliin the time 
 agreed, so as to make the failure to perform the- 
 latter a defence to an action for rent accruing 
 while the default continued, as the defendant 
 elected in the former action to treat the cove- 
 nant as independent, and must be held to that. 
 construction. — Ct. of App., Dec, 1877. Knox v.. 
 Hexter, 71 N. Y. 461. 
 
252 
 
 LANDLORD AND TENANT, HI., IV. 
 
 _ 50. Pleading. As to the proper allega^ 
 tions in an answer in an action for rent, to set 
 aip fraud on the part of the lessor respecting the 
 term demised, see Simmons v. Kayser, 43 Su- 
 perior 131. 
 
 51. Evidence for the landlord. A judg- 
 ment taken by default in summary proceedings 
 by a landlord for non-payment of rent is con- 
 •clusive in an action by the landlord to recover 
 ■rent, as to the existence and validity of the 
 lease, the occupation by the tenant, and that 
 some rent is due and unpaid ; but it is not con- 
 -cluslve as to the amount of rent due, although 
 it is alleged in the affidavit upon which the 
 proceedings were instituted. The plaintiflF, how- 
 ever, upon such proof, is entitled at least to nom- 
 inal damages, and where, upon the trial, the only 
 •question raised is as to his right to recover any- 
 thing, an exception to a decision thereof in favor 
 •of plaintiff does not present for review any 
 <juestion as to the amount. — Cl. of App., March, 
 1877. Jarvis v. Driggs, 69 N. Y. 143. 
 
 52. Where the complaint, in an action to re- 
 cover rent, alleged a leasing for a term of seven 
 years — Held, that it was competent to prove a 
 verbal lease for that term or for a shorter 
 period ; also that, if this were not so, the court 
 at Special Term, on motion for a new trial on the 
 judge's minutes made after judgment, could 
 allow an amendment conforming the pleadings 
 to the proof. — Ol. of App., March, 1877. Thomas 
 «. Nelson, 69 N. Y. 118. 
 
 53. Plaintiff offered in evidence a memo- 
 randum, signed by himself, stating in substance 
 that he was to give a lease to defendant for 
 seven years ; no rent was specified. Held, that 
 this did not preclude him from proving the 
 agreement by parol, as the memorandum was 
 not itself the contract. lb. 
 
 54. — for the tenant. By the terms of 
 the lease the tenant was to keep the premises in 
 repair ; the lease was renewed from year to year 
 -by indorsements thereon. In an action for rent — 
 Held, that evidence of a verbal arrangement, 
 prior to the last renewal, by which the land- 
 lord was to make repairs, and of the bad con- 
 -dition of the premises, because of failure so to 
 <io, was properly excluded, but that a subse- 
 xjuent parol agreement reducing the rent for the 
 future, which had been acted upon by the par- 
 ties, was valid and obligatory. — Ct. of App., Nov., 
 1879. Nicoll V. Burke, 78 N. Y. 580; S. C, 8 
 Abb. N. Cas. 213 j modifying 45 Superior 75. 
 
 55. Instructions to the jury. Plaintiff 
 alleged in his complaint that he assigned the 
 Tent for two months to M., who thereafter 
 re-assigned to him ; no proof of the transfers was 
 -made. Defendant's counsel requested the court 
 to charge that the plaintiff could not recover for 
 the two months, which was refused. Held, no 
 
 -error. Thomas v. Nelson, supra. 
 
 56. An action for use and occupa- 
 ■tion cannot be maintained where there is a 
 lease under seal, either against the' lessee or his 
 assignee ; the action must be upon the demise to 
 recover (he rent reserved. — Ct. of App., April, 
 1877. Kiersted v. Orange &c., R. E. Co., 69 N. 
 Y. 343. 
 
 JV. Recoveey of Possession by Eandiobd. 
 
 57. To •wha_t_ cases the statutes 
 apply. The provisions of the Revised Statutes 
 .anthorizipg summary proceedings for non-pay- 
 
 ment of rent, are applicable to a lessee of a fur- 
 nished house at a gross rent ; the furniture in 
 such a case is but an incident; the rent 
 issues out of the land only. — Supreme Ct., {1st 
 Dept.,) March, 1880. Armstrong v. Cummings, 
 20 Hun 313. 
 
 58. A lease executed in 1877, provided, "it 
 being clearly and distinctly understood, how- 
 ever, that at no time shall it be allowed to sell 
 intoxicating liquors on the premises;" the 
 lessee sub-let a portion of the premises, and the 
 sub-lessee used his part as a restaurant and sold 
 intoxicating liquors without a license. Held, 
 that such sale was an illegal trade, as that term 
 is used in Laws of 1873, ch. 583, and that plain- 
 tiff was entitled, in accordance therewith, to re- 
 cover possession of the whole premises, as in case 
 of a tenant holding over the term. — Supreme Ct., 
 (1st Dept.,) April, 1878. People, ex rel. Jay, v. 
 Bennett, 14 Hun 63. 
 
 59. Jurisdiction — change of justice. 
 Summary proceedings under the statutes, com- 
 menced before one Marine Court justice may be 
 continued before another, by consent of the 
 parties. — Supreme Ct., (So. T.,) Oct., 1880. People, 
 ex rel. Jackson, v. McAdam, 59 How. Pr. 465. 
 
 60. Who may institute proceedings. 
 It is not necessary in proceedings under the 
 " illegal trade act " that the complainant should 
 be the immediate landlord of the tenant carry- 
 ing on the illegal trade ; the original lessor may 
 proceed against his lessee, or any of the sub- 
 lessees. — People, ex rel. jay, v. Bennett^ supra. 
 
 61. The acceptance of a chattel mortgage 
 postponing the payment of past-due instaUmenta 
 of rent and securing the payment of the subse- 
 quent installments as they mature, does not pre- 
 vent the lessor from maintaining summary pro- 
 ceedings for default in the payment of the sub- 
 sequent installments. — Supreme Ct., {1st Dept. 
 Sp. T.,) May, 1880. People, ex rel. Seattle v. 
 McAdam, 59 How. Pr. 19. 
 
 62. The general guardian of an infant leased 
 the premises in question to defendant for one 
 year, during which time the infant owner be- 
 came of age. Held, that his grantee, by deed 
 executed after the termination of the lease, could 
 maintain summary proceedings against defend- 
 ant for holding over. — Superior Ct., (^Ist Dqd.,) 
 March, 1880. People, ex rel. Hannigan, v. In- 
 gersoll, 20 Hun 31fi. 
 
 63. Parties defendant. An under- 
 tenant must be a party in summary proceedings 
 for non-payment of rent. The removal of such 
 tenant under the warrant, without making him 
 a party is a trespass for which the landlord is re- 
 sponsible. — Com,. Pleas, April, 1879. Croft v. 
 King, 8 Daly 265. 
 
 64. The summons. In summary pro- 
 ceedings for non-payment of rent, instituted in 
 a District Court of the city of New York, it is 
 not necessary to state in the summons that the 
 premises are situate within the judicial district 
 in which the proceedings are mstituted.— /Su- 
 preme Ct., {Ist Dept.,) April, 1880. People, ex 
 rel. Duchardt, v. Kelly, 20 Hun 549. 
 
 65. The counter-affidavit. Trial toy 
 jury. The essential requisite to authorize 
 summary proceedings under the statute (2 Rev. 
 Stat. 513, g 28, et seq., ) to remove a tenant holding 
 over after expiration of his term, is that the 
 conventional relation of landlord and tenant 
 exists ; the person in possession may, under a 
 denial by affidavit of the facts upon which the 
 
LANDLORD AND TENANT, IV.— LARCENY. 
 
 255 
 
 summons is issued, prove that the alleged lease 
 was executed under and in pursuance of a 
 usurious agreement, and is void ; and so, that 
 such relation does not exist. The rule that the 
 tenant cannot dispute the title of his landlord 
 does not apply to such case. — Ct. of App.,AprU, 
 1879. People, ex rel. Ainslee, v. Hewlett, 76 
 N. Y. 574; affirming 13 Hun 138. 
 
 66. In summary proceedings to remove re- 
 lator from certain premises, as a tenant holding 
 over after the expiration of his term, he put in 
 an affidavit staling, in substance, that tlie al- 
 leged lease was executed under and in pursu- 
 ance of a usurious agreement between the parties, 
 made in May, 1876, by which defendants agreed 
 to loan to relator the sum of $5600, he agreeing 
 to pay for the use of the same, $500, over and 
 above lawful interest ; that to secure the pay- 
 ment of the loan relator agreed to give a deed 
 of the premises of which he then was in posses- 
 sion as owner, defendants to execute a con- 
 tract agreeing to sell and reoonvey the property, 
 and in order to cover up and conceal the usury, 
 under the name of rent, to execute a lease of the 
 premises to April Ist, 1877, fora nominal rent of 
 $500; that the loan was made, and the deed, 
 contract and the lease in question executed as 
 so agreed. HeH, that the affidavit was equiva- 
 lent to a denial of thfe facts upon which the 
 summons was issued ; and that a refusal of », 
 trial by jury, as prescribed by the statute (2 Eev. 
 Stat. 514, § 34,) was error. lb. ' 
 
 67. Setting aside the proceedings. 
 What findings of fact as to fraud in summary 
 proceedings, is sufficient to authorize setting 
 aside the proceedings and restoration of the 
 lessee to possession, see Elverson v. Vanderpoel, 
 69 N. Y. 610 ; affirming 41 Superior 257. 
 
 68. Restraining them by injunction. 
 The court will only restrain summary proceed- 
 ings for the dispossession of a tenant in cases of 
 fraud, surprise, or undue advantage in the 
 actual conduct of the proceedings. — Supreme Ct., 
 {1st Dq)t.,) March, 1880. Armstrong v. Cum- 
 mingSi 20 Hun 313 ; S. C, 58 How. Pr. 331. 
 
 69. — by ■writ of prohibition. When 
 summary proceedings to dispossess a receiver of 
 a judgment debtor, at the instance of a pur- 
 chaser of the premises at execution sale, will be 
 restrained by writ of prohibition, see People, 
 ex rel. Higgins, v. McAdam, 58 How. Pr. 442. 
 
 As to the form, validity and construction of 
 the Lease, as an instrument, its assignment, sur- 
 render, &c., see Leases. 
 
 LAPSE. 
 
 Of Devise, see Devise, 18. 
 Of Legacy, see Leoacies, 9-IL 
 
 LARCENY. 
 
 1. 'What constitutes the offence. 
 Where A ships his goods to B to Jbe sold, and 
 gives to the latter for that purpose the indicia of 
 ownership, under an arrangement that B shall 
 advance and pay the freight, sell the goods, and 
 account for the proceeds, deducting the freight ; 
 and B sells the goods and converts the proceeds, 
 he cannot be convicted of larceny of the goods ; 
 
 and this, although A was induced to enter into- 
 the arrangement by false representations, on the 
 part of B, made in pursuance of a previous de- 
 sign on his part to obtain the goods, and to- 
 cheat A out of them or the proceeds thereof — 
 Ct. ofApp., April, 1879. Zink v. People, 77 N. 
 Y. 114; S. 0., 6 Abb. N. Cas. 413; reverdng 16- 
 Hun 396. 
 
 2. The distinction between laroeny- 
 and false pretences is, that in the former 
 the owner of the goods has no intention to part 
 with his property therein, while in the latter 
 the owner does intend to part with his property,, 
 which intention is the result of fraudulent con- 
 trivances, lb. 121. 
 
 8. Petit larceny. One of the party with 
 whom defendant was drinking in complainant's, 
 saloon, gave a dollar bill to the bar-tender, who. 
 put it m the till, which was left open. While he 
 was stooping down under the counter, defend- 
 ant reached over and took the bill from the till. 
 He made no attempt to secrete it, and at once- 
 returned it saying, "that it was done in fun." 
 Hdd, not to justify a conviction of petit lar- 
 ceny. — Supreme Ct., (M Dept.,) Jak., 1880.. 
 Devine ». People, 20 Hun 98. 
 
 4. Larceny by bailee. Where property- 
 comes into the possession of a public officer, by 
 reason of his official position, and in accordance- 
 with the usage of his office, although it is not 
 made by law the dtity of his office to receive it,, 
 he owes a duty of ordinary care in the preserva- 
 tion of it, and occupies the position of a bailee 
 in reference to it.^-Ci!. of App., Feb., 1878. 
 Phelps V. People, 72 N. Y. 334, 358 : followed' 
 75 N. Y. 551. 
 
 5. So, where the article comes to the office 
 rooms of a state officer in the regular course of 
 business, and is received by a subordinate or 
 employee appointed or continued by the officer 
 and removable at his pleasure, and whom h& 
 has permitted to receive such articles, this puta 
 upon him the same duty of ordinary care. lb. 
 
 6. A special interest thus acquired by a state: 
 officer is the interest of the state, and in an in- 
 dictment for stealing the article, it is proper to- 
 aver ownership in the state. lb. 
 
 7. — by servant. Where one who occu- 
 pies the position of agent to the owner of prop- 
 erty commits its custody to a servant of the- 
 owner, the possession of the agent and servant 
 is the possession of the owner ; and if the serv- 
 ant converts the property to his own use, it is^ 
 larceny, although he haid no felonious intent 
 when he received it into his custody. lb. 361. 
 See, also, Collins v. Ealli, 20 Hun 246. 
 
 8. BecLuisites and sufQcienoy of the- 
 indiotment. In an indictment for grand lar- 
 ceny in stealing a draft, it is not necessary to- 
 aver that there was any money due upon or 
 secured by the instrument or remaining unsatis- 
 fied upon it, or which might in any contingency 
 be collected thereon ; it is sufficient in this re- 
 spect to aver thnt the draft was of the value of 
 $25, or of a value specified greater than that 
 sum. The elements which make up the value 
 are not part of the offence and need not be 
 averred. Phelps v. People, supra, 
 
 9. The provision of the statute (2 Eev. Stat. 
 679, § 66,) declaring, that "if the property 
 stolen consist of any * * « draft, * * •»■ 
 the money due thereon, or secured thereby and 
 remaining unsatisfied, or which in any con- 
 tingency might be collected thereon, * * « 
 
254 
 
 LARCENY— LEASES, I. 
 
 shall be deemed the value," does not make part 
 of the description of the offence, but simply 
 furnishes a mode of proving it. lb. 350. 
 
 10. The intent and the act may be averred in 
 the words of the statute, i. e., that the accused 
 ■did feloniously steal, take and carry away (J 63,) 
 and the setting forth a full and precise copy of 
 the instrument, with the indorsements thereon, 
 is sufficient as a description of the property, and 
 as showing it to be one of the species included 
 in the term personal property, as defined by the 
 statute, to wit, a written instrument by which a 
 pecuniary obligation is " created, acknowledged, 
 transferred," etc. (2 Eev. Stat. 702, ? 33.) lb. 
 351. 
 
 11. The English statute concerning the lar- 
 ■ceny of instruments for the payment of money, 
 and our own, distinguished, lb. 353. 
 
 12. It is not necessary that the indictment 
 should name as owner one who has the general 
 ownership ; it is sufficient if one be named who 
 has a special property in the property stolen. 
 So, a bailee of property may be named as 
 owner, and this as well where the character of 
 bailee arose from the fact that the thing came 
 
 ■ into his actual possession and control fortui- 
 tously or by mistake, as where it was created by 
 express agreement, lb. 357. 
 
 13. P., plaintiff in error, was indicted for 
 grand larceny in stealing a draft. It appeared 
 upon the trial that the draft, in pursuance of a 
 custom in the payment of the state tax, and for 
 the purpose of making such a payment, was 
 transmitted by a county treasurer, to whose 
 order it was made payable, and by whom it was 
 indorsed to the comptroller of the state ; it was 
 received at the office of the comptroller by Q., 
 "second deputy comptroller," a lawful office 
 (Laws of 1866, p. 1608, ch. 748,) of which G. 
 was a lawful incumbent, with power to perform 
 any duty put upon him by the comptroller (1 
 Eev. Stat. 117, .^ 7 ;) the latter officer had sanc- 
 tioned the indorsements of such drafts by G. to 
 the state treasurer. G., as second defjuty comp- 
 troller, indorsed the draft in question to the 
 state treasurer, and either personally or by mes- 
 senger delivered it to P. in the office of the 
 treasurer. P. was employed in that office as 
 "cashier." It was his duty to receive such 
 drafts and moneys and to deposit them daily in 
 bank. He did not deposit this draft, but con- 
 verted it to his own use. 
 
 Held, 1. That he was properly convicted of 
 larceny, the offence charged. 
 
 2. That ownership of the draft was properly 
 averred to be in "The State of New York" that, 
 in the absence of positive requirement, that 
 designation, as well as "The People of the 
 State of New York," indicated the sovereignty 
 whose rights had been affected. Ib- 
 
 14. An indictment for stealing a sachel con- 
 taing trade dollars, describing them as " sixty 
 silver coins (of the kind usually known as dol- 
 lars) of the value of one dollar each" is suf- 
 ficient. — Supreme Ct, {1st Dept.,) June, 1880. 
 Miller v. People, 21 Hun 443. 
 
 15. Defences— coercion of husband. 
 The presumption of coercion, which excuses a 
 wife for a larceny committed in the company of 
 ier husband, is, prima fade, not conclusive ; if 
 it appears that she was not urged or drawn to 
 the offence by him, but was an inciter of it, she 
 is liable as well as he. It is the presence of the 
 husband which raises the presumption, and if 
 
 the wife commits the offence, by the bare com- 
 mand or procurement of the husband, when he 
 is not present, she is liable. — Ol.ofApp., May, 
 1879. Seller v. People, 77 N. Y. 411. 
 
 16. Evidence in defence. The property 
 stolen was about six bushels of wheat. It was 
 proved, on the part of the prosecution, that a 
 small quantity of wheat of the Same kind as 
 that stolen, was found in the pocket of the 
 prisoner by a police officer, who testified that 
 the prisoner said it was a sample "fetched up to 
 sell by," and that he had sold some wheat to S. 
 & G., millers, at W. One of that firm testified 
 that he purchased about six bushels of some 
 man, but did not identify the prisoner as the 
 man. The prisoner, as a witness, denied making 
 the statement as to the' wheat, and offered to 
 prove that about that time he had sold wheat at 
 another place. This was objected to, and re- 
 jected. Held, error. — Ot. of App., Feb., 1879. 
 People V. Crapo, 76 N. Y. 288. 
 
 For decisions respecting offences Amdogcms 
 to larceny, see fetTRGiABT ; False PBETKtroia. 
 
 LAW OF PLACE. 
 
 For the effect of the law of place upon Con- 
 tracts, generally, see CoNTEACTS, 64, 65, and 
 the titles of the various contracts. 
 
 Upon the Marriage contract, see Husbaks 
 AND Wipe, 3, 4. 
 
 For decisions upon the law of place in con- 
 nection with the Admmwtri'aiion of deeedenUl 
 estates, see Descent ; DevJSe ; Exbcotoes and 
 Administbators ; Leoacies; Wili-s. 
 
 For the effect of the law of place upon the 
 rate of Ivierest, see Interest ; Usuby. 
 
 LAW OF THE ROAD. 
 
 Highways, 22. 
 
 LEADING QUESTIONS. 
 
 Witnesses, 94. 
 
 LEASES. 
 
 I. What is a Lease ; Vaudity, <S 
 II. Eesebtations, Conditions, &o. 
 
 IIL COVENANTS AND STlPtTLATIONS. 
 
 IV. Assignments and Teanspebs. 
 V. Sdebendee. 
 
 I. What ib a Lease ; Validity, &c. 
 
 L Validity of parol leases. A parol 
 lease, void under the statute of frauds because 
 for a longer period than one year, is not valid, 
 it seems, for that period. If the tenant enters 
 and occupies nnder it he may be compelled to 
 pay for the use and occupation, but cannot be 
 compelled by virtue of the lease to pay for a 
 period longer than he actually occupies.* — Ct. 
 
 * See, to the contrary, LAin>u>BD ahb Temant, 3, 4. 
 
LEASES, I., II. 
 
 255 
 
 •ofApp., March, 1877. Thomas v. Nelson, 69 N. 
 Y. 118, 121. 
 
 2. Construction of 'written lease. A 
 "written lease should, if possible, be so construed 
 as to give effect to the intent of the patties, as 
 gathered from tliewlioleinstrument.^Cbm.Pfeos, 
 AprU, 1878. Orphan Asylum Soc. of New York 
 City D. Waterbury, 8 Daly 35. 
 
 3. Execution of lease by agents of 
 O'wner. Where, in a written lease for a year, 
 not under seal, after the name of the lessor were 
 the words " agents, as landlords " — Held, that 
 the words "as landlords" did not prevent the 
 •owners of the premises, for whose benefit the 
 lease was in fact made, from bringing an action 
 in their own name to recover rent due. — Ct. of 
 App., Nov., 1879. Nicoll v. Biu-ke, 78 N. Y. 
 ■580 ; affirming 45 Superior 75. 
 
 4. B. having oral authority from plaintiffs to 
 lease certain premises owned by them, executed 
 in his own name, adding thereto the word 
 ■" agent," a lease under seal, in which he de- 
 scribed himself as " agent and party of the first 
 part," but without stating for whom he acted as 
 agent. In an action upon tlie lease — Hdd, that 
 in the absence of proof that the lessee had 
 knowledge that such agent was acting for the 
 owners, or had recognized their rights, and in 
 ithe absence of an assignment of the lease, said 
 owners could not maintain an action thereon in 
 their own name to recover rent accruing there- 
 ■under ; that such an action was not authorized 
 3by the provision of the code (Old Code, § 111,) 
 requiring an action to be prosecuted in the 
 name of the real party in interest, as the parties 
 executing such an instrument are the real parties 
 in interest, they only being bound thereby ; also, 
 that the contract could not be regarded as a sim- 
 ple contract and the seal rejected as surplusage. 
 — Ct. of App., Dee., 1878. Schaefer v. Henkel,' 
 76 N. Y. 378 ; S. C. 57 How. Pr. 97. 
 
 5. The lessee went into possession and paid 
 rent, but it did not appear that he was in posses- 
 sion, otherwise than under the lease, or that any 
 payment of rent had been made to plaintiffs. 
 -Held, that the presumption was that the occu- 
 pancy was under the lease, and that the evidence 
 :failed to show a ratification of the lease by 
 plaintiflS. lb. 
 
 6. Conceding that plaintiflS might have 
 anaintained an action for an occupation upon 
 ^showing that B. had acted without authority in 
 taking the lease in his own name ; or that upon 
 ■setting foith the want of authority the lease 
 might be resorted to as evidence of the terms of 
 the agreement, although it could not be enforced 
 ^13 a specialty, this does not authorize a recovery 
 where the action is founded solely upon the in- 
 :strument, and where, upon the trial, plaintiffs 
 •claim to recover solely by virtue thereof. lb. 
 
 T. — by agent as lessee. A lease under 
 ■«eal, executed by an agent as lessee in his indi- 
 vidual name, and wliich does not purport to be 
 .executed on behalf of the principal, is not binding 
 upon the latter, although the fact of the agency 
 is recited therein, and although it appears 
 hy extrinsic evidence that the lessee acted aa 
 agent: the instrument can only be enforced 
 
 4igainst the party who appears upon the face of 
 
 it to be the covenantor. — Ct. of App., April, 1877. 
 
 Kiersted v. Orange, &c._, E. E. Co., 69 N. Y. 343. 
 
 8. Leases of agricultural lands. TJn- 
 
 Mler the provision of the staife constitution (art. 
 
 J, § 14,) declaring that "no lease * * * of 
 
 agricultural land for a longer period than twelve 
 years * * * shall be valid," a lease for a 
 longer period is not valid for twelve years, but 
 is void in tola. — Cl. of App., March, 1879. Clark 
 V. Barnes, 76 N. Y. 301. 
 
 9. Where, in pursuance of a written agree- 
 ment, two leases of the > same premises were ex- 
 ecuted at the same time, upon the same consid- 
 eration and terms, and as parts of the same 
 transaction, one for eight and the other for 
 twelve years, beginning at the expiration of the 
 first term — tCeld, that the two leases were to be 
 construed together, as if contained in the same 
 instrument, and were void ; and that summary 
 proceedings by the lessor to remove the lessee 
 were maintainable. 1 b. 
 
 ID. At the time of the execution of the leases, 
 defendants were in possession under a former 
 lease for three lives held by defendant B. An 
 action was then pending in favor of plaintiff) 
 who was the owner of the premises, to recover 
 possession. The parties entered into a written 
 agreement for the settlement of the suit, where- 
 by B. was to cancel and surrender the former 
 lease and to pay arrearages of rent ; plaintiff" 
 was to execute the leases in question, and to 
 discontinue the suit, without costs, all of which 
 was done. Held, that the fact of the invalidity 
 of the two leases did not reinstate the prior 
 lease, as their execution was not the sole con- 
 sideration for the cancellation, of said prior 
 lease ; that this could only be done by a suit in 
 equity for that purpose. lb. 
 
 II. itESERVATIONS, CONDITIONS, &C. 
 
 11. Reservation of right to sell. Inter- 
 pretation and effect of a condition in a lease of a 
 farm, reserving to the lessor the right to sell the 
 farm during the term, subject to right of lessee 
 to harvest crops already sowed at time of sale. 
 — Supreme Ct., [ith Dept.,) June, 1878. Edick v. 
 Dake, 14 Hun 481. 
 
 12. Condition against sale of liquors. 
 Where a lease prohibits the sale of intoxicating 
 liquors on the demised premises, and it is 
 further covenanted and agreed by the parties 
 thereto that in case intoxicating liquors are sold, 
 the lessor shall have the privilege of dispossess- 
 ing the lessee and those holding under him, or 
 of collecting from them double the annual rent 
 specified in the lease, and in case of their 
 failure to pay such increased rent, to dispossess 
 them for non-payment thereof, such agreement 
 for an increased rent in case the premises are 
 used for such forbidden purpose, is legal and 
 valid, and in case the lessees, or those holding 
 under them, refuse to pay the same, they may 
 be dispossessed by summary proceedings. — Su- 
 preme Cl; (Is* Dept.,) AprU, 1878. People, ex 
 rel. Jay, v. Bennett, 14 Hun 58. 
 
 13. Provisions giving lessor lien to 
 secure rent. Where a clause in a lease pro- 
 vides that the lessor shall have a lien n[)0u all 
 property, at the time, or which may thereafter 
 be brought upon the demised premises, as 
 security for the payment of rent, to be enforced 
 in case of default in the same manner as a 
 chattel mortgage, the clause is binding between 
 the parties ; it creates an equitable lien ort the 
 property of the lessee, then upon the premises, 
 and also upon property thereafter brought 
 thereon, which attaches as soon as the property 
 is acquired by the lessee and brought upon the 
 
256 
 
 LEASES, II., III. 
 
 premises. — Ct. of App-, Nov., 1877. Wisner i;. 
 Ocumpaugh, 71 N. Y. 113, 116. 
 • 14. A lease containing such a clause was exe- 
 cuted by defendant to a firm, in which plaintiff 
 was a special partner. From and after the disso- 
 lution of the special partnership, plaintiff was 
 a general partner with W., one of the former 
 general partners, whom he subsequently bought 
 out, and continued in the occupation of the 
 demised premises until after the expiration of 
 the lease. Plaintiff was ignorant of the fact 
 that such clause was contained in the lease. In 
 an action for the taking and alleged unlawful 
 conversion of goods brought upon the premises 
 by the lessees during the existence of the lease, 
 and subsequently removed therfefrom by the 
 defendant — 
 
 Seld, 1. That plaintifiF stood in no better posi- 
 tion than the lessees in respect to the lease; 
 that the relation he sustained as a party in 
 interest precluded him from claiming exemption 
 from its provisions, and that under the clause 
 above mentioned defendant was justified in tak- 
 ing the property. 
 
 ,2. That the fact that defendant saw the prop- 
 erty in a cart after it had been taken from the 
 premises, and did not object to the removal, was 
 not an abandonment of his lien ; this attached 
 to the property when in possession of the lessee, 
 or any one standing in his place. lb. 117. 
 
 15 A lease provided that in case the lessee 
 should fail to pay the rent, when due, the lessor 
 might sue for the same, or re-enter the premises, 
 or resort to any legal remedy, or take possession 
 of all fixtures or stuflT put in by the lessees, who 
 were to remove nothing until the rent was paid. 
 Meld, that, as between the parties to the lease, 
 the lessor, upon default in payment of the rent, 
 was entitled to the possession of the personal 
 property as security therefor, and could main- 
 tain replevin to recover it from the lessee who 
 had. removed it. — Supreme Ct., {4th Dept.,) Oct., 
 1878. Whited v. Hamilton, 15 Hun 275. 
 
 III. Covenants and Sttpulations. 
 
 16. Covenant for renewal. When a 
 covenant for renewal is binding upon the lessor 
 and optional with the lessee to accept a renewal 
 or not, see Bruce v. Fulton Nat. Bank, 16 Hun 
 615; affirmed 79 l!i.Y. 154. 
 
 17. Covenant to pay for improve- 
 ments. By the terms of a lease the lessor re- 
 served the right to sell the demised premises, 
 and it was agreed that upon such sale the lease 
 should be determined and the term ended, the 
 lessor to pay the lessee for all permanent im- 
 provements erected by him on the premises, the 
 value thereof to be determined by arbitration, 
 in case the parties could not agree. The lessor 
 sold without reservation or exception. Seld, 
 that upon the sale the term ended, and the right 
 of the lessee to compensation for improvements 
 became absolute ; that he was not bound to 
 atiorn to the grantee and occupy under him, 
 even if the latter was willing to regard the 
 tenancy as continuing ; and that upon refusal of 
 the lessor to submit the value of the improve- 
 ments to arbitration, an action was maintainable 
 against him — Ot. of App., June, 1877. Morton 
 V. Weir, 70 N. Y. 247 ; affirming 5 Hun 177. 
 
 18. As to the effect of a covenant by the 
 lessor to pay for a building to be erected on the 
 demised land by the lessee ; what building is 
 
 within the covenant ; what acts of the lessor in- 
 dicate his approval of the building erected; and 
 the eflfect upon the lessee's right to be paid for 
 the building, of his taking a renewal of the 
 lease on its expiration, see Livingston v. Sulzer,. 
 19 Hun 375. 
 
 19. Covenant to rebuild in case of 
 fire. G., plaintiflT's testator, leased of defend- 
 ant an undivided half of certain premises in 
 Buffalo, upon which were a warehouse and eleva- 
 tor, for twelve years from August 1st, 1862. The 
 lease contained a provision that in case the- 
 warehouse and elevator should, during the term,, 
 be destroyed by fire, defendant would forthwith 
 proceed to rebuild and put them in as good condi- 
 tion as before destruction ; in ease he did not re- 
 build in six months after such destruction, then 
 that the lease should terminate, if Gr. so elected. 
 The buildings were destroyed by fire during the 
 term ; defendant notified G. that he did not in- 
 tend to rebuild, and thereafter sold the premises. 
 In an action to recover damages for the refusal 
 to rebuild — 
 
 Held, 1. That G.'s remedy, under the lease, 
 was not limited to a termination of the lease, in 
 case defendant did not . rebuild within six 
 months, nor was he required to notify defend- 
 ant of his election ; that his remedy for dam- 
 ages was complete upon failure to rebuild. 
 
 2. That the fact that G. did not pay or offer 
 to pay rent after the fire, did not show a surren- 
 der or relinquishment of his claim, or suspend 
 his right of action. — Ct. of App., Oct., 1877. 
 Ganson v. Tlfil, 71 N. Y. 48, 53. 
 
 20. In 1866, G. executed a lease of his in- 
 terest in the premises to N., C. & H., for eight 
 years from August 1st, 1866, reserving therein 
 a right of re-entry for non-payment of rent or 
 breach of other conditions ; the lease also con- 
 tained a covenant that the lessees would, at the- 
 expiration of the terra, or other sooner deter- 
 mination of the demise, surrender possession to 
 the lessor ; also, that the lease should not ter- 
 minate in case of destruction by fire provided 
 defendant should elect to rebuild. Defendant 
 also executed a similar lease of the residue of 
 the premises to N., C. & H. The latter firm, 
 after defendant's refusal to rebuild and sale of 
 the premises, terminated their lease under the 
 statute. Held, that neither the leases to N., C. 
 & H., nor the acts of the parties under them, 
 established an abandonment of the covenant to 
 rebuild ; that the instrument executed by G. to 
 N., C. & H. was a sub-lease, not an assignment 
 of the entire term, and so did not transfer the 
 right of action against defendant lb. 
 
 21. The sub-lease from G. to N., C. & H. was 
 offered and received in evidence^ upon the trial, 
 without objection, and no motion was made to 
 strike it out The court was requested by de- 
 fendant's counsel, but refused, to charge that it 
 could not be taken into consideration oo the 
 subject of damages. Held, no error; that it 
 was proper to be considered upon the. question, 
 as to the rental value of the premises. lb. 55> 
 
 22. It appeared that there was an association 
 of the owners of elevators, formed for the pur- 
 pose mainly of regulating the prices, to whom 
 at times the elevators were all leased. The 
 court was requested, but refused, to charge that 
 in determining the amount of damages, the jury 
 must not take into consideration any futureproflts, 
 or enhanced value of the lease arising from 
 such association. Held, no error ; that the ad- 
 
LEASES, III., IV., V. 
 
 257 
 
 ditional value of the lease, arising from the 
 formation of the association, was a proper sub- 
 ject for consideration by tlie jury, although the 
 association was illegal, it not appearing that G. 
 had any connection therewith ; that the real 
 question was, what was tlie uiiexpired term 
 worth under all the circumstances, and the 
 character of the association was not a subject 
 for consideration. lb. 56. 
 
 23. Stipulation for repairs. A lease 
 of premises out of repair, to a lessee in pos- 
 session under a previous letting, provided that 
 the lease was " at the yearly rent of f 1000, pay- 
 able quarterly, and the ordinary taxes and water 
 rates, and repairs necessary, with all alterations, 
 if any needed." Tliere was the usual agree- 
 ment ■' to surrender the premises * * * in 
 as good state and condition as reasonable use 
 and wear will permit, damages by the elements 
 excepted." Sdd, that the lessee was not obliged 
 to put the premises in good repair, or make any 
 repairs or alterations thereon not necessary for 
 the use of the premises. — Supreme Ct., (3d 
 Dept.,) Jail., 1879. White v. Albany Railway, 
 17 Hun 98. 
 
 24. — and. payment of taxes. Plain- 
 tifis executed to defendants a lease, under seal, 
 of certain premises for the term of ten years 
 from May 1st. By the terms of the lease, de- 
 fendants, aside from the rent reserved, agreed to 
 pay all (axes imposed upon the premises, and to 
 make all necessary repairs. In March, 1875, 
 the plaintiffs' agent executed a written instru- 
 ment, declaring the lease to be " canceled and 
 surrendered as of the 1st day of April, 1875," 
 and defendants surrendered possession. In an 
 action for a breach of the covenant to pay taxes 
 and to make necessary repairs — Sdd, that the 
 release reserved the rights of the parties up to 
 April 1st, and for any breach of the covenant 
 occurring prior to that time defendants were 
 liahle; and that it was immaterial that the 
 action was not brought until after. — Ct. of App., 
 June, 1878. Boe v. Conway, 74 N. Y. 201. 
 
 25. A covenant on part of the lessee to pay 
 taxes must be performed by him before he can 
 call upon the lessor to perform a covenant to 
 renew the lease, or purchase a building erected 
 by the lessee. — Ct. of App., April, 1878. People's 
 Bank of New York v. Mitchell, 73 N. Y. 406, 
 411. 
 
 26. As to when taxes become a lien, in the 
 city of New York, so as to be payable by a 
 lessee under a stipulation to pay all assessments 
 whicli should grow due and payable during the 
 term, see Skidmore v. Hart, 13 Hun 441, 
 
 IV. Assignments and Tbansfebs. 
 
 27. Validity— necessity of filing. The 
 
 provisions of the act in reference to chattel 
 mortgages, (Laws of 1833, ch. 279,) declaring 
 them void as against creditors when not filed, and 
 wlien not accompanied by immediate delivery 
 and followed by actual and continued change of 
 possession, and the provision of the Bevised Stat- 
 utes, (2 Bev. Stat. 136, § 5,) declaring sales or 
 mortsfiigts of chattels to be presumptively fraud- 
 ulent when not accompanied by delivery and fol- 
 lowed by change of possession, have no applica- 
 tion to leases of real estate ; and an omission to 
 file any instrument transferring a lease as a secu- 
 rity, or a failure of the transferee to take pos- 
 session of the lease or of the demised premises, 
 
 does not render the transfer void as to creditors, 
 or raise a presumption of fraudulent intent. — Ct. 
 of App., Wee., 1877. Booth o. Kehoe, 71 N. 
 Y. 341. 
 
 28. Effect of the transfer on pay- 
 ment of rent. One S., who was the lesseeof 
 certain premises for three years, the rent being 
 payable quarterly, executed an assignment of 
 the whole t«rm to W., the instrument contain- 
 ing the following clause: "Provided always, 
 that the said W., her executors, administrators 
 and assigns, shall pay monthly, in advance, to 
 me, said S., the rent secured by the terms of said 
 lease, which (he said W., by the acceptance of 
 this assignment, promises and agrees to do." 
 Held, that the relation of landlord and tenant 
 was created between S. and W., and that upon 
 the failure of the latter to pay the monthly rent, 
 S. could dispossess her. — Supreme Ct., [IstJDept.,) 
 April, 1878. People, ex rel. Wheeler, v. Shorb, 
 14 Hun 112. 
 
 V. Sttbrendee. 
 
 29. "What amounts to a surrender of 
 a lease. A stirrender is the restoring and 
 yielding up an estate or interest in lands to one 
 who has an immediate estate in reversion or re- 
 mainder, and by the statute of frauds a term ex- 
 ceeding one year cannot be surrendered, unless 
 by act or operation of law, or by a deed or convey- 
 ance in writing. (2 Bev. Stat. 134, ^ 6.) A 
 surrender is implied and so effected by opera- 
 tion of law within the statute quoted, when 
 another estate is created by the reversioner or 
 remainderman, with the assent of the termor, 
 incompatible with the existing estate or term. — 
 a. of App., Jan., 1878. Coe v. Hobby, 72 N. Y. 
 141, 145. 
 
 30. 'What does not. An agreement for 
 a new lease will not effect the surrender of an 
 existing lesise by operation of law, unless a new 
 lease is made, valid in law to pass an interest 
 according to the contract and intention of the 
 parties. A verbal agreement, therefore, for a 
 term longer than one year, will not operate as a 
 surrender of an existing lease under seal. lb. 
 147. 
 
 31. When the surrender of a lease to an agent 
 is insufiicient to discharge the lessee from pay- 
 ment of rent, see Baylis v. Prentice, 75 N. x. 
 604. 
 
 32. Necessary resumption of posses- 
 sion by lessor. Plaintiff's grantor leased to 
 S. & H. a distillery. The tenants assigned the 
 lease. When the assignees made payment of 
 rent, plaintiff receipted it as a payment by S, & 
 H. Plaintiff took a mortgage upon the personal 
 property put into the premises by the tenants to 
 secure a portion of the rent. The property was 
 needed for the purposes of the business, and was 
 left by the plaintiff for use ; he was not requested 
 by any one to remove it, and no objection was 
 made to its remaining. Plaintiff never, by any 
 formal act, attempted to put an end to the lease. 
 Upon the premises becoming vacant, he em- 
 ployed a watchman to watch and care for the 
 mortgaged property, attempted to sell it, and for 
 the purpose of utilizing it sought to lease the 
 premises. In an action against defendant, as 
 surety for the tenants — Held, that these facts did 
 not, as matter of law, show such a resumption 
 of possession and control of the premises as to 
 put an end to the lease ; that at most they simply 
 
 17 
 
258 
 
 LEASES, v.— LEGACIES, I. 
 
 furnished evidence of a suiiender for the con- 
 sideration of a jury.— a. of App., Jan., 1878. 
 Coe V. Cassidy, 72 N. Y. 133. 
 
 _ For other decisions illustrating rights and lia- 
 bilities arising out of the relation of lancUord and 
 tenant, not depending, strictly, upon the terms 
 of the lease, see Landlord and Tenant. 
 
 ' LEGACIES. 
 
 I. NaTTJBE, InTEEPBETATION, and EFrECT. 
 
 Validity. 
 II. When a CHAsaE ttpon Land. 
 ni. Payment. 
 
 IV. Incidental Rights and Liabilities 
 OF Leoatee. 
 
 I. Natubb, Intebpbetation, and Effect. 
 Validity. 
 
 1. Describing the legatee. A misnomer 
 or misdescription of a legatee or devisee in the 
 will, whether a natural person or a corporation, 
 will not ivalidate the provision if, either from the 
 will itself or evidence aliunde, the object of the 
 testator's bounty can be ascertained. — Supreme 
 Ct., (Lewis Sp. T.,) July, 1877. Leonard v. 
 Davenport, 58 How. Pr. 384. 
 
 2. — the subject matter bequeathed. 
 A testator gave to his niece specified railroad 
 bonds. Sdd, that interest coupons on the bonds, 
 due at the time of testator's death, did not pass 
 to the niece. — Com. Pleas, Sept., 1880. McGrath 
 V. Van Stavoren, 22 Alb. L. J. 271. 
 
 3. What legacies are vested. Where 
 a gift of a legacy is direct and absolute, a subse- 
 quent and independent direction for payment on 
 the happening of an event named does not defer 
 the vesting of the legacy, but only postpones the 
 payment, and if the legatee die before the hap- 
 pening of the event, his representatives are en- 
 titled to the legacy. — Ct. of App„ Nov., 1877. 
 Loder v. Hatfield, 71 N. Y. 92, 99 ; affirming 4 
 Hun 36. 
 
 4. So, also, where a direction for the pay- 
 ment of a legacy at a future day is for the con- 
 venience of the estate, or to let in some other 
 interest, the vesting of the gift is not prevented. 
 lb. 100. S. P., Belts V. Betts, 4 Abb. N. Cas. 
 317. 
 
 5. Where, by the terms of a bequest, the gift 
 is to be severed instanter from the general estate, 
 and 'to be held by trustees for a specified time 
 for the benefit of the legatee, and then to be paid 
 over to him, and, in the meantime, the interest 
 thereof to be paid to him, this is indicative of 
 the intent of the testator that the legatee shall, 
 at all events, have the principal, and is to wait 
 only for the payment until the day fixed. — Ct. of 
 App., Jan., 1879. Warner v. Durant, 76 N. Y. 
 133 ; affirming 15 Hun 450. 
 
 _ 6. Instances. The will of H., after a de- 
 vise of his homestead farm to his son Jonathan, 
 " on the following conditions and proviso," con- 
 tained among those conditions the following : 
 " I order and direct my said son Jonathan to 
 pay unto my three daughters — Hannah, Eunice 
 ani Sarah — four hundred dollars each, which I 
 give and bequeath to tliem and their heirs for- 
 ever." After directing the payment of various 
 
 other legacies by Jonathan, the will provided 
 that the testator's daughters, above named, 
 should live with Jonathan and their mother, 
 and have their support on the farm, they assist- 
 ing in carrying it on ; and that " the money 
 above bequeathed them, be paid one year after 
 they shall severally marry or be inclined to leave 
 Jonathan and their mother, and live elsewhere." 
 Jonathan took possession of the farm under the 
 devise. Sarah and Eunice resided with him 
 until their death, neither having married. 
 Held, that said legacies were charged upon the 
 lands devised to Jonathan ; also, that the lega- 
 cies^ were not contingent upon the happening of 
 one or the other of the events specified, but 
 vested on the death of the testator. Loder v. 
 Hatfield, snpra. 
 
 7. Sarah died more than sixteen years before 
 the commencement of this action ; the statute of 
 limitations was pleaded as a bar to a recovery of 
 the legacy to her. Held, that the cause of action 
 accrued one year after her death ; that Jonathan, 
 by accepting the devise, became perponally lia- 
 ble for the payment of the legacies ; that the 
 case, therefore, was not one exclusively of equi- 
 table cognizance, and thesame law of limitation 
 applied as if the action was a legal one ; that 
 the case came either within the six years' limi- 
 tation prescribed by I 91, or the ten years' limi- 
 tation prescribed by J 97 of the code of proce- 
 dure ; and that the cause of action was barred. 
 lb. 
 
 8. Legacies to two or more, or to a 
 class. A will directed the executors, after 
 paying certain legacies, to divide the residue of 
 the money in their hands "equally between 
 Anita, the children of Irene, the son of Isabel, 
 and Henry the doctor." Another provision of 
 the will was : " To the children of Irene I be- 
 queath $50,000." HM, that although by the 
 general rule of construction of wills, the first 
 provision would require that each child of 
 Irene should take an equal share with the other 
 persons named, of the balance in the executors, 
 hands ; yet that the gift in the second provision 
 of the $50,000 to them as a class, raised a pre- 
 sumption that the testator intended that they 
 should take as a class with respect to the first 
 provision also, and took the case out of the gen- 
 eral rule. — Supreme Ct., (1st Dept.,) Sept., 1879. 
 Ferrer v. Pyne, 18 Hun 411. 
 
 9. Lapsed legacies. A testator gave to his 
 wife a legacy of $1000, " to be paid out of my 
 real estate.'' The will declared it to be a lien 
 upon his real estate, and to be in lieu of dower. 
 He also gave legacies to his children, charged on 
 his real estate, and devised his residuary estate, 
 after payment of debts and legacies, to the re- 
 spondent. The wife died before the testator. 
 Held, that upon her death the legacy to her 
 lapsed, and the residuary devisee was relieved 
 from its payment. — Supreme Ct., (Zd Dept.,) 
 Nov., 1878. Hillis v. Hillis, 16 Hun 76. 
 
 10. Legacies were given to a religious society 
 in annual pajonents, so long as the church should 
 bear public testimony against slavery and in- 
 temperance. The church ceased to bear such 
 testimony. Held, that the right to the legacy 
 ceased, and the same should be divided pro raia 
 among the residuary legatees. — Supreme Ct., 
 (3d Dept. Sp. T.,) 1878. Matter of Orthodox 
 Congregational Church in Union Village, 6 Abb. 
 N. Cas. 399. 
 
 11. The will bequeathed the .whole estate, 
 
LEGACIES, I., II., III. 
 
 259 
 
 ■consisting of personalty, to a trustee to pay the 
 income and eo much of the principal as might 
 be necessary for the support of the son of the tes- 
 tatrix during his minority, and, upon his ma- 
 jority, to pay over the principal to him abso- 
 lutely ; or, in the event of his death before at- 
 taining his majority, to pay over the principal 
 :and accumulations to the testatrix's sister, and 
 lier heirs forever. The sister died before the 
 son, and tlie son died an infant. Hdd, that the 
 legacy over to the sister lapsed, and that as 
 against her next of kin, the husband of the tes- 
 tatrix was entitled to take. — N. Y. Sarr. Ot., 
 Avmst, 1877. Williams v. Seaman, 3 Kedf. 
 148. 
 
 12. Legacy to debtor. Where there is 
 no evidence tending to show that a legacy to 
 the executor of the will was intended to be a re- 
 lease of his indebtedness to the estate, the pre- 
 sumption is that it was not so intended. — N. Y. 
 Sarr. Ot , June, 1878. Matter of Leslie, 3 Eedf. 
 280. 
 
 13. A legacy to a creditor is not to be 
 ■deemed in satisfaction of his claim, unless so in- 
 tended by the testator. — Cl. of App., Oct., 1878. 
 Boughton V. Flint, 74 N. Y. 476 ; S. C, 5 Abb. 
 N. Gas. 215 ; reeersing 13 Hun 206. 
 
 14. The testator, who, at the time of his 
 ■death, had in his possession certain moneys be- 
 longing to his wife, which she requested him to 
 ikeep for her, by his will, after the payment of 
 all of his debts, gave certain legacies out of the 
 remainder, among them one of $1000 to his wife, 
 and also certain furniture and effects, the same 
 to be received by her in lieu of dower. Held, 
 that the bequests could not be deemed to be in 
 satisfaction of her claim, as there was nothing 
 in the case to justify an inference that such was 
 the intention of the testator. lb. Compare 
 Caulfleld v. Snllivan, 21 Hun 227. 
 
 15. Annuities. Laws of 1875, ch. 542, 
 changing the common law rule as to the appor- 
 tionment of annuities, only applies to instru- 
 ments executed or taking effect subsequent to its 
 ipassage. Therefore, where a testator wlio died 
 in 1858, left his wife an annuity for life of 
 $10,000 a year, payable October 9th and April 
 Sih in each year, and the wife died on April 1st, 
 1877 ; in an action by her executor to recover 
 ■the pro rata proportion of the annuity up to 
 that date — Held, that the annuity could not be 
 .apportioned. — Supreme Ot., lith Dept ,) Jan., 
 1878. Irving v. Bankiue, 13 Hun 147. 
 
 16. Interpretation on question of 
 validity. A bequest in trust to a religious 
 ■corporation, of a sum of money for the poor of 
 ■certain towns named in the will, to be used and 
 expended by the trustees in their " discretion 
 for the best interest of the poor persons who at 
 the time of my [the testator's] decease, and 
 thereafter may reside in said towns or either of 
 •them, it being my desire that this bequest be 
 used for the relief of the most needy and indi- 
 gent poor people residing in said towns, or either 
 of tliem now or hereafter, until said bequest be 
 in such manner expended" — Hdd, void for un- 
 certainty as to, tlif cestuis que trust. — Herk. Surr. 
 Ot., August, 1877. Matter of Abbott, 3 Eedf. 303. 
 
 16 a. A bequest to an tmincorporated associa- 
 tion or society is void — there can be no valid 
 trust without a certain donee or beneficiary. — 
 .tSupreme Ot,, jMh Dept.,) June, 1880. First 
 Presbyterian Soo. of Chili v. Bowen, 21 Hun 
 .389. 
 
 II. When a. Charge upon Land. 
 
 17. What bequests are a charge 
 upon land. A will provided for certain spe- 
 cific pecuniary legacies and then proceeded, 
 "after the payment of my funeral expenses, the 
 payment of my just debts and the payment of 
 the legacies aforesaid, I give, devise and be- 
 queath unto my son, William Johnson, all the 
 rest and residue of ray estate, real and personal, 
 wherever the same may be situated." Held, that 
 the legacies were a charge upon the real estate, 
 and the residuary legatee, by taking possession 
 thereof under and by virtue of the will, became 
 personally liable for their payment without any 
 express promise by him. — Supreme Ct., {^th 
 Dept.,) April, 1878. Stoddard v. Johnson, 13 
 Hun 606. 
 
 18. The first clause of the will directed the 
 payment of all the testator's just debts ; the second 
 gave $1500 to each of certain legatees named ; 
 and the third devised " all the rest residue and 
 remainder of my real and personal estate to " 
 persons named. Held, that the legacies given 
 by the second clause were charged upon the 
 land.— (Sitprenie Ot., (2d Dept.,) Feb., 1879. 
 Hoyt V. Hoyt, 17 Hun 192. S. P., March, 1880. 
 Forster v. Civill, 20 Hun 282. 
 
 19. Sale of lands for payment of leg- 
 acies. What is an insufficient execution of a 
 power of sale for the purpose of raising a fund 
 for the payment of legacies, see Hovt v. Hoyt, 
 17 Hun 192. 
 
 III. Payment. 
 
 20. Time of payment. G. died in 1863, 
 leaving a will by which she gave twenty-one 
 general legacies. She directed that in case her 
 estate, was insufficient to pay all, the first fifteen 
 legacies should be first paid, and the balance, if 
 any, applied pro rata to the payment of the re- 
 maining legacies. The sole estate of the testa- 
 trix was a residuary interest in certain real and 
 personal estate, in which her mother had a life 
 interest. The mother survived the testatrix and 
 died in 1874, at which time the first fifteen lega- 
 cies, with interest added from one year from the 
 death of the testatrix, amounted to more than 
 the whole estate of C. Held, that the circum- 
 stances fairly lead to the inference that the tes- 
 tatrix intended the legacies to be paid when, by 
 the death of the life tenant, her estate should 
 vest in possession ; and that they only bore in- 
 terest from that time. — Ct. of App., Sept., 1878. 
 Wheeler v. Euthven, 74 N. Y. 428 : affirming 
 13 Hun 530. 
 
 21. Prom ■wrhat fund payable. The 
 personal estate of a testator is the primary fiind 
 for the payment of general legacies ; and it is 
 the only fund, unless express direction or a clear 
 intent otherwise is found in or may be gathered 
 from the will in connection with the surround- 
 ing circumstances. — Ct. of App., Jan., 1878. 
 Bevan v. Cooper, 72 N. Y. 317. 
 
 22. When a legacy charged upon a life es- 
 tate in lands is to be paid from the interest of 
 the estate and not from the principal, see Jack- 
 son V. Atwater, 19 Hnn 627. Compare Delaney 
 V. Van Aulen, 21 Hun 274. 
 
 _ 23. Payment in advance of distribu- 
 tion. Priority. To procure an order direct- 
 ing an advance to be made by executors to a 
 beneficiary under a will, as provided for in 2 
 
260 
 
 LEGACIES, III., IV. 
 
 Eev. Stat. 98, U 82, 83, tae petitioner must pre- 
 sent facts going to show that such advance is 
 necessary to his support in the station in life he 
 occupies ; and the petition should also state the 
 amount required. Where the beneficiary who 
 applies for the advance is to receive, under the 
 will, the interest only of a specified sum, which 
 is bequeathed in trust for his benefit, with re- 
 mainder over, an advance of such interest only 
 as has accrued is proper. — Weslc. Surr. Ot., 
 May, 187'8. Lockwood v. Lockwood, 3 Redf. 
 330. 
 
 24. Where the will provides for the payment 
 of one legacy before another, and it is not made 
 preferential, if payment is demanded after the 
 expiration of a year from issuing letters testa- 
 mentary, the executor should refuse to pay in 
 full and leave the legatee to his application to 
 the surrogate to compel payment ; whereupon, 
 if a deficiency of assets appears probable, a par- 
 tial payment may be ordered or a refunding 
 bond required.— iV. T. Surr. Ot., Oct., 1878. 
 Trustees of Harvard College v. Quinn, 3 Eedf. 
 514. 
 
 IV. Incidentai, Eights and Liabilities 
 OF Legatee. 
 
 25. In greneral. A will gave a legacy to a 
 benevolent society on condition that it should 
 maintain for life a person named ; in case the 
 society ceased to exist, the legacy to go to such 
 other society as he should choose, subject to the 
 same condition. Hdd, that the beneficiary had 
 no right to the legacy or any part thereof, and 
 could not select any other society to maintain 
 him until the contingency named in the will 
 should happen. — Supreme Ot., {Ist Depl. Sp. T.,) 
 May, 1879. Livingston v. Gordon, 7 Abb. N. 
 Cas. 53. 
 
 26. Ademption. Declarations of a testa- 
 tor can only be proved to establish his intention 
 of adeeming a legacy by means of subsequent 
 advances to the legatee, where such declarations 
 are made at the time of making the advances 
 and with a view of giving character to the 
 transaction. — Supreme Ot , (33 Dept.,) May, 1878. 
 De GroflFi). Terpenning, 14 Hun 301. 
 
 27. A will, executed in 1840, gave to testa- 
 tor's daughter $400, to be paid to her one year 
 after his death, if she then had issue; if not, 
 she was to receive the interest during her life, 
 and upon her death the principal was to go to 
 her issue, if any, and if not, to be divided be- 
 tween testator's surviving children and grand- 
 children. In 1845 he gave her $400 in money, 
 telling her to take it as a present, and took her 
 husband's note for it. On the same day he 
 executed the following codicil to his will: 
 " Whereas, in my said last will I have given to 
 my daughter Ann Eliza the sum of $400, now it 
 is my will that if my said daughter Ann Eliza 
 shall die without lawful issue, then the same is 
 hereby devised to my daughters and not to my 
 sons." Hdd, that the gift of the $400 to the 
 daughter was not an ademption of the legacy 
 contained in the will. lb. 
 
 28. Abatement. When legacies are gen- 
 eral no legatee is entitled to priority in pay- 
 ment. In such case, if there is a deficiency of 
 assets to pay them all, the legacies must abate 
 ratably.— Supreme Ot., (Sp. T.,) Dec., 1878. 
 McKeon v. Kearney, 57 How. Pr. 349. 
 
 29. Jurisdiction of action for legacy.. 
 
 The testator died in 1867, domiciled in Connec- 
 ticut, leaving a will by which he gave a legacy 
 to plaintiff, among others, and the residue of 
 his estate, real and personal, to his son William,, 
 appointing him executor. William acted as ex- 
 ecutor and passed his accounts before the Con- 
 necticut Probate Court. At the time of the 
 death of testator, and at the time of the com- 
 mencement of this action, William resided in. 
 this state. Held, that the courts of this state 
 had jurisdiction of an action by plaintiff, to en- 
 force the payment of interest on his legacy.. 
 —Supreme Ot., (M Dept.,) Feb., 1879. Brown 
 V. Knapp,* 17 Hun 160. 
 
 SO. Time 'witliin -which to sue. Aa 
 action to enforce payment of a legacy is not an 
 action upon a sealed instrument within the- 
 meaning of the twenty years' limitation. (Code- 
 of Pro., ? 90, sub. 2.)— a o/ ^™., JVo»., 1877.. 
 Loder v. Hatfield, 71 N. Y. 92. 
 
 31. As to whether the rule formerly prevail- 
 ing in equity, by which no statute of limitations- 
 was applicable to suits in equity for certain 
 causes of action, still exists under the code,. 
 quaere. lb. 
 
 32. A petition in the Surrogate's Court to 
 compel an executor to pay a legacy, must be filed 
 within the time limited in which to bring actions- 
 of similar character in a court of common law 
 or of equity, and no demand is necessary front' 
 the date of which the limitation must be com- 
 puted. — Weslc. Surr. Ot., Nov., 1877. House ».. 
 Agate, 3 Eedf. 307. 
 
 33. Individual liability of executor 
 The mere failure of an executor to pay to a lega- 
 tee the full amount of his legacy will not, in the 
 absence of proof that he has become personally 
 liable for the residue thereof by reason of some 
 illegal or improper conduct, or that he himself 
 claims to be entitled thereto, authorize an action 
 to be brought against him individually to re- 
 cover the same. — Supreme Gt., (1st Dept.,) June,. 
 1880. Hurlbut v. Durant, 21 Hun 481. 
 
 34. Bill of particulars. In a suit by a 
 legatee against one who was formerly an execu- 
 tor for an undisclosed and unpaid legacy, the- 
 defendant should be held to as full a usclosure 
 of the trust fund as an executor or guardian 
 upon an accounting, and a bill of particulars^ 
 may be ordered in such case. — Supreme Ot., (ls( 
 Dept. Gen. T.,) May, 1878. Eberhardts. Schus- 
 ter, 6 Abb. N. Cas. 141. 
 
 For decisions relative to a Will, as a whole^ 
 and not limited to a particular devise or legacy- 
 contained in it, see Wii.i.8. 
 
 LEGISLATION. 
 
 Constitctionai, La-w; Statutes, 
 
 LETTERS. 
 
 Of Credit, see Guaranty, 8, 9. 
 Upon Decedent^ estates, see Executobs ANI^ 
 Administbatobs, I. 
 
 Q}ntracts by, see Contracts, 3. 
 
 *Sald to have been reversed, December 2d, 1879. 
 
LIBEL— LIEN. 
 
 261 
 
 LEVY. 
 
 Attachment, 21-23; CoNSTABiiES, 1-3; 
 Execution, 6-9 ; Justice of the Peace, 
 16; Shekiffs, 6-8; Taxes, III. 
 
 LIBEL. 
 
 1. WTiat is libelous. The terra " black- 
 mailing" is libelous per $e. — Superior Ct., May, 
 1878. Robertson v. Bennett, 44 Superior 66. 
 
 2. Words applied to a professional man, to 
 he actionable per se, must "touch him" in that 
 profession. To impute to him ignorance, or 
 want of skill, in a particular transaction, is not 
 actionable. The words must be spoken or writ- 
 ten of him, generally .^Com. Pleas, April, 1880. 
 -Gunning v. Appleton, 58 How. Pr. 471. 
 
 3." Denmrrer, and its effect. In an 
 action for libel the defendant may test the 
 actionable character of the words complained of 
 by demurrer, and to that extent only will the 
 .demurrer be deemed an admission of the allega- 
 tions contained in the complaint. lb. 
 
 4. Evidence. Defendant published two ar- 
 ticles accusing plaintiff of producing a play and 
 claiming to be the author, when, in fact, it was 
 ■written by another person, sent to plaintiff for 
 'examination, wrongfully retained by him, and 
 subsequently so produced as his own. In an ac- 
 tion for libel, plaintiff, to prove malice, intro- 
 -duceii in evidence other articles repeating the 
 -charge substaniially, and also alleging that it 
 was taken bodily from a certain published novel. 
 The defendant thereupon offered to show that 
 the play was like the novel referred to. This 
 ■evidence was rejected. Held, no error ; as the 
 resemblance of the play to the novel was not an 
 issue in the case. — Ol. of App., April, 1879. Daly 
 ■V. Byrne, 77 N. Y. 182, 189 ; affirming 43 Supe- 
 rior 261. 
 
 5. Defendant's answer alleged the receipt by 
 him of a letter &om plaintiff's attorneys, and 
 gave what purported to be a copy thereof; it re- 
 ferred to an article published in " The World " 
 newspaper. Defendant, as a witness, testified 
 4hat he had read the article referred to. The 
 article was offered by plaintiff, and received in 
 evidence. Held, no error ; as the article was by 
 the terms of the letter made part of it. Jb. 190. 
 
 6. In one of the articles published by defend- 
 ant and offered in evidence by plaintiff, reference 
 was made to a prior article published by defend- 
 ant ; this was offered in evidence by the latter, 
 and rejected. Held, no error ; it not appearing 
 that there was anything in the article received 
 in evidence which needed explanation from the 
 prior one. lb. 
 
 7. Successive suits— amount recov- 
 ■erable. Where, after a recovery against one 
 person for a libel, an action is brpuglit against 
 other persons for the same libelous publication, 
 and also for another, the two libels being set 
 forth in different counts in the complaint, and a 
 general verdict is rendered for plaintiff on all 
 the counts, a satisfaction of the first judgment is 
 a satisfaction of so much of the second as was for 
 -the same libel and defendants are entitled to re- 
 lief therefrom ; but it is not a satisfaction for 
 
 •that part of the second recovery which was for 
 •4he other libel.— Of. of App., Dec.. 1878. Woods 
 
 V. Pangborn, 75 N. Y. 495 ; reversing 14 Hun 
 540. 
 
 For decisions illustrating the above princi- 
 ples, but arising in actions for slander, see SIiAN- 
 seb. 
 
 LICENSE. 
 
 1. How defined. The word "license" im- 
 ports leave, permission, sufferance, authoriza- 
 tion. It implies only the removal of legal re- 
 straint by a grant of permission. The necessary 
 license is granted when it expressly authorizes 
 " such acts to be done as may be necessary to 
 enable the person to whom it may be given, to 
 perform the duty which the statute, in such a 
 contingency, creates." — Superior Ct., May, 1878. 
 Sun, &c., Assoc, v. Tribune Assoc, 44 Superior 
 136. 
 
 2. Rights and liabilities of licensee. 
 W. gave B. a license to open apertures through 
 the floors and ceilings of nis (W.'s) store. W's 
 goods were damaged by the dust and d$bris aris- 
 ing from the opening of the apertures. There 
 was a conflict of testimony as to whether there 
 were injuries to the goods other than such as 
 would necessarily result from the licensed acts 
 of B. 
 
 Held, 1. That B. was not liable for such dam- 
 ages as necessarily resulted from the doing of 
 the licensed actl 
 
 2. That B. was liable for such damages as did 
 not so result. 
 
 3. That a charge, " that if B. had a license, 
 and went into the premises by permission of W., 
 but was guilty of depreciating the value of W.'s 
 goods, he isstill liable for the whole damage he 
 has done," was erroneous. — Superior Ct., Jan., 
 1878. Woodruffs Beekman, 43 Superior 282. 
 
 3. An express authority carries with it, by im- 
 plication, an authority to do such damage and 
 injury as necessarily results from the perform- 
 ance of the act authorized in express terms. lb. 
 
 4. Revocation. It seems that a parol license 
 given by the owner of land to a railroad com- 
 pany to occupy the land for its road, followed by 
 the expenditure of money in the construction of 
 the road is not iiTevocable ; it simply justifies 
 the entry, and is revocable at the pleasure of the 
 plaintiff. — Ct. of App., May, 1878. Murdock v. 
 Prospect Park, &c., B. E. Co., 73 N. Y. 579, 584 ; 
 reversing 10 Hun 598. 
 
 As to licenses to sell Intoxicaiing liquor, see 
 Liquob-Selling, 9-12. 
 
 As to the regulation and licensing of various 
 Trades and Employments, in cities, see Muni- 
 cipal Coepobations, 8, 9. 
 
 LIEN. 
 
 1. Liabilities of lienor. Where a receiver 
 of proceeds of a sale pays the same over to a 
 lienor, under an order of the court, and the or- 
 der is reversed, and the lienor directed to repay, 
 the fact of his having obtained possession &om 
 the receiver is no defence to the action of trover. 
 — Superior Ct., June, 1879. Hovey v. McDonald, 
 45 Superior 606. 
 
 2. Waiver, or merger of equitable 
 lien. Where an equitable lien has once arisen, 
 and there is no express waiver, it is not waived 
 
262 
 
 LIEN— LIMITATIONS OF ACTIONS, I., II. 
 
 V' the subsequent taking of a legal and perfect- 
 ed hen to the same extent and upon the same 
 property, nor is it merged therein.— Cl!. ofApp., 
 Sept., 1878. Payne v. Wilson, 74 N. Y. 348. 
 
 As to the lien of an Attachment, or Exeaution, 
 see Attachment, 21 ; Execution, IS, 13. Of 
 a Judgment, see Jud&ment, IV. Of a Mortgage, 
 see Mortgages, IV. 
 
 As to the lien of a Pledgee, see Bailment, 
 6-13. Of an Attorney, for costs, see Attorney 
 AND Client, III. Of a Vendor of land, for the 
 purchase money, see Vendor and Purchaser, 
 
 As to Mechanic^ liens, see that title. 
 
 As to liens upon Vessels, see Shtpping, IV. 
 
 LIFE ESTATES. 
 
 Estates, 1-4 : Legacies, 15 ; Wills, V. 
 
 LIFE INSURANCE. 
 
 Insurance, III 
 
 LIMITATIONS OF ACTIONS. 
 
 L General Principles. 
 
 n. What Lapse of Time will Create a 
 Bar. 
 
 IIL When the Statute begins to Run. 
 
 IV. Disabilities and Exceptions. 
 
 V. Acknowledgment. New Promise. 
 Part Payment. 
 
 I. General Principles. 
 
 1. Powers of the legislature— retro- 
 spective provisions. The legislature has 
 power to pass a retrospective statute of limita- 
 tions, changing the period within which an ac- 
 tion for a tort may be commenced. Therefore, 
 where A. wa-s injured while the six years' limi- 
 tation in cases of personal injuries was in force, 
 and brought his action four years after the in- 
 jury, (the legislature, meanwhile, having 
 changed the law to one year within which to 
 bring such actions) — Seld, that the statute of 
 limitations was a good defence. — Com. Pleas, 
 April, 1878. Guillotel „. Mayor, &c., of New 
 York, 55 How. Pr. 114. S. P., Dubois «. City 
 of Kingston, 20 Hun 500. 
 
 2. Who may claim the protection of 
 the statute. Where an attempt is ma(Je, by 
 collusion between the personal representative 
 and others, to fasten a stale claim upon the es- 
 tate, lieirs, who are parties defendant, may in- 
 terpose the statute of limitations in defence, or 
 rely upon tlie presumption of payment arising 
 from lapse of time. — Supreme Ot., (1st Dept. Sp. 
 T.,) Oct., 1877. Malloy v. Vanderbilt, 4 Abb. 
 N. Cas. 127. 
 
 3. "What is deemed to be the com- 
 mencement of an action. The provision 
 of Code of Pro., I 99, subd. 2, declaring that an 
 action shall be deemed commenced, within the 
 meaning of the statute of limitations, when the 
 summons is delivered to the sheriff or other 
 officer with intent that it shall actually be 
 served, applied only to defendants who were 
 
 parties to the action at the time of such delivery, 
 or who were made parties before the statute had 
 run against the claim on which the action was 
 brought. Such delivery of the summons did 
 not prevent the running of the statute in favor 
 of persons who, although liable upon the obliga- 
 tion sued upon, were not named as defendants in 
 the summons ; and it is immaterial whether the 
 omission was by design or through ignorance, 
 mistake or inadvertence.— 0(5. of Am., Seut 
 1879. Shaw V. Cock, 78 N. Y. 194. ' 
 
 4. So, also, where, by order amending thfr 
 summons, a new party defendant was brought in,, 
 the suit was only commenced as to him when 
 thus brought in ; and if between the time of the- 
 commencement of the action as to the original 
 parties, and the time "when the new defendant 
 was brought in, the period of limitation had ex- 
 pired, a plea of the statute in bar of his liabil- 
 ity is good. lb. 
 
 5. Plaintiff had a cause of action against the 
 " Butterfield Overland Dispatch," a joint-stock, 
 association. On August 8th, 1872, he delivered 
 a summons to the sheriff, with intent that it 
 should be served, entitled in an action in his 
 favor against C. and seven individual defend- 
 ants, and the " Overland Dispatch Company,"" 
 another joint-stock association. The summons 
 was not served upon any of the defendants until 
 the statute of limitations had run against said 
 cause of action. It was thereafter served upon 
 C. Certain attorneys appeared in the action for- 
 C. and others of the individual defendants- 
 named, and for the association named. There- 
 after an order was made, on motion and notice 
 to the attorneys so appearing, amending the- 
 summons so as to make the title of the action' 
 one in favor of plaintiff against C, " as treasurer 
 of Butterfield's Overland Dispatch." This 
 order, with a copy of the complaint, entitled in, 
 the same manner, was served on said attorneys ^ 
 the amended summons was not served on any 
 one. Said attorneys appeared for the new de- 
 fendant and answered, setting up the statute of 
 limitations. Held, that the statute was a bar. 1 b. 
 
 6. Effect of commencing action. No 
 mere lapse of time after the commencement of 
 an action at law will bar the action under the 
 statute of limitations ; the statute can in no case 
 furnish a defence, unless the action was barred 
 before its commencement. — Cl. of App., Feb.^ 
 1878. Evans v. Cleveland, 72 N. Y. 486. 
 
 II. What Lapse of Time will Create a. 
 Bar. 
 
 T. Ten years. A right of action against 
 an agent who uses money of his principal to- 
 purchase land in his own name is, in the absence- 
 of fraud, barred at the expiration of six or ten 
 years. The agency is not such a technical trust 
 as to prevent the application of the statute. — 
 Supreme a., {2d Dept.,) Sept., 1878. Eeitz v. 
 Eeitz, 14 Hun 536. 
 
 8. Six years. A promissory note, payable 
 on demand, is barred by the statute of limita- 
 tions, at the expiration of six years from its 
 date.— C!!. of App., Jan., 1879. De Lavallette ji. 
 Wendt, 75 N. Y. 579. 
 
 9. A check on a bank, remaining in the hands 
 of an indorsee more than six years, without pre- 
 sentation for payment, is barred, whether the- 
 drawer had funds on deposit in the bank at the 
 time the check was drawn, or within six years' 
 
LIMITATIONS OF ACTIONS, IL, III., IV. 
 
 263 
 
 thereafter, or not. — Supreme Ct., (4rt Dept.^ 
 Jan., 1879. Brust ». Barrett, 16 Him 409. 
 
 10. In an action by an assignor for an 
 accounting, as to articles manufactured under a 
 patent, assigned by an instrument under seal, in 
 consideration of a certain royalty on each article 
 so manufactured, and for payment of the amount 
 of royalty found due, the accounting is not to be 
 limited to a period of six years before the com- 
 mencement of the action. — Superior Ct., March, 
 
 1879. Bommer v. American Spiral Spring, &o., 
 Co., 44 Superior 454. 
 
 11. One year. The one year's statute of 
 limitations (Code, § 96) does not apply to an ac- 
 tion by a purchaser of lottery tickets to recover 
 double the sum paid; (1 Eev. Stat. 667, \ 32,) 
 it is not an action " for a penalty or forfeiture, 
 given in whole or in part to any person who 
 will prosecute for the same." If the action is to 
 be regarded as one for a penalty or forfeiture, it 
 comes within the three years' limitation pre- 
 scribed in cases " where the action is given to 
 the party aggrieved." (Code, ? 92.)— Ct of 
 App., May, 1878. Grover v. Morris, 73 N. Y. 
 473,478. 
 
 12. Six months. The short statute of lim- 
 itations as to the reference of claims against an 
 estate, or suits on them within six months after 
 rejection, applies as well where the claim has 
 accrued after the death of the testator or intes- 
 tate, as where it existed at that time. — Supreme 
 Ct., (ith Dept.,) June, 1878. Comes v. Wilkin,* 
 14 Hun 428. 
 
 TIL When the Statute Begins to Run. 
 
 13. In general — actions on contract. 
 Defendants having purchased certain premises 
 at a state sale, assigned the certificate to plain- 
 tiff, contracting to make the payments thereafter 
 to be made to the state, and to hold plaintiff 
 " free from all payments, loss or damage on ac- 
 count of such payments." Defendants having 
 failed to make the payments, the premises were 
 re-sold andplaintiff and her tenant were evicted. 
 In an action upon the contract the statute of 
 limitation was pleaded as a defence — Held, that 
 the contract was broken by tlie eviction ; and 
 that the statute of limitations only commenced 
 to run from that time. — Ct. of App., April, 1877. 
 Taylor v. Barnes, 69 N. Y. 430. 
 
 14. Actions for ■wrongs. The statute 
 begins to run against a right of action for false 
 imprisonment from the time of the illegal ar- 
 rest, and the action is baiTed at the expiration 
 of two years from such arrest, although the pro- 
 ceedings in which the arrest w.is made are con- 
 tinued within the two years. — Com. Pleas, Jan., 
 
 1880. Dnsenbury v. Kielly, 58 How. Pr. 286 : 
 S. C, 8 Daly 537. 
 
 15. Actions given by statute. A cause 
 of action against the trustees of a manufacturing 
 company for failure to file the annual report ac- 
 crues immediately upon such failure, and the 
 statutory limitation of three years begins to run 
 iit that time, and not from the time when the 
 debt against the corporation became due. — 
 Com. Pleas, Dec., 1878. Duckworth v. Roach, 8 
 Daly 159. 
 
 16. The statute begins to run against the 
 right of a creditor of an ocean navigation com- 
 
 *Said to have been affirmed December 2d, 1879. 
 
 pany to enforce his debt against the stockhold- 
 ei-8, individually, when the plaintiff has the 
 right to bring his action under the clause of 
 ^ 8, viz. : " And no suit shall be brought 
 against any stockholder in such corporation, for 
 any debt so contracted, until an execution shall 
 have been returned unsatisfied in whole or in 
 part." (2 Rev. Stat. (6th ed.) 718.) And in 
 case of the sheriff's failure to return it (at the 
 end of sixty days), then the return of it as pro- 
 cured by proceedings taken by the creditor 
 within a reasonable time after the failure of the 
 sheriff to return, shall be deemed the time re- 
 ferred to in the statute. The statute begins to 
 run at the lapse of such reasonable time, with- 
 out the creditor taking any proceedings to com- 
 pel a return. — Superior Ct., May, 1878. Mills r. 
 Hicks, 44 Superior 527. 
 
 17. "WTien a demand is necessary to 
 set the statute running. The testator in 
 his lifetime received certain moneys belonging 
 to his wife, and was requested by her to keep 
 the same for her. More than six years had 
 elapsed from that time to the time of his deatli. 
 lidd, that in the atisence of evidence that the 
 money had been demanded of the testator, or 
 that he had refused to pay it over, or laid any 
 claim to it hostile to that of his wife, the claim 
 was not barred by the statute of limitations; that 
 the transaction amounted to a simple deposit, 
 upon which the statute would not begin to run 
 until a demand or refusal to pay, or some equi- 
 valent act. — Ct. of App., Oct., 1878. Boughton 
 V. Flint, 74 N. Y. 476 ; S. C, 5 Abb. N. Cas. 215. 
 
 rV. Disabilities and Exceptions. 
 
 18. Absence and non-residence. Un- 
 der Code of Pro., § 100, before the amendment 
 of 1867, both departure from and residence out 
 of the state were necessary to suspend the run- 
 ning of the statute. The amendment (Laws of 
 1867, ch. 781,) was not retrospective, and did not 
 revive claims barred at the time of its passage. — - 
 Com. Pleas, June, 1877. Belknap v. Sickles, 7 
 Daly 249. 
 
 19. Mutual accounts. In an action by a 
 married woman for services rendered in attend- 
 ing on her father during his last illness, she 
 claimed to recover for services rendered before 
 her marriage, to which the statute of limitations 
 was pleaded. To remove the bar, she proved 
 an account in which she had charged her father 
 with the services rendered, and credited him for 
 various articles, such as a father would naturally 
 give to a daughter living with him, after coming 
 of age. Held, not sufficient to take the case out 
 of the statute ; that an account of her father 
 against her should have been proved. — Supreme 
 Ct., (3d Dept.,) Jan., 1879. Cuck v. Quacken- 
 bush, 13 Hun 107. 
 
 19 a. In an action to recover a balance al- 
 leged to be due upon a store account, for goods 
 sold and delivered, where the defence was the 
 statute of limitations, it appeared that defend- 
 ant had delivered to plaintiff small quantities 
 of butter and eggs at different times to be cred- 
 ited upon the account. Held, that the action 
 was "upon a mutual, open and current account, 
 where there have been reciprocal demands be- 
 tween the parties," within the meaning of the 
 provision of the Code of Pro., J 95, which de- 
 clares that in such case the cause of action shall 
 be deemed to have accrued from the time of the 
 
264 
 
 LIMITATIONS OF ACTIONS, IV., V. 
 
 last item proved ; and that as the last item was 
 within six years the claim was not barred. — Ct. 
 of App., Nov., 1879. Green v. Disbrow, 79 N. 
 
 19 b. The words " reciprocal demands " in 
 said provision mean no more than "mutual 
 accounts " as used in the former statutes. lb. 
 
 19 e. An account of items, on one side and 
 payments on the other is not a mutual account ; 
 but when goods are delivered by a debtor to a 
 creditor having an account against him, it will 
 not be presumed that they are delivered in pay- 
 ment ; before they can be held to have been so 
 delivered there must be proof that it was'so in- 
 tended, and that both parties so understood it. 
 lb. 
 
 19 d. It is not essential in order to make an 
 account of mutual or reciprocal demands that 
 each party shall have an independent cause of 
 action against the other for his side of the ac- 
 count; the cause of action is only for the bal- 
 ance, and that party is only the debtor against 
 whom the balance is found. lb. 
 
 20. Exception in case of injunction 
 against suing. It seems that an injunction 
 issued at the suit of a third person against one 
 of the parties to a contract, restraining him from 
 bringing an action thereon within the time lim- 
 ited by the contract, does not suspend the run- 
 ning of the limitation, or relieve the party from 
 forfeiture under it. — Ct. of App., Feb., 1878. 
 Wilkinson v. First Nat. Fire Ins. Co., 72 N. Y. 
 499. 
 
 21. The provision of Code of Pro., g 105, 
 (Code of Civ. Pro., § 406,) saving the rights of 
 parties under the statute when they are stayed 
 by injunction, applies only to cases governed by 
 the statute ; it hns no application to a limitation 
 prescribed by contract. lb. 
 
 22. Effect of adjudication in bank- 
 ruptcy.' The statute of limitations does not 
 run after an adjudication in bankruptcy against 
 the claim of a creditor of the bankrupt, which 
 was not barred by the statute at that time. — Ol. 
 of App., Feb., 1878. Von Sachs v. Kretz, 72 
 N. Y. 548, 556 ; affirming 10 Hun 95. 
 
 23. Privilege accorded to personal 
 representatives. An administrator may 
 avail himself of the defence of the statute of 
 limitations on a reference of a disputed claim 
 against the estate, without pleading it. — Supreme 
 (%., {4th Dept.,) June, 1880. Converse v. Miner, 
 21 Hun 367. 
 
 24. Disability of coverture. As to the 
 effect of the provisions of the old code (§§ 88, 
 101,) to lengthen the period within which a 
 married woman may sue after the removal of 
 the disability of coverture, and the effect Of the 
 removal of such disability by Laws of 1860, ch. 
 90, see Acker v. Acker, 16 Hun 173 ; Clark v. 
 McCann, 18 Id. 13. 
 
 V. Acknowledgment. New Promise. Part 
 Payment. 
 
 f. 25. "What is a sufQcient acknovrledg- 
 ! ment or ne-w promise. The statute of limi- 
 tations, when applicable, is something more than 
 presumptive evidence of payment of the debt. 
 It is a complete bar. No admission of the debtor 
 will avoid the discharge, unless made under cir- 
 cumstances which indicate a willingness to pay. 
 But no express promise is necessary as long as a 
 promise may be implied from the acknowledg- 
 
 ment of a present indebtedness. — Superior Ct., 
 June, 1879. Fiske v. Hibbard, 45 Superior 331, 
 333. 
 
 26. The provision of the code (Old Code, 2 
 110; New Code, | 395,) requiring a written 
 acknowledgment or promise, to take a case out 
 of the statute of limitations,, does not require 
 that the time when the acknowledgment or 
 promise was made should appear in the writing, 
 or should be evidenced by writing ; if, therefore, 
 a writing containing either of the prescribed 
 requisites is without date, or if the date stated is 
 erroneous, parol evidence may be given of the 
 time when it was executed. — Ct. of App., April, 
 
 1878. Kincaid v. Archibald, 73 N. Y. 189. 
 
 27. Instances. On the Ist of January, 
 1861, defendant was indebted to plaintiff $1600 
 for money loaned. Nothing was paid thereon 
 except the sum of $200, paid January, 1866. In 
 August, 1872, defendant signed and delivered to 
 plamtiff a writing, without date, in these words : 
 " Received, January, 1861, from Mrs. J. E. Kin- 
 caid, the sum of $1600, for which I agree to pay 
 interest, at the rate of seven per cent., from this 
 date. Paid, January, 1866, to Mrs. Xincaid, on 
 the above, $200." In an action to recover the 
 loan — Held, that parol evidence was competent 
 to show when the instrument was executed ; that 
 it was a sufBcient acknowledgment and promise 
 to pay to take the case out of the statute of limi- 
 tations ; that the statement as to a payment, and 
 the promise to pay interest, conclusivdy repelled 
 any inference that the money was received as a 
 gift, or in payment of a debt, and clearly implied 
 that the transaction was a loan ; that the promise 
 to pay interest imported an existing debt upon 
 which interest was to accrue, and the statement 
 as to payment was an admission that the balance 
 was unpaid ; and that the words " interest from 
 this date," referred to the date of the loan, not 
 to the time when the instrument was executed. 
 lb. 
 
 Z&. Defendant, an administrator, made and 
 filed an inventory of his intestate's estate. He 
 made a copy thereof, and inserted at the end, 
 copies of two promissory notes given by him to 
 the deceased, and inclosed the same to his co- 
 administrator, in a letter, saying: "Inclosed I 
 send a copy of the inventory taken yesterday." 
 Held, that the copies of the notes and letter 
 constituted a sufficient written acknowledgment 
 of the notes to take them out of the statute of 
 limitations. — Supreme Ct., (2d Dept.,) Sept., 1878. 
 Clark V. Van Amburgh, 14 Hun 557. 
 
 29. Defendant wrote a letter to plaintiff, 
 which contained the following statements in re- 
 gard to the debt in question : " I am well aware 
 that I owe you for money borrowed.^' "As you 
 have the figures, I wish you would at your leisure 
 make out a statement of what you consider my 
 indebtedness to you, and send it to me, resting 
 assured that in all money matters I want to act 
 honestly toward everybody." Held, that these 
 statements were a sufficient acknowledgment of 
 a present indebtedness, from which a promise 
 to pay might be implied. — Supreme Ct., June, 
 
 1879. Fiske v. Hibbard, 4-5 Superior 331. 
 
 30. Effect of part pajnnent to revive 
 the statute. In an action upon a joint promis- 
 sory note, made by a father and son, payments 
 of interest were claimed to have been made by the 
 father, The court charged that it was not ne- 
 cessary to charge the father that the pay- 
 ments should have been made by his own hand, 
 
LIMITATIONS OF ACTIONS, V.— LIQUOR-SELLING, I. 265 
 
 •or with his money, but that it was snfficient if 
 the son acted by his direction, if he were a joint 
 actor with the son in making the payment. Hdd, 
 correct.— Supreme -Ct., (2dDept.,) Dee., 1878. 
 Haight V. Avery, 16 Hun 252. 
 
 31. In an action for services rendered to de- 
 fendants' testator, it appeared that plaintiff com- 
 menced work in 1867, and continued to do so 
 <mtil 1877. The defendants claimed, and plain- 
 tiff admitted, tliat payments had been made on 
 the account in each of the ten years covered by 
 th« services ; and defendants insisted that the 
 claim for services rendered moie than six years 
 prior to the testator's death was barred. Held, 
 that the claim constituted an entire account, and 
 that the payments made took the entire balance 
 out of the statute. — Supreme Ct., {ith Dept.,) Jan., 
 1880. Pursell v. Fry, 19 Hun 595. 
 
 32. S., being liable for the debts of a firm, 
 whether as a partner inier sese or quoad third 
 persons, after the firm went into liquidation, gave 
 to a partner of the firm an amount of money, to 
 be applied by him towards the payment of the 
 debts of the fii-m, such partner agreeing to pay 
 the debts in full. Such partner made a part pay- 
 ment on a claim against the firm. Held, suffi- 
 cient to take the case out of the statute of limi- 
 tations as to S. — Superior Ol., March, 1879. Bur- 
 nett V. Snyder, 45 Superior 577. 
 
 33. As to the effect of indorsements of pay- 
 ments cf interest on the back of the notes sued on 
 to remove the bar of the statute, see Eisley 
 s>. Wightman, 13 Hun 163; Hulbert v. Nichol, 
 20 Hun 454. 
 
 For the effect of a new promise to take a debt 
 «ut of the protection of a jDischarge in bankraptcy 
 or Iimlveney, see Bankbtjptcy, 28, 29 ; In- 
 solvency. 
 
 LIQUOR-SELLING. 
 
 I. General Principles. 
 II. Decisions Under the " Civil Damage 
 Act." 
 
 I. General Principles. 
 
 1. Constitutionality of excise la'ws. 
 
 Provisions regulating the granting of licenses for 
 the sale of intoxicating liquors, and the suing 
 for penalties for selling without a license, in an 
 act the subject of which, as expressed in its title, 
 is the re-organization of a village, are not viola- 
 tive of the constitutional provision (art. 3, § 16,) 
 requiring that a private or local bill shall em- 
 brace but one subject, which shall be expressed 
 in the title; such provisions relate to police 
 regulations which are embraced in the organi- 
 jjation or re-organization of a village. — Ct. ofApp., 
 Sept., 1877. Village of Gloversville v. Howell, 
 70N. Y. 287. 
 
 2. — of local option la-w. A provision 
 in the village charter providing for submission 
 of the question of license or no license to a vote 
 of the electors is not unconstitutional ; that ques- 
 tion relates to a local regulation which it is com- 
 petent for the legislature to submit to the people 
 of the district. lb. 290. 
 
 8. A license granted by the town board, 
 against the vote of the electors of a village 
 ■frhnse charter thus provides for the submission 
 of the question of granting licenses to them, is no 
 
 protection to one selling within the corporate 
 limits. 1 b. 
 
 4. Appointment of commissioner of 
 excise. Under the provisions of the excise 
 law of 1870, (Laws of 1870, ch. 175, f 2,) pro- 
 viding for the appointment of commissioners of 
 excise in cities, such an appointment, cannot be 
 made verbally. — Ct. ofApp., Sept., 1877. People, 
 ex rel. Babcock, v. Murray, 70 N. Y. 521. 
 
 5. Commissioners of excise cannot, by their 
 act or assent, transfer the office to others, or re- 
 lieve themselves from the duties of the office, 
 save in one of the ways designated by the stat- 
 ute. (1 Eev. Stat. 122, § 34.) lb. 
 
 6. The provision of the Laws of 1870, above 
 cited, was not repealed or superceded as far as it 
 relates to the city of New York by the provision 
 of the charter of that city, of 1873, (Laws of 
 
 1873, 2 25, ch. 335,) providing for the appoint- 
 ment of city officers, and fixing their term of 
 office. It was not the intention of the legis- 
 lature in passing the charter to interfere with 
 the general system established by the excise 
 laws, or to place said city upon any different 
 footing from that of the other cities of the state. 
 — Ct. ofApp., Sept., 1879. People, ex rel. Stiner, 
 V. Morrison, 78 N. Y. 84. 
 
 7. The fact that the legislature, subsequent 
 to the passage of said charter, amended the said 
 provision of the excise law so far as applicable 
 to said city (Laws of 1 873, ch. 549 ; Laws of 
 
 1874, ch. 642,) is clearly indicative that the legis- 
 lature regarded said provision as still in force 
 and applicable to said city, and is sufficient to 
 control the general words of the charter. 
 Therefore, after the passage of said charter, ap- 
 pointments of commissioners were properly 
 made under the act of 1870. lb. 
 
 8. Election — filing bond. As to the 
 effect of the failure of one elected excise com- 
 missioner to file his bond with the supervisor, 
 upon his right to act as such commissioner, see 
 Cronin v. Gundy, 16 Hun 520. 
 
 9. Interpretation of license laws. 
 The provision of the excise law of 1867, (Laws 
 of 1857, ch. 628, § 14,) imposing a ^penalty for 
 the sale by any person except an inn-keeper, 
 who has obtained a license therefor, of "strong 
 or spirituous liquors or wines," to be drank 
 upon the premises, was not repealed by the act 
 of 1870 (Laws of 1870, ch. 175) ; but by virtue 
 of the provision of the latter act (^ 6) declaring 
 that the provisions of the act of 1857, " except 
 where the same are inconsistent," shall be taken 
 as a part of the act of 1870, and shall " remain 
 in full force and effect," the said provision of 
 the act of 1857 remains in full force and is a 
 part of the excise law of the state — Ct. of App., 
 March, 1877. People ». Smith, 69 N. Y. 175 ; 
 reversing 9 Hun 446. 
 
 10. The provision, therefore, of the act of 
 1870 (2 4), authorizing the granting of licenses 
 for the sale of intoxicating liquors in quantities 
 less than five gallons, is to be construed in con- 
 nection with the former provision, and a license 
 granted under it gives no authority to one who 
 is not an innkeeper to sell liquors to be drank 
 on the premises. 2b. 
 
 11. Whether the provision of the act of 1857 
 (? 6), requiring a petition of twenty freeholders 
 as a condition precedent to the granting of aa 
 inn-keeper's license is repealed by the act of 
 1870, see lb. 
 
 12. Ale and beer licenses. By Laws of 
 
266 
 
 LIQUOR-SELLING, I., II. 
 
 1857, ch. 628, as ixinended by Laws of 1869, ch. 
 856, in addition to a license permitting the sale 
 of intoxicating liquor not to be drank on the 
 premises of the seller, two kinds of licenses 
 conld be granted in all parts of the State of 
 New York except tlie metropolitan police dis- 
 trict, namely, a license to sell strong and spiritu- 
 ous liquors and wines, etc., to be granted only 
 to persons who kept an inn, tavern or hotel, and 
 an ale and beer license to other persons. By 
 Laws of 1870, ch. 175, amending the act of 
 185J, such licenses were allowed in the metro- 
 politan police district. Accordingly commis- 
 sioners of excise granting a license to sell ale 
 and beer in the city of New York to one not 
 keeping an inn, tavern or hotel, do not viokte 
 any provision of the excise law. The act of 
 1870 declares that the provisions of the act of 
 1857 "shall be taken and considered as a part 
 of this act " (of 1870) " and be and remain in 
 full force throughont the whole of this state>" 
 Hdd, to apply to the act of 1857 as amended in 
 1869, and not to the original act of 1857 only. 
 — N. Y. Supreme Ct. People v. Morrison, 22 
 Alb. L. J. 210 ; S. P., Matter of Mundy, 59 
 How. Pr. 359. 
 
 13. 'Who may sue for penalties. 
 Actions to recover penalties for violation of the 
 excise law within the city of Yonkers, must be 
 brought by the c(>mmissioner of charities, and not 
 by the commissioners of excise (Laws of 1878, 
 ch. 109.)— Supreme Ot., (2d Dept.,) May, 1880. 
 Commissioners of Excise v. Glennon, 21 Hun 244. 
 
 14. Whei-e, by a village charier passed after 
 the passage of the general excise law of 1857, 
 it is provided that actions to recover penalties 
 for the violation of the excise laws in said vil- 
 lage shall be brought in the corporate name of 
 the village, such provision takes the case of the 
 village out of the operation of the general law, 
 and is not affected by the amendment to the lat- 
 ter of 1873 (oh. 820), vesting the power of suing 
 for penalties in the overseers of the poor of the 
 county, which, by the general act, was given to 
 the board of commissioners of excise. Village 
 of Gloversville v. Howell, supra. 
 
 15. Criminal offence of selling to 
 minor. Plaintiff in error was convicted of 
 selling liquor to a boy ten years old, who testi- 
 fied that he was sent to purchase the liquor by 
 M., who furnished the money ; that he took the 
 liquor to M. without tasting it; that M. gave 
 him a drink of it by reason of which he became 
 intoxicated. Held, a proper conviction ; that 
 the fact that the boy was acting as agent for an 
 undisclosed principal did not relieve the plain- 
 tiff in error from the penalties imposed by the 
 statute. — Supreme Ct., (1st Dept.,) May, 1879. 
 Boss V. People, 17 Hun 591. 
 
 16. — to intoxicated person. Where a 
 statute creates a new offence, making that un- 
 lawful which was lawful before, and prescribes 
 a particular penalty therefor, that penalty alone 
 can be enforced ; the offence is not indictable. 
 Accordingly — Held, that the offence of selling 
 liquor to an intoxicated person, created by the 
 excise law of 1857 (Laws of 1857, i 13, ch. 628,) 
 was not indictable and punishable as a misde- 
 meanor. — Ct. of App., May, 1879. People v. 
 Hislop, 77 N. Y. 331 ; affirming 16 Hun 577. 
 
 IL Decisions Under the "Civil Damage 
 Act." 
 
 17. Oonstitutionality of the act. The 
 
 question whether a statute is a valid exercise of 
 legislative power is to be determined solely by 
 reference to constitutional restraints and pro- 
 hibitions ; it may not be deqjared void because 
 deemed to be opposed to natural justice and 
 equity. Accordingly— ITeid, that the act of 
 1873, known as the "civil damage act" 
 (Laws of 1873, ch. 646,) is constitutional and 
 valid.— a. of App., Nov., 1878. Bertholf v, 
 O'Eeilly, 74 N. y: 509. 
 
 18. The legislature has the power to create a 
 cause of aclion for damages, in favor of a per- 
 son injured in person or properly by the act of 
 an intoxicated person, againsl the owner of real 
 property, whose only connection with the injury 
 is that he leased the premises where the liquor 
 causing the intoxication was sold or given away, 
 with knowledge that intoxicating liquors were 
 to be sold thereon. lb. 513 ; canning 8 Hun 
 16. 
 
 19. The liability may be imposed irrespective 
 of the question whether the sale or giving away 
 of the liqnor was lawful or unlawful, or of any 
 question of negligence on the part of the land- 
 lord or tenant. 76. 
 
 20. Such a legislative enactment is not vio- 
 lative of the constitutional provision prohibit- 
 ing the taking of private property without " due 
 process of law" (Const., art. 1, J 6); while it 
 may indirectly operate to restrain the absolute 
 freedom of the owner in the use of his prop- 
 erty, and so impair its value, this is not a taking 
 within the meaning of the constitution. lb. 
 
 21. The legislature, having control of the 
 subject of the traffic in and use of intoxicating 
 liquors, may make such regulations to prevent 
 the public evils and private injuries resulting 
 from intoxication, as, in its judgment, are cal- 
 culated to accomplish this end. lb. 
 
 22. "WTien an action will lie. An ac- 
 tion is maintainable under the " civil damage 
 act" (Laws of 1873, ch. 646,) by a wife to re- 
 cover damages for loss of means of support in 
 consequence of the intoxication of her husband. 
 a. of App., Nov., 1878. Hill v. Berry, 75 N. Y. 
 229. 
 
 23. In order to sustain an action under the 
 " civil damage act," it is not essential that the 
 alleged injury should be one for which, by pre- 
 existing laws, a remedy by action existed. The 
 statute creates a new ground and cause of action, 
 i. e., for injury to " means of support ;" and both, 
 direct and consequential injuries are included 
 in the remedy given. Where, however, injury 
 to " means of support " is the gravamen of the- 
 action, the plaintiff, to maintain his action, must 
 show that, in consequence of the intoxication, 
 or the acts of the intoxicated person, plaintiff's- 
 accustomed means of maintenance have beeni 
 cut off or curtailed, or that he has been reduced 
 to a state of dependence by being deprived of 
 the support he had before enjoyed. — Ct.ofApp.,. 
 Nov., 1878. Volans v. Owen, 74 N. Y. 526, 530: 
 
 24. Where, therefore, it appeared that plain- 
 tiff's minor son procured liquor of defendant, 
 became intoxicated, fell and injured himself, 
 and in consequence was confined to his bed in 
 -plaintiff's house for several months, whereby 
 plaintiff was deprived of the services which his- 
 son had been accustomed to render him, and 
 was subjected to medical and other expenses — 
 Held, that plaintiff was not entitled to recover, 
 in the absence of proof that said services were 
 necessary to his support, or that the charge 
 
LIQUOR-SELLING, II.— LOTTERIES. 
 
 2G7 
 
 Wought upon him diminished his means so as 
 render them inadequate therefor. lb. ; reversing 
 9 Hun 558. 
 
 25. Pleading and. evidence. A com- 
 plaint in an action under the "civil damage 
 act," alleging that defendant sold liquor to 
 
 Slaintiff's husband, intoxicating him, and ren- 
 ering him incapable of labor and of support- 
 ing the plaintiff, and so injuring him as to cause 
 his death, and that, by reason of his death, 
 plaintiff had been injured in property and 
 means of support to the amount of $5000, does 
 not state a cause of action. — Supreme Ct., {3d 
 Dept.,) Sept., 1878. Brookmire v. Monaghan, 
 15 Hun 16. 
 
 26. A complaint in an action under the act, 
 alleged, among other things, that defendant C. 
 resided in one village and defendant H. in 
 another ; that, on a day named, " the said de- 
 fendants wrongfully conspiring and intending 
 to injure said plaintiff, at their places of resi- 
 dence aforesaid, gave and sold intoxicating 
 liquors to the said J. M., the plaintiff's said 
 husband, * * * which he drank;" and 
 that he became intoxicated thereby, and killed 
 s horse belonging to plaintiff. Held, that the 
 complaint charged a joint sale, and was not sus- 
 tained by proof of separate sales by each de- 
 fendant at his place of residence. — Supreme Ct., 
 (3d Dept.,) Sept., 1878. Morenus i;. Crawford, 
 15 Hun 45. 
 
 27. Question for the jury. In an action 
 by the wife, under the " civU damage act," for 
 injury to her " means of support," the question 
 whether she has suffered such injury is for the 
 jury, and their verdict will not be disturbed 
 except for some misdirection or error of law. — 
 Supreme Ct., {Herhimer Cir.,) April, 1879. 
 Decker v. Stauring, 57 How. Pr. 495. 
 
 LIS PENDENS. 
 
 Effect of filing, see Moetgages, 82. 
 Sufficiency of, see Pbactice, 9 
 
 LITERARY PROPERTY. 
 
 Protection of Autlior's right in, see Injitno- 
 xioN, 19. 
 
 LOANS. 
 
 Bailment, 6-14 ; Baitks, 32-34 ; Debtor 
 ASD Cbeditob, 19, 20 ; Interest, 1, 2 ; 
 TJsiiRy, 1. 
 
 \ 
 
 LOCAL IMPROVEMENTS. 
 
 MuOTcipAi Corporations, II. ; New York 
 City, II. 
 
 LONG ISLAND CITY. 
 
 Municipal Cobpobations, 118-120. 
 
 LOST INSTRUMENTS. 
 
 Secondary emdence in suits on, see Evidbnce,. 
 43, 44. 
 
 LOTTERIES. 
 
 1. "What is a lottery. Any game or de- 
 vice of ciiance in the nature of a lottery, is 
 within the prohibition of the statute against 
 lotteries. Therefore, the payment of money in 
 what is Icnown as " playing policy," i. e., upon 
 the selection of certain numbers, which, if drawn 
 in a lottery, entitle the person paying to a much 
 larger sum, is the purchase of an interest or 
 share in a lottery, within the meaning of the 
 provision of the statute, (1 Eev. Stat. 667, ? 
 32,) which authorizes the purchaser to sue for 
 and recover double the sum. so paid. — Ct. of 
 App., May, 1878. Wilkinson v. Gill, 74 N. Y. 
 63 ; affirming 10 Hun 156. 
 
 2. Action to recover back money 
 paid for ticket. Where sales of lottery- 
 tickets are made through an agent, who receives 
 the purchase money and accounts to his princi- 
 pal therefor, an action may be maintained by- 
 the purchaser against the latter, under 1 Rev. 
 Stat. 667, § 32. It is not necessary, in such aa 
 action, for the plaintiff to show that the identi- 
 cal money paid by him was remitted to and re- 
 ceived by the principal. The right of the plain- 
 tiff to recover is not affected by the fact that the- 
 agent individually loaned him the money to- 
 make the purchase, he having repaid the loan.. 
 — Ct. of App., May, 1878. Grover v. Morris, 73- 
 KY. 473, 477. 
 
 3. It is not discretionary with the court, in 
 such an action, wliether or not to award a re- 
 covery for double the sum paid. lb. 479. 
 
 4. It is not necessary for the plaintiff to pro- 
 duce on the trial the tickets purchased, or to ac- 
 count for their loss; the action is not founded, 
 upon any contract evidenced by the tickets, or 
 right acquired thereunder. lb. 480. 
 
 5. Where, in such an action, it appeared that, 
 defendants" had furnished lottery tickets to an 
 agent for sale, and that the latter had sold to^ 
 plaintiff — Held, that the account kept by the 
 agent, and testified by him to be correct, of his- 
 transactions with the plaintiff, was properly re- 
 ceived in evidence for the purpose of showing- 
 the dates and amounts of the transactions. lb. 
 479. 
 
 6. Foreign lotteries. Lotteries author- 
 ized by the laws of another state are unlawful 
 here, and are illegal within the meaning of the 
 provisions of the revised statutes (1 Eev. Stat.- 
 667, § 32,) authorizing the purchaser of a ticket 
 in any "illegal lottery to sue for and recover 
 double the sum paid, with double costs." 76.. 
 476. S. P., Supreme Ct., June, 1880. Kohn. 
 V. Koehler, 21 Hun 466. 
 
 LUNATICS. 
 
 Insane Persons. 
 
268 
 
 MALICIOUS PROSECUTION. 
 
 M. 
 
 MACHINERY. 
 
 When deemed a Fixture, and not removable, 
 see FiXTUEES, 2, 3, 5-7. 
 
 Liability of master to servant, for Defects in, 
 see Master and Seevant, 13; Eallboad 
 
 ■COMPAMES, 129-131. 
 
 MAINTENANCE. 
 
 As to the duty of a Husband, Parent or Guar- 
 dian, to support the Wife, Child or Ward, see 
 Husband and Wipb ; Paeent and Child ; 
 
 OtTAEDIAN AND WaBD. 
 
 As to allowances for maintenance in Divorce 
 ■ cases, see Divoece, 29-33. 
 
 As to the Ckiminal offence of maintenance, see 
 Attoeney and Client, 4, 5. 
 
 MALICIOUS PROSECUTION. 
 
 [Consult, also, Fai;sb iMPRisozTMSirr.] 
 
 1. "WTien the action lies. An action will 
 lie to recover damages for wrongfully, mali- 
 
 •ciously, and without reasonable or probable 
 ■cause, filing a notice of lis pendens, whereby 
 plaintiff was prevented from making a sale of 
 her property.— Supreme Ct., [Sp. T.,) Feb., 1878. 
 Smith V. Smith, 56 How. Pr. 316 ; affirmed, 20 
 Han 555. 
 
 2. Malice, ■when presumed. In mali- 
 cious prosecution it is erroneous to charge the 
 jury that " the law infers malice when there is 
 a want of probable cause." The jury might in- 
 fer it, but it is not an absolute inference of law. 
 To refuse to charge the proposition "that when 
 there is want of probable cause, malice may be 
 inferred," saying " the jury are bound to infer 
 it," is also erroneous. — Supreme Ct., (2d Dept.,) 
 Feb., 1878. Jennings v. Davidson, 13 Hun 393. 
 
 3. Matters of defence, generally. 
 While plaintiff is bound to prove the termina- 
 tion of the proceedings instituted against him 
 by the failure of the grand jury to indict, or 
 otherwise, yet, this fact, when proved, is not 
 -conclusive evidence of his innocence of the 
 offence charged against him, and defendant may 
 prove that he was in fact guilty. — Sum-erne Ct., 
 (3d Dept.,) April, 1880. Barber .,. Gould, 20 
 Hnn 446. 
 
 4. — probable cause. Proof of plain- 
 tiff's actual guilt is conclusive evidence of proba- 
 ble cause ; and where such proof is made, the 
 action cannot be sustained, no matter how 
 plainly malice may be shown, or however im- 
 proper may have been the motives of defendant 
 m instituting the prosecution. — Supreme Ct., 
 (3d Dept.,) April, 1880. Turner v. Dinnegar, 20 
 Hun 465. 
 
 5. The malicious prosecntion complained of 
 was the arrest of plaintiff on a criminal charge. 
 It appeared in evidence that upon the examina- 
 tion before the magistrate, plaintiff executed a 
 recognizance to appear before the General Ses- 
 
 isions ; and the recognizance recited that there 
 
 appeared to the magistrate to be probable cause 
 to believe the plaintiff guilty. Held, not con- 
 clusive that the magistrate lost jurisdiction, or 
 that there was probable cause, there being other 
 evidence to show that the recognizance was not 
 intended to remove the proceedings, and that 
 the examination proceeded before the magis- 
 trate, ending in plaintiff's discharge. — Q>m. 
 Pleas, Jan., 1878. Van De Wiele v. Callanan, 
 7 Daly 386. 
 
 6. — advice of counsel. Merely show- 
 ing that counsel, after a full and fair statement 
 to him of all the facts, advised the prosecution, 
 without showing the further element that the 
 party in good faith acted on the advice, is in- 
 sufficient of itself to show probable cause. — Su- 
 perior Ct., April, 1879. Kingsbury v. Garden, 
 45 Superior ^24. 
 
 7. Defendant offered to show that before ap- 
 plying for the warrant for plaintiff's arrest, he 
 stated all the facts within his knowledge touch- 
 ing the charge subsequently made, to H., who 
 was an attorney and counselor-at-law, and also a 
 justice of the peace, and offered to show the ad- 
 vice received from him ; but the evidence was 
 rejected. Held, error ; that the fact that H. was 
 the justice of the peace to whom the application 
 for the warrant was subsequently made, did not . 
 render the rejection of the offered evidence 
 proper. Turner v. Dinnegar, supra. 
 
 8. "WTiat questions are for the jury. 
 In an action for malicious prosecution, where 
 there is a conflict of evidence as lo the facts, 
 such conflict must be disposed of by the jury, 
 and therefore the cause must go to the jury un- 
 der proper instructions from the court as to their 
 duty to find probable cause or want of probable 
 cause, according as they may determine the 
 iatcts.— Superior Ct., April, 1879. Kingsbury v. 
 Garden, 45 Superior 224. Compare Neil v. 
 Thorn, 17 Hun 144. 
 
 9. During the pendency of a suit by the 
 present defendant, a physician, for services^ in 
 attending a child for a fracture of the thigh 
 bone, the child having died, the defendant em- 
 ployed another physician, the present plaintiff, 
 to exhume the body and remove a portion of the 
 thigh bone to be used on the trial as evidence 
 on the question of malpractice. The latter was 
 arrested at the instance of the present defend- 
 ant for removing the body, (3 Rev. Stat. (6th ed.) 
 965,) and brought this action for malicious pros- 
 ecution. Held, that the removal was not a 
 criminal offence within the statute, and that the 
 questions of malice and probable cause were, 
 under the circumstances, for the jury. — Supreme 
 Ct., (ith Dept.,) April, 1880. Rhodes v. Brandt, 
 21 Hun 1. 
 
 10. Damages, costs, &c. In malicious 
 prosecution, the amount of plaintiff's outlay for 
 costs and counsel fees in defending the prosecu- 
 tion is matter of special damages, and must be 
 specially pleaded and proved, or it cannot be 
 recovered.— Com. Pleas, March, 1877. Thomp- 
 son V. Lumley, 7 Daly 74. 
 
 11. In malicious prosecution, where plaintiff 
 recovers a verdict for six cents damages, he is 
 entitled to six cents costs, but not to disburse- 
 ments.— JforiTie Ct., (Gen. T.,) Mm, 1878. Mar- 
 sullo II. Billotto, 65 How. Pr. 375. 
 
MANDAMUS, I., II. 
 
 269* 
 
 For decisions relative to Other personal torts, 
 analogous to malicious prosecution, see False 
 Imfbisonment ; Libel ; Slaitdek. 
 
 MALPRACTICE. 
 
 Physicians and Sitrgeons, 1-5. 
 
 MANDAMUS. 
 
 I. General Principles. 
 II. Use op the Writ in Various Cases. 
 m, Pkocedure. 
 
 I. General Principles. 
 
 1. The right to the writ, generally. 
 Where an act, the doing of which is sought to 
 be compelled by mandamiis, is the final thing, 
 and, if done, gives to the relator all that he 
 seeks, proximately or ultimately, the question 
 whether he is entitled to have that act done may 
 be inquired into by the officer or pereon against 
 whom the mandamus is sought, and also by the 
 tribunal which is moved to grant the writ ; but 
 where the act is but a step toward the final 
 result, the means of setting in motion a tribunal 
 which is to decide upon the right to the final 
 relief claimed, then tlie officer or tribunal can 
 only inquire whether the relator shows a right 
 to have the act done, not as to his right to final 
 relief. — Ct. of App., April, 1878. People, ex 
 rel. Freer, v. Canal Appraisers, 73 N. Y. 443, 
 446. 
 
 2. Where the object of the application is to 
 compel official action, and the statute requires 
 such action, the writ must be granted. — Supreme 
 Ct., ( Ulster Sp. T.,) July, 1878. People, ex rel. 
 Stager, e. Starr, 55 How. Pr. 388. 
 
 3. Rule that there must be no other 
 remedy. Although, as a general rule, a man- 
 
 'damus will not issue where the party has 
 another remedy, it is not universally true in re- 
 lation to corporations and ministerial officers, 
 for while they may be liable in an action for 
 neglect of duty, they may still be compelled by 
 this writ to exercise their functions according to 
 law. — Supreme Cl., May, 1880. People, ex rel. 
 CBeilly, v. Mayor, &c., of New York, 59 How. 
 Pr. 277, 282. S. P., People, ex rel. Stager, i>. 
 Starr, 55 Id. 388. 
 
 4. Discretionary action not com- 
 pelled. A mandamus will not be awarded to 
 compel an overseer of the poor to prosecute to 
 judgment an action for penalties, under the 
 poor laws, commenced by him against an inn- 
 keeper, for violating Laws of 1857, ch. 628, § 
 9, requiring inn-keepers to put up proper signs, 
 where the prosecution of the action involves the 
 exercise of judgment and discretion. — Ct. of 
 App., Sept., 1878. People, ex rel. Hammond, v. 
 Leonard, 74 N. Y. 443. 
 
 5. Effect of laches in applying for 
 the ■writ. Where fhe relator has, for an un- 
 reasonable time, slept upon his rights, the court 
 may refuse the writ of mandamus. In determin- 
 ing what will constitute such unreasonable de- 
 lay, regard should be had to circumstances 
 justifying the delay, to the nature of the case, 
 the relief, demanded, and to the question 
 
 whether the rights of defendant or other persona 
 have been prejudiced by the delay. — Cl. of 
 App., Sept., 1879. People, ex rel. Gras-light 
 Co., V. Common Council, 78 N. Y. 56. 
 
 11. Use of the Writ in Various Cases. 
 
 6. Controlling proceedings of in- 
 ferior tribunals. A writ of mandamus may 
 be addressed to subordinate judicial tribunals- 
 to compel them to exercise their functions, but 
 riot to require them to decide in a particular way. 
 This principle applies in every case where the 
 duty, performance of which is sought to be com- 
 pelled, is in its nature judicial, or involves the 
 exercise of judicial power, irrespective of the- 
 character of the officer or body to which the writ 
 is addressed. — Cl. of App., Sept., 1879. People,, 
 ex rel. Francis, v. Common Council, 78 N. Y. 33. 
 
 1. Where a subordinate body is vested with 
 power to determine a question of fact, the duty 
 is judicial, and it cannot be compelled by man- 
 damus to decide in a particular way, however 
 clearly it be made to appear what the decision, 
 ought to be. 1 h. 
 
 8. Mandamus will not Ue to compel a District 
 Court justice to amend or alter the entry of a 
 judgment already entered by him. The entry 
 of the judgment is a judicial act, and besides, 
 the entr^ once made, the justice is functus officio. 
 The proper remedy in such case is by appeal. — 
 Com. Pleas, Jan., 1878. People, ex rel. Coles,. 
 V. Callahan, 7 Daly 434. 
 
 9. Compelling refunding of illegal 
 tax. Where, owing to a dispute as to the 
 boundary line, the real estate of a person is as- 
 sessed in two towns, proceedings by mandamus 
 may be maintained against the board of super- 
 visors-of the county, in case of its refusal to act, 
 to compel such board to ascertain and determine 
 the amount which the person is equitably en- 
 titled to receive back, and from which of the 
 towns, as authorized by the act of 1873. (Laws of 
 1873, ch. 119.)— a of App., June, 1877. People, 
 ex rel. Witherbee, v. Supervisors of Essex Co., 
 70 N. Y. 228, 233. 
 
 10. The fact that the assessors of one of the 
 towns had no jurisdiction to make the assess- 
 ment, and that the relator has a cause of action 
 against them, does not deprive him of the right 
 to proceed by mandamus ; the statute was in- 
 tended to provide a culmulative, less expensive 
 and more speedy, remedy, and is mandatory. 
 lb. 
 
 IL Determining title to office. It is- 
 not the proper office of a writ of mandamus to re- 
 strain a party, claiming to be a public officer,, 
 from exercising his office, or to enjoin one, 
 claiming to have been elected or appointed to- 
 an office, from qualifying. — Ct. of App., March, 
 1879. People, ex rel. Faile, </. Ferris, 76 N. Y. 
 326 ; affirming 16 Hun 219. 
 
 12. Mandamus to municipal officers 
 — when granted. While, as a general rule, 
 a mandamus will not be awarded to compel a 
 municipal corporation to pay money, when it 
 appears there are no funds out of which a war- 
 rant, if drawn, can be paid, yet when money has 
 been appropriated for a specific purpose it is not 
 in all cases a sufficient answer to an applica- 
 tion for a mandamus to compel its payment for 
 that purpose, to set up that themoney has been 
 wrongfully applied to other purposes. It may 
 hi regarded in contemplation of law, as still in 
 
270 
 
 MANDAMUS II., III. 
 
 *he treasury.— a. o/^pp., AprU, 1879. People, 
 ■ex rel. Dannat, v. Comptroller of New York, 77 
 N. Y. 45, 50. 
 
 13. Mandamus wiU lie by a police surgeon to 
 compel the board of police of the city of New 
 York to make a requisition upon the comptrol- 
 ler for an amount suflBcient to pay his salary as 
 fixed by statute, notwithstanding the board has 
 fixed his salary at a, smaller amount, which he 
 agreed to accept.— 0!. of App., Nov., 1878. 
 People, ex rel. Satterlee, v. Board of Police, 75 
 N. Y. 38, 43. 
 
 14. A mandanms will lie at the instance of a 
 town supervisor to compel the county treasurer, 
 *o sue the bond of his predecessor, for not pay- 
 ing over school moneys, as required by the Laws 
 •of 1875, ch. 567, g U.— Supreme a., { Ulster Sp. 
 T.,} Jvly, 1878. People, ex rel. Stager, v. Starr, 
 -55 How. Pr. 388. 
 
 15. — when refused. The power of the 
 board of police commissioners of the city of 
 New York to appoint inspectors of election is 
 as complete on the last day of the time limited 
 for making the appointments, as on any other 
 day. It must be presumed that the board will, 
 ■within the time limited, discharge the duty; 
 therefore, before its expiration, a mandamus can- 
 not be properly issued. — Supreme Ct., {1st 
 Dept.,) Extr. Gm. T., Sept., 1879. People, ex rel. 
 Van Wyck, v. Police Commissioners, 57 How. 
 Pr. 445. 
 
 16 The commissioner of public works of the 
 <!ity of New York, in pursuance of a resolution 
 and ordinance of the common council, adver- 
 tised for proposals for a street improvement. 
 The relator was the lowest bidder, and his pro- 
 posal was accepted. In proceedings by mandor- 
 mils to compel the commissioner to enter into a 
 contract — Hdd, that if the relator established a 
 clear legal right to the contract, he had a 
 remedy at law by action gainst the city to re- 
 cover damages, and so was not entitled as of 
 right to a mand/vrmis; that if the right was not 
 ■clear, the writ was properly denied on that 
 ground ; that, under the circumstances, the 
 granting or refusal of the writ was a matter of 
 discretion in the court below, with the exercise 
 of which this court could not interfere. — Gt. of 
 App., Feb., 1878. People, ex rel. Lunney, v. 
 Campbell, 72 N. Y. 496 ; and see Id. 612. 
 
 17. The provision (1 Eev. Stat. 357, ? 8,) de- 
 claring that judgments " against town officers, 
 in actions prosecuted by or against them in their 
 name of office, shall be a town charge," includes 
 merely cases against a town officer where an act 
 complained of was done by him in his official 
 capacity ; it does not include a case where an 
 officer is sued and judgment obtained against 
 him for damages resulting from a neglect of 
 duty on his part. Therefore, a judgment against 
 a commissioner of highways, for damages result- 
 ing from a neglect of his duty to repair a high- 
 way, is not a town charge ; and a mandamus 
 cannot be granted to compel the board of town 
 auditors to audit it as such.— Cl!. of App., Nov., 
 1878. People, ex rel. Loomis, v. Town Auditors, 
 75 N. Y. 316. 
 
 la. As to whether a statutory provision, 
 directing a municipal corporation to employ a 
 designated class of labor in order that the ser- 
 vice may be well performed, vests in the persons 
 answering the designation a legal right to be 
 employed, and gives them a standing to compel 
 the municipal body, by mandamus, to employ 
 
 them, qucBre.—Gt. of App., Sept., 1879. People, 
 ex rel. Francis, v. Common Council, 78 N. Y. 
 33. 
 
 19. Where the duty of selecting the persons 
 to be employed is imposed by law upon the 
 municipal body, and the question whether they 
 possess the requisite qualifications is one of fact 
 to be determined by it, no particular mode of 
 determination being provided by law, and said 
 body has exercised the power and made the 
 selections, its action cannot be reviewed by 
 mandamus; nor can it be compelled by that 
 proceeding, to appoint particular persons on 
 their allegation that they, in fact, and not the 
 persons actually selected, possess the prescribed 
 qualifications, lb ; reversing 17 Hun 20. 
 _ 20. — to county canvassers in elec- 
 tion cases. Mandamus will not lie to compel 
 the board of county canvassers to send back the 
 election returns to the ward inspectors for cor- 
 rection, when the errors complained of are not 
 clerical, but the result of false and fraudulent 
 alterations. — Supreme Ct., {iSp. T.,) Nov., 1878. 
 People, ex rel. Hatzel, v. Board of Supervisors, 
 58 How. Pr. 141. 
 
 21. — to religious corporation. Maur 
 damns will issue to compel a cemetery company 
 to permit the burial of one entitled to it, under 
 a contract with them. — Supreme Ct., {1st Dept., 
 Sp. T.) Copper's Ca.se, 7 Abb. N. Cas. 121. 
 
 22. — to business corporations. In 
 case the proper officers of a manufacturing cor- 
 poration refuse to perform the duty of holding 
 an election of trustees, as required by law, a 
 stockholder has a remedy by mandamus to com- 
 pel such performance! — Gl. of App., Feb., 1878. 
 People, ex rel. Miller, v. Cummings, 72 N. Y. 
 433. 
 
 23. Where a railroad company fails to con- 
 struct fences and cattle-guards, as required by 
 statute, a mandamus lies to compel it to construct 
 and maintain the same; and any citizen may 
 apply, as relator, for the writ in such case.— 
 Supreme Ct., (4(A Dept.,) June, 1878. People, ex 
 rel. Qarbutt, v. Rochester, &c., Ry. Co., 14 Hun 
 371; affirmed 76 N. Y. 294. 
 
 III. Pbocedttee. 
 
 24. The application and hearing. 
 Where the relator, upon application for a man- 
 damus, takes no issue upon, the allegations of the 
 defendant's affidavits, but proceeds to argument 
 and asks for a peremptory writ, this is equiva- 
 lent to a demurrer ; it is an admission of the 
 truth of the facts alleged in said affidavits, but a , 
 denial of their sufficiency in law to prevent the 
 issuing of the writ. — Cl. of App.., March, 1878. 
 People, ex rel. Lawrence, v. Supervisors of 
 Westchester Co., 73 N. Y. 173. 
 
 25. When a peremptory -writ ■will be 
 granted. The remedy by peremptory man- 
 damus cannot be invoked unless there is a clear 
 and unquestioned legal right. Even where a 
 case is made out in which a peremptory man- 
 damus may be issued, where the validity of the 
 relator's claim is disputed, it is within the dis- 
 cretion of the court whether to grant or refuse 
 it. In the exercise of that discretion, it is the 
 duty of the court to see that the rights of the 
 relator are fully protected, and it may direct the 
 issuing of an alternative writ where the facts 
 relied upon by the relator are in dispute, where 
 the parties wish to review the case upon appeal, , 
 
MANDAMUS, III.— MANUFACTUEING COMPANIES, I. ^TI 
 
 ■or upon tKe suggestion of either party. — Ct. of 
 Am., Nov., 1877. People, ex rel. Slavin, v. Wen- 
 -dell, 71 N. Y. 171. 
 
 26. Form and contents of the writ. 
 A peremptory mandamViS, in substance, required 
 •the defendant to build, on or prior to January 
 1st, 1877, a fence on each side of its road, or 
 sncli portions thereof where fences were not 
 -already built, " as may then, or thereafter, be 
 iised or operated as a railroad." Held, that the 
 •direction, so far asr it related to the portion of 
 the line which should be in operation January 
 Ist, 1877, was sufficiently definite and was capa- 
 ble of being obeyed; and that, therefore, the 
 writ could not be held nugatory. — Ct. of App., 
 March, 1879. People, ex rel. Garbutt, v. Koch- 
 •ester, &c., Ry. Co., 76 N. Y. 294. 
 
 27. Penalties for disobeying the 
 "Writ. Where a railroad company fails to com- 
 ply with the requirements of a mandamus requir- 
 ing the erection of fences and cattle-guards, as 
 provided by law, the court has power to impose 
 such fine or imprisonment, or both, as the 
 nature of the case may require. — Supreme 
 Cl., (ith Dept.,) June, 1878. People, ex rel. 
 Oarbutt, v. Eochester, &c., Ey. Co., 14 Hun 
 371. 
 
 28. It appeared that defendant was in con- 
 tempt in failing to obey the writ, hat that the 
 contempt was not willful, and that no pecuniary 
 loss hsid been sustained. Held, that it was 
 proper to impose a fine sufiicient to cover the 
 -costs and expenses in the proceedings to punish 
 for the contempt, but improper to include the 
 costs in the mandamus proceedings themselves. 
 lb. 
 
 29. The penalty prescribed by 2 Eev. Stat. 
 -587, § 60, when a peremptory mandamus shall 
 he directed to any public ofiicer, body or board, 
 requiring them to perform a public duty, where 
 it shall appear that such officer, or any member 
 of the body or board has, without just excuse, 
 refused to perform the duty, was intended as a 
 ■punishment for an unexcused neglect of duty 
 hefore the issuing of the writ, and which ren- 
 dered the application therefor necessary ; it does 
 not fix and limit the fine which may be imposed 
 ■for a violation of the writ. lb., on appeal, 76 N. 
 Y.294. 
 
 SO. Appeal from order granting the 
 "Writ. An alternative writ of mandamus was 
 issued in proceedings against a board of super- 
 (-visors for refusal to act under a statute ; the 
 'petition presented by the petitioners to the hoard, 
 was incorporated in, and made part of, the writ ; 
 the defendants took issue upon the allegations 
 of fact in the petition, and a trial was had 
 thereon. Hdd,thsA upon appeal, the allegations 
 ■of the petition were to be considered as aver- 
 ments of the writ, -and if, with the other aver- 
 ments, they were sufficient to make out a case, 
 the writ would be sustained. — Cl. of App., June, 
 1877. People, ex rel. Witherbee, v. Supervisors 
 •of Essex Co., 70 N. Y. 228, 236. 
 
 As to punishing Disobedience of a mandamus, 
 :Eee, also. Contempt, O. 
 
 MANUFACTURING COMPANIES. 
 
 I. Okganization and Corporate Powers. 
 II. Liabilities of Officers and Trustees. 
 
 1 . In general. 
 
 2. The annufd report; and liability for 
 
 failure to file it, or for false report. 
 
 III. Individual Liability of Stockhold- 
 
 ers. 
 
 1. For debts of the company, generally. 
 
 2. For wages of laborers and serva/nts. 
 
 IV. Dissolution, Ebceiver, &c. 
 
 MANSLAUGHTER. 
 
 Homicide I. 
 
 I. Organization and Corporate Poviters. 
 
 1. What is a valid organization. 
 
 What acts on the part of the promoters of a 
 manufacturing corporation are insufficient to 
 constitute a legal organization of the company, 
 or user of the corporate franchises, so as to ren- 
 der one named as trustee in the articles of asso- 
 ciation liable for a debt of the alleged corpora- 
 tion, because of failure to file the annual report 
 required by Laws of 1848, ch. 40, ? 12, see Ct. 
 of App., May, 1877. De Witt v. Hastings, 69 
 N. Y. 518 ; affirming 40 Superior 463. 
 
 2. Certifloate as to payment of capi- 
 tal. The certificate as -to the payment of the 
 capital stock, required to be filed by Laws of 
 1848, ch. 40, 2 11, must be sworn to, and a mere 
 acknowledgment is not a sufficient compliance 
 with the provisions of the statute. — Supreme Ct., 
 {1st Dept.,) March, 1878. Brown v. Smith, 13 ' 
 Hun 408. 
 
 3. The provision requiring the "duplicate 
 certificate" to be filed in the office of the secre- 
 tary of state is directory, merely, and not man- 
 datory nor essential to the validity of the cor- 
 poration. — Com. Pleas, {Sp. T.,) August, 1878. 
 Eassbeck v. Desterreicher, 55 How. Pr. 516. 
 
 4. Tlie production of a copy of the certificate 
 filed with the county clerk, certified by him, 
 being made evidence of the incorporation- by 
 statute, is a sufficient answer to all allegations 
 of non-incorporation, except in a direct pro- 
 ceeding by the state to annul the franchise. lb. 
 
 5. Election of directors or trustees. 
 The provisions of the Eevised Statutes (1 Eev. 
 Stat. 604, § 8,) declaring that if the election of 
 directors of an incorporated company shall not 
 be duly held on the day designated, " it shall 
 be the duty of the president and directors * 
 * * to notify and cause an election for direct- 
 ors to be held within sixty days," applies to cor- 
 porations organized under the general manu- 
 facturing act. — Q,. ofAjyp., Feb., 1878. People, 
 ex rel. Miller, v. Cummings, 72 N. Y. 433. 
 
 6. The provision of said act {? 4) declaring 
 that if an election of trustees shall not be made 
 on the day designated by the by-laws of the cor- 
 poration, it shall be lawful on any other day to 
 hold an election, " in such manner as shall be 
 provided for by the said by-laws," does not con- 
 flict with the provisions of the Eevised Statutes ; 
 and the fact that no provision is made by the 
 by-laws for any other than the annual election 
 does not prevent such an election from being 
 held. lb. ^ 
 
 7. Corporate powers, generally. 
 Where a manufacturing corporation, which has 
 
272 
 
 MANUFACTURING COMPANIES, I., II. 
 
 borrowed money, agreeing to secure the loan by 
 a pledge of its goods, fails to give such pledge, 
 but Bubseqnently, and while it has but two trus- 
 tees, transfers to the lender properly owned by 
 it, in payment thereof, he will acquire a good 
 title to the property so transferred. — 8uf)reme 
 a., {2d JDept.,) Feb., 1878. • Castle „. Lewis, 13 
 Hun 298; affirmed, 78 N. Y. 131. 
 
 8. PQ-wers of the president. The 
 president of a corporation organized under the 
 act of 1848 cannot bind the corporation by pur- 
 chases of goods, in the face of a resolution on the 
 corporate books forbidding such purchase, even 
 though the seller had no notice of the resolu- 
 tion, in the absence of a holding out of the 
 president as authorized to make such purchase, 
 or proof of ratification by the corporation of 
 previous similar purchases. — Com. Pleaa, Nov., 
 1877. Westerfield v. Eadde, 7 Daly 326. 
 
 9. Povirer to increase stock. As to 
 what is suiEcient proof of notice to stockholders 
 of a meeting to take action on a proposed in- 
 crease of stock, and the sufficiency of the ac- 
 knowledgment of the certificate as to such in- 
 crease, required by Laws of 1848, ch. 40, § 22, 
 Bee Cuykendall v. Douglas, 19 Hun 577. 
 
 10. Mortgages of corporate prop- 
 erty. Assent of stockholders. The 
 provision of the statute of 1864 {Laws of 1864, 
 ch. 517,) amending the general manufacturing 
 act, (Laws of 1848, ch. 40,) which authorizes 
 .any corporation, organized under said act, to 
 mortgage its real estate to secure antecedent 
 debts, provided the written assent of stock- 
 holders owning twotliirds of its stock shall first 
 be filed, was intended simply to protect the 
 stockholders from improvident- or corrupt acts 
 of the officers of the corporation ; it was not en- 
 acted because the mortgaging of corporate prop- 
 erty was regarded as improper, per se. — Cl. of 
 App., April, 1877. Greenpoint Sugar Co. v. 
 Whitin, 69 K. Y. 328 ; affirming 7 Hun 44. _ 
 
 11. In the absence of fraud, or of any objec- 
 tion upon the part of the stockholders, a defect 
 in an assent, to invalidate a mortgage given un- 
 der it, must be of so substantial and radical a 
 character that an intention to consent cannot be 
 inferred from the instrument. lb. 
 
 12. A writing was filed, signed by the requi- 
 site number of the stockholders of the K. C. 
 M. Co., consenting that said corporation execute 
 a bond, without specifying the amount, to the 
 plaintiff, and a mortgage to secure the same 
 upon lands of the corporation situate in the 
 city of B. ; no lands were particularly de- 
 scribed. 
 
 Hdd, 1. That this was a sufficient assent to 
 authorize a mortgage to secure any debt con- 
 tracted by the K. C. M. Co., in the business for 
 which it was incorporated, which it then owed 
 tfa« p1aintifi[! 
 
 2. That if the instrument itself was defective, 
 it was competent to connect it with the subject 
 matter by parol evidence, and to prove the debt 
 then owing to plaintifl^, and the amount of it. lb. 
 
 13. The assent filed was dated October 21st, 
 1869; it was filed November 4th, thereafter; 
 on the same day the premises mortgaged, which 
 previously had been occupied by said company, 
 under a contract of purchase, were deeded_ to it 
 by plaintiff, and the mortgage executed ; it did 
 not appear that the company owned any other 
 land in the city of B. Seld, that the assent 
 was sufficient to validate the mortgage, as the 
 
 assent, mortgage and deed were substantially 
 one transaction, and as prior to the time the 
 company was equitable owner, having a right 
 as such to mortgage its interest. lb. 
 
 14. It was admitted that the assent was filed 
 November 4th ; the mortgage was recorded after 
 three p. M. of that day. Held, that the fair in- 
 ference was that the assent was filed at the same 
 time that the mortgage was recorded ; and that 
 such filing was sufficient. lb. 
 
 15. For the purposes of said act, the amount 
 of stock actually issued and owned is to be re- 
 garded as the capital stock ; not the nominal 
 amount specified in the articles of association. 
 26. 
 
 16. A corporation organized under said act 
 may, upon sale of a portion of its lands to another 
 similar corporation, agree to advance moneys to- 
 the latter, to be used in erecting buildings on 
 the premises conveyed. lb. 
 
 17. A corporation which, after becoming the 
 owner of certain shares of its own stock, Ima 
 transferred them to secure a loan, and delivered 
 the certificates and transferred the shares on its 
 books, cannot, while such shares are so pledged, 
 sign, as the owner, the statutory assent to the 
 execution of a mortgage on the corporate pi'cip- 
 erty. — Supreme Ct., {Ist Dept.,) March, 188J. 
 Vail V. Hamilton, 20 Hun 355. 
 
 XL Liabilities op OpnoERs and Tkustei:..'. 
 
 1. In general 
 
 18. Parties— who m&.y sue. In an ac- 
 tion to enforce a personal liability on the part of 
 a trustee for permitting the indebtedness of the 
 company to exceed its capital stock, all the cred- 
 itors of the company must be joined. — Swpremer 
 Cl, (\st Dept.,) May, 1880. Anderson v. Speers,, 
 59 How. Pr. 421 ; S. C, 21 Hun 568 ; reversing- 
 58 How. Pr. 68. 
 
 19. In snch an action, an accounting is neces- 
 sary to determine who are the creditors of the 
 company and the proportions in which the ex- 
 cess should be distributed among tiem. lb. 
 
 20. Effect, as evidence, of prior judg- 
 ment against company. The action 
 against the trustee to enforce the personal lia- 
 bility created by the act of 1848, must be. founded 
 on the original claim against the company, and 
 not upon the previous judgment recovered 
 against it. Such judgment is not even prima 
 fade evidence of the existence of the debt, a& 
 against the trustee. — Supreme Ct, {Sd Depl.,) 
 Nm., 1878. Esmond v. Bullard, 16 Hun 65. 
 
 21. Trustees not liable for torts, Sec- 
 tion 12 of the act of 1848 does not render the 
 trustees liable for torts committed by the cor- 
 poration, lb. 
 
 2. The annual report; and liability for failure to- 
 file a, or for false report. 
 
 22. Execution and verification of 
 the report. Laws of 1848, ch. 40, i 12, pro- 
 vides that the report "shall be signed by the- 
 president and a majority of the trustees." Where 
 there were five trustees of a corporation, of whom 
 the president was one — Held, that a report signed 
 by the president and two trustees complied with 
 the statute. — Supreme Ct., (3d Dept.,) May, 1879- 
 Glens Falls Paper Co. i'. White, l&Hun 214. 
 
MANUFACTURING COMPANIES, II. 
 
 273- 
 
 23. The statute provides that the report 
 " shall be verified by the oath of the president 
 or secretary." The verification was by the presi- 
 dent to the eflect, that the report was, " in all 
 respects, true to the best of his knowledge and 
 belief." Held, a suflicient verification. 26. 
 
 24. SufBoienoy of the report. The 
 statute requires the report to state " the amount 
 of its existing debts." The report stated that 
 " the amount of its existing debts does not ex- 
 ceed $75,000." Held, sufficient. lb. 
 
 25. The statement as to the capital of the 
 corporation was : " Amount of capital stock, of 
 which all but five shares were issued for the pur- 
 chase of property necessary for the business of 
 the association, and such five shares have been 
 paid in full, $15,000." Held, that as it could not 
 be determined from this statement what propor- 
 tion of the capital stock had been paid in in 
 cash, and how much had been issued for prop- 
 erty, the statement was defective. lb. S. P., 
 Pier V. George, 14 Hun 568. See further deci- 
 sion in same case, 17 Id. 207. 
 
 26. The report must contain not only the 
 facts required by Laws of 1848, ch. 40, but also 
 the additional facts required by Laws of 1853, 
 ch. 333.— Supreme &., (3d Bept.,) Sept., 1879. 
 Blake v. Wheeler, 18 Hun 496. 
 
 27. Time of filing. Publication. To 
 meet the requirements of the act, it is not neces- 
 sary that the anual report shall be published and 
 filed within twenty days from the Istof January ; 
 when the report is prepared, signed and verified 
 within that time, and is filed and published as soon 
 as practicable thereafter, it is sufficient. There- 
 fore, where a report was signed and verified on 
 the 20th of January, and was on the same day 
 mailed to the county clerk, by whom it was re- 
 ceived and filed on the 22d, and a copy was also 
 mailed on the 21st to a newspaper, and was pub- 
 lished therein on the 24th — Held, that this was 
 a sufficient compliance with the statute.— Ct. of 
 App., April, 1877. Cameron v. Seaman, 69 N. 
 Y. 396. 
 
 28. Under the provision of the act (? 12), re- 
 quiring tliat in case no newspaper is published 
 in the town, ciiy or village where the business 
 of the corporation is carried on, the annual re- 
 port shall be published " in some newspaper 
 published nearest the place " of business, where 
 the bnsiness is carried on in a town, the town is 
 the "place" of business within the meaning of 
 the act; and publication in a newspaper pub- 
 lished nearer to a point in the town than any 
 other newspaper is to the same point, is a sub- 
 stantial compliance with the requirement, al- 
 though such other newspaper may be published 
 nearer to some other point in the town. 1 b. 
 
 29. "Who -will be deemed a trustee. 
 The fact that a stockholder of a manufacturing 
 or mining corporation was elected a trustee, does 
 not alone invest him witli that character so as 
 to make him liable for the debts of the corpora- 
 tion because of a failure to make and file the an- 
 nual report; there must have been acceptance 
 of the office on his part, either express or to be 
 implied from circumstances. lb. ; reversing 7 
 Hun 601; S. P., Osbom & Cheesman Co. v. 
 Croom, 14 Hun 164. 
 
 _ 30. Effect of resignation to discharge 
 liability. A trustee of a corporation formed 
 Under the manufacturing act of 1848, may re- 
 sign, and thereby relieve himself from liability 
 for debts thereafter incuried by it; and this. 
 
 though the resignation is not acted upon by the 
 board of trustees or entered in the books of the 
 company. Blake v. Wheeler, supra; Wade v. 
 Baker, 14 Hun 615. 
 
 30 o. — of abandonment of organi- 
 zation. A technical dissolution of such a cor- 
 poration is not necessary to relieve a trustee 
 from the consequences of not filing an annual 
 statement thereafter; it is sufficient if the or- 
 ganization has been practically abaiidoned. — 
 Ct. of App., Jan., 1880. Losee v. Bullard, 79 
 N. Y. 404. 
 
 30 6. A judgment was obtained against a 
 manufacturing corporation in 1867 ; no annual 
 statement was thereafter filed. The company 
 was organized in 1863, with three trustees ; no 
 officers were thereafter elected ; it ceased to do 
 business in 1865. In 1870 two of the three 
 trustees sold out their stock to their co-trustee 
 aud never afterwards acted, the third trustee 
 being from the time of the purchase, the sole 
 stockholder. The only act done by him there- 
 after was the payment of a debt of the corpo- 
 ration incurred in 1865. This action was brought 
 in June, 1875. Hdd, tha,t the corporation was 
 practically abandoned, and the statutory re- 
 quirement as to filing reports had no application 
 to it ; that even if successive defaults could con- 
 tinue or renew the liability, no default was 
 shown to have been committed within three 
 years before the commencement of this action. 
 lb. 
 
 31. "Who may sue, and for vrhat 
 debts. Where the failure to file the report 
 occurs after the death of the creditor, the exec- 
 utor may sue the trustees. — Svpreme Ct., {3d 
 Bept.,) Nov., 1879. Garley v. Hodges, 19 Hun 
 187. 
 
 32. Where, after a trustee has become per- 
 sonally liable, by reason of the failure to file a 
 proper report, the debt as to which he is liable 
 is assigned, the assignee may enforce such per- 
 sonal liability. — Supreme Ct., (2d Bept.,) Feb., 
 1880. Pier v. George, 20 Hun 210. 
 
 33. The failure to file the annual report 
 makes the trustees liable for all debts of the cor- 
 poration contracted during their trusteeship, in- 
 cluding a debt which was due at the time a pre- 
 vious annual report was duly filed. — Com. Pleat, 
 Bee., 1878. Duckworth v. Eoach, 8 Daly 159. 
 
 33 a. Time ■within -which to 'sue. 
 Where a trustee of a manufacturing corporation 
 has become liable for a debt of the corporation, 
 because of failure to make and file an annual 
 statement, the statute of limitations then begins 
 to run as to that debt, and the right of action is 
 barred in three years thereafter, although the 
 default is continued during successive years ; 
 the continuance of the default does not revive 
 the liabilit/or create a new one. Losee v. Bul- 
 lard, mpra. 
 
 34. The complaint. Where the complaint 
 sets forth a copy of the report as filed and pub- 
 lished, and alleges that it does not comply with 
 the statute, the particular defects therein need 
 not be set forth.— /Supreme Ct., {Sd Bept.,) May 
 1879. Glen's Falls Paper Co. v. White, 18 Hun 
 214. 
 
 35. As to the requisites of the complaint in 
 an action to hold the directors, on the ground 
 of failure to make and file the report, see 
 Wright V. Booth, 69 N. Y. 620; Victory Webb, 
 &e., Manuf. Co. v. Beecher, 55 How. Pr. 193 ; 
 Anderson v. Speers, 8 Abb. N. Cas. 382. 
 
 18 
 
274 
 
 MANUFACTURING COMPANIES, II., III. 
 
 36. Liability for false report. The trus- 
 tees filed a report, stating as follows : " Capital 
 stock $60,000; capital paid in, |36,500." Of 
 the $36,500 stated to have been paid in, only 
 Sll,500 had been paid in cash, the balance hav- 
 ing been paid in property, for which full paid- 
 up stock was issued. In an action to charge the 
 trustees individually, on the ground that they 
 had signed a false report — 
 
 Held, 1. That the phrase " capital paid in," as 
 used in g 12 of the act, meant capital paid in in 
 cash. 
 
 2. That § 12 and Laws of 1853, ch. 33, § 2, 
 were in pari materia and were to be read to- 
 gether. 
 
 3. That the act of 1853 had not been re- 
 pealed. 
 
 4. That the report required by the act of 1848, 
 as amended bj; the act of 1853, should state the 
 amount of capital stock paid in in cash, and the 
 amount paid in in property, separately and ac- 
 cording to the actual fact. 
 
 5. That the trustees were liable for signing a 
 false report.— Su;))-eme Ct., (2d Dept.,) Feb., 1880. 
 Pier V. George, 20 Hun 210. 
 
 37. The minutes of the proceedings of the 
 company are admissible in evidence to show 
 knowledge, on the part of a trustee, of the falsity 
 of the report signed by him. lb. 
 
 38. The right to enforce the trustee's personal 
 liability for signing a false report, passes with 
 an assignment of the debt. lb. 
 
 III. iNDiTiDTjAii Liability op Stockhold- 
 ers. 
 
 1. For debts of the company, generally. 
 
 39. "Who is liable as a stockholder. 
 Where stock has been issued to a person in pay- 
 ment for a manufactory and other property pur- 
 chased by the company, he is not liable to the 
 creditors of the company because of a failure on 
 the part of the president and a majority of the 
 trustees to file the certificate required by J 11 
 of the act of 1848, in the absence of fraud in 
 the valuation of the property for which the 
 stock is issued. — Supreme Ct., (Isf Dept.,] March, 
 1878. Brown v. Smith, 13 Hun 408. 
 
 40. Election bet'ween forms of ac- 
 tion. A creditor of a corporation, organized 
 under the general manufacturing law (Laws of 
 1848, ch. 40,) in seeking to enforce the indi- 
 vidual liability of stockholders imposed by said 
 act (§ 10), where the stock has not been paid in, 
 has his election either to bring an action at law 
 against a stockholder, or to bring an action in 
 equity against all of the stockholders, for an ac- 
 counting between them and all of the creditors. 
 —Ct: of App., Jan., 1878. Mathez v. Neidig, 72 
 N. Y. 100. 
 
 41. Necessity of previous suit 
 against corporation. Before the right arises 
 to sue the stockholders to recover a debt due 
 from the corporation, on the ground that the 
 capital stock has not been fully paid in, an ac- 
 tion must have been brought against the corpo- 
 ration within one year after the debt became 
 due ; to show that within the year a petition in 
 bankruptcy was filed by plaintiff and others 
 against the company, upon which it was ad- 
 judged a bankrupt, and in which proceedings 
 plaintiff duly proved his claim, is not a com- 
 
 pliance with the statutory requirement. — Su- 
 preme Ct., (2d Sept.,) Sept., 1878. Birmingham 
 Nat. Bank v. Masser, 14 Hun 605. 
 
 42. Where a manufacturing corporation 
 gave its note for goods purchased, which was 
 indorsed, discounted and renewed from time to 
 time, the last note taken up by the vendor ac- 
 tion brought thereon and judgment obtained 
 against the corporation— SeH, that the indebt- 
 edness arose on the purchase and became due on 
 the maturity of the first note, within the mean- 
 ing of the provisions of the general manufac- 
 turing act (Laws of 1848, ch. 40, J 24,) declar- 
 ing that no stockholder shall be personally lia- 
 ble for a debt of such a corporation, unless a 
 suit for the collection thereof shall be brought 
 against it within one year after the debt became 
 due ; and that, as the action against the corpo- 
 ration_ was not brought within a year after the 
 maturity of the first note, a stockholder was not 
 personally liable for the debt, because of failure 
 to file a certificate of the paying in of the capital 
 stock of the corporation, as required by said act. 
 (? 10.)— a. of App.; March, 1879. Jagger Iron 
 Co. V. Walker, 76 N. Y. 521 ; affirming 43 Supe- 
 rior 275. 
 
 43. What may be shown in defence. 
 Where a stockholder is a creditor of the corpo- 
 ration to an amount equal to his stock, and his 
 debt is one for which the stockholders are indi- 
 vidually liable, an action at law cannot be main- 
 tained against him by another creditor, as he 
 has an interest in the fund sued for, the amount 
 of which can only be determined by an account- 
 ing, which cannot be had in such an action, be- 
 cause the proper parties are not before the 
 court. — Ct. of App., Jan., 1878. Mathez ti. Nei- 
 dig, 72 N. Y. 100. 
 
 44. Where the claim of the stockholder is 
 for advances to the company, his liability to 
 other creditors, in an action at law, is not affected 
 by the question whether the money advanced 
 was used to pay obligations for which he was 
 individually liable or not. lb. 
 
 45. To enable such a stockholder to avail 
 himself of this defence, it is not necessary that 
 he should bring himself within the provisions 
 of the act (§ 24) limiting the personal liability 
 of stockholders to debts which are to be paid 
 within one year, and requiring a suit to be 
 brought against the company within that time. 
 lb. 107. 
 
 46. Where a stockholder, who was also presi- 
 dent of a manufacturing corporation, advanced 
 to it money to pay its workmen, and paid out 
 the same to them — Held, that he thereby became 
 a creditor, and this was a defence to an action 
 by another creditor of the corporation against 
 him as stockholder ; and that this was so, even 
 if defendant had been compelled to pay the 
 claims in discharge of the liability imposed by 
 said act (§18) upon stockholders to pay laborers, 
 and assuming that this liability was in addition 
 to that to pay creditors, lb. 
 
 47. It seems that a stockholder is absolutely 
 disDharged from his liability to creditors, under 
 said act, by payment of an amount equal to his 
 stock, on legal compulsion, and, probably, by 
 voluntary payment, to any creditor or creditors 
 for whose debts he is liable. lb. 
 
 48. It seems that a loan of money to a manu- 
 facturing corporation, by one of its stockholdeis, 
 in the absence of evidence to the contrary, jus- 
 tifies an inference that the money was applied 
 
MANUFACTURING COMPANIES, III., IV. 
 
 275 
 
 Tto the payment of the obligatioiH of the corpo- 
 ration, in the usual course of business. In an 
 motion, therefore, by a creditor of the corpora- 
 tion against a stockholder, to enforce the liability 
 imposed by the general manufacturing act (Laws 
 of 1848, ch. 40, ? 10,) upon a stockholder who 
 has not paid for his stock, evidence of a loan by 
 defendant to the corporation to an amount equal 
 to his stock, constitutes a defence. The fact that 
 security was taken for the loan is immaterial. — 
 —Ct. of App., May, 1878. Agate v. Sands, 73 N. 
 Y. 620. 
 
 49. "WTiat ■will not release the stock- 
 liolder. To relieve a stockholder who has 
 transferred his stock from liability to creditors, 
 it must appear not only that the transfer has 
 been made on the books of the corporation, but 
 also that it was made in pursuance of an actual 
 sale in good faith, without any secret understand- 
 ing or trust in favor of the defendant. — Supreme 
 •a., {1st Dept.,) Oct., 1879. Veiller v. Brown, 
 18 Hun 571. 
 
 50. Therefore, where several -stockholders 
 joined in transferring their stock on the books 
 to an irresponsible person in the employment 
 •of one of them, at a time when they knew the 
 •corporation to be financially embarrassed — Hild, 
 not such an actual bona fide sale of the stock, as 
 ito relieve the transferrers from their statutory 
 .liability to creditors. lb. 
 
 51. Ploading and evidence. As to the 
 requisites of the complaint in an action to en- 
 force the personal liability of stockholders in a 
 manufacturing company, see Dempsey v. Wil- 
 lett, 16 Hun 264. 
 
 52. To charge the holder of stock of a man- 
 ufacturing corporation, issued upon and for the 
 purchase of property, individually, for the debts 
 of the company, it is not enough to prove that 
 the property was purchased at an over- valuation 
 through a mere mistake or error of judgment 
 on the part of the trustees ; it must be shown 
 that the purchase was in bad faith and to evade 
 the statute. All that is necessary, however, to 
 establish legal fraud, which will take the stock 
 so issued out of the protection of the act of 1853 
 (ch. 333), is to prove, Ist. That the stock ex- 
 ceeded in amount the value of the property in 
 exchange for which it was issued; and, 2d. 
 That the trustees so issued it deliberately and 
 with knowledge of the real value of the prop- 
 ■erty ; no other fraudulent intent need be alleged 
 -or proved. — Q. of App., March, 1878. Douglass 
 
 V. Ireland, 73 N. Y. 100. 
 
 53. In an action to charge the stockholders, 
 the value of the property must be determined, 
 and evidence thereof is competent. In such an 
 action it appeared that the entire capital stock 
 of the corporation, 1300,000, was issued to H., 
 one of its trustees, in consideration of the as- 
 signment to the company of two executory con- 
 tracts for the purchase of mining property, upon 
 which nothing had been paid ; the contract 
 price was $40,000. One-third of the stock was 
 immediately re-transferred to the company, to 
 be sold to raise a " working capital." This was 
 sold at from forty to sixty cents on a dollar. 
 Defendant knowing of, and participating as a 
 trustee of the corporation in the transaction, 
 purchased $25,000 of said stock at forty cents. 
 The jury found the .value of the property to be 
 $68,000. Held, that the evidence justified a 
 binding of fraud, and was sufficient to sustain a 
 recovery. lb. 
 
 2. For wages of laborers and servants. 
 
 54. Who may sue. A laborer to -whom 
 a manufacturing corporation, created under the 
 act of 1848, was indebted for services rendered, 
 drew a bill of exchange for the amount due, in 
 favor of the plaintiff, which sWas presented to 
 and accepted by the company. Held, an assign- 
 ment to plaintifi" of the debt due the laborer, 
 and that plaintifi" could maintain an action to 
 recover the amount thereof from a stockholder 
 of the company. — Supreme Ot., {4th Dept.,) 
 April, 1879. Pilcher v. Brayton, 17 Hun 429. 
 
 55. "Who is liable as a stockholder. 
 Laws of 1848, ch. 40, ? 3, requires that the 
 trustees shall be stockholders. Therefore when 
 it appeared that defendant had signed and ac- 
 knowledged the articles of association and was 
 named a trustee therein — Held, that he could 
 not deny that he was, at the time of si^ng the 
 articles, a stockholder in the corporation. — Su- 
 preme Ct., {1st Dept.,) March, 1878. Herries i: 
 Wesley, 13 Hun 492. 
 
 56. One who has been proved to be a stock- 
 holder at the time the company was organized, 
 will be presumed to continue to be one until 
 proof is made to tlie contrary. lb. 
 
 57. The provision of the act (? 25) that the 
 book containing the names of the stockholders 
 ■which the company is required to keep "shall 
 be presumptive evidence of the facts therein 
 stated in favor of the plaintifi" in any suit 
 against any stockholder," does not make such 
 book the only evidence, or even the best evi- 
 dence of the fact that defendant was a stock- 
 holder, lb. 
 
 58. The complaint, in an action by a 
 servant of the corporation, against a stock- 
 holder, to recover wages due and unpaid, must 
 allege that the sum agreed to be paid, was, by 
 the terms of the contract, payable within twelve 
 months from the time of contracting the debt. 
 —C(mi. Pleas, Jan., 1878. HiU v. Conkling, 7 
 Daly 397. Supreme Ot., {Isl Dept.,) Dec., 1879. 
 Dean v. Mafie, 19 Hun 391. 
 
 59. Release of one or naore of sev- 
 eral defendants. In an action brought 
 by a laborer under § 18, the plaintiff may com- 
 promise with and release one or more' of the de- 
 fendants, without afi"ecting his right to recover 
 the balance of his claim from the remaining de- 
 fendants. — Supreme Ct., {Ist Dept.,) May, 1880. 
 Herries v. Piatt, 21 Hun 132. But see to the 
 contrary, Dean v. Whiton, 16 Hun 203. 
 
 IV. Dissolution, Beceiveb, &c. 
 
 60. Grounds for dissolution. The neg- 
 lect of the corporation for more than a year to 
 pay its debts is sufficient to justify proceedings 
 for its dissolution ; and such proceedings may 
 be instituted by a stockholder. — Supreme Ct., 
 {Erie Sp. T.,) July, 1880. Kittredge v. Kellogg 
 Bridge Co., 8 Abb. N. Cas. 168. 
 
 61. Sufficiency of complaint in suit 
 to ■wind up. The complaint alleged that de- 
 fendant was a manufacturing corporation, organ- 
 ized under the laws of this state ; that plaintiffs 
 were two of the trustees or directors, and stock- 
 holders therein ; that three of the defendants 
 were the other trustees ; that the corporation had 
 been insolvent for more than a year prior to the 
 commencement of the action ; that the plaiiitiffs 
 were pecuniarily responsible; that the other 
 
276 MANUFACTURING COMPANIES, IV.— MARSHALS. 
 
 trustees were irresponsible ; that such other trus- 
 tees insisted upon continuing the business of the 
 coiupany, though judgments had been recovered 
 against it, and executions issued thereon, re- 
 turned unsatisfied ; and that an action had been 
 "commenced by a certain creditor of the corpora- 
 tion against one of the plaiati£& to charge him 
 personally with a debt of the said company. 
 The prayer was that the corporation be dissolved, 
 and for a preliminary injunction and the ap- 
 pointment of a receiver pendente lite. Held, that 
 the action was maintainable under 2 Rev. Stat. 
 463, § 38, and that a receiver should be appoint- 
 ed.— Sitm-eme Ct., (4(A Dept.,) Jan., 18S0. Med- 
 bury V. Bochester Frear Stone Co., 19 Hun 498. 
 
 62. Po"wer to appoint receiver. The 
 power of the Supreme Court to appoint a receiver 
 uf a corporation after the return of an unsatisfied 
 execution, though conferred by statute, is within 
 the general jurisdiction of the court, and facts to 
 establish it need not be proved. — Cbm. Pleas, 
 (Sp. T.,) Bee., 1877. Palmer v. Clark, '4 Abb. 
 N. Cas. 25. 
 
 63. Effect of the appointment. On the 
 appointment of a receiver of a manufacturing 
 company, the corporation is so far dissolved that 
 thereafter the duty is no longer upon the trus- 
 tees to make the annual report. Therefore, where 
 a receiver was appointed during and before the 
 expiitition of the twenty days in which the trus- 
 tees were required to make such report — Held, 
 that they were not liable to the penalty imposed 
 by the general manufacturing act (Laws of 1848, 
 ch. 40, § 12,) for failure to make and file the 
 same. — Ct. o/App., Nov., 1878. Huguenot Nat. 
 Bank v. Studwelt, 74 N. Y. 621. 
 
 64. Receiver's po'wer to sue. A re- 
 ceiver, appointed upon the application of a credi- _ 
 tor, after the return of an unsatisfied execution 
 against the corporation, may maintain an action 
 to set aside a mortgage executed by the corpora- 
 tion, on the ground that the written assent of the 
 stoekholders owning at least two-thirds of its 
 capital stock had not been first obtained. — Su- 
 preme a.AlstI)qpt.,) March, 1880. VaU v. Ham- 
 ilton, 20 Hun 355. 
 
 65. To prove the authority of the receiver to 
 sue, the production of the petition, the order ap- 
 pointing him receiver, and his official bond, is 
 sufficient.— Cbm. Fleas, (Sp. T.,) Dee., 1877. 
 Palmer v. Clark, 4 Abb. N. Cas. 25. 
 
 For rules applicable to manufacturing com- 
 panies In common with other corporations, _ see 
 CoBPOBATiQNS; and the titles of the various 
 corporate bodies. 
 
 MARITIME LIENS 
 
 Shipping, TV. 
 
 MAPS. 
 
 Admissibility and effect of, Ai emdenee, see 
 EVIDBNCE, 154. 
 
 MARINE COURT OF CITY OF NEW YORK. 
 
 Appeal, 257-264. Cottbts, 19. 
 
 MARRIAGE. 
 
 Husband and Wipe, L 
 
 MARINE INSURANCE. 
 
 Insubance, IV. 
 
 MARSHALS. 
 
 l._ Leave to sue marshal's bond. A 
 justice of the New York Common Pleas ha» 
 power to allow an action to be brought on a 
 marshal's bond, under Laws of 1862, ch. 484^ 
 notwithstanding Laws of 1872, p. 1495, ? 11^ 
 giving jurisdiction to the Marine Court in such 
 cases. The later act does not repeal the earlier 
 one in this respect. — Com. Pleai, Jan., 1878, 
 Hanger ». Bernstein, 7 Daly 340. 
 
 2. Ttie complaint. Li an action in the 
 Marine Court on such bond, in the name of the 
 party aggrieved, an allegation in the complaint, 
 that on a certain day leave was granted by the 
 Court of Common Pleas to so bring the action, 
 is sufficient upon demurrer. "It will be pre- 
 sumed that leave was granted in a proper case. 
 lb. 
 
 3. Where the condition of the bond was, that 
 the marshal should " well and faithfully execute- 
 the duties of said office of marshal, without fraud, 
 oppression or deceit," allegations that the mar- 
 shal, under an attachment against another per- 
 son, seized property of plaintiff; that plaintiff 
 obtained judgment for its recovery andfor dam- 
 ages; and that au execution on the judgment 
 issued against the marshal has been returned 
 unsatbfied, constitute a sufficient assignment of 
 a breach of the bond. Ih. 
 
 4. Evidence. In such an action, the judg- 
 ment in an action by the present plaintiff against; 
 the marshal for the unlawful taking, may be 
 given in evidence, although the record does not 
 show that the judgment was recovered against 
 him as a marshal, or for misconduct in his office. 
 Such evidence is not material to prove the act 
 of taking, and parol evidence deftiw-s the record 
 may be given to show the grounds of the judg- 
 ment, and that the act was done colore offiim. — 
 Com. Pleas, Feb., 1878. Mayor, &c., of New 
 York V. Byan, 7 Daly 436. 
 
 For decisions relative to Oonstablea and Shenjjs,- 
 see those titles. 
 
 MASTER AND SERVANT. 
 
 1 The relation, and right to compen- 
 pensation. Discharge. Where a servant,- 
 employed for a stated term, is dismissed from 
 his master's employment, prior to the expiration 
 of the term, he cannot maintain an action to re- 
 cover wages subsequently acci-uing; his action 
 should be for damages for breach of the contract 
 of employment.— a of App., Sept., 1879. Weed 
 V. Burt, 78 N. Y. 191 ; affi.rmmg 7 Daly 267. 
 
 2. In au action to recover wages under an 
 alleged contract of employment for one year at 
 an agreed price, payable ratably and monthly^ 
 the complaint showed that plaintiff was out of 
 the service of defendant, and was in the hire of- 
 
MASTER AND SERVANT. 
 
 277 
 
 others a part of the alleged term. It appeared 
 upon the trial that plaintiff had before sued the 
 defendant for wages for a prior month ; the de- 
 fence therein was a denial of the hiring, other 
 ■than a permission to remain temporarily to 
 close up certain work, and that defendant left 
 plaintiff's employment on tlie 20th of the 
 month. Judgment was given for plaintiff in 
 that action, adjudging him to be entitled to the 
 wages for the month. Hdd, that the defendant 
 was not barred from setting up and proving a 
 ■discharge of plaintiff from this service, by the 
 fact that it was not set up and proved in the 
 former action. lb. 
 
 3. Where a servant hired for a specified 
 term brings numerous suits for installments of 
 wages not yet due, and informs other servants 
 of his master, and persons engaged in rival en- 
 terprises, that his master is in such poor credit 
 that he has been compelled to sue for his wages, 
 «uch conduct is good ground for his discharge 
 before the expiration of the time of service. — 
 •Cfam. Pleas, April, 1878. Brmk v. Fay, 7 Daly 
 562. 
 
 4. Liability of master to third per- 
 ■sons for servant's acts. A master is lia- 
 ble for the wrongful act of his servant, to the 
 injury of a third person, where the servant is 
 engaged at the time in doing his master's busi- 
 .ness, and is acting within the general scope of 
 his authority, although he is reckless in the 
 performance of his duty, or through lack of 
 'judgment or discretion, or from infirmity of 
 temper, or under the influence of passion aroused 
 by the circumstances, goes beyond the strict line 
 •of his duty, and inflicts unnecessary and unjusti- 
 .fiable injury. — -Q,. of App., March, 1877. Cohen 
 «. Dry Dock, &c., R. E. Co., 69 N. Y. 170. 
 
 5. — for servant's negligence: The 
 master'is answerable in damages for the mere 
 negligence of his servant, only to the extent of 
 compensation for the injury received. — Superior 
 Ct., April, 1878. Hendricks u. Sixth Ave. R. 
 K. Co., 44 Superior 8. 
 
 6. Defendant owned a ferry-boat run by his 
 servants between the city of H. and the village 
 of A. The pilot of the boat took a man on 
 ioard at A., and agreed, as a favor, to carry him 
 io, and leave him on a tow which was proceed- 
 ing up the river. While so doing, the ferry- 
 -boat, through the negligence of those in charge 
 of her, collided with a canal boat belonging to 
 
 -the tow, whereby plaintiff's intestate was thrown 
 from the canal boat and drowned. In an action 
 against defendant — 
 
 Sdd, 1. That the employees on the ferry-boat 
 had, without authority, departed from the busi- 
 ness of their master, and that defendant was not 
 responsible for their negligent acts. 
 
 2. That in any event, the question whether 
 or not they had departed from their masteWs 
 ■business, should have been submitted to the jury. 
 — Supreme Ct., [Zd Dept.,) Jan., 1879. Quinn v. 
 Powers, 1*7 Hun 102. 
 
 7. — for servant's ■willful acts. For 
 >the acts of a servant, within the general scope of 
 his employment, while engaged in his master's 
 Jjusiness, and done with a view to the further- 
 ^ance of that business and the master's interests, 
 the latter is responsible, whether the act be 
 •done negligently, wantonly, or even willfully ; 
 ■the quality of the act does not excuse. But if 
 4he servant, without regard to his service, or to 
 ^accomplish some pui-pose of his own, acts ma- 
 
 liciously or wantonly, the master is not liable. 
 Where, therefore, an action is brought against 
 the master for the wrongful act of the servant, 
 the inquiry is simply whether the wrongful act 
 was in the course of the employment, or outside 
 of it.— 0!, of App., May, 1878; Mott v. Consum- 
 ers' Ice Co , 73 N. Y. 543, 547. 
 
 8. If the master, when sued for an injury re- 
 sulting from the tortions act of his servant while 
 apparently engaged in executing his orders, 
 claims exemption on the ground that the servant 
 was in fact pursuing his own purposes, without 
 reference to his master's business, and was act- 
 ing maliciously and willfully, it must, ordinarily, 
 be left to the jury to determine the issue. — Su- 
 perior Ct., April, 1878. Hoffman v. New York 
 Central, &c., K. R. Co., 44 Superior 1. 
 
 9. Liability of master to servant, 
 generally. In an action against a master for 
 an injury to a servant while in the master's em- 
 ployment, alleged to have been caused by the 
 negligence of the latter, the test of liability is 
 not whether the master omitted to do something 
 which he could have done, and which would 
 have prevented the injury, but whether he did 
 anything which, under the circumstances, in 
 the exercise of ordinary care and prudence, he 
 ought not to have done, or omitted any precau- 
 tion which a prudent and careful man would-or 
 ought to have taken.— C4. of App., June, 1877. 
 Leonard v. Collins, 70 N. Y. 90, 94. 
 
 10. Therefore, where in such an action it ap- 
 peared tkat the servant was killed by the fall of 
 an overhanging portion of bank of earth, which 
 was being excavated under the direction of the 
 master — Held, that it was error to charge the 
 jury to the effect that if defendant could have 
 done anything which would have prevented the 
 accident, his omission so to do was negligence. 
 lb. 
 
 Xi.. The portion of the bank which fell was 
 cut away by other men in defendant's employ. 
 Plaintiff's evidence tended to show that just 
 prior to its fall, defendant stated that he would 
 not cut it away for half an hour, and that re- 
 lying on this the deceased and other workmen 
 continued to work under it. The court sub- 
 mitted it to the jury to find whether this prom- 
 ise was made, remarking that it was a very im- 
 portant feature of the case. Defendant's counsel 
 thereafter requested the court to charge that if, 
 notwithstanding such promise was made, the 
 deceased saw the men at work cutting down the 
 bank, plaintiff could not recover on the theory 
 that the deceased had no warning that the work 
 was going on. The court refused so to charge. 
 Held, error. 1 b. 
 
 12. A corporation which leases a dry dock to 
 one who uses it in repairing a vessel on his own 
 account, is not liable to a workman employed by 
 him for injuries caused by a defective staging 
 built by him, where, though the plank for the 
 staging were furnished by the corporation, yet 
 they formed no part of the dry dock itself, and 
 the person using them had the right to accept 
 or reject them or any of them at his pleasure. — 
 Com. Pleas, June, 1878. Mulcahy v. New York 
 Floating Dry Dock Co., 8 Daly 93. 
 
 13. —for defective machinery. As to 
 the liability of a master to a servant injured by 
 dangerous machinery; the duty of the master 
 where the servant is a minor ; his duty as to 
 giving instructions to warn the servant against 
 danger ; and when instructions given by the mas- 
 
278 
 
 MASTER AND SERVANT. 
 
 tsr to the person in charge of the machinery may 
 be proved, see Costello v. Jiidson, 21 Hun 396. 
 14. — for master's personal negligence. 
 Where the personal negligence of the master has 
 directly caused the injury, the master's liability 
 to the servant is the same as it would be to a per- 
 son not a servant. — Superior Ct., June, 1877 / Mc- 
 Mahon v. Walsh, 43 Superior, 36. 
 
 15. — for negligence of fellow-servant. 
 Employers who construct or repair machines are 
 not liable to their employees who are engaged in 
 the construction or repair of a machine upon 
 which they are ordered to make certain repairs, 
 provided some other workman in the same shop 
 has so carelessly done his prior part of the work 
 of repair as to leave the machine unfit to have 
 any additional work done upon it, and in conse- 
 quence thereof the employee who undertakes to 
 do the last work is- injured. — Supreme, Ct., (Alb. 
 Oir.) May, 1880. Murphy v. Boston, &o., B. K. 
 O)., 59 How. Pr. 197 ; S. C, 8 Abb. N. Cas. 41. 
 
 16. The general rule undoubtedly is that an 
 employer who furnishes the machine for his ser- 
 vant to work with is bound to provide one safe 
 for that purpose, but when a machine which is 
 safe has been furnished, the men who operate it 
 ordinarily take upon themselves the risk of their 
 fellow-workman's carelessness. lb. 
 
 "17. When an accident occurs, not in the opera- 
 tion but in the construction or repair of a ma- 
 chine for operation, in the doing of which a ser- 
 vant is injured, such accident being caused by 
 the negligence of another servant, who had 
 done a previous and different part of such work 
 of construction or repair, the master is not then 
 liable in damages for the injury lb. 
 
 18. Asto the liability of a building contractor 
 for injuries sustained by a workman, by reason 
 of the negligence of the contractor's foreman, see 
 Eagan v. Tucker, 18 Hun 347. 
 
 19 — for joint negligence of master 
 and co-servant. Where injury to a servant 
 is caused by negligence of the master and of a 
 co-servant, the negligence of the latter does not 
 relieve the former from liability. — Ct. of App., 
 March, 1878. Booth v. Bostor »nd Albany E. 
 K. Co., 73 N. Y. 38. S. P., Cone v. Delaware, 
 &c, E. E. Co., 15 Hun 172. 
 
 20. Instances. Plaintiff, a tug-boat pilot, 
 was injured by reason of a collision with a iwat 
 owned by defendant, and by reason of the lat- 
 ter's negligence. It was claimed in defence that 
 the negligence of the other employees of the tug 
 contributed to the collision. Hdd, that although 
 such contributory negligence would bar an action 
 by the owner of the tug, yet it would not prevent 
 a recovery by plaintiff if he himself were 
 free from negligence. — Supreme Ct., (3d Dept.,) 
 Jan. 1879. Perry ». Lansing ; 17 Hun 34. 
 
 21. The rule that one servant cannot sue the 
 master for an injury, occasioned by the negli- 
 gence of a co-servant, does not prevent a recov- 
 ery against a third person for injuries occasioned 
 by his negligence, though the negligence of a co- 
 servant of the plaintiff may have contributed 
 thereto. lb. 
 
 22. Defendants owned and kept in an in- 
 closed yard surrounding their factory, a Siberian 
 blood-hound, very large and ferocious, which 
 was usually fastened up in the day-time and 
 let loose at night. Plaintiff was employed in the 
 factory as night watchman ; it was his duty to 
 open the gate to the yard every morning. On 
 returning to the factory one morning after per- 
 
 forming this duty, he was attacked by the dog^ 
 and seriously injured. In an action to recover 
 damages for the injuries, it appeared that it was 
 the custom of G., defendant's engineer, to let loose- 
 the dog at night and to fasten him in (he morn- 
 ing, and to notify plaintiff when the dog was 
 loose. No such notice was given on the morn- 
 ing of the injury, and plaintiff testified that he 
 did not know or suppose the dog was loose. No- 
 circumstance was proved calling for unusual pre- 
 caution on his part. 
 
 Held,, 1. That it was not incumbent upon 
 plaintiff to examine to see if the dog was feust- 
 ened, and the evidence authorized the court to 
 direct a verdict for plaintiff; that, to warrant a 
 submission of the question of contributory neg- 
 ligence on the part of plaintiff, the evidence 
 should have been sufficient to warrant the jury in 
 finding actual notice that the dog was loose, or at 
 least that the plaintiff had reason so to believe. 
 
 2. That plainti^ by accepting the employ- 
 ment, did not assume the risk of such an acci- 
 dent; that the most that could be said is that he- 
 assumed the risks consequent upon the keeping 
 of a ferocious dog, to be kept fastened up, save 
 when he was otherwise notified, and beyond this 
 he was entitled to the same protection as other- 
 persons. — Ct. of App., April, 1878. MuUerti. 
 McKesson, 73 N. Y. 195 ; affirming 10 Hun 44.. 
 
 23. "Wlien the co-servant -will be 
 deemed the master's alter ego. Where^ 
 the master abdicates the control and manage- 
 ment of certain work in favor of an employee, 
 and gives him full discretion in regard thereto,, 
 he is liable for the neglect of said employee, iit 
 the performance thereof, to the same extent that 
 he would be liable for his own neglect. This- 
 though the party injured thereby and seeking^ 
 redress was also employed by him as a work- 
 man, engaged in the same matter and under the 
 control of said employee. The above rule is not 
 affected by the fact that the master has exer- 
 cised due care in the selection of the person, 
 assigned to said duty. — Superior Ct., March, 
 1879. Heiner v Heuvelman, 45 Superior, 88. 
 
 24. The implied contract of a corporation, 
 with its servants, that it will furnish proper 
 machinery or other appliances necessary for the- 
 work to be performed, employ competent and 
 skillful fellow-servants and use reasonable care to- 
 that end, necessarily implies that a sufficient 
 number of workmen shall be engaged, and that 
 those occupying positions over others shall be 
 qualfied, competent and skillful, and see that their 
 subordinates attend to and perform the duty de- 
 volving upon them. Where there is a general 
 agent or superintendent having the manage- 
 ment or control of any particular department or 
 branch of the business, such agent or officer 
 takes the place of the corporation, and any neg- 
 lect or omission of duty in respect to his em- 
 ployees, is the act of the master, for which the- 
 latter is responsible.— CS. of App., June, 1877. 
 Besel V. New York Central, &c., E. R. Co., 70 N^ 
 Y. 171 ; S. P., McCasker v. Long Island E. E. 
 Co., 59 How. Pr. 258 ; Stevenson v. Jewett, 16- 
 Hun 210. 
 
 For rules regulating the law of Ageney, gen- 
 erally, see Principal and Agent. 
 
 MATERIAL-MEN. 
 
 Mechanics' Lien ; Shipping, IV. 
 
MECHANICS' LIEN, I. 
 
 279 
 
 MAYOR. 
 
 Kemoval of Officers by, see New Yoke City, 
 86-88. 
 
 MEASURE OF DAMAGES. 
 
 Damages, IL 
 
 MECHANICS' LIEN. 
 
 I. The Liek ; and Eights op the Pasties, 
 
 GENERALLY. 
 
 II. Proceedings to Foeeclose. 
 
 I. The Lien ; and Eights op the Parties, 
 
 GENERALLY. 
 
 1. Interpreting the statutes. The me- 
 chanics' lien law of 1862, for the counties of 
 Kings and Queens, (Laws of 1862,'ch. 478,) was 
 intended for the protection of those who per- 
 form labor or furnish materials within this 
 state ; it has no extra-territorial effect. Where, 
 therefore, a steam engine was purchased by and 
 delivered to defendant in the State of Connecti- 
 cut, which was placed in its factory in the county 
 of Queens — Sdd, that plaintiff, who furnished 
 to the vendor the bed-plate of the engine, could 
 acquire no lien under said statute upon defend- 
 ant's premises. — Gt- of App., Sept., 1879. Bir- 
 mingham Iron Foundry v. Glen Cove Starch 
 Manuf. Co., 78 N. Y. 30. 
 
 2. The New York mechanics' lien law of 
 1875 repeals that of 1863. — Com. Pleas, March, 
 1879. Heckmann v. Piukney, 6 Abb. N. Cas. 
 371. 
 
 3. "What property may be readied. 
 In the absence of an express statutory provision 
 authorizing it, a mechanics' lien cannot be en- 
 forced against the real estate of a municipal 
 corporation held for public use. — Ct. of App., 
 Dec., 1877. Leonard v. City of Brooklyn, 71 
 N. Y. 498. 
 
 4. 'Wlio may file a lien. Under the me- 
 chanics' lien law of 1862, ( Laws of 1862, ch. 
 478,) for the counties of Kings and Queens, an 
 architect, employed by the owner to superintend 
 the erection or alteration of a building, is enti- 
 tled to a lien upon the premises for, the value 
 of his services, on 0ing the prescribed notice. 
 — -Ct. of App., Jan., 1879. Stryker v. Cassidy, 
 76 N. Y. 50 ; reversing 10 Hun 18. 
 
 5. The word " labor," in the statute, includes 
 BkUled as well as unskilled labor ; and the act 
 protects all persons who perform " labor " in the 
 construction or reparation of a building, irre- 
 spective of the grade of their employment or 
 the particular kind of service. lb. 
 
 6. "When a lien for materials arises. 
 There can be no lien for materials furnished, 
 unless the seller and purchaser both understand 
 at the time of delivery that the materials are to 
 be used upon a particular building, which the 
 purchaser intends to build, alter or repair. — 
 Com. Pleas, {Sp. T.,) Sept., 1878. Watrous v. 
 Eliuendorf, 55 How. Pr. 461. 
 
 . 7. "WTio is "owner." Effect of sale 
 before filing notice of lien. The vendor, 
 under a contract to sell and make advances to 
 
 enable the purchaser to erect a building on the 
 land to be conveyed, is not liable as " owner " 
 under the act of 1875 (Laws of 1875, ch. 379.) 
 Eequisites of the notice under this act, discussed. 
 —Ornn. Pleas, (Sp. T.,) March, 1878. Dugan v. 
 Brophy, 55 How. Pr. 121. 
 
 8. Under Laws of 1863, ch. 500, as amended 
 by Laws of 1866, ch. 752, applicable to the city 
 of New York, work done on premises in pur- 
 suance of a contract with a previous owner, does 
 not give the right to a lien as against a subse- 
 quent owner. Unless the lien is perfected before 
 the title is transferred either by act of the par- 
 ties or by operation of law, subsequent proceed- 
 ings under the act of 1863 will be inefFectnal, 
 even for the purpose of a personal judgment. — 
 Com. Pleas, Feb., 1878. Meyers v. Bennett, 7 
 Daly 471. 
 
 9. Effect of owner's death before 
 filing notice. Plaintiff furnished to Z. cer- 
 tain lumber, to be used in building fences and 
 other structures in his coal-yard, and for which 
 he agreed to pay cash. After all the lumber 
 was furnished and used for the purpose in- 
 tended, but before it was all paid for, Z. died, 
 intestate, and the defendants were appointed ad- 
 ministrators. Thereafter, and before the expi- 
 ration of thirty days from the time of furnish- 
 ing the lumber, plaintiff filed a notice of lien, 
 and commenced an action to foreclose the same. 
 Defendants demurred to the complaint, on the 
 ground tliat it did not sliow a sufficient cause of 
 action, Z. having died before the lien was filed. 
 Seld, that the lien had attached before the 
 death of the owner, and the estate, subject to 
 the lien, passed to the administrators of the 
 owner as part of the assets of the intestate ; and 
 tliat the action could be maintained. — Com. 
 Pleas', Feb., 1880. Brown v. Zeiss, 59 How. Pr. 
 345. 
 
 10. Necessity of contract w^ith 
 owner. The filing of a notice of lien by a 
 materialman, creates no lien upon the premises, 
 where the person to whom the materials were 
 furnished was engaged in erecting the building, 
 for the owner of the land, who had agreed to 
 advance to him moneys needed as the work ad- 
 vanced, there being nothing due upon the con- 
 tract when the lien was filed ; and the builder 
 having afterwards abandoned the work, which 
 
 » was completed by the owner, at his own expense. 
 —Supreme Ct., (Sp. T.,) March, 1878. HoUey v. 
 Van Dolsen, 55 How. Pr. 333. 
 
 11. The provisions of the mechanics' lien 
 law for the county of Westchester, &c., (Laws 
 of 1854, ch. 402, as amended by Laws of 1873, 
 ch. 489,) giving a lien to persons furnishing 
 materials whenever the owner of land consents 
 to the erection of a building thereon, apply 
 where the owner is a married woman. As to 
 such land, the owner is to be regarded, under 
 said act, as though unmarried, and her consent 
 may be implied from her knowledge, and the 
 absence of any objection on her part. — Ct. of 
 App., May, 1879. Husted v. Mathes, 77 N. Y. 
 388. 
 
 12. A lease, executed in Queens county, pro- 
 vided " that the improvements built, or to be 
 built, upon the premises, are to revert to the 
 parties of the first part at the expiration of the 
 lease ;" and the lessees agreed to keep such 
 buildings insured, and in case of fire to devote 
 the insurance money towards rebuilding them. 
 Tlie lessors had the privilege of terminating 
 
280 
 
 MECHANICS' LIEN, I. 
 
 the lease and taking back the premises, on pay- 
 ment of a sum named, at any time within three 
 years. The lessees erected buildings, with the 
 knowledge of and without objection by the les- 
 sors. In an action to foreclose a mechanics' 
 ij^n — Held, that the lessees were permitted by 
 the owners of the land to build thereon, within 
 the meaning of Laws of 1862, ch. 478, | 1, and 
 that plamtiff was entitled to enforce his lien — 
 Supreme a., {2d Dept.,) Sept., 1878. Burkitt v. 
 Harper, 14 Hun 581 ; afii-med 79 N. Y. 273. 
 
 13. Rights of sub-contractors. The 
 death of the contractor will not preveut a sub- 
 contractor from filing a valid lien.— Com. Pleas 
 {Sp. T.,) Sept., 1878. Watrous v. Elmendorf, 55 
 How. Pr. 461. 
 
 14. The sub-contractor may be subrogated 
 pro tanto to the rights of the contractor under 
 the contract ; but, in the absence of fraud, collu- 
 sion or intent to evade the act, he can huve no 
 greater rights.— Cbm. Pleas, July, 1879. Her- 
 bert 1). Herbert, 57 How. Pr. 333, 336. 
 
 15. Representations to the owner, by a sub- 
 contractor, that the contractor, (not yet em- 
 ployed,) was responsible, accompanied by a 
 verbal agreement, that if the owner would em- 
 ploy such contractor, he, the sub-contractor, 
 would be responsible that the contractor would 
 so perform his contract that no liens would be 
 fiM, will not estop the sub-contractor from 
 claiming a lien as against the owner. Sucli 
 agreement is void for want of a writing, and 
 contains no element of an estoppel.— Cbm. Pkas, 
 Feb., 1877. Abham v. Boyd, 7 Daly 30. 
 
 16. For a full discussion and explanation of 
 the rights of sub-contractors, both as respects 
 the owner and the contractor, in proceedings to 
 foreclose the lien, see Morgan v. Stevens, 6. Abb. 
 N. Cas. 356. 
 
 17. Protection of prior liens. One 
 entitled to a mechanics' lien, until he files his 
 notice, has no greater equities than other gen- 
 eral creditors, and is affected by all equities 
 existing at that time in favor of those dealing 
 with his debtor ; his lien attaches only to the 
 estate and interest of the debtor as it then exists. 
 His lien is therefore subject to a prior equitable 
 lien, although he had no notice of it. — Ct. ^ 
 App., Sept., 1878. Payne c. Wilson, 74 jS'. Y. 
 348; affirming 11 Hun 302. 
 
 18. Effect of payment by o-wner. In 
 an action by a sub-contractor to enforce a lien 
 claimed to have been acquired under the Kings 
 and Queens county act, (Laws of 1862, ch. 
 478,) the owner wUl be allowed for all payments 
 made to the contractor, although made in ad- 
 vance of the terms prescribed by tlie contract, 
 if made without fraud or collusion, and before 
 notice of the filing of the lien. — Supreme Ct., 
 {2d Dept.,) May, 1879. Post v. Campbell, 18 
 Hun 51. 
 
 19. Plaintiff filed a lien for materials fur- 
 nished for thirty houses; he released fifteen 
 houses upon being paid the full value of the 
 materials which went into those houses. Held, 
 that his lien upon the remaining fifteen houses 
 for the ba'ance of his account was not affected 
 I)y the release. — Ct. of App., April, 1877. Hall 
 V. Sheehan, 69 N. Y. 618. 
 
 20. Tbe notice of lien — service. 
 Where materials are furnished for and are used 
 indiscriminately in the erection of several con- 
 tiguous buildings, they may, for the purposes 
 of a. mechanics' lien, be regarded as one build- 
 
 ing, and but one notice of lien need be filed 
 covering all. lb. 
 
 21. Under the lien law of 1862, (Laws of 
 1862, ch. 478,) service of notice of the lien 
 upon the owner of the land is not necessary to 
 validate the lien ; the lien is created by " filing 
 the notice " {i 1), and all that is required by 
 '[ay of notice to enforce the lien is that notice 
 shall be annexed to the complaint (? 2.) The 
 only object of service of notice upon the owner 
 provided for by § 3 of said act, is to pre- 
 vent payments by him to the contractor, etc 
 after service of notice, lb. . 
 
 22. As to the sufficiency of the notice of 
 lien to be filed by a sub-contractor, see Smith v 
 Baily, 8 Daly 128 ; Fogarty v. Wick, Id. 166 
 
 23. Filing the notice. Under the me- 
 chanics' lien law for the city of New York 
 (Laws of 1875, ch. 379,) the lieu of a material- 
 man must be filed within thirty days after the 
 materials are furnished.— Cbm. Pleas, {Sp T. ) 
 Oct., 1878. Gates v. Buddensick, 6 Abb. ST. Cas. 
 367; Buddensick v. Bellmann, 56 How. Pr 
 198. 
 
 24. Laws of 1844, ch. 305, providing a me- 
 chanics' lien law applicable to all the cities of 
 the state and certain villages, including Canan- 
 daigua, was not repealed by Laws of 1854, ch. 
 402, as amended by Laws of 1858, ch. 204; and 
 in order to create a lien on land in Canadaigua, 
 the notice was, after the passage of the acts 
 above mentioned, still required to be filed in the 
 office of the county clerk, as provided in the act 
 of 1844, and not in the office of the town clerk, 
 as prescribed in the subsequent statutes. — Su- 
 preme Ct., (4<A Dept.,) Oct., 1878. Whipple v. 
 Christian, 15 Hun 321. 
 
 25. Duration and continuance of 
 the lien. The provision of the mechanics' 
 lien law, (Laws of 1863, ch. 500, ? 11,) declar- 
 ing that liens shall "in aU cases" cease at the 
 expiration of one year, unless continued by 
 order of the court, refers to the lien on the 
 premises ; it has no reference to a daim by the 
 lienor for surplus moneys arising on sale of the 
 land upon judgment in foreclosure, which cuts 
 off the lien ; as, in such case, the claim of the 
 lienor is reduced to a right to the avails. — Ct. of 
 App., Nov., 1878. Emigrant Industrial Savings 
 Bank v. Goldman, 75 N. Y. 127. 
 
 26. If the lienor has a, right at the time of 
 sale, and at the time of making application for 
 the surplus, no further order of the court is 
 necessary to preserve this right. lb. 
 
 21. Where, to a. foreclosure sale, a mechanics' 
 lienor, whose lien was prior to the mortgage, 
 was made a party defendant, but the complaint 
 did not ask to have the amount of his claim as- 
 certained and paid out of the proceeds, apd no 
 such provision was contained in the judgment — 
 Held, that the lien was not affected by the judg- 
 ment ; and that an appearance by said lienor, 
 and waiver of service of papers, " except notice 
 of sale and application for surplus moneys," was 
 not a consent to come in subsequent to the mort- 
 gage, and did not operate as an estoppel against 
 any claim upon the premises by virtue of the 
 lien, in the absence of proof that the premises 
 were, with his knowledge and acquiescence, 
 sold clear of the lien. lb. 
 
 28. Under the provision of the mechanics' 
 lien law for the county of Kings, (Laws of 
 1862, ch. 478, ? 8,) which provides that "every 
 lien created under this act shall continue until 
 
MECHANICS' LIEN, I., II.— MILLS. 
 
 281 
 
 the expiration of one year from the creation 
 thereof, and until judgment rendered in any 
 proceedings for the enforcement thereof," a lien 
 so created ccmtinues for one year, and if pro- 
 ceedings to enforce it are commenced within 
 that time, and are pending at the end thereof, 
 then the lien continues until judgment. — Gt. of 
 App., June, 1879. Fox v._ Kidd, 77 N. Y. 489. 
 
 29. Where, therefore, in an action brought 
 to foreclose a lien within the year judgment 
 was leudered for defendant, which was reversed 
 upon appeal and judgment rendered for plain- 
 tiff after the expiration of the year^HeW, that 
 the lien had not ceased to exist when such judg- 
 ment was rendered. lb. 
 
 II. PBOCEEDniGS TO FoBECLOSE. 
 
 30. The complaint need not contain a 
 recital of all that is contained in the notice of 
 claim filed with the county clerk under the lien 
 law of 1875. It is sufficient to allege, generally, 
 that plaintiff had filed the notice mentioned in 
 the fifth section of the act. — Com. Pleas, {Sp. 
 T.,) Sept., 1878. Watrous v. Elmendorf, 55 
 How. Pr. 461. 
 
 31. The complaint of the material-man must 
 show that materials were furnished for, as well 
 as used in, the building covered by the lien. 
 lb. 
 
 32. Matters of defence. The plaintiff, 
 in an action to enforce a lien under Laws of 1862, 
 ch. 478, applicable to Kings and Queens 
 counties, is not precluded by an account ren- 
 dered, but not assented to by defendant, from 
 claiming and recovering a larger sum. — Ct. of 
 App., Jan., 1879. Stryker v. Cassidy, 76 N. Y. 
 50. 
 
 33. Where, in the foreclosure of a sub-con- 
 tractor's lien in the city of New York, it ap- 
 peared that the last payment to his contractor 
 was not due, on account of non-completion of 
 the work — Sdd, that plaintiff could not main- 
 tain the action against the owner. — Com. Pleas, 
 Nov., 1876. Preusser v. Florence, 4 Abb. N. 
 €a8. 136. 
 
 34. The judgment. A sub-contractor 
 filing a lien after an assignment for the benefit 
 of creditors by the contractor, may have a judg- 
 ment against the owner, contractor, and his 
 assignee for the foreclosure of the lien, and is 
 not compelled to share in the general fund in 
 the hands of the assignee for creditors. Where 
 such assignee has paid the amount of the lien 
 to the county clerk, and the lien has thus been 
 discharged, the amount so deposited is in lieu of 
 the property, and the lienor, upon bringing his , 
 proper action, is entitled to judgment for the 
 payment to him of the money so deposited. — 
 Om. Pleas, July, 1880. McMurray v. Hutche- 
 son, 59 How. Pr. 210. 
 
 35. "When a personal judgment is 
 proper. In an action brought by a material- 
 man, under the mechanics' lien law of 1862, for 
 (the counties of Kings and Queens, (Laws of 
 1862, ch. 478,) to foreclose an alleged lien for the 
 value of materials furnished to a contractor, in 
 which action the contractor is joined as defend- 
 ant, and a personal judgment is demanded 
 against him, such judgment cannot be rendered 
 where the plaintiff fails to establish his lien. 
 The action is in the nature of a proceeding in 
 rem, and, as incident thereto, a personal judg- 
 ment is authorized " in addition to the judg- 
 
 ment" provided for against the owner of the 
 premises; having failed in obtaining that re- 
 lief, plaintiff fails altogether. — Ct. of App., Jan., 
 1879. Burroughs v. Tostevan, 75 N. Y. 667. 
 
 36. The fact that an act authorizes the en- 
 forcement of a lien "by a civil action in a court 
 of record " governed by " the rules and practice 
 in ordinary actions," (J 2), does not authorize a 
 personal judgment in such a case. lb. And 
 see, also, Weyer v. Beach, 14 Hun 231 ; affirmed 
 79 N. Y. 409. 
 
 3*7. Costs. Under the provision of the 
 Kings county act (Laws of 1862, ch. 478, g 9,) 
 providing that the proceeds of sale under a lien 
 "shall be applied to the payment of the costs 
 of the action and proceedings and of the amount 
 found to be due to the claimant," etc., all costs 
 before judgment must be paid out of the pro- 
 ceeds of sale,, and cannot properly be directed to 
 be paid by the owner of the land, — Ci. of App., 
 June, 18r9. Fox v. Kidd, 77 N. Y. 489. 
 
 38. Review by appeal. An objection, 
 in a mechanics' lien case, that a copy of the 
 notice of lien was not served upon the owner, 
 cannot be taken for the first time in the Court 
 of Appeals. — Ct. of App., Jan., 1879. Stryker 
 i>. Cassidy, 76 N. _Y. 50, 54. 
 
 39. In an action to foreclose a mechanics' 
 lien, the referee found that, at the time of filing 
 notice, there was due to the contractor from de- 
 fendant more than the amount of the lien, and 
 gave judgment for plaintiff. Defendant pro- 
 duced papers signed by the contractor, showing 
 payment in full. This was shown by plaintiff 
 not to be the fact, but that the papers were given 
 to defeat this and other liens. Meld, that a find- 
 ing of fraud was not necessary to sustain the 
 judgment ; that the finding of an amount due 
 and unpaid was sufficient. — Ot. of App., April, 
 1878. Crawford v. O'Connor, 73 N. Y. 600. 
 
 For decisions relative to the Acquisition and 
 enforcement of liens, generally, see Lien; and 
 the titles there referred to. 
 
 MERGER. 
 
 Of Oreater and Lesser estate, see Estates, 5. 
 
 Of Mortgage in fee, see Mo'rtoages, 164. 
 
 Of original Contract, in subsequent one, see 
 Contracts, 59 ; Evidence, 82. 
 
 Of Misdemeanor, in felony, see CbiuinaIi 
 Law, 2. 
 
 MILLS. 
 
 1. Right of upper mill-o-wner to ob- 
 struct flo-w of stream. Defendant is the 
 owner of a cotton mill on F. creek, run by the 
 waters of the creek ; in the creek, above the 
 mill, are certain ree6 operating as natural dams, 
 and by means of canals around the reefs defend- 
 ant secures for the use of its mUl, in addition to 
 the natural flow of the stream, a large amount 
 of water from the reservoirs formed by the 
 reefs, enabling it during low wajer to run its 
 mill without interruption. Defendant operates 
 its mill only by day, keeping its gates closed at 
 night to allow said reservoirs to refill ; thus in- 
 terrupting the natural flow of the stream in time 
 of low water. The machinery in defendant's 
 mill is adapted to the capacity of the stream in 
 
282 
 
 MILLS— MISTAKE. 
 
 its ordinary stages, and, aav^ in the dry season, 
 the natural flow is sufficient to propel it without 
 the use of the canals. Plaintiff owns a paper 
 mill below on the same stream, operateil by its 
 waters ; his business, to be successfully con- 
 ducted, requires that his mill shall be rim con- 
 tinuously, day and night. If the flow of the 
 creek was not interrupted by defendant, plain- 
 tiff's right to the water would enable him so to 
 run his mill at all seasons and in all stages of 
 the water. By the interruption plaintiff was 
 seriously injured. In an action to recover dama- 
 ges for obstructing the natural flow of the stream, 
 the trial court found that the detention of the 
 waters by defendant was for the sole purpose of 
 enabling it to use the same to propel the ma- 
 chinery of its mill ; that it had not unneces- 
 sarily detained the water, and that its use of the 
 stream was a reasonable one. Hdd, that defend- 
 ant had the right so to detain; use and discharge 
 the water, and that plaintiff had no cause of ac- 
 tion.— Ci!. ofApp., Sept., 1879. Bnllard v. Sara- 
 toga Victory Manuf. Co., 77 N. Y. 525 ; affirm- 
 ing 13 Hun 43. 
 
 2. — to tliro'w saTV-dust in stream. 
 The question whether a particular use of the 
 water of a stream by an upper mill-owner —in 
 this case, throwing saw-dust into the stream — is 
 consistent with the rights of other owners on 
 the stream below, is generally one of fact for a 
 jury. In the absence of a right by prescription 
 or grant the test is whether the particular use, 
 under the circumstances, is a reasonable one 
 with reference to the riglits of the proprietors 
 below; in determining which the jury are en- 
 titled to consider all the circumstances, such as 
 the general character and condition of the 
 stream, its volume and rapidity, the injury occa- 
 sioned, the custom of the country, and the ne- 
 cessity of such use of the stream. — Ct. of App., 
 Sept., 1878. Prentice v. Geiger, 74 N. Y. 341 ; 
 affirming 9 Hun 350. 
 
 3. To Constitute such a right by prescription, 
 there must have been an adverse, continuous 
 and uninterrupted exercise of the right for 
 twenty years without substantial change; a 
 party cannot, within the twenty years, enlarge 
 the use, and at the expiration of that time claim 
 the use as so enlarged. lb. 
 
 For decisions on the law of Biparian rights 
 and Water-courses, disconnected with the use of 
 the- water for mill purposes, see Eipabian- 
 Bights; Wateh-cottbses. 
 
 MINING COMPANIES. 
 
 1. Articles of association. A mining 
 company was organized, the articles of associa- 
 tion stating its object to be "the mining of gold, 
 silver and lead in the territory ot Utah. It 
 was objected that the articles were void, the in- 
 tention being to mine more than one kind of 
 metal, ffdd, untenable; the object being one 
 kind of mining, though its results might be the 
 production of three metals after separating the 
 ingredients of the ore mined.— /Supreme Ot , {Au>. 
 Sv T. ) June, 1879. People, ex rel. Belknap, v. 
 Beach, 57 How. Pr. 337; affii-med 19 Hun 259. 
 
 2. The law does not limit and confine the 
 business of a mining corporation in its com- 
 mencement to the mining of one kind of metal 
 only. lb. 
 
 3. As to the necessary particularity in stating 
 the place of business of the corporation in the- 
 articles of association, see lb. 
 
 4. Liability of stockholders to labor- 
 ers and servants. Who will be deemed to 
 be a " laborer, or servant, or operative," within 
 Laws of 1848, ch. 40, § 18, making the stock- 
 holders individually liable for debts due from a 
 mining company to its laborers, servanis and op- 
 eratives, discussed. — Supreme Ct., {2d Dept.,) I)ec.^. 
 1 878. Dean v. De Wolf, 16 Hun 186 ; (ith Dept.,} 
 Api-il, 1879. Krauser v. Euckel, 17 Id. 463. 
 
 5. Laborers or servants within the meaning of 
 the act, are persons who, in common parlance and 
 according to the general understanding of men, 
 fall under that appellation in enumerating the dif- 
 ferent classes of persons employed by a corpora- 
 tion. Dean v. De Wolf, supra. 
 
 6. Where a laborer has assigned his claim for 
 wages, after it has accrued, his assignee may en- 
 force the liability of the stockholders. Krau- 
 ser V. Euckel, supra. 
 
 For decisions relative to mining companies^ 
 In common with other corporations, see Cokpoba- 
 TiONS ; Manttfactueing Companies. 
 
 MINORS. 
 
 Infants. 
 
 MISCARRIAGE. 
 
 As to the carrier's liability for Misearriage of 
 goods, see Careibrs, I.; Express Compa- 
 nies ; Eailboad Companies, IV. 
 
 As to the offence of Producing an abortion, sefr 
 Cbiminai Law, 5. 
 
 MISJOINDER. 
 
 Action, 8-10; Parties, 3; Pleading^' 
 U-13. 
 
 MISREPRESENTATIONS. 
 
 Fbattd,3-6; Sales, IH., V. ; Vendoe aud- 
 
 PUBCHASEE, 7, 8. 
 
 MISTAKE. 
 
 1. Mistakes in contracts, generally- 
 Ignorance of a fact, extrinsic and not essentiaF 
 to a contract, but which, if known, might have- 
 influenced the action of a party to the contract, 
 is not such a mistake as will authorize equitable- 
 relief ; as to such facts the party must rely upon 
 his own vigilance, and if not imposed upon or 
 defi-auded, will be held to his contract.— CK. ot 
 App., Nov., 1878. Dambman v. Sohulting, /i> 
 IM Y. 55 ; reversing 12 Hun 1. . . 4. 
 
 2 —in sale of partners' interest. 
 Plaintiff proposed to purchase the interests of 
 his co-partners in a firm business; the boofc- 
 keeper made out a statement of accounts, in 
 which the private accounts of the partners were 
 included as asses. The agent acting for the- 
 
MISTAKE— MONEY RECEIVED. 
 
 283- 
 
 other partners refused to sell upon that basis, 
 but made a statement in which the private ac- 
 counts were set down as profits and offered to 
 sell with that statement as a basis. Plaintiff, 
 with full knowledge of the difference in the 
 statements, accepted the proposition, and the 
 sale was completed. Plaintiff gave'notes which 
 he subsequently paid as they fell due, and never 
 offered to return the property. In an action for 
 an accounting — Held, that these facts authorized 
 a finding that there was no material mistake or 
 error of fact ; and that plaintiff was not en- 
 titled to any equitable relief — -Ct. of App., Nov., 
 1878. Stet'theimer v. KiUip, 75 N. Y. 282. 
 
 3. — as to quantity of land con- 
 veyed. Wliere an agreement for the pur- 
 chase and sale of a farm has been entered into, 
 under an honest arid mutual mistake of the 
 parties, as to the quantity of land it contains, 
 the fact that such agreement has been consum- 
 mated and carried into effect by the execution 
 and delivery of a deed, does not prevent the 
 purchaser from recovering back, in a court of 
 equity, so much of the price as was paid by 
 mistake, where the mistake is not discovered 
 until after he has accepted the deed and en- 
 tered into possession of the farm. — Supreme Ct, 
 [ith Dept.,) June, 1880. Paine v. Upton, 21 
 Hun 306. 
 
 As to Reformation of contracts, and relief for 
 mistake in equity, generally, see Equity, 23- 
 29. 
 
 As to recovery back of Money paid by mistake, 
 see Monet Eeceived, 6, 7. 
 
 MONEY PAID, (Action for.) 
 
 1. "WTien the action -will lie, gener- 
 ally. Defendant, having at the request of S. 
 loaded a vessel with petroleum, represented to 
 the master that he had piit in one hundred and 
 ten barrels more than he had in fact, thereby 
 inducing the Litter to give a bill of lading for 
 that amount to S., who paid defendant for that 
 amount, and sold the bill of lading to a firm in 
 Antwerp. Upon the vessel's arrival at Ant- 
 werp, the master was compelled to pay the con- 
 signees for the deficiency. In an action by the 
 assignee of the master — Held, that he was en- 
 titled to recover the amount so paid from de- 
 fendant.— Suprenje Ct., {2d Dept.,) Feb., 1879. 
 Van Santen v. Standard Oil Co., 17 Hun 140. 
 
 2. Payments under forfeited con- 
 tract. Plaintiff hired from defendants a 
 sewing machine, under a written agreement to 
 pay a deposit as security, and a monthly sum, as 
 rent, for twelve months, with the option to pur- 
 chase at any time by making a payment which, 
 added to the deposit and the sums paid for rent, 
 would amoimt to $75. The agreement provided 
 that on default in paying any monthly install- 
 ment plaintiff should forfeit the machine and 
 the money paid, including the deposit money. 
 Hdd, the forfeiture having been enforced, that 
 plaintiff could not recover the monthly install- 
 ments paid or the original deposit. — Com Pleas, 
 June, 1877. Haviland v. Johnson, 7 Daly 297. 
 
 3. Volixntary payments. ' Where the 
 maker of a negotiable note, given to compound 
 a felony, is compelled to pay the same to a 
 holder in good faith to whom it has been trans- 
 ferred by the payee for value and before matur- 
 
 ity, such payment is not a Voluntary one, and: 
 the maker may recover the amount so paid front 
 the pavee.— Sup?-eme Gt., (Ath Dept.,) ApiH^ 
 1879. Haynes v. Budd, 17 Hun 477. 
 
 MONEY RECEIVED, (Action for.) 
 
 1. Nature of the action ; and when- 
 it lies, generally. This action " is denomi- 
 nated an equitable action, and is less restricted 
 by technical rules than most others. It aims'at 
 the mere justice of the case, and looks entirely 
 to the question whether the defendants hold 
 money, which in equity and good conscience 
 belongs to the plaintiff. — Superior Ct., Dec., 1879. 
 Long V. Bussell, 45 Superior 434. 
 
 2. The general rule is, that when an 
 agent of a bank, without authority, either be- 
 cause the authority has not been confen-ed by 
 the bank as a fact, or because it has no power 
 under its charter to confer such power, pays 
 away its money to an officer and agent of , 
 another bank for his bank, and such officer 
 knows that there is no authority to pay the 
 money and that his bank has no right to take it, 
 he is liable personally for the money, whether or 
 not he has paid it over. — Superior Ct., April, 1879. 
 American Nat. Bank v. Wheelock, 45 Superior- 
 205. 
 
 3. Whether he would be liable, if the pay- 
 ment was made to satisfy a claim made bona 
 fide, although its character be such that in a 
 case made between the principals it might turn 
 out to b« unfounded, see lb. 
 
 4. Money received by defendant to- 
 the use of plaintiff. The seller of good* - 
 purchased for export, acted as the agent of the- 
 buyer in shipping them, procuring certain draw- 
 back moneys in his own name from the govern- 
 ment under U. S. Rev. Stat., § 3015, et seq. Held, 
 that the drawback belonged to the buyer, and. 
 that he could recover the money so collected, 
 from the seller, who was merely his agent in ex- 
 porting the goods. — Com. Pleas, April, 1877.. 
 Lake v. Devoe Manuf. Co , 7 Daly 161. 
 
 5. Plaintiff sued to recover back money pai(E. 
 by him as surety for a defaulting tax collector, 
 on the ground that a tax for the deficiency had 
 been re-imposed and collected. Held, that 
 plaintiff was not entitled to recover ; that re- 
 payment of the taxes would not enure to the- 
 benefit of the defaulting collector or his sure- 
 ties. — Ct. of App., Sept., 1877. Oakley v. Mayor, 
 &c. of New York, 70 N. Y. 612 ; affirming 39- 
 Superior 549. 
 
 6. Payments made under mistake of* 
 fact. As to the right of one making a pay- 
 ment under a mistake of fact, to recover the 
 money so paid, and what is such a mistake as^ 
 will give a right of action, see Windbiel v. Car- 
 roll, 16 Hun 101 ; Jackson v. McKnight, 17 
 Hun 3 ; Southwick v. First Nat. Bank, 20 Hun 
 349. 
 
 7. — under mistake of law. Money 
 which has been paid with full knowledge of all 
 the facts and circumstances under which it is 
 demanded, cannot be recovered back because the- 
 party paying it did so under a mistake as to his- 
 legal rights and obligations. — Supreme Gt., {Sp. 
 T.,) Dec., 1879. Giraud v. Giraud, 58 How. Pr.. 
 175. 
 
 8. Payments made under dtrress or- 
 
284 
 
 MONEY RECEIVED 
 
 ^;hreats. The payment of money by a wife to a 
 marshal, to save her property from a threatened 
 
 ^seizure under an execution against her husband, 
 is not a voluntary payment ; and the wife may 
 recover the money so paid in an action against 
 the marshal. The rule is the same where the 
 money is paid in installments at different times 
 
 "during the life of the execution. — Com. Pleas, 
 Apnl, 1878. Coady v. Curry, 8 Daly 58. 
 
 9. Payments upon invalid consider- 
 ation. An action cannot be maintained against 
 the seller of a usurious note transferred without 
 indorsement or representation as to legality, and 
 without knowledge by him of the usury, on the 
 ground of failure of consideration. — Ct. of App., 
 Feb., 1878. Littauer v. Goldman, 72 N. Y. 
 -506. 
 
 10. Payments upon judgments and 
 -decrees. Where money has been paid upon 
 
 an erroneous judgment or decree of a surrogate, 
 which, after the payment has been reversed, the 
 party paying may, after demand and refusal 
 maintain an action to recover it back. It is not 
 necessary to the right of action that payment 
 should have been coerced by execution. — Ct. of 
 App., Feb., 1878. Schotey v. Halsey, 72 N. Y. 
 -578. 
 
 11. Payments of municipal assess- 
 ments. When the proceedings in the case of 
 an assessment are regular upon their face, and 
 on presentation make out a right to levy and 
 • collect the amount, in due course of law, by mu- 
 nicipal lease of real estate, they have the force 
 -of a judgment, and a party paying on presenta- 
 tion and demand may, upon a subsequent setting 
 
 ^aside of the assessment, maintain an action 
 .against the municipal corporation to recover 
 back the amoant. The payment in such case is 
 not voluntary, but under coercion by law. — Ct. 
 
 of App., Sept., 1877. Peyser v. Mayor, &c., of 
 New York, 70 N. Y. 497; reversing 8 Hun 
 413. 
 
 12. It seems that to warrant an action to re- 
 cover back moneys paid by coercion of law, 
 upon a judgment, tax, or assessment, it must ap- 
 pear that the judgment or proceedings were 
 
 jprimafaeie regular, and that the rights and po- 
 sitions of the parties have been changed since 
 the payment, as by a reversal for error, or a set- 
 ting aside for irregularity or illegality, lb. 
 
 13. A tenant of premises upon wliich an as- 
 sessment liad been laid, which was void upon its 
 face, being under no obligation to pay the assess- 
 ment either as towards the city or the landlord, 
 voluntarily and without inquiry or protest, and 
 while proceedings to vacate were pending, paid 
 the assessment. Seld, that he could not recover 
 
 •back the money so paid. — Superior Ct. Feb., 
 1878. Pursell v. Mayor, &o., of New York, 43 
 Superior 348. 
 
 14. For a review of the cases and statement 
 of the law as to recovery back of money paid 
 under municipal assessments, see Strusburgh v. 
 Mayor, &c., of New York, 45 Superior 509. 
 
 15. Voluntary payments. It seems 
 that payments voluntarily made under an ex- 
 
 ■ ecutory contract between individuals for work 
 and labor, with full knowledge of facts upon 
 which fraud in the inception of the contract 
 
 anight have been claimed, cannot be recovered 
 
 3)ack, or damages recovered for the fraud. — Ct. of 
 App., Jan., 1878. People v. Stephens, 71 N. Y. 
 
 -627. 
 
 16. Money paid upon forged instru- 
 
 ments. To maintain an action for money had 
 and received it is necessary to establish that de- 
 fendant received moneys belonging to plaintiff, 
 or to which he is entitled ; it is not sufficient to 
 show that defendant has, by fraud or wrong, 
 caused the plaintiff to pay money to others, or 
 to sustain loss or damage. — Ct. of App., April, 
 1879. Nat. Trust Co. of New York v. Gleason, 
 77 N. Y. 400, 403. 
 
 lY. Where, however, several persons are par- 
 ties to a forgery, by means of which another is 
 induced to pay moneys to one of them, who, in 
 obtaining the money acts in behalf of those en- 
 gaged with him in the forgery, the action is 
 maintainable against all ; it is not necessary to 
 establish that each of the defendants received a 
 share of the proceeds. This result will not be 
 varied by the fact that the common agent failed 
 to account with his associates, and absconded 
 with the proceeds. I b. 
 
 18. In such a case, however, it is a question 
 of fact, not of law, whether the several defend- 
 ants who were guilty of complicity in the forg- 
 ery were interested in the money received. 
 lb. 
 
 19. Mere complicity in a forgery or other 
 crime, does not, as matter of law, render every 
 guilty party liable in a civil action for money 
 had and received, or as borrower to every person 
 who has been de&auded by means of such crime. 
 To charge a party in such action, the receipt of 
 the money, either personally or by an agent must 
 be shown, and if by an agent, the agency must be 
 proved ; his complicity in the crime is not the 
 cause of action, but simply an item of evidence 
 tending to establish his interest in the proceeds. 
 lb. 
 
 20. In an action to recover, as for moneys 
 had and received, moneys obtained from plain- 
 tiff by one E , upon pledge of forged bonds — 
 Held, that evidence connecting one of the de- 
 fendants with the forgery was not sufficient to 
 make her liable, in the absence of evidence of 
 any agreement or understanding between her 
 and the forger, that she was to share in the pro- 
 ceeds of the forged paper, or was personally to 
 have a benefit therefrom, or that E. was em- 
 ployed or acted as her agent, or that she actually 
 received any part of the sum obtained. — &. of 
 App., Nov., 1879. New York Guaranty, &c., 
 Co., V. Gleason, 78 N. Y. 503; S. C, 7 Abb. N. 
 Cas. 334. 
 
 21. It seems that if it had been shown that 
 moneys and securities found in said defendant's 
 possession were part of the moneys so obtained, 
 or were purchased therewith, this would not 
 make her liable for the whole of the money ob- 
 tained ; that to authorize a recovery for the full 
 amount it was necessary to show that she was 
 one of the principals for whom E. acted in ob- 
 taining the money ; it was not sufficient, even to 
 show that there was an understanding amon^ the 
 forgers that she was in some way to receive a 
 portion of the proceeds of the forged bonds, or 
 some benefit from the forgery. lb. 
 
 22. For the purpose of establishing the agency 
 in such a case, it is proper for plaintiff to prove 
 the relations which existed between the defend- 
 ants and the person obtaining the money, that 
 they had entered into a conspiracy to forge the 
 bonds and put them upon the market, and that 
 they were jointly concerned in the forgery. lb. 
 
 As to the recovery of money paid To the nse, 
 or For the benefit, of another, see Money Paid. 
 
MORTGAGES, I., II. 
 
 285. 
 
 MORTGAGES. 
 
 I. What Constitutes a Mortgage. 
 II. Validityj Intbbpketation and Ef- 
 fect. 
 m. Eights aud Liabimties of the 
 Parties. 
 
 1. As between themselves. 
 
 2. As Unoards grantee of mortgagor, 
 
 who assumes the mortgage. 
 
 TV. Decisions Under the Becordinq 
 Acts. Priority. 
 V. Assignments. 
 VI. Foreclosure. 
 
 1. Sy advertisement. 
 
 2. By suit. 
 
 VII. Bkdemption. 
 
 VIII. Discharge of the Lien by Payment, 
 Satisfaction, or Otherwise. 
 
 L What Constitutes a Mortgage. 
 
 1. 'What constitutes a mortgage, gen- 
 erally. An equitable mortgage may be con- 
 stituted by any writing from which the inten- 
 tion so to do may be gathered, and an attempt 
 to make a legal mortgage, which fails for the 
 want of some solemnity, is valid in equity. — Ot. of 
 App., Sept., 1878. Payne v. Wilson, 74 N. Y. 348. 
 
 2. Mortgage distingulsh.ed from con- 
 ditional sale. In all doubtful cases a, con- 
 tract will be construed to be a mortgage rather 
 than a conditional sale, because in the case of a 
 mortgage the morlgagor, although he has not 
 strictly complied with the terms of the mort- 
 gage, still has his right of redemption ; while 
 in the case of a conditional sale, without 
 strict compliance, the rights of the conditional 
 purchaser are forfeited. — Ct. of App., May, 
 1877. Matthews v. Sheehan, 69 N. Y. 585, 590. 
 Compare Pardee v. Treat, 18 Hun 298. 
 
 3. Absolute deed, -when a mortgage. 
 Where a deed, absolute on its face, is claimed 
 to have been intended simply as a mortgage, 
 proof of an express promise to pay on the part 
 of the alleged mortgagor is not absolutely essen- 
 tial to sustain the claim ; the absence of such a 
 promise tends strongly to disprove it, but it is 
 not conclusive against it. — Ct. of App., Nov., 1879. 
 Morris v. Budlong, 78 N. Y. 543. 
 
 4. When not a mortgage. Where, at 
 the time of the execution and delivery of a deed 
 in fee of lands, and payment of the stipulated 
 consideration, a written agreement is executed 
 by the grantee, as part of. the transaction, ob- 
 ligating him to account to the grantor for a por- 
 tion of the profits which may be realized by him 
 on a re-sale of the premises if made within a 
 specified time, and requiring him to sell if a 
 specified price can be obtained, such an agree- 
 ment is not inconsistent with the vesting of the 
 title ; the conveyance is not a mortgage, but a 
 deed, and should be recorded as such. — Ct. of 
 App., Nov., 1877. Macauley v. Porter, 71 N. Y. 
 173. 
 
 5. The provision of the recording act pro- 
 viding that a deed, although absolute in terms, 
 which, by any other written instrument, shall 
 appear to have been only intended as a mort- 
 
 gage, shall be considered as such, and that no- 
 advantage should be derived from the recording 
 thereof, unless every writing "explanatory of its- 
 being designed to have the efiectonly of a mort- 
 gage or conditional deed, be also recorded there- 
 with," (1 Bev. Stat. 756, ? 3,) does not require 
 that every conveyance of land upon condition* 
 shall be recorded as a mortgage, or that any 
 condition annexed to a grant shall make it a 
 mortgage; it refers only to those conditions 
 which are analogous to those of a mortgage — i. e., 
 by which, if certain acts are performed, the deedi 
 shall not operate, but shall become void. lb. 
 
 6. Execution— filling blanks. A parol 
 authority to fill up a blank in a bond and mort- 
 gage executed in blank in » material pari, i* 
 valid. So held, where an agent to procure the 
 loan filled in the, mortgagee's name, after tlie- 
 execution of the mortgage. — Supreme Ct., {Sp. 
 T.,) Jan., 1878. Hemmenway v. Mulock, 5S 
 How. Pr. 38. 
 
 II. Validity, Interpretation and Effect^ 
 
 v. Mortgage of cemetery lot, invalid.^ 
 One who has taken a conveyance of a burial lot,, 
 and has made interments therein of the dead of 
 his family, cannot mortgage it to secure the pay- 
 ment of a debt or the return of money borrowed, 
 —Supreme Ct., {Sp. T.,) June, 1880. Th.ompsoa 
 V. Hickey, 69 How. Pr. 434 ; S. C, 8 Abb. N. 
 Cas. 159. 
 
 8. Insufiacient consideration. A bond 
 and mortgage was executed, with the name of 
 the mortgagee in blank, and delivered to B., to- 
 raise money for a manufacturing company with 
 which the mortgagor was connected. B. having, 
 theretofore, received $7000, money belonging to- 
 plaintiff, which it was his duty to remit immedi- 
 ately, sent him a worthless check of the company 
 for the amount, and, on the same day, having told 
 plaintiff .that the check would not be paid, induced 
 him to take the bond and mortgage in lieu there- 
 of. In an action to foreclose the mortgage — 
 Held, that it was wholly without consideration 
 as to the mortgagor, and that he could avail him- 
 self of that defence.— %>re»ie Ct., (26, Dept.,) Feb., . 
 1879. Cady v. Jennings, 17 Hun 213. 
 
 9. Mortgage to secure future ad- 
 vances. A mortgage given to secure future 
 advances, which the mortgagee has the option to- 
 make or not, as he chooses, is, as to each ad- 
 vance made upon it, to be regarded as a fresh 
 mortgage, and is, as to such advance, subject to- 
 the lien of all encumbrances which are duly re- 
 corded at the time it is made, whether the mort- 
 gagee have actual notice of them or not. In- 
 those cases in which the mortgagee is bound to 
 make the future advances, this rule does not 
 apply. — Supreme Cl., (4<A Dept.,) April, 1880. 
 Ackerman v. Hunsicker, 21 Hun 53. Compare- 
 Hall V. Grouse, 13 Hun 557. 
 
 10. Mortgages for money loaned by^ 
 the loan-commissioners. Where a mort- 
 gage is given to the commissioners appointed to^ 
 loan the United States deposit fund, a default 
 in the payment of the interest works a fore- 
 closure of the mortgagor's rights in the mort- 
 gaged premises, and his right of redemption is- 
 strictly limited to the rights given by Laws of 
 1837, ch. 150, I ?,Z.— Supreme Ct., (3d Dept.,} 
 Nov., 1878. Thompson v. Commissioners, 16. 
 Hun 86. 
 
286 
 
 MORTGAGES, III. 
 
 III. Eights and Liabilities of the 
 Parties. 
 
 1. As between ihemselves, 
 
 11. Rights and duties of mortgagor, 
 generally. The mortgagor must seek the 
 mortgagee to pay the interest on the mortgage, 
 if he IS- within the state, and for this purpose must 
 go to his residence or place of business. A ten- 
 der of interest, if not made to the creditor him- 
 self, must be made to one authorized by him 
 to receive it.— Supreme Ct., (Ut Dept.,) May, 
 1876. Grussy v. Schneider, 55 How. Pr. 188. 
 
 12. —of the mortgagee. In the absence 
 of any special covenant to that effect, a, mort- 
 gage imposes no duty upon the mortgagee to 
 protect the interests of the mortgagor ; and the 
 former is not prohibited from acquiring an ad- 
 verse claim to or lien upon the mortgaged prem- 
 ises, and from enforcing it with the same effect 
 as a stranger might.— Ci!. of App., May, 1879. 
 Cornell v. Woodruff, 77 N. Y. 203. 
 
 13. A mortgagee out of possession, holding a 
 mortgage upon real estate given to secure the 
 bond of the mortgagor, in the absence of 
 notice of any change in the position of the lat- 
 ter, and of any request to foreclose, may rely 
 upon the personal liability of his debtor, and is 
 not bound to look after or protect the mortgaged 
 premises.— C(. of App., Nov., 1879. Marshall v. 
 Daviea, 78 N. Y. 414; S. C, 58 How. Pr. 231. 
 
 14. "WTien the mortgagee's remedy la 
 confined to the land mortgaged. Under 
 Rev. Stat. 738, | 139, when a mortgage, without 
 a bond, or express covenant to pay in the mort- 
 gage, is given to secure the payment of a sum 
 of money, there being no pre-existing debt, the 
 mortgagee's remedies are confined to the land 
 mentioned in the mortgage. — Supreme Ct., {3d 
 Dept.,) Sept., 1878. Gaylord v. Knapp, 15 
 Hun 87. 
 
 15. Rights of mortgagee in posses- 
 sion. A mortgagee lawfully in possession of 
 the mortgaged premises can retain possession 
 against tlie mortgagor, after default in payment 
 upon the mortgage, until any and all sums due 
 have been paid. To authorize such retention 
 the possession need not to have been given under 
 the mortgage, or with a view thereto. — Ot. of 
 App., March, 1878. Madison Ave. Baptist Church 
 *. Baptist Church in Oliver street, 73 N. Y. 82; 
 modifying 41 Superior 369. 
 
 16. Right to rents and profits — ac- 
 counting. The general rule requiring a mort- 
 gagee in possession to account for the rents and 
 profits, when the mortgagor seeks to redeem, is 
 not in all cases controlling. A court of equity 
 may give redress, according to the circumstances 
 of the case, and will not apply the rule when it 
 ■will work injustice. lb. 
 
 17. The mere possession and receipt of profits 
 of lands mortgaged does not make the possessor 
 liable to pay out of-the receipts, or to keep down 
 the interest on the mortgage. — Ct. of App., Sept., 
 1879. Argall v. Pitts, 78 N. Y. 239. 
 
 18. The mortgagee can only be entitled to the 
 rents of the mortgaged premises by commencing 
 suit for the foreclosure of his mortgage and pro- 
 curing the appointment of a receiver ; and then 
 will be confined to the rents and profits accruing 
 during the pendency of the suit. lb. 
 
 19. One in possession under a deed absolute 
 on its face but intended as a mortgage, is liable 
 
 to account for rents and profits actually received 
 not for rental value.— a. of App., Nov 1879' 
 Morris ?)._BudIong, 78 N. Y. 543. 
 
 20. Rights of the parties respecting 
 payment of taxes and assessments. 
 After the defendant had executed a bond and 
 mortgage in the usual form, but containing no 
 covenant for the payment of taxes and assess- 
 ments, he conveyed the premises, the grantee 
 assuming the mortgage. Thereafter the grantee 
 paid the interest accruing on the mortgage up 
 to and after its maturity, when the premises be- 
 came encumbered by taxes and assessments. In 
 an action to foreclose and hold the mortgagor 
 liable for deficiencies- ifeid, that he was not 
 bound to pay taxes and assessments accruing 
 upon the premises after the conveyance.— Sit- 
 preme Ct., {Ut Dept.,) Jan., 1879. Marshall v. 
 Da vies,* 16 Hun 608. 
 
 21. Conveyances of! mortgaged 
 premises. Rights of purchasers, gen- 
 erally. The general rule is, that when a 
 mortgagor sells a portion of the mortgaged 
 lands, those which he retains become primarily 
 liable for the satisfaction of the debt, and those 
 which he has conveyed are answerable only for 
 an eventual deficiency ; and, as a necessary con- 
 sequence, that a similar equity prevails between 
 purchasers, so that distinct parcels or lots of the 
 mortgaged lands which have been conveyed at 
 different times to different purchasers, are charge- 
 able in the inverse order of their alienation, and 
 must be sold in that order under a decree. — Su- 
 perior Ct., Nov., 1879. Kendall v. Niebuhr, 45 
 Superior 542, 550; S. C, 68 How. Pr. 156. 
 
 22. The equity which may thus have been 
 created between a purchaser and the mortgagor, 
 or between several purchasers, the mortgagee, 
 when he has a knowledge of the facts, is not 
 permitted to disregard or to disturb, and, with 
 this knowledge, he acts at his own peril when 
 he releases from the lien of the mortgage any 
 portion of the lands which it embraces. If the 
 lands released are primarily liable, and are of 
 suiBcient value to satisfy the debt, those previ- 
 ously, conveyed are wholly discharged, and in no 
 case can they he charged with any larger sura 
 than the proportion of the debt that may re- 
 main unsatisfied when the value of the lands 
 released has been applied and exhausted, lb. 
 
 23. The mortgagee is not bound at his peril 
 to ascertain whether any of the mortgaged lands 
 have been aliened, or subsequently encumbered, 
 when applied to to release part of the lands 
 bound by his mortgage, nor is the recording of 
 the mortgagor's de«jd to the purchaser notice to 
 the mortgagee of the fact of the conveyance, 
 because by the terms of the statute the con- 
 structive notice which arises from the recording 
 of a conveyance of real estate^ is limited to sub- 
 sequent purchasers in good faith and for a valti- 
 able consideration of the same real estate, or 
 any portion thereof, whose conveyance shall be 
 first duly recorded. lb. 
 
 2. As towards grantee of mortgagor, whi assumes 
 the mortgage. 
 
 24. What amounts to a covenant to 
 pay the mortgage. An obligation on the 
 part of the grantee to assume a mortgage cannot 
 be created by parol agreement, or by oral evi- 
 dence to vary the written instrument transfer- 
 
 * Said to have been reversed, November 11th, 1879. 
 
MORTGAGES, III. 
 
 287 
 
 ring the land.— Supreme Ct., {Sp. T.,) FA., 1879. 
 'Groelet v. Farley, 57 How. Pr. 174. 
 
 25. A, deed, tlie consideration expressed in 
 which was $15,000, contained tlie following 
 ■clause : " Subject, however, to the assumption 
 ■as a part of the consideration," of a mortgage 
 ■on the land conveyed. Held, that this amounted 
 to an agreement on the part ojf the grantee to 
 pay the mortgage. — Supreme Ot., (Sp. T.'j, Oct., 
 1878. Douglass v. Cross, 56 How. Pr. 330. 
 
 26. Effect of the covenant, generally. 
 Where a party, for valuable consideration, prom- 
 ises another party to pay a certain mortgage to 
 the mortgagee, the latter may recover, from the 
 party making the promise, upon a breach thereof, 
 without foreclosure of the mortgage, and join- 
 ing the mortgagor in the action. Such a prom- 
 ise may be made and enforced without any con- 
 sideration moving from the mortgagee. Where 
 several parties are liable to the mortgagee in 
 different amounts, under their agreements with 
 ■each other, an action can be maintained against 
 them all, in equity, aad a judgment rendered 
 therein according to the facts established therein, 
 against them all, according to their joint or sev- 
 ■eral liabilities. — Superior Ct , Nov., 1879. Hand 
 V. Kennedy, 45 Superior 385. 
 
 27. "When the covenant is not bind- 
 ing. Where the grantor in a deed is not him- 
 ■self liable to pay the mortgage, his grantee, who 
 ^assumes its payment, is not liable to pay it. A 
 promise to pay a mortgage, of which the mort- 
 :gagee can take advantage, must be made to one 
 who is liable to pay it. — Supreme Ct., {Sp. T.,) 
 Dec., 1878. Munson v. Dyett, 56 How. Pr. 333. 
 S. P., Cashman v. Henry,* 44 Superior 93 ; S. C, 
 ■55 How. Pr. 234. 
 
 But a break in a chain of covenants does not 
 invalidate a subsequent covenant, in clear and 
 express terms, to pay the mortgage. — Superior 
 ■Ct., (Sp. T.,) March, 1877. Eeal Estate Trust 
 Co. V. Balch, 45 Superior 528. 
 
 28. Attacking the covenant for 
 fraud or mistake. What is not sufficient 
 evidence that a covenant in a deed to assume 
 payment of a mortgage is contrary to the con- 
 tract to purchase, and was inserted in the deed 
 by fraud or mistake, and without the knowledge 
 ■of the grantee, see Albany City Savings Bank 
 «. Martin, 56 How. Pr. 500; Kanney v. Mc- 
 MuUen, 5 Abb. N. Cas. 246. 
 
 29. Subsequent rights of niortgg,gor, 
 generally. When the grantee of the mort- 
 :gagor assumes the payment of the mortgage, 
 the land becomes the primary fund for the pay- 
 ment of the mortgage debt, and the mortgagor 
 stands thereafter in the attitude of surety only. 
 The mortgagee, after notice of assumption by 
 the grantee, is bound in his dealings with the 
 grantee and others, in regard to the mortgage 
 debt, to do nothing to the injury of the mort- 
 gagor as surety. — Superior Ct., Nov., 1878. Mut. 
 Life Ins. Co. v. Davies, 44 Superior 173; S. C., 
 -56 How. Pr. 440. S P., Ct. of App., Feb., 1879. 
 Paine v. Jones, 76 N. Y. 274. 
 
 30. Where a deed contains a covenant, upon 
 the part of the grantee, to pay a mortgage upon 
 the premises, executed by the grantor, the rela- 
 tion of principal and surety is created between 
 the parties, and an agreement by the holder of 
 the mortgage with the grantee to extend the 
 
 *See this ease in Table of Cabes Criticised, wi/ra; 
 
 time of payment, made without the consent of 
 the grantor, discharges the grantoi-. — Ct. of App., 
 April, 1878. Calvo v. Davies, 73 N. Y. 211, 
 216 ; affirming 8 Hun 222 ; Mut. Life Ins. Co. v. 
 Davies, supra. 
 
 31. The complaint, in an action of foreclo- 
 sure, averred the making of the bond and mort- 
 gage by defendant D., a conveyance by D. to L., 
 subject to the mortgage, with covenant on the 
 part of the latter to pay the same ; it then set 
 forth an agreement between plaintiff and L. to 
 extend the time of payment, with the express 
 understanding that the bond and mortgage 
 should remain in every other respect unaffected 
 by the agreement." A judgment for deficiency 
 was askfed against D. Held, that the " under- 
 standing" referred to related to the stipulations 
 in the mortgage other than those as to time of 
 payment ; that the agreement did not contain a 
 reservation of the rights of plaintiff to proceed 
 against D. ; that by the agreement D. was" dis- 
 charged ; and that, therefore, a demurrer by 
 him to the complaint was properly sutained. 
 lb. 217. 
 
 32. — in respect to releasing gran- 
 tee's covenant. Where, in an absolute con- 
 veyance of land, the grantee assumes and agrees 
 to pay a mortgage given by his grantor, an 
 absolute and irrevocable obligation to pay the 
 mortgage is thereby created in favor of the 
 mortgagee, which cannot be released or affected 
 by any act or agreement between the mortgagor 
 and grantee, without the consent of the mort- 
 gagee. — Supreme Ct., (3d Dept.,) May, 1879. 
 Douglass V. Wells, 18 Hun 88 ; S. C, 57 How. 
 Pr. 378 ; S. P., Whiting ». Gearty, 14 Hun 498 ; 
 overruling 8 Id. 116. 
 
 To the contrary, see Devlin v. Murphy, 5 
 Abb. N. Cas. 242; S. C, 56 How. Pr. 326. • Com- 
 pare Fleischauer v. Doellner, 58 How. Pr. 190. 
 
 33. Request by mortgagor that 
 mortgagee foreclose. The mortgagor has a 
 right to demand that the mortgagee proceed 
 without delay, after his right of action has 
 accrued, to collect the mortgage debt out of the 
 land and grantee, and if he neglects so to do 
 after full and explicit request, and collection 
 therefrom becomes, thereby, either wholly im- 
 possible or only partially impaired, then the 
 mortgagor is either wholly, or pro tanto, as the 
 case may be, discharged. — Superior Ot., Nov., 
 1878. Mut. Life Ins. Co. v. Davies, 44 Superior 
 173; S. C, 56 How. Pr. 440. 
 
 34. Whether a notice to the mortgagee, and 
 request, after the mortgage is due, to foreclose, 
 will avail to impose upon him, in case of his 
 non-compliance with the request, the damages, 
 resulting from an impairment of the security, 
 or whether the mortgagor has any remedy ex- 
 cept to protect himself by paying his bond and 
 becoming subrogated to the rights of the mort- 
 gagee, see Marshall v. Davies, 78 N. Y. 414 ; S. 
 C, 58 How. Pr. 231. See, also, Loomis v. Bal- 
 heimer, 5 Abb. N. Cas. 263 ; Russell v. Wein- 
 berg, 4 Id. 139 ; affirming 2 Id. 422. 
 
 35. Liability of grantee for defi- 
 ciency. A grantee of mortgaged premises, 
 whose conveyance recites that the ^and is con- 
 veyed subject to the mortgage, and that the 
 grantee assumes and agrees to pay the same as 
 part of the consideration, is not liable for a 
 deficiency arising upon a foreclosure sale, in 
 case the grantor was not personally liable, 
 legally or equitably, for the payment of the 
 
288 
 
 MORTGAGES, III., IV. 
 
 mortgage. — Ct. of App., April, HTl. Vrooraan 
 V. Turner, 69 N. Y. 280; modifying 8 Hun 78. 
 
 36. H. executed and delivered to B. a deed 
 of certain premises, upon which was a mortgage 
 executed by H., held by plaintiff. The deed 
 recited the deduction of the amount of the mort- 
 gage from the purchase price, and contained a 
 covenant on the part of the grantee to pay the 
 same. The name of the grantee was left in 
 blank, with authority to B. to insert the name 
 of any person. B., being indebted to a firm of 
 which defendant was a member, agreed with the 
 latter to insert his name in the deed, and that 
 any profits which might be made, should be 
 applied on the firm debt; defendant subse- 
 quently conveyed the premises. .Plaintiff fore- 
 closed without making defendant a party. In 
 an action brought upon the covenant in the deed, 
 to recover a deficiency arising on foreclosure — 
 Seld, 1. That defendant, by consenting to the 
 insertion of his name as grantee, and accepting 
 the deed, occupied the position of purchaser, 
 with all the rights and obligations incident to 
 that position as between him and the grantor, 
 and plaintiff was entitled to enforce the covenant 
 against him ; that the arrangement with B. did 
 not impair the right of H. or of plaintiff; it was 
 collateral to the deed, and only affected the par- 
 ties to it. 
 
 2. That the consent of the Supreme Court was 
 not necessary to authorize the commencement 
 of the action.— Ci. of App., Oct., 1877. Camp- 
 bell V. Smith, 71 N."Y. 26; affirming 8 Hun 6. 
 
 37. Defendant S. agreed, in writing, to pur- 
 chase certain real estate, and to pay part in cash 
 and part by assuming the payment of a mort- 
 gage. At his request, the deed was made to his 
 wife. Upon appeal from a judgment in foreclo- _ 
 sure, holding S. liable for any deficiency — Held, 
 that S. was liable, and that his liability was not 
 affected by the fact that, at his request, the deed 
 was made to his wife. — Supreme Ct., (1st Dept.,) 
 Oct., 1878. Pike v. Seiter, 15 Hun 402. 
 
 38. What title or possession passing to the 
 grantee, is sufficient to uphold his covenant to 
 pay the mortgage, so as to make him liable in 
 case of a deficiency, see Dunning v. Fisher, 20 
 Hun 178. 
 
 39. — to indemnify mortgagor -who 
 has paid, deficiency. A grantee, by taking a 
 conveyance of land by its terms, subject to a 
 mortgage, .which be assumes and agrees to jjay, 
 becomes bound to indemnify the grantor against 
 his liability for the mortgage debt. — Ct. of. App., 
 Oct., 1877. Comstock v. Drohan, 71 N. Y. 9. 
 
 40. As between the parties, the land is the 
 primary fund for the payment of the mortgage, 
 and the grantor is entitled to have it so applied 
 BO that he may not be compelled to pay more 
 than the deficiency arising on sale of the mort- 
 gaged premises. lb. 
 
 41. Where, therefore, in an action to foreclose 
 the mortgage — to which the grantor, but not the 
 grantee, is made a party defendant — a judgment 
 for a deficiency is recovered against the grantor, 
 and paid by him, he is entitled to recover the 
 same of the grantee, and the latter is not enti- 
 tled to have the costs of foreclosure deducted 
 from the recovery. It is not necessary, in such 
 case, for the grantor to give the grantee notice 
 of the foreclosure suit. lb. 
 
 42. The provision of the statute (2 Key. 
 Stat. 191, ? 155,) prohibiting proceedings at 
 law, without leave of the court, for the recovery 
 
 of a debt secured by a mortgage, after a decree- 
 has been entered in an action to foreclose the- 
 mortgage, has no application in such case. Said 
 provision applies only to the holder of the mort- 
 gage, lb.; affirming 8 Hun 373. Compare Ayers- 
 II. Dixon, 78 N. Y. 318. 
 
 IV. Decisions under the Eecoedino Actb.- 
 
 Priobity. 
 
 43. Necessity of recording, and 
 effect of omission. S. mortgaged certain 
 premises to O. in 1866, who assigned the mort- 
 gage to W. in 1867. In 1868 W. assigned it to- 
 plaintiff. The mortgage was recorded in 1866, 
 and the two assignments in 1877. S. applied to- 
 
 V. for a loan on the premises in 1876, but '^"., 
 having searched the records, refused to make 
 the loan unless the mortgage given to O. was 
 satisfied. V. did not know of its having been 
 assigned. S. procured a satisfaction piece from 
 O., and delivered it to V., who recorded it and 
 his mortgage at the same time, in 1876, about a 
 year before the assignments were recorded. 
 Held, in an action to foreclose plaintiff's mort- 
 gage, that V. was protected by the recording 
 act, and that his mortgage was entitled to pri- 
 ority over that of plaintifi! — Supreme Ct., (Sd ., 
 Dept.,) Nov., 1879. Bacon v. Van Schoonhoven, 
 19 Hun 158. 
 
 44. In 1871, after the execution of the mort- 
 gage to O., and before the execution of the one 
 to v., S. mortgaged the premises to C, which 
 mortgage was duly recorded in 1872. Held, that 
 in distributing the proceeds of the sale, the 
 amount due on the mortgage to 0. should first 
 be set apart, or so much thereof as might be 
 necessary, to be applied on the mortgage to V.,. 
 and the balance, if any, on the mortgage to O. p 
 and that the residue of the proceeds, if any, 
 should be first applied on the mortgage to C., 
 and next on the balance remaining due on the 
 mortgage to V., and any remaining surplus 
 should be applied on the mortgage to O. lb. 
 
 45. Tlie rule of constructive notice 
 by possession does not apply to the assignee of 
 a prior mortgage, because the natural inference 
 in such a case is that the occupant is holding 
 subject to the mortgagee. — Supreme Ct., (Sp. T., ) 
 Feb., 1878. Mut. Life Ins. Co. v. Wilcox, 5& 
 How. Pr. 43, 49. 
 
 46. Priority between mortgages. 
 What is such laches on the part of the assignee 
 of a mortgage, which has been wrongfully dis- 
 charged of record, in delaying to take steps to. 
 have his mortgage reinstated of record, as will 
 give priority to a mortgage on the same prop- 
 erty subsequently executed and assigned to a 
 purchaser m good faith, and without notice of 
 the existence of the former mortgage, see Veile 
 V. Judson,* 15 Hun 328. 
 
 47. The vendor took back two mortgages, one 
 for $1000, and the other for *2000, both of which 
 were simultaneously recorded. He told the pur- 
 chaser that the $1000 mortgage was to be deemed 
 the first, and the other the second mortgage, and 
 induced G., upon the same representation, to 
 purchase the $1000 mortgage, which was subse- 
 quently assigned for value to plaintiff, upon the 
 same representation. Held, that the $1000 mort- 
 gage was entitled to priority over the other, as^ 
 between plaintiff and a purchaser of the otiier 
 
 * Said to have been reversed, September 2lBt, 1880^ 
 
MORTGAGES, IV., V. 
 
 289- 
 
 mortgage from the vendor, after his sale of the 
 $1000 mortgage to G— Supreme Ct., (2d Dept.,) 
 Feb., 1879. Lane v. Nickerson, 17 Hun 148. 
 
 V. Assignments 
 
 48. Necessity of delivery. An assign- 
 ment of a bond and mortgage, put on record by 
 the assignor, but never delivered or accepted by 
 the assignee, will not protect him, as against a 
 second b<ma fide assignee of the same mortgage. 
 —Om. Pleas, (Sp. T.,) April, 1879. Brown v. 
 Johnston, 7 Abb N. Cas. 188. 
 
 49. Construction and validity, gen- 
 erally. A mortgage for $2000, on property 
 situate in New York city, executed in 1871, 
 after various assignments, was duly transferred 
 to plaintiff, in February, 1876. The lot was 
 within the limits of a street opening, the pro- 
 ceedings for which had been commenced shortly 
 hefore the mortgage was executed, and the re- 
 port of the commissioners had been confirmed 
 two years prior to the assignment to plaintiff. 
 In an action to foreclose the mortgage — Held, 
 that the fact that plaintiff's assignor, and those 
 through whom he claimed, had not been in pos- 
 Bession of the mortgaged premises for one year 
 prior to the date of plaintiff's assignment, did 
 not invalidate it under 2 Rev. Stat. 691, ? 6. — 
 Supreme Ct., (Isl Dept.,) May, 1879. Tobias v. 
 Mayor, &c., of New York, 17 Hun 534. 
 
 50. The assignee's title, and Taavr far 
 subject to equities. An assignee of a mort- 
 gage must take it subject to tiie equities attend- 
 ing the original transaction, and such equities 
 may exist in favor of the mortgagor, or in favor 
 of third persons. The assignee cannot defeat 
 such equities by showing that he is a bona fide 
 purchaser for a valuable consideration. It is 
 immaterial that he had no notice of'their ex- 
 istence at the time of the assignment. — Superior 
 Ct., Nov., 1879. Bank for Savings v. Frank, 45 
 Superior 404 ; affirming 56 How. Pr. 403. 
 
 51. But where a mortgage had a valid incep- 
 tion as a subsisting and enforceable lien in the 
 hands of the mortgagee, to the full extent of its 
 face, equities arising thereafter stand upon a 
 different footing, and must be disposed of upon 
 such other principles of public policy, or ac- 
 cording to such statutory requirements, as the 
 facts of the particular case may call for. lb. 
 
 52. The general rule that a purchaser of a 
 mortgage takes it subject to all latent equities 
 existing in favor of the mortgagor, and also of 
 the third parties, relates only to those equities 
 which are not within the scope of the recording 
 act, and against which subsequent purchasers, 
 bona fide, are thereby protected. — Supreme Ct., 
 {Sp. T.,)Feb., 1878. Mutual Life Ins.Co.B. Wil- 
 cox, 55 How. Pr.) 43. 
 
 53. Assignments to the state in- 
 surance department. By the consent of 
 the mortgagor, a bond and mortgage was as- 
 signed by an insurance company, as required by 
 law, to the superintendent of the insurance 
 department of the state. During a vacancy in the 
 office, caused by the resignation of the superin- 
 tendent, the plaintiff, the deputy superintend- 
 ent, began an action to foreclose the mortgage. 
 
 Held, 1. That plaintiff was authorized toper- 
 form the duties of the office. 
 
 2. That the superintendent had full authority 
 to collect mortgages so assigned. — Supreme 
 
 Ct., (Ut Dept,) Oct., 1878. Smyth v. Lombardo, 
 15 Hun 415 
 
 54. Recording and its effect. An as- 
 signment of a mortgage is a conveyance within 
 the meaning of the statute, and since the Re- 
 vised Statutes, the first assignee of a mortgage, 
 in order to protect himself against a subsequent 
 ioma/de purchaser of the mortgage, (whose as- 
 signment may be first recorded,) must record his 
 assignment. — Superior Ct.,Nov., 1879. Bank for 
 Savings v. Frank, 45 Superior 404 ; affirming 56 
 How. Pr. 403. 
 
 55. The protection of the statute extends 
 only to purchasers in good faith and for a valu- 
 able consideration, parted with on the strength 
 of the conveyance ; nor is the parting with such 
 valuable consideration sufficient in the absence 
 of good faith, which cannot be said to exist in 
 case of notice of a prior conveyance. lb. 
 
 56. The record of an assignment of a mortgage 
 is notice to subsequent purchasers that the mort- 
 gagee cannot release the property from the lien 
 oiit.-^ Supreme Ct., (2d Dept.,) Jlfa^,1880. Smyth 
 u. Knickerbocker Life Ins. Co., 21 Hun 241. 
 
 57. Where an assignment of a mortgage is re- 
 corded in due form, its effect as notice to subse- 
 quent purchasers and encumbrancers is not im- 
 paired by proof that the notary who took the 
 acknowledgment of the assignment, took the 
 same out of his county, the certificate being in 
 due form, and purporting to have been taken 
 within the county. — Supreme Ct., (\at Dept.,) 
 JIforcA, 1878. Heilbruni) Hammond, 13 Hun 474. 
 
 58. Evidence to vary or explain the 
 assignment. Plaintiff assigned two bonds 
 and mortgages, securing in the aggregate $6800, 
 by an instrument purporting to assign them, 
 wholly, but which contained the following 
 clause : " Upon which there is to be credited, re- ' 
 ducing the two mortgages to the sum of $5500 
 to this date." In plaintift's suit to redeem on 
 payment of the amount due — 
 
 Held, 1. That parol evidence that the mort- 
 gages were not assigned absolutely, but upon a 
 loan of $5000 to plaintiff, upon the agreement 
 that if such sum were not repaid in three 
 months, the interest of the assignee therein 
 should be $5500, was admissible. 
 
 2. That the words of limitation were to be 
 construed as a reservation to the assignor of 
 the amount over $5500, and not as a statement 
 of the amount due from the mortgagors. — Su- 
 preme Ct., [ilk Dept.,) Sept., 1878. Wormuth v. 
 Tracy, 15 Hun 180. _ 
 
 59. Upon the trial of a foreclosure suit in 
 which it was sought to charge one D., who 
 had assigned to plaintiff a bond and mortgage, 
 by an instrument under seal, in which he guar- 
 anteed the payment of the amount due or to 
 grow due, in case of the failufe of the mortgagor 
 to pay, with the amount of any deficiency, he 
 offered to prove by parol that the assignment to 
 plaintiff was made on condition that he should 
 keep the property insured ; that he gave him 
 $300 to pay the premiums with, and that by 
 reason of his failure so to insure the property, 
 great loss was occasioned, the property having 
 been burned while uninsured. Held, that the evi- 
 dence was inadmissible to add to or vary the cove- 
 nant contained in the assignment. — Supreme 
 Court, [U Dept.,) Feb:, 1879. Van Brunt v. Day,* 
 17 Hun 166. 
 
 19 
 
 *Said to have been reversed, June 1st, 1880. 
 
290 
 
 MORTGAGES, VI. 
 
 VI. FOEECLOSXTBE. 
 
 1. By advertisement 
 
 60. Notice. Only those mortgagees or as- 
 signees whose mortgages or assignments are re- 
 corded, are entitled to notice in foreclosure by 
 advertisement. — Suipreme Ot., (3d Dept.,) Nov. 
 1879. Decker v. Boice, 19 Hun 152. 
 
 61. Whether a foreclosure by advertisement, 
 in which no notice is served upon the owner of 
 the equity of redemption, is valid, or a mere nul- 
 lity as to all parties to the proceedings, see 
 Mickles v. Dillaye, 15 Hun 296. 
 
 62. Bights of purchaser. Defendant, who 
 was a second mortgagee, purchased the premises 
 at a sale under foreclosure by advertisement of 
 his mortgage. The terms of sale, read by the 
 auctioneer, provided that the premises were to be 
 sold free of encumbrances, the purchaser being 
 required to pay the first mortgage out of his 
 bid, and the balance of his bid to the auctioneer. 
 These terms of sale were not contained in the 
 notices ^f foreclosure. Defendant complied 
 with these terms, and recorded the affidavits 
 of sale in accordance with the statute. Subse- 
 quently plaintiff, who was receiver of the 
 property of the mortgagor, sued defendant to re- 
 cover a surplus alleged to have arisen on the 
 sale, claiming that defendant should not be 
 allowed the amount paid by him on the 
 first mortgage, because the owner of the equity 
 of redemption, who was not present at the 
 sale, had no knowledge of the terms of sale or of 
 such payment, and had never ratified them, and 
 that therefore the purchaser should account for 
 the amount of his bid, less the amount due on 
 the second mortgage. Hdd, that the action 
 could not be maintained. — Supreme Ct., {3d 
 Dept.,) Jan., 1880. Story v. Hamilton, 20 Hun 133. 
 
 63. Affidavits of foreclosure and 
 sale in proceedings to foreclose a mortgage by 
 advertisement may be taken before notaries pub- 
 lic; by the act of 1859, in relation to these 
 officers (Laws of 1859, ch. 360,) they were added 
 to the list of officers who, under 2 Eev. Stat. 
 547, § 11, could take such affidavit. — Ol. of App., 
 Feb., 1878. Mowry v. Sanborn, 72 N. Y. 534, 537. 
 
 64. One copy of the notice of sale to which 
 all the affidavits are annexed is a sufficient com- 
 pliance with the statute ; it is not necessary to 
 annex a separate copy to each affidavit. lb. 
 
 65. The rule that in the construction of writ- 
 ten instruments certainty to a common intent is 
 sufficient, and that they are not vitiated for want 
 of that accuracy of statement which precludes 
 all argument, inference and presumption, ap- 
 plies to the statutory proofe of foreclosure and 
 sale by advertisement. lb. 538. 
 
 66. 'The making, filing and recording of 
 affidavits of the foreclosure proceedings are not in 
 the exercise of the power of sale ; the power is 
 fully executed when a sale has been regularly and 
 duly made as prescribed by statute ; the affidavits 
 are merely evidence of the exercise of such 
 power ; they are but pnma fade evidence of the 
 facts stated, (2 Eev. Stat., 547, § 12,) and may be 
 controverted. lb. 539 ; affirming 11 Hun 545. 
 
 67. Proof of publication of notice of 
 sale. The power to sell, therefore, does not rest 
 upon proof by affidavit of publication of the 
 notice of sale, but upon the fact of publication, 
 and this may be shown independent of the affi- 
 davit, lb. 
 
 68. An affidavit of publication stated that 
 deponent was " the foreman of the printer of the 
 newspaper called the People's Journal, a public 
 newspaper printed and published in the county 
 of Washington, where the premises described 
 in the annexed printecl notice of sale or a part 
 thereof are situated ; it then stated that " the 
 notice of sale was published for twelve weeks 
 successively, at least once in each week," etc. 
 Held, that the fair construction of the affidavit 
 was that the notice was published in the paper 
 named ; that it was presumptive evidence of 
 such publication, and conclusive untU contro- 
 verted or disproved. lb. 
 
 2. By suit. 
 
 69. Kight of action, generally. When 
 a subsequent agreement between mortgagor and 
 mortgagee, in relation to the mortgaged prem- 
 ises, will so far take the place of, or be consid- 
 ered as incorporated into the mortgage as to 
 deprive the mortgagee of his remedy by fore- 
 closure, see CM. of App., May, 1877.' Clapp a. 
 Hawley, 69 N. Y. 625. 
 
 70. A mortgage was executed by husband 
 and wife to raise funds to pay off a prior mort- 
 gage upon the same lands, executed by the hus- 
 band before the marriage, and the loan was so 
 applied. It afterwards appeared that the wife, 
 at the time she executed the mortgage, was an 
 infant, but that fact was not disclosed at the time. 
 In an action to foreclose the mortgage — Held, 
 that the holder thereof was entitled to be sub- 
 rogated to the rights of the the mortgagee under 
 the first mortgage, which should be revived and 
 enforced to the amount advanced for its pay- 
 ment, to the exclusion of the dower rights of the 
 wife, which right would attach only to any sur- 
 plus remaining after the mortgage debt was paid. 
 —Supreme Ct., (1st Dept. Sp. T.,) March, 1879. 
 Snelling v. Mclntyre, 6 Abb. N. Cas. 469. 
 
 71. S. gave to a firm to which he was indebted, 
 his note under seal, payable to their order, and a 
 mortgage on land to secure the payment of the 
 amount due. On the dissolution of the firm the 
 note and mortgage was transferred to S., unin- 
 dorsed, and he, without authority, but not with a 
 fraudulent intent, struck from the note the name 
 of one of the partners. In an action to fore- 
 close the mortgage — Held, that although the 
 alteration destroyed the note, yet the debt which 
 it was given to secure was still unpaid, and could 
 be collected by foreclosing the mortgage. — Su- 
 preme Ot., (2d Dept.,) May, 1879. Gillette v. 
 Smith, 18 Hun 10. 
 
 72. Parties. So far as mere legal rights 
 are concerned the only proper parties to an ac- 
 tion of foreclosure are the mottgagor, the mort- 
 gagee, and those who have acquired rights under 
 them subsequent to the mortgage, and these par- 
 ties only are affected by the judgment. — Ot. of 
 App., Nov., 1878. Emigrant Industrial Savings 
 Bank v. Goldman, 75 N. Y. 127. 
 
 73. The provision of the Revised Statutes (2 
 Eev. Stat. 192, § 158,) declaring that the deeil 
 given upon foreclosure sale shall be " an entire 
 bar" against all parties, refers to the rights and 
 interests in the equity of redemption ; it does not 
 embrace interests which are paramount to the 
 title of both mortgagor and mortgagee. lb. 
 
 74. The plaintiff may make prior encum- 
 brancers parties for the purpose of having the 
 amount ascertained and paid out of the pro- 
 
MORTGAGES, VI. 
 
 291 
 
 "ceeds, but where no such purpose is iiirlicated 
 in the complaint, and no such provision is in- 
 ■corporated in the judgment, the prior lien is not 
 ■cut oiF. 26. 
 
 75. Where the bond accompanying the mort- 
 gage is executed by a peison other than the 
 mortgagors as well as by them, it is proper to 
 make such obligor a party to the action and to de- 
 mand against alltheobligorsa judgment for any 
 ■deficiency which may arise. — Supreme Ct., {Sp. 
 
 T.AFeb., 1880. Thorne v. Newby, 59 How.Pr. 120. 
 
 76. The objection that an action " in perso- 
 nam " at law is united with a claim " in rem " in 
 equity is not well taken in such case. lb. 
 
 77. Bringing in new parties. Where, 
 after decree and sale, plaintiff discovers that a 
 person liable to pay the mortgage debt has not 
 teen made a party defendant, and applies at 
 Special Term for leave to bring him in and to file 
 a supplemental summons and complaint, notice 
 ■of such application need not be given to such 
 person. — Supreme Ct., {2d- Dytt.,) Dec., 1879. 
 ibbets V. Martine, 19 Hun 294. 
 
 78. Intervention. Where one seeking to 
 be made a party to an equitable action against 
 a. corporation, has not proven his debt by obtain- 
 ing a judgment therefor, he cannot be regarded 
 as a creditor, and is not entitled to intervene ; 
 and neither the insignificance nor the magni- 
 tude of his claim can alter the principle govern - 
 ingsuch cases. — Supreme Ct, {Sp. T.,) April., 1878. 
 People V. Erie Eailway Co., 5a How. Pr. 122. 
 
 79. The court will not, in foreclosure, allow 
 the petitioner to intervene upon affidavits alone, 
 and stay the sale under a decree regular and 
 legal on its face, especially where it appears 
 from the papers that the plaintiff, as a co-plain- 
 tiff with others, has a suit then pending in which 
 the validity of all the proceedings in the fore- 
 <:losare suit is questioned. lb. 
 
 80. Service of process. In a suit to 
 &reclosure a mortgage, made by husband' and 
 wife on the husband's lands, to secure his debt, 
 service on the husband is good service on both 
 him and his wife. — Supreme Ct., {2dDept. Sp. T.,) 
 JDec.,1877. Nagleti.Taggart,4Abb.N.Cas. 144. 
 
 81. — by publication. Inaforeclosuresuit 
 plaintiff made unknown devisees, under a sup- 
 posed will of the deceased mortgagor, parties 
 -defendant, and applied for an order for the ser- 
 vice.of the summons upon them by publication. 
 His affidavit showed that he had been unable to 
 ^iscertain whether the mortgagor devised the 
 premises by any last will, for which reason the 
 devisees under such will, if any, were unknown 
 to him, and were made parties defendant. The 
 •order, after referring to the affidavit and direct- 
 ing the service of the summons by publication, 
 proceeded, " and it satisfactorily appearing to 
 me that the plaintiff cannot, with reasonable 
 diligence, ascertain a place or places where the 
 defendants * * * would probably receive 
 matter transmitted through the post-office, the 
 
 "deposit of any papers therein, directed to said 
 ■^lefendants, is dispensed with." JSeld, that the 
 order was sufficient, and that it was not neces- 
 sary that it should state that it satisfactorily 
 appeared to the justice "by the affidavits on 
 which the order was granted," that plaintiff 
 could not ascertain the residence of the unknown 
 ■devisees. — Supreme Ct., {1st Dept.), Jan., 1880. 
 ■Green v. Squires, 20 Hun 15. 
 
 82. Lis pendens, and effect of filing 
 .It. Where, after the filing of a notice of lis 
 
 pendens in accordance with Code of Pro., ^ 132, 
 and service of summons upon one or more of 
 the defendants in an action for the foreclosure 
 of a mortgage, a judgment is perfected and 
 docketed against the owner of the equity of re- 
 demption, the judgment creditor is bound by 
 the judgment in the foreclosure suit, the same 
 as if he were a party thereto ; and this, although, 
 at the time of the entry of his judgment, said 
 owner had not been served with summons in 
 the foreclosure suit. The judgment creditor is 
 a subsequent encumbrancer within the meaning 
 of said section.— Ci. of App., Feb., 1879. Ful- 
 ler V. Scribner, 76 N. Y. 190 ; affirming 10 
 Hun 130. 
 
 83. The complaint. In an action to fore- 
 close a purchase money mortgage given by an 
 executor, as such, upon the conveyance of land 
 to him, as such, he and his grantees are estopped 
 from denying his appointment and authority, 
 and it is unnecessary to allege in the complaint 
 the time and manner of his appointment. — Su- 
 preme Ct., (2d Dept.,) July, 1879. Skelton v. 
 Scott, 18 Hun 375. 
 
 84. Matters of defence, genei:ally. 
 The facts that the assignor of a mortgage and 
 his assignee acted in concert with a view unne- 
 cessarily to harass and oppress the mortgagor, 
 and with intent to prevent payment, to the end 
 that the equity of redemption might be fore- 
 closed, and they become purchasers for less 
 than the value, do not constitute a defence to an 
 action to foreclose the mortgage. So, also, the 
 facts that the assignee took title from motives 
 of malice, and solely with a view to bring an 
 action, and that the assignor assigned from a 
 like motive, and without consideration, furnish 
 no defence and do not impeach plaintiff's title. 
 It is sufficient to sustain the action that the 
 mortgage debt is due, has been transferred to 
 and is owned by plaintiff; and the mortgagor 
 can only arrest the action by paying or tender- 
 ing, and bringing into court, the amount due. — 
 a. of App., Feb., 1878. Morris v. Tuthill, 72 
 N. Y. 575. 
 
 85. When the acceptance of interest on the 
 mortgage during the pendency of the action to 
 foreclose is not a defence, see Odell v. Hoyt, 73 
 N. Y. 343. Compare Lawson v. Barron, 18 
 Hun 414. 
 
 86. As to when the mortgagor is estopped 
 from interposing a defence, by having given a 
 certificate to an assignee of the mortgagee, see 
 Smythu Knickerbocker Life Ins. Co., 21 Hun 241. 
 
 87. Instances. Plaintiff held a bond and 
 mortgage executed by defendant W. When 
 they became due, W. being unable to pay, it 
 was arranged between him and plaintiff that 
 the former should give his note for the interest 
 unpaid, which should be indorsed on the bond, 
 and the plaintiff should obtain a loan by assign- 
 ing the bond and mortgage as collateral ; there 
 was no express agreement that the note should 
 be received as payment ; this arrangement was 
 carried out, the bond and mortgage were subse- 
 quently re-assigned to plaintiff; prior to this, 
 W. conveyed the mortgaged premises to B., 
 subject to the mortgage. The note was not paid. 
 In an action to foreclose the mortgage evidence 
 was given to the effect that B., prior to taking 
 title, had notice that the back interest was un- 
 paid. Held, that the indorsement did not con- 
 stitute a payment; and that plaintiff was not 
 precluded from collecting the interest out of 
 
292 
 
 MORTGAGES, VI. 
 
 the mortgaged premises. — Ct. of App., Bept., 
 1879. Feldman v. Beier, 78 N. Y. 293. 
 
 88. The assignee for benefit of creditors 
 of the mortgagor set up in his answer that 
 plaiDtlS' had previously assigned the bond and 
 mortgage to one S., who thereupon became 
 the owner thereof. Hdd, that these facts con- 
 stituted no defence, and that the answer should 
 be stricken out as frivolous. — Supreme Ct., ('M 
 Bept.,) Dec., 1878. Fougera v. Moissen, 16 
 Hun 237. 
 
 89. A note under seal was secured by a 
 mortgage on land. Before the action to fore- 
 close the mortgage, an action had been com- 
 menced upon the note, which was still pending. 
 Held, that this was no defence to the action of 
 foreclosure. — Supreme Ct., {2d Dept.,) May, 1879. 
 Gillette v. Smith, 18 Hun 10. 
 
 90. ITsury as a defence. Where, after 
 the principal of a bond and mortgage has fallen 
 due, a usurious agreement is made between the 
 parties for an extension of time, and where, un- 
 der a provision of the instrument declaring 
 that in case of failure to pay the interest, within 
 a certain time after it is due, the whole prin- 
 cipal becomes due at the option of the holder, 
 the latter, upon default in the payment of inter- 
 est accruing after the extension, brings an action 
 for foreclosure, claiming the whole amount 
 secured to be due, the mortgagor cannot claim 
 the benefit of the extension, and yet seek to de- 
 feat the foreclosure by asking that the usurious 
 consideration paid therefor shall be applied in 
 payment of the interest. The usurious agree- 
 ment is void and there is no valid extension ; 
 but assuming that it is binding at the election 
 of the mortgagor, he disaffirms it by requiring 
 that the cpnsideration paid shall be credited. 
 He is entitled to the credit, but having received 
 it he is not entitled to the extension and plain- 
 tiff may have judgment for the residue unpaid. 
 — Ct. of App., June, 1877. Church v. Maloy, 70 
 N. Y. 63. 
 
 91. When the defence of usury, in an action 
 to foreclose a mortgage, will not be affected by 
 it conveyance of the land subject to the mort- 
 gage, see Knickerbocker Life Ins. Co. v. Nelson, 
 78 N. Y. 137 ; S. C, 7 Abb. IST. Cas. 170; modi- 
 fying 13 Hun 321. 
 
 92. The employment of an agent to effect a 
 loan does not impliedly or apparently authorize 
 him to do an illegal act, and where a lender has 
 received a security providing for the repayment 
 of the precise amount loaned by him, with legal 
 interest, the fact that the agent, without the 
 authority, knowledge or participation of the 
 lender, extorted from the borrower a bonus, 
 does not taint the transaction with usury. — 
 Superior Ol, March, 1879. Sniffen v. Koechling, 
 45 Superior 61. S. P., Van Wyck v. Walters, 16 
 Hun 209 ; Moore v. Bogart, 19 Id. 227. 
 
 93. Defendants — Held, to be estopped from 
 setting up the defence of usury, in cases de- 
 pending upon particular facts, but involving no 
 new or important principles of law. Kilner v. 
 O'Brien, 14 Hun 414; Hoeffler v. Westcott, 15 
 Id. 243 ; Smyth v. Lombardo, Id. 415 ; Smyth v. 
 Munroe, 19 Id. 550. Compare, to the contrary, 
 Smith V. Cross, 16 Hun 487. 
 
 94. The answer. A party defendant hav- 
 ing a subsequent mortgage, and who is also the 
 owner of mortgages prior to that of plaintiff, 
 may answer in the suit to foreclose plaintiff's 
 mortgage, and ask to have such prior mortgages 
 
 paid out of the proceeds of sale before applying- 
 any portion thereof to the satisfaction of plain- 
 tiff's mortgage. — Supreme Ct., (2(i Dept.,) Deo., 
 1878. Doctor ». Smith, 16 Hun 245. 
 
 95. In an action to foreclose a mortgage, the 
 complaint alleged a conveyance of the mort- 
 gaged premises, subject to the mortgage to de- 
 fendant S., who assumed and agreed to pay the 
 same, and asked judgment against her for any 
 deficiency. S. set up, in her answer, in sub- 
 stance, that the mortgage was executed to plain- 
 tiff, as special guardian of an infant, upon con- 
 veyance of the premises by him to the mort- 
 gagor, pursuant to an order of the court in pro- 
 ceedings for the sale of the real estate of the 
 infant ; that in such proceedings it was alleged,, 
 and sufficient proof given, that the father of the- 
 infant, who owned the premises, was dead,, 
 whereas, in fact, he was alive when the order of 
 sale was made, and that title still remains in 
 him. There was no allegation of an eviction 
 or disturbance of the possession of S. Held,. 
 that the presumption was, in the absence of 
 allegations to the contrary, that S. took posses- 
 sion on receiving her deed, and that she con- 
 tinued in the possession and enjoyment of the- 
 premises ; that the said allegations of the 
 answer constituted no defence, and were prop- 
 erly stricken out on motion as frivolous. — Ct. of 
 App., June, 1878. Parkinson v. Sherman, 74 
 irT Y.88. 
 
 96. That in such case, relief might be ob- 
 tained by an equitable action in the nature of a 
 bill of review, with all the parties in court, and 
 a restoration of the premises tendered, see lb. 
 
 97. In an action to foreclose a mortgage de- 
 fendant C. in his answer set up as " a second 
 and further defence," in substance, that he was 
 the equitable owner and in possession of the 
 mortgaged premises when the mortgage was 
 executed; that B., the mortgagor, had con- 
 tracted to sell the premises to C, and the mort- 
 gage was given to secure a usurious loan nego- 
 tiated by C. to enable him to make a payment 
 to B. ; that B. deeded to W. at C.'s. request, sub- 
 ject to the mortgage, and that the latter held 
 possession under a contract with W. ; the answer- 
 asked that the mortgage and accompanying 
 bond be adjudged to be usurious and void, and 
 that they be delivered up and canceled. Held, 
 that such portion of the answer could only be 
 considered as a defence, not a counter-claim, and 
 no reply was necessary ; that if intended as a 
 counter-claim it should have been so character- 
 ized.— a. of App., Dec., 1878. Equitable Life 
 Assurance Soc v. Cuyler, 75 N. Y. 511 ; affirm- 
 ing 12 Hun 247. 
 
 98. Whether C. was a "borrower" withini 
 the iheaning of the statute relating to usury, 
 and so entitled to interpose it as a defence, see 
 lb. 
 
 99. Necessity of a trial. If there is an 
 answer raising a material issue, the issue must 
 be tried by the court or referred. On defend- 
 ant's failure to appear at the trial plaintiff can- 
 not take judgment by default, and obtain a 
 i-eference to compute amount. — Com. Pleas, {Sp, 
 2'.,) Jan., 1878. Exchange Fire Ins. Co. v.. 
 Early, 4 Abb. N. Cas. 78. 
 
 100. Evidence. Parol evidence is ad- 
 missible. In an action to foreclose a mortgage, 
 given as collateral to a bond, regular and valid 
 upon its face, that the mortgagor agreed to and 
 did pay interest thereon at the rate of ten per 
 
MORTGAGES, VI. 
 
 293 
 
 cent, per annum. Such evidence is competent 
 to establish the defence of usury. — Supreme Cl., 
 (ith Bept.,) June, 1879. Mudgett v. Goler, 18 
 Hun 302. 
 
 101. Reference to compute amount 
 •due. Whether the referee to compute amount 
 <lue, should be sworn, see Exchange Fire Ins. 
 Co. V. Early, 4 Abb. N. Gas. 78 ; McGowan v. 
 Newman, Id. 80. 
 
 102. Where, in the foreclosure of a railway 
 mortgage, bonds are outstanding and pledged as 
 collateral, it is not error for the referee to com- 
 pute the amount due to include them in his es- 
 timate. — Supreme Ct., (2d Dept.) Peck v. New 
 York, &c., Ky. Co., 59 How. Pr. 419. 
 
 103. Receiver of rents and profits. 
 What persons in possession of mortgaged prenii- 
 «es may object to the appointment of a receiver 
 ■of the rents and profits in a suit to foreclose the 
 mortgage, see Smith v. Tiffany, 13 Hun 671. 
 
 104. As to the priority between the mort- 
 gagee and an assignee in bankruptcy of the 
 mortgagor, respecting rents and profits in the 
 hands of a receiver appointed in the foreclosure 
 suit within four months of the commencement 
 of the proceedings in bankruptcy, see Meigs v. 
 Knaldo, 8 Daly 295. 
 
 105. As to the duty of a receiver of rents 
 and profits in foreclosure, to lapply rents re- 
 •ceived by him to the payment of ground rent 
 and taxes in preference to applying such rents 
 ito the payment of a mortgage held by him on 
 the property ; and when he cannot charge the 
 fund with counsel fees paid by him, see Kanney 
 «. Peyser, 20 Hun 11. 
 
 106. Staying proceedings. Proceedings 
 in foreclosure stayed to await determination of 
 a suit between the same parties for an account- 
 ing ; it appearing that the money due on the 
 mortgage would have to be accounted for in the 
 suit for an accounting. — Ct. of App., April, 1879. 
 King V. Duryea, 76 N. Y. 626. 
 
 107. A stay of proceedings upon a judgment 
 ■of foreclosure pending an appeal to the General 
 Term, is discretionary, and plaintiff is not entitled 
 as matter of right to a deficiency undertaking. — 
 .Supreme Ct., (\sl Dept.,) July, 1880. Wilson 
 *. Grant, 59 How. Pr. 350. 
 
 108. The decree of sale. Where a por- 
 tion only of the amount secured is due when the 
 foreclosure suit is begun, the decree of sale may 
 <;over not only that amount, but also such sums 
 as may have accrued up to the time of making 
 the decree. — Cam. Pleas, June,JL879. Asendorf 
 4). Meyer, 8 Daly 278. 
 
 109. The sale. A direction in the decree 
 that lands situate in Kings county be sold hy a 
 j-eferee instead of by the sheriff (as required by 
 Xiaws of 1876, oh. 439,) is a mere irregularity, 
 and a sale by the referee is valid, and will pass 
 a good title to the purchaser. — Supreme Ct., {2d 
 Dept.,) Sept., 1878. Dickinson v. Dickey, 14 
 Hun 617 ; app, ai dismissed 76 N. Y. 602. 
 
 110. As to the order of sale of parcels of land 
 ■conveyed at different times, and when such sale 
 ishould not be made in the inverse order of 
 alienation, see Steere v. Childs, 15 Him 511. 
 
 - 111. When, although a sale as to a particular 
 lot was unauthorized by the judgment, yet the 
 owner of the equity of redemption will be es- 
 topped from questioning the validity of the title 
 acquired by the purchaser, on the ground of his 
 acquiescence and failure to object, see MoBride v. 
 liewisohn, 17 Hun 524. 
 
 112. Fees of referee to sell. A referee 
 to sell is entitled to the same fees and commis- 
 sions as a sheriff would be for the same service, 
 provided such fees and commissions do not 
 exceed in the aggregate $50. — Supreme Ot., 
 {3d Dept ,) Nov., 1878. Walbridge v. James, 16 
 Hun 8. 
 
 113. Where the sale is for any reason inef- 
 fectual, the referee is entitled to fifty cents for 
 receiving and entering the decree, and $2 for 
 advertising the property. lb. 
 
 114. Report of sale. Confirmation. 
 That where the judgment provides "that if the 
 proceeds of sale be insuflScient to pay the 
 amount so reported to be due to the plaintiff, 
 the said referee specify the amount of such de- 
 ficiency in his report of sale, and that the de- 
 fendant pay the same to the plaintiff," it is 
 unnecessary to apply to the court that the report 
 be confirmed, before issuing an execution 
 against defendant for the deficiency, nor to enter 
 any further judgment upon the filing of the 
 report, see Moore v. Shaw, 15 Hun 428. 
 
 But that it may be necessary to have the 
 report confirmed, in order to perfect the title, as 
 between the mortgagor and purchaser, see lb. 
 
 115. Evidence to sustain a report of sale as 
 against exceptions filed, by showing that the 
 terras of sale were different from those reported, 
 is inadmissible.^iStjpmor Ct., April, 1879. Koch 
 V. Purcell, 45 Superior 162. 
 
 116. Setting aside the sale. A judg- 
 ment in the usual form was entered directing a 
 sale by the sheriff. Plaintiff, at the time of 
 bringing the action, was, and still is, the owner 
 of a second mortgage upon an undivided one- 
 half interest in the premises described in the 
 first mortgage. No reference to that fact was 
 made in the complaint or judgment. At the 
 sale, plaintiff's agent required all bids to be 
 made with reference' to the terms of sale, by 
 which the sale was made subject to plaintiff's 
 said second mortgage. Held, an irregularity 
 justifying the setting aside of the sale. — Supreme 
 Ct., {ith Dept.,) April, 1879. Homoeopathic 
 Mut. Life Ins. Co. v. Sixbury, 17 Hun 424. 
 
 117. The deed. Where the judgment of 
 foreclosure and sale provides that surrender of 
 possession can only be required on the exhibi- 
 tion of the deed, that formality may be waived 
 by the person in possession. The actual title 
 passes on delivery of the deed ; and the surren- 
 der of possession, as of that day, may be inferred 
 by the jury, from the acts of the parties. — 
 Supreme a., {3d Dept. Sp. T.,) June, 1878. 
 Stimson v. Arnold, 5 Abb. N. Cas. 377. 
 
 118. Writ of assistance. Where, after 
 judgment and sale, a writ of assistance, regular 
 and fair upon its face, is issued against one of 
 the defendants, the officer executing it, and 
 those assisting him, are protected, even though 
 the writ was irregularly issued, and defendant 
 would be entitled to have it set aside on motion. 
 — Supreme Ct., (3d Dept.,} Nov., 1879. Arrex v. 
 Brodhead, 19 Hun 269. 
 
 119. Rights of purchaser, generally. 
 Where a referee appointed to sell under a fore- 
 closure judgment, at the request of the pur- 
 chaser, and for his accommodation, applies the 
 sums received on the sale in different order 
 from that directed in and by the judgment, the 
 purchaser cannot be heard to complain of the 
 referee's action. — Ct. of App., Nov., 1879. Easton 
 V. Pickersgill, 75 N. Y. 599. 
 
294 
 
 MORTGAGES, VI. 
 
 120. Compelling purchaser to take 
 title. Whew, after the sale, but before delivery 
 of the deed, the premises are materially dam- 
 aged by fire, the loss must fall on the parties to 
 the mortgage, not on the purchaser. His title 
 is not complete until the deed is delivered-. If 
 the property, in such case, is so injured as to be 
 greatly reduced in value, the purchaser may re- 
 fuse to complete his purchase ; otherwise, 
 where the injury is slight, and full compensa- 
 tion is offered to him. — Cam. Pleas, [Sp. T.,) 
 May, 1877. Aspinwall v. Balch, 4 Abb. N. Cas. 
 193 ; a C, 7 Daly 200. Supreme Ct., {\st Dept.,) 
 Jvly, 1877. Mutual Life Ins. Co. v. Balch, 4 
 Abb. N. Cas. 200. 
 
 121. A purchaser at a foreclosure sale has a 
 right to expect a good title, and he will not be 
 compelled to accept a deed when the title is 
 doubtful, and a claim to the property exists, in 
 favor of persons not parties, which may impair 
 the value of the land by casting a cloud over the 
 title, or by subjecting the purchaser to the risk 
 of a contest at law. — Supreme Cl., (IstDept.,) 
 March, 1880. Argall v. Raynor, 20 Hun 267. 
 
 122. As to when a purchaser at a foreclosure 
 sale will not be compelled to take title on the 
 ground of defects therein, see Verdin v. Slocum, 
 71 N. Y. 345 ; Weeks v. Tomes, 16 Hun 349 ; 
 <Mrmed 76 N. Y. 601. Compare Parkinson v. 
 jacobson, 18 Hun 353. 
 
 123. Re-sale. Where the purchaser re- 
 fuses to comply with the order requiring him to 
 complete his purchase, plaintiff has an election 
 to proceed against him for contempt, or to apply 
 for a re-sale. — Ct. ofApp., June, 1878. Goodwin 
 V. Simonson, 74 N. Y. 133. 
 
 124. Where, on refusal of purchasers at a 
 foreclosure sale to complete their purchase, 
 they alleging objections to the title, the court 
 overruled the objections and ordered the pur- 
 chasers to complete the purchase; if they failed 
 to do so, that the premises be re-sold, and that 
 any deficiency arising be paid by tliem — 
 Hkd, that the re-sale should have been under 
 the same terms as those upon which the first 
 sale was made ; and, where the terms of the re- 
 sale differed materially, that an order restrain- 
 irig plaintiiis from collecting from the former 
 purchasers a deficiency arising on the seconjf 
 sale, was properly granted. — Q,. of App., Sept., 
 1878. Eiggs V. Pursell, 74 N. Y. 370. 
 
 125. It is not requisite that a person apply- 
 ing for a re-sale, in a foreclosure suit, should 
 have a specific lien upon the mortgaged premi- 
 ses; the court may exercise its power at the 
 instance of any one whose rights are affected by 
 the sale. — Ct. of App., April, 1879. Goodell v. 
 Harrington, 76 N. Y. 547. 
 
 123. On a re-sale of premises under an order 
 dii-ecting-a sale in parcels, the notice need not 
 state that the land will be sold in parcels. — Sur 
 preme Ct., {1st Dept.,) June, 1880. Hoffman o. 
 Burke, 21 Hun 680. 
 
 127. Determination of claims to siar- 
 plus moneys. On a reference to ascertain 
 title to surplus moneys arising on a foreclosure 
 sale, the referee may inquire as to the character 
 of all liens which may be presented, whether 
 fraudulent or valid. — Ct. of App., Nov., 1879. 
 Bergen v. Snedeker, 8 Abb. N. Cas. 50. S. P., 
 Tator V. Adams, 20 Hun 131 : S. C, 58 How. 
 Pr.355. 
 
 128. A lien may be attacked on the ground 
 of fraud, whether the action be partition or 
 
 foreclosure; and it is a convenient practice ire 
 the disposition of claims in such cases, instead 
 of bringing a distinct and separate action, Bergea 
 V. Snedeker, supra. 
 
 129. As to the power and duty of the court 
 to determine the priority of liens, and order the- 
 distribution of surplus moneys after the sale, 
 and when a re-sale should be ordered, see- 
 Eleventh Ward Savings Bank v. Hay, 55 How., 
 Pr. 444. 
 
 130. On a reference to ascertain title to sur- 
 plus moneys in foreclosure, the only costs which 
 can be allowed payable out of the fund are mo- 
 tion costs. — Com. Pleas, {Sp. T.,) Nov., 1878. 
 Borland v. Alleond, 8 Daly 126. See, also. Mat- 
 ter of Gibbs, 58 How. Pr. 502. 
 
 131. The priority of liens upon the surplus- 
 moneys arising on sales in foreclosure, deter- 
 mined in cases depending upon particular fads, 
 involving no new or important legal principles- 
 Hurst V. Harper, 14 Hun 280 ; Savings Bank of 
 Utica V. Wood, 17 Id. 133. 
 
 132. Payment of surplus into court. 
 The assignee of a mortgage made after a lis pen- 
 dens has been filed in a suit to foreclose a prior 
 mortgage, may come into court and move that 
 the referee pay into court a surplus, shown by 
 the judgment and report of sale to exist, although 
 he reports a deficiency. — Superior Ct, Aprils 
 1879. Koch V. Purcell, 4-5 Superior 162. 
 
 133. Where the repoit of sale shows .that the 
 deficiency was caused by the allowance of a prior- 
 mortgage which was not authorized by the judg- 
 ment (the report not showing that by the terms 
 of sale such allowance was to be made), and that 
 but for such allowance there would be a surplus, 
 the surplus thus ascertained will be ordered to- 
 be paid into court, lb. 
 
 134. Payment of prior liens, taxes,, 
 <Sfco. A provision in thejudgment of sale that the- 
 referee deduct from and pay out of the purchase 
 money any lien or liens for taxes or assessments, 
 and that only the balance be paid to the plain- 
 tiff, is equivalent to an express declaration, by ^ 
 the court, to the purchaser, that he buys free- 
 from all taxes. And, in such case, although by 
 the terms of sale, the purchaser is required to- 
 present all claims for taxes, and have the same- 
 deducted from his hid, he may, if he sees flt^ 
 pay to the referee the entire purchase money,, 
 and rely upon the court to carry out its own 
 judgment as to the application of the moneys 
 thus paid.— Supreme Ct., (Sp. T.,) Feb., 1878- 
 Poughkeepsie Savings Bank v. Winn, 56 How_ 
 Pr. 368. 
 
 135. Where the purchaser having paid to the 
 referee the entire purchase money, the latter 
 paid the same over to the plaintiff, leaving cer- 
 tain taxes unpaid, the plaintiff was compelled to- 
 pay the same. lb. , 
 
 136. A purchaser at a tax sale, to whom a- 
 lease of the premises is executed subject to a 
 mortgage, secures thereby a lien, which entitles- 
 him to priority over the mortgage, for the money 
 paid at the tax sale, with interest. He is a 
 proper party to an action for the foreclosure of 
 the mortgage, and the judgment should provide- 
 for the payment of his prior lien out of the pro- 
 ceeds of sale.— Supreme Ct, {Sp. T.,) Oct., 1878. 
 Roosevelt Hospital v. Dowley, 57 How. Pr. 489- 
 
 137. Instances. By a judgment in a fore- 
 closure suit and by the terras of sale, all liens- 
 upon the premises for taxes and assessments- 
 were to be deducted from the proceeds of «ale.. 
 
MORTGAGES, VI. 
 
 295 
 
 The plaintiff became the purchaser. The prem- 
 ises were situate in the city of Brooklyn, and at 
 the time of sale there were several years' muni- 
 cipal taxes in arrears, for which the mortgaged 
 premises had been sold. Certificates of sale had 
 been issued, which were held by plaintiff. No 
 lease had been executed. After the foreclosure 
 sale, plaintiff caused to be deposited in the pro- 
 per office the amount necessary to redeem the 
 premises from the tax sales, and furnished to the 
 sheriff the certificate of deposit and redemption, 
 the amount of which he deducted from the pur- 
 chase money, as liens for taxes, and reported a 
 deficiency against the mortgagor. Hdd, no 
 error ; that the certificates of sale weje liens 
 to the amount necessary to redeem, i. e., the 
 amount of taxes, expenses of sale and interest at 
 the rate allowed by law upon such sales ; and 
 that the rigHt to allow and to deduct from the 
 proceeds of sale the amount so necessary to re- 
 deem, was not affected by the fact that plaintiff 
 himself held the certificates. — Ct. of App., May, 
 1879. Cornell v. Woodruff, 77 N. Y. 203. 
 
 138. If the mortgagee forecloses the mort- 
 gage, the debtor is entitled to credit only for the 
 net proceeds of sale realized by his creditor, 
 after the deduction of all liens for taxes, etc., and 
 remains liable for any deficiency. Therefore, 
 where D., who had executed a mortgage upon 
 certain premises to secure his bond, conveyed 
 the premises subject to the mortgage, which the 
 grantee assumed to pay, and the premises, after 
 the sale and after the maturity of the mortgage, 
 became encumbered by taxes and assessments^ 
 SeU, that in the absence of notice to the mort- 
 gagee, and a request to foreclose, D. was liable, 
 in an action to foreclose the mortgage, for a de- 
 ficiency, in ascertaining which the amount of 
 said encumbrances was to be deducted from 
 the proceeds of sale. — Gt. of App., Nm., 1879. 
 Marshall v. Davies, 78 N. Y. 414 ; S. C, 58 How. 
 Pr. 231. 
 
 139. Costs. In an action to foreclose a 
 mortgage the costs are in the discretion of the 
 court. — Supreme Ct., {■ith Dept.,) AprU, 1878. 
 Lossee v. Ellis, 13 Hun 655. 
 
 140. Where the referee decides that plain- 
 tiff is only entitled to certain costs, his error, if 
 any, can only be corrected by an appeal from 
 the judgment, and not by motion. lb. 
 
 141. Judgment for deflciency. That 
 where a mortgage is foreclosed against the per- 
 sonal representatives of the mortgagor, after his 
 death, no action can be maintained on the bond 
 to recover a deficiency (jut of the land devised 
 by the mortgagor's will, unless a judgment for 
 such deflciency has been entered in the fore- 
 closure suit, see Lockwood v Fawcett, 17 Hun 
 146. 
 
 142. A. conveyed land to B., subject to a 
 mortgage, which B. assumed. B. afterwards 
 conveyed an undivided half of the same land to 
 C, who agreed to pay an equal half part of the 
 mortgage. Subsequently B. conveyed the other 
 undivided half to C., but in the last conveyance 
 G. did not assume any part of the mortgage. The 
 mortgagee assigned the mortgage to the plaintiff, 
 and guaran teed its payment. Upon foreclosure 
 — Held, that any deficiency arising upon the sale 
 should be borne as follows : C. was liable for 
 one-half of the deficiency ; but in the event of a 
 failure to collect from him, the mortgagee, who 
 had guaranteed the mortgage to plaintiff, was 
 liable for the whole deficiently. — SitpreWie Ct., 
 
 (Sp. T.,) Pec., 1878. Harlem Savings Bank v. 
 Mickelsburgh, 57 How. Pr. 106. 
 
 143. In an action to foreclose a mortgage, the 
 complaint alleged the conveyance of the 
 mortgaged premises to defendant D., subject to 
 the mortgage and taxes ; that D. entered into 
 possession and collected the rents and profits, 
 and asked judgment, that if the proceeds of sale 
 are insufficient to pay taxes, and the amount due 
 for principal and interest, after deducting costs 
 and expenses, that D., to the extent of the rents 
 collected by him, be adjudged to pay the defi- 
 ciency. D. did not appear in the action, and 
 judgment was entered, adjudging that, in case 
 of deficiency, it be referred to a referee to take 
 an account of the rents collected by D., and that, 
 to the extent of such collections, D. pay to plain- 
 tiff the unpaid taxes and assessments, and the 
 amount due for interest on the mortgage, or su 
 much thereof as shall satisfy the deficiency. A 
 deficiency having occurred, the referee took the 
 account, and reported the amount of rents re- 
 ceived by D. A motion lo' confirm the report, 
 and for judgment and execution against D., was 
 thereupon made, which was denied. It did not 
 appear that D. was served wi th any of the papers 
 after service of summons and complaint, or with 
 notice of any subsequent proceedings. Plaintifl' 
 appealed without service upon D. of notice of 
 appeal to the General Term, or to this court. 
 Held, that the motion was properly denied. — CL 
 of App., Sept., 1879. Argall v. Pitts, 78 N. Y. 239. 
 
 144. Subsequent suit to recover de- 
 flciency against persons not parties 
 in foreclosure. Tlie owner of a debt secured 
 by mortgage, who holds an obligation or cove- 
 nant for its payment or collection, given by a 
 person other than the mortgagor, cannot enforce 
 the obligation by action during the pendency of 
 or after judgment in an action to foreclose the 
 mortgage, unless authorized by the court. — Ct. 
 of App:, Feb., 1878. Scofield v. Doscher, 72 K. 
 Y. 491. 
 
 145. The provisions of the Eevised Statutes 
 in reference to judgments in and the parties to 
 foreclosure suits, (2 Eev. Stat. 191, U 152, 153, 
 154,) are parts of one system, and are to be con- 
 strued together, the object being to confine all 
 the proceedings for the collection of the mort- 
 gage debt to one court and one action. There- 
 fore — 
 
 Held, 1. That an action was not maintainable, 
 brought without leave of the court, to recover a 
 deficiency arising on foreclosure sale against the 
 executor of a grantee of a portion of the mort- 
 gaged premises, who had covenanted to pay a 
 portion of the mortgage. 
 
 2. That the lack of authority to sue was not a 
 defence necessary to be pleaded and proved af- 
 firmj,tively by defendants, but as there was no 
 right of action without the authority, it was for 
 the plaintiff to allege, or at least to prove, it, in 
 order to maintain his action. lb. 
 
 146. Such an application, after a sale had, 
 upon which a deficiency arises,-for leave to sue 
 the representatives and next of kin of a deceased 
 guarantor, who were not made parties to the 
 foreclosure suit, no claim havitig ever been pre- 
 sented against the estate, is addressed to the 
 sound legal discretion of the court, and it will 
 not be granted when the circumstances of the 
 case render it inequitable to grant it. — Supreme 
 Ct., (1st Dept.,} March, 1879. Matter of Collihs, 
 1-7 Hun 289 ; S. O., 6 Abb. N. Cas. 227. 
 
296 
 
 MORTGAGES, VI., VII.,' VIII. 
 
 147. Where flie plaintiflf has hrought such 
 an actiqn, without first obtaining leave, the court 
 may, upon his application, and upon such terms 
 as may he just, grant him leave " to bring and 
 continue " the action without prejudice to the 
 proceedings already had. — Supreme Ol., {1st 
 I>ept.,) April, 1880. Earl v. David, 20 Hun 527. 
 
 148. Opening judgment to let in de- 
 fence subsequently discovered. A sec- 
 ond mortgagee suffered a default to be taken 
 against him in the foreclosure of the first mort- 
 gage, through ignorance of the fact that the 
 first mortgage was tainted with usury. 
 
 _ Hdd, 1. That upon this fact first coming to 
 his knowledge, upon the' trial, the default should 
 be opened and the defence of usury allowed to 
 be set up by him. 
 
 2. That he had not lost the right to set up 
 this defence by laches.— .Supreme Ot., {Sp. Z".,) 
 Aumia, 1880. Union Dime Savings Institution 
 V. Clark, 59 How. Pr. 342. 
 
 149. Judgment for deficiency was entered 
 against grantees, who had, in the deed to them, 
 assumed the payment of the mortgage. In the 
 contract to purchase they simply agreed to take 
 the property subject to the mortgage. When 
 made parties to the foreclosure suit, they were 
 unable to find the contract, and did not discover 
 until some time after judgment that, by the 
 deed, they were made to assume the mortgage, 
 the instrument having been drawn without 
 their ijispection. They allowed the foreclosure 
 suit to go by defauU. Hdd, that the contract 
 having been discovered witliin ten years after 
 judgment was entered, the judgment should be 
 opened and such grantees slioul(^ be allowed to 
 come in and defend. — Com. Pleas, July, 1880. 
 Trustees of Nortliern Dispensary v. Merriam, 
 59 How. Pr. 226. 
 
 150. As, by the terms of the contract of sale, 
 the grantees were not to assume the mortgage, 
 the covenant which imposed this liability upon 
 them was a mutual mistake between the parties 
 thereto ; and when the discovery of the contract 
 showed their non-liability for the deficiency, 
 they then had the right to resist the responsi- 
 bility which they had unknowingly assumed. 
 lb. 
 
 VII. Eedemption. 
 
 151. "WTio may redeem, generally. No 
 person can invoke the aid of a court of equity 
 for the redemption of a mortgage, except he 
 who is entitled to the legal estate of the mort- 
 gagor, or who claims a subsisting interest nnder 
 him. — Superior Ot., May, 1878. Cliamberlin v. 
 Chamberlin, 44 Superior 116. 
 
 152. In March, 1877, a life insurance com- 
 pany was dissolved, and defendant appointed its 
 receiver. Plaintiff then held a paid-up policy 
 in the company for $6000, to procure which in 
 a solvent company would then have -cost 13600, 
 and the company held a bond and mortgage, 
 given by A., for $8500, payable June 1st, 1887. 
 A. sold the property to plaintiff in July, 1877, 
 subject to the mortgage, which plaintiff assumed 
 and agreed to pay. Plaintiff brought an action 
 to redeem the mortgage, ugon paying what was 
 due thereon, after deducting the $3600. Seld, 
 that he could not maintain the action. — Supreme 
 a., (3d Dept.,) Sept., 1878. Waring v. O'Neill, 
 15 Hun 105. 
 
 153. Bight of junior encumbrancer 
 
 to redeem. A junior mortgagee has the right 
 to pay off or redeem from a senior mortgage, 
 which is past due, when the owner of the latter 
 is seeking to enforce collection by foreclosure. — 
 Ct. of App., Sept., 1877. Frost v. Yonkera Sav- 
 ings Bank, 70 N. Y. 553. 
 
 154. Sufllciency of tender to effect 
 redemption. A tender by the junior mort- 
 gagee, to have tlie effect of payment of the prior 
 mortgage, must be made in unmistakable terms, 
 so that there can be no donbt of the intent to 
 satisfy and discharge the senior mortgage, not 
 to redeem and have a transfer of it. lb. 
 
 155. Defendant was the owner of a mort- 
 gage uppn premises upon which a judgment 
 prior to the mortgage was a lien. The owner 
 of a fourth mortgage upon the premises, for the 
 purpose of inducing plaintiff to purchase, pro- 
 cured from the owner of the judgment a writ- 
 ten instrument by which he agreed to postpone 
 the lien of his judgment, and make it subord- 
 inate to that of the mortgage, and plaintiff 
 thereafter purchased and took an assignment of 
 said mortgage. The premises were sold upon 
 execution issued on the judgment, and defend- 
 ant purchased without notice or knowledge of 
 said agreement. Defendant thereafter com- 
 menced a foreclosure of his mortgage, and 
 judgment of foreclosure and sale was rendered, 
 and the premises were advertised for sale there- 
 under. Plaintiff thereupon tendered to de- 
 fendant the amount found due by the fore- 
 closure judgment, with interest and costs, and 
 demanded a transfer of the mortgage and judg- 
 ment. Held, that the tender did not amount to 
 a payment and satisfaction of the mortgage and 
 judgment ; but that plaintiff had the right to 
 redeem, and the tender was sufficient without a 
 tender of the amount of the judgment, to enti- 
 tle him to a transfer of the securities ; that 
 plaintiff, as assignee of the mortgage, was en- 
 titled to the benefit of the agreement postponing 
 the lien of the judgment, as it made the mort- 
 gage the senior security ; and that its character, 
 as such, was not -affected by the sale under the 
 judgment. lb.; reuer-sms', in part, 8 Hun 26. 
 
 VIII. DlSCHAEQE or THE LlEN, BY PAYMENT, 
 
 Satisfaction or Otherwise. . 
 
 156. Extinguishment, generally. De- 
 fendant executed her bond and mortgage as 
 collateral security for the payment by her hus- 
 band and another of an installment agreed to 
 be paid under and by a contract for the pur- 
 chase by them of certain lands ; the vendors 
 assigned the bond and mortgage, and subse- 
 quently, by agreement of the parties, said con- 
 tract was rescinded, and the indebtedness of the 
 vendees thereunder extinguished. In an action 
 to foreclose the mortgage — Held, that the ven- 
 dors could convey no title to the securities 
 which was not defeasible by the payment or 
 extinguishment of their claim under the con- 
 tract ; that the transfer of the securities with- 
 out a transfer of the principal debt was inop- 
 erative; and that the rescission of the contract 
 extinguished the indebtedness thereunder and 
 destroyed the efficacy of the bond and mort- 
 
 gage.— Ci. of App , April, 1879. Wanzer v. 
 !ary, 76 N. Y. 526 ; affirming 12 Hun 403. 
 
 157. What amounts to an extinguishment of 
 a mortgage lieu, by proceedings in the fore- 
 closure and sale of the premises under another 
 
MORTGAGES, VIII 
 
 297 
 
 mortgage, determined in a case depending upon 
 particular facts. — Supreme Ct., (3d Bept.^ May, 
 1878. Westbrook v. Gleaaon * 14 Hun 245. 
 
 158. 'What amounts to payment. 
 Where the dealings between a bank and a cus- 
 tomer were entered in a single account, the lat- 
 ter being credited therein with the proceeds of 
 notes discounted, with drafts accepted, and mon- 
 eys deposited; and where, in accordance with 
 the uniform custom of dealing, indorsed notes 
 •of the customer discounted by the bank were 
 ■charged to his account as they matured, with- 
 out protest, and were thereafter surrendered to 
 4he maker — Hdd, that this was a payment, 
 and that a mortgage securing the payment of 
 the notes was thereby discharged. — Ot. of App., 
 Nov., 1877. Crocker ». Whitney, 71 N. Y. 161. 
 
 159. _ Wliat does not. C. B. executed 
 and delivered to T. a note and mortgage as col- 
 lateral security for indorsements. L. B., the 
 wife of C. B., as further security for the indorse- 
 ments and other indebtedness of C. B., assigned 
 to T. a contract held by her for the purchase of 
 •certain lands, T. agreeing to re-assign upon 
 payment of the husband's indebtedness. T. 
 subsequently received a deed from the vendors, 
 and after his death his executors agreed with 
 C B. and L. B., that upon surrender of her 
 equity of redemption, they would assign the 
 note and mortgage to plaintitF, to be held by her 
 as collateral security for a debt of 0. B. to her. 
 Plaintiff aided in perfecting the arrangement 
 by paying a lien upon L. B.'s equity of redemp- 
 tion, and received the assignment. In an ac- 
 tion to foreclose the mortgage — Held, that the 
 arrangement with the executors of T. was not 
 in effect a payment and satisfaction of the note and 
 mortgage, but that plaintiff acquired a good title 
 thereto, and to the amount that was due, at tbe 
 time of the assignment, on the note and mort- 
 gage from C. B. to the estate of T., plaintiff 
 could hold the lien as assignee ; that L. B., on 
 payment of her husband's debt, was entitled to 
 a traiisfer to herself or to her nominee of the 
 securities held by the creditors ; and that it 
 ■was competent for the parties, under the cir- 
 cumstances, to cause them to be kept alive for 
 plaintiff's benefit.— ft. of App., Oct., 1877. 
 Hubbell V. Blakeslee, 71 N. Y. 63. 
 
 160. It seems that if the payment had been 
 ■made by C. B. out of his own funds, yet if it 
 was agreed at the time, and payment was made 
 and received on the condition that the mortgage 
 should be kept alive and transferred to another 
 creditor of the mortgagor, such an agreement 
 would have been valid, and tlie payment would 
 not have extinguished the mortgage. lb. 
 
 161. At the time of the execution of the 
 note and mort6;age it was Agreed, verbally, that 
 they should be held by T. both as collateral se- 
 <!urity for his own and for plaintiff's claim 
 against C.B. Held, that the arrangement was 
 valid ; that the note and mortgage bemg personal 
 property, could be held by T. in part for his own 
 benefit, and in part in trust for the benefit of an- 
 other, lb.; reoersing 8 Hun 603. 
 
 162. Release of part of mortgaged 
 premises. The general rule as to discharge 
 of part of premises aliened by operation of a 
 release of the part retained, does not operate, 
 unless the releasor has knowledge of the fact of 
 the alienation or notice sufficient to put him 
 
 ..*Said to have been reversed, Noveml>er 25th, 1879. 
 
 upon inquiry. — Superior Ct., Nov., 1879. Ken- 
 dall V. Niebuhr, 45 Superior 'B42. 
 
 163. In such case the record of the deed of 
 itself is not notice ; but where it appears that 
 the deed was recorded before the release was 
 given, that the releasor employed an attorney 
 to make the necessary searches and prepare the 
 release, who did make the searches, and found 
 various conveyances (there being ten several 
 lots released), and reported the result to his cli- 
 ent, and the attorney, being called as a witness, 
 did not, by his evidence, negative the presmnp- 
 tion that he found the deed of the lot in ques- 
 tion on record — Held, suflicient notice to the 
 releasor, although he testified that he could not 
 recollect that he was informed of the convey- 
 ance of the lot in question. 1 b. 
 
 164. Sxtinguisbment by merger. M. 
 conveyed land by deed containing covenants of 
 warranty, and not subject, by its terms, to any 
 mortgage. Subsequently, he purchased a mort- 
 gage existing on the land at the time of its con- 
 veyance, which he subsequently transferred to 
 T., who foreclosed the same by advertisement, 
 no notice being served upon the then owner of 
 the equity of redemption. Held, that by the 
 assignment of the mortgage to M., after his 
 conveyance with warranty, the same was extin- 
 guished and discharged. — Supreme Ct., (4(A 
 Dept.,) Oct., 1878. Micklesi).r)illaye,15Hun296. 
 
 165. Satisfaction by conveyance be- 
 tween the parties.' In January, 1872, T. 
 mortgaged certain premises to D. without giving 
 any bond or covenant to^ay the mortgage debt. 
 D. recorded the mortgage in June, 1872, and in 
 February, 1873, assigned it for value to defend- 
 ant, who failed to record his assignment. In 
 March, 1873, T. deeded the property to D., in 
 satisfaction of the mortgage, and for other con- 
 siderations, without demanding a satisfaction- 
 piece. The deed was recorded the same month. 
 In December, 1873, D. conveyed the premises 
 by warranty deed to plaintiff, who was ignorant 
 of defendant's ownership of the mortgage, his 
 deed being recorded in January, 1874. 
 
 Held, 1. That the mortgage held by the de- 
 fendant was not satisfied or discharged by the 
 conveyance of the fee to D. 
 
 2. 'That plaintiff, though a purchaser in good 
 faith and without , knowledge of the assign- 
 ment, was not protected from the lien of the 
 mortgage or entitled to h.ive it canceled. — Su-. 
 meme Ct., [M Dept.,) Nov., 1879. Miller v. 
 Lindsey, 19 Hun 207. 
 
 166. Entry of satisfaction, and ho'w 
 compelled. A satisfaction-piece is a convey- 
 ance, within the meaning of that term, as used 
 in the recording act (1 Eev. Stat. 762.) — Su- 
 preme Ct., (3d Dept.,) Nov., 1879. Bacon v. Van 
 Schoonhoven, 19 Hun 158. 
 
 167. One P. executed to defendant a mort- 
 gage upon certain premises ; defendant agreed, 
 by parol, to pay two former mortgages on the 
 premises, and, after deducting the amount 
 thereof, paid to P. the balance secured by his 
 mortgage. P. subsequently sold and conveyed 
 the premises to plaintiff, with covenant of war- 
 ranty, subject to defendant's mortgage. In an 
 action to compel defendant to pay and cancel of 
 record the prior mortgages, or to have the 
 amount thereof indorsed upon his mortgage — 
 Held, that plaintiff was not entitled to recover ; 
 that he could not recover upon the theory that 
 defendant's promise was made for his benefit, as, 
 
298 MORrGAGES, VIII.— MOTIONS AND ORDERS, I., II., III. 
 
 at the time it was made he had no relation to or 
 interest in the lands ; and that plaintiff's deed 
 did not operate as an assignment (o him of P.'s 
 interest in the agreement. — Ot. of App., Sept., 
 1877. Miller v. Wiuchell, 70 N. Y. 437. 
 
 168. It seems that upon payment of the prior 
 mortgages, plaintiff would be entitled to be sub- 
 rogated to the remedy of the mortgagee, and 
 could maintain an action against defendant upon 
 the agreement. lb. 
 
 169. When a forged satisfaction-piece on 
 record will estop an assignee of the mortgage 
 from enforcing the same against a person who, 
 relying on the I'ecord, purchases the property 
 for value, supposing it to be unencumBered, see 
 Costello V. Meade, 55 How. Pr. 356. 
 
 170. When a party who has sold the mort- 
 gaged premises may enforce the execution and 
 delivery of a satisfaction-piece, see Levy v. Mer- 
 rill, 14 Hun 145. 
 
 As to mortgages of Chattels, see Chattel 
 
 MOKTGAGES. 
 
 Of Vessels, see Shipping, I. 
 
 MOTIONS AND ORDERS. 
 
 1. The Eight to Move; and herein of 
 
 Time, Place, and Manner of Mov- 
 ing. 
 n. The Motion Papers. How Motions 
 
 are Made and Deteraqned. 
 III. Orders. • 
 
 I. The Eight to Move; and herein of 
 Time, Place, and Manner op Moving. 
 
 L The right to move, generally. A 
 motion made for the purpose simply of obtain- 
 ing the option of the court will not be enter- 
 tained. — Supreme Ol., {3d Dept.,) Jan., 1880. 
 McMichael v. Kilmer, 20 Hun 176. 
 
 2. Where facts are disputed, e. g., as to the 
 existence of an agreement as to the mode of use 
 of a party wall, the only evidence thereof being 
 acts of parties, the court will not decide on ex 
 parte affidavits. — Supreme Gl., [Sp. T.,) Sept., 
 1879." St. John v. Sweeny, 59 How. Pr. 175. 
 
 3. A motion at Special Term to set aside or 
 strike out an amendment of a pleading made by 
 a referee on trial, is improper. The proper 
 mode of reviewing the decision of the referee is 
 by exception thereto and appeal from the judg- 
 ment. — Ct. of App., May, 1879. Quimby v. 
 Claflin, 77 N. Y. 270. 
 
 4. Time to move A motion to make a 
 pleading more definite and certain need not be 
 made at the earliest possible moment; where the 
 time " to plead or otherwise move " has been 
 extended, it may be made at any time before the 
 expiration of such extended period.— iSitpreme 
 Ct., (Xst Dept.,) Nov., 1878. Hammond v. Earle, 
 5 Abb. N. Gas. 105. 
 
 5. The proper district. A motion to 
 quash a writ must be made in the district in 
 which the writ is returnable, or at a term held 
 in a county adjoining that in which it is return- 
 able. As a rule, such a motion can only be 
 made after return. A stay of proceedings to en- 
 able a motion to quash, to be made out of the 
 district and before the return of the writ, should 
 be denied. — Supreme Ct., (Ohamb.,) Sept., 1879. 
 People, ex. rel. Nichols, v. Cooper, 57 How. Pr. 
 463. 
 
 6. When motion may be made to 
 judge out of court. Under Code of Civ. 
 Pro., § 770, in the first judiciiil district, a motion, 
 which elsewhere must be made in court, may be 
 made to a judge out of court, except a motion 
 for a new trial upon- the merits. — Supreme Ct.y 
 {1st Dept.,) May, 1880. Boucicaiilt v. BOuci- 
 cault, 59 How. Pr. 131. S. P., Gunning «, Ap- 
 pleton, 57 Id. 510. 
 
 II. The Motion Papers. How Motions ark 
 Made and Determined. 
 
 "7. Notice. The rule of practice, (Gen. E. 
 No. 21,) requiring a non-enumerated motion to 
 be noticed for the first day of the term, unless 
 sufficient reason be shown for noticing it for a 
 later day, applies to an order requiring a de- 
 feiidant to show cause why he should not be pun- 
 ished for a contempt in violating an injunction. 
 — Supreme Ct., {3dDy>t.,) Nov., 1879. Power i;. 
 Village of Athens, 19 Hun 165. 
 
 8. Hearing and determining the mo- 
 tion. Where the material facts on which a 
 motion must be decided are conversations and 
 transactions between, and within the exclusive- 
 knowledge of two persons, one of whom, in the- 
 moving affidavit, alleges the existence of such 
 facts, and the other, in an opposing affidavit, 
 denies their existence, the motion must be de- 
 nied, as no more credit can ordinarily be given 
 to the one who asserts a fact than to the one who- 
 denies its existence. — Com. Pleas, (Sp. T.,) June, 
 1878. Tilton v. United Stales Life Ins. Co., 8 
 Daly 84. 
 
 9. Rene'wal of motions. The doctrine 
 of res adjudieata does not apply in its strictness 
 to orders made on special motions. The matter 
 may be inoved again on leave granted and on a 
 new state of facts. — Ct. of App., Nov., 1879. Eas- 
 ton V. Pickersgill, 75 N. Y. 599. 
 
 ID. A special motion having been made and 
 denied, the motion cannot be renewed without 
 leave.— JV. Y. Surr. Ct., Feb., 1877. Irving Nat.. 
 Bank v. Kernan, 3 Eedf. 1. 
 
 11. The rule requiring leave to be obtained 
 before renewing a motion, is one of practice- 
 merely ; it does not affect the power of the court 
 to reconsider its decision on a motion, upon ad- 
 ditional facts presented on a subsequent motion, 
 without such consent having been preliminarily 
 obtained. — Ct. of App., Sept., 1878. Eiggs «. 
 Pursell, 74 N. Y. 370. 
 
 III. Orders. 
 
 12. The caption. "At a special term, Ac," 
 at the beginning of an order is not conclusive as. 
 to the character of the order. It may be shown, 
 notwithstanding the caption, to have been granted 
 by a judge out of court. — Ct. of App., April, 
 1880. ' Phinney v. Broschell, 58 How. Pr. 492. 
 S. P., Suprem.e Ct., {1st Dept..) My, 1880. Mat- 
 ter of Brake, 59 How. Pr. 329. 
 
 13. Service of orders. An order requir- 
 ing a party to an action to appear for fetamina- 
 tion before trial, under the provisions of the Code 
 of Civ. Wo., ? 870, et seq., must be served 
 personally upon him ; a service on his attorney 
 is not sufficient to give the court jurisdiction to 
 punish him for not obeying the order. — 01. of 
 App., AprU, 1879. Tebo v. Baker, 77 N. T. S3 p 
 affirming 16 Hun 182. 
 
 ^ 14. vacating. An order authoriz^ a 
 substituted or constructiveserviceof asUiMiiona 
 
MUNICIPAL CORPORATIONS, I., II. 
 
 29» 
 
 iB not an order granting a provisional remedy 
 within the meaning of Code of Civ. Pro., I 772, 
 and it may be vacated without notice by the 
 judge who made it. — Supreme Ot., (4/A Dmt,) 
 April, 1878. McCarthy v. McCarthy, 13 Hun 
 579. 
 
 15. An order vacating an order ia a judicial 
 authority that it should not have been granted. 
 —Supreme Ct., (2d Dept.,) Sept., 1880. Peck v. 
 New York, &c., By. Co., 59 How. Pr. 419. 
 
 16. For an application of the rule that where 
 an order and the papers on which it was granted 
 are not filed within ten days after the granting 
 of the order, the same becomes vacated and of 
 no effect, see Bronner v. Loomis, 17 Hun 439. 
 
 MUNICIPAL CORPORATIONS. 
 
 I. Inooeporation aud Chabtess. 
 IL Powers. 
 
 1. In general. 
 
 2. Local improvements ; and assessments 
 
 therefor, 
 in. Liabilities. 
 
 1. Upon contracts, generally. 
 
 2. Upon bonds in aid of railroads. 
 
 . 3. For wrongs; and herein of UahUity 
 for defects in streets. 
 
 IV. Municipal Officers. 
 V. Decisions of a Local Chabacxer, af- 
 FEOTiNO A Particular City or Vil- 
 lAGE only. 
 
 L Incorporation and Charters. 
 
 1. Po'wer of the legislature over city 
 charters. The provision of the state consti- 
 tution (art. 8, i 9,) authorizing the legislature to 
 restrict cities in their power of taxation and 
 assessment, and to correct abuses in assessments, 
 does not prevent the legislature from restrict- 
 ing, by provision in a city charter, the power of 
 the courts to disturb assessments. — Ct. of App., 
 June, 1878. Matter of Mead, 74 N. Y. 216. 
 
 11. Powers. 
 
 1. In general. 
 
 2. Municipal powers, generally. A 
 
 municipal corporation, in protecting its proper- 
 ty, in collecting its debts, and generally in trans- 
 acting business of a, private character, may, 
 when not expressly prohibited, or when not 
 otherwise provided by statute, avail itself of all 
 the rights and remedies afforded to an individ- 
 ual.— CiS. of App., March, 1879. City of Buffalo 
 V. Bettinger, 76 N. Y. 393. 
 
 3. In respect to city advertising. 
 Where, in a municipal charter, special provision 
 different from the ordinary course of city ad- 
 vertising, is made for a particular class of adver- 
 tisements, and a particular officer is designated 
 to cause them to be published, and provision is 
 made for the expense, they are withdrawn from 
 
 the general power of the common council over 
 city advertising. — Gt. of App., Sept., 1878- 
 Francis v. City of Troy, 74 N. Y. 338 ; reversing 
 10 Hun 515. 
 
 4. Power to make contracts for pub- 
 lic improvements. Advertising for 
 proposals. Where, by a village charter, its 
 board of trustees are authorized to enter into- 
 contracts for work upon its streets, and there is 
 no provision in the charter requiring the con- 
 tract to be in writing, formally executed, a con- 
 tract may be made by a simple resolution of the- 
 board accepting a proposition, or by a resolution 
 specifying the terms of the contract assented to- / 
 by the other party. — Ot. of App., Feb., 1878. 
 Parr v. Village of Greenbush, 72 N. Y. 463. 
 
 A contract thus made is not invalid because 
 the clerk of the board fails to record the resoln- 
 tion in his book of minutes. lb. 
 
 5. Where the law requires municipal officers,, 
 before entering into contracts, to advertise, and 
 to contract with the lowest bidder, a contract 
 made without complying with these require- 
 ments, imposes no obligation upon the munici- 
 pality, lb. 
 
 6. When defects in the proceedings, invali- 
 dating a local assessment for a street improve- 
 ment will not invalidate the contract for the 
 work, see Moore v. Mayor, &c., of New York, 73 
 N. Y. 238. 
 
 7. A municipal ordinance requiring 
 abutting ownei-s to keep the sidewalks in front 
 of their premises free from ice, and imposing a. 
 penalty for failure so to do, creates no right or 
 action against such owner in favor of a casual 
 passer-by, who, by reason of such failure to re- 
 move the ice, falls and is injured. — Com. Pleas.,, i 
 Jidy, 1879. Fuchs i. Schmidt, 8 Daly 317. 
 
 8. By the city charter the common council 
 were authorized " to regulate the erection, use 
 and continuance of slaughter-houses," and to pass 
 ordinances relative " to operations or occupations- 
 noxious to health or comfort," and " for carry- 
 ing into effect and enforcing any of the powers, 
 privileges and rights at any time granted and. 
 bestowed upon or possessed by the said corpora- 
 tion." Held, that an ordinance prohibiting the- 
 slaughtering of animals within certain described, 
 portions of the city was within the power of the^ 
 common council. — Supreme Ct., (3d I>ept.), Jan.,. 
 1880. Cronin v. People, 20 Hun 137. 
 
 9. Regulation of streets and side- 
 walks. A municipal corporation cannot give 
 a valid permission to any one to occupy the- 
 strcets or sidewalks with continuing erections or- 
 other obstructions, in the absence of an express 
 power conferred by statute. — Supreme Ct.,{i^. T.,) 
 August, 1879. Ely v. Campbell, 59 How. Pr. 
 333. 
 
 10. Permission to lay railroad tracks.. 
 A municipal corporation has the same right to- 
 question the corporate existence, and the rights- 
 of a railroad corporation seeking to use its streets, 
 as a private owner would have where the use 
 of his property is sought. — Ct. of App., Nov.,. 
 1879. Brooklyn Steam Transit Co. v. City of 
 Brooklyn, 78 N. Y. 524. 
 
 2. Local improvements ; and assessments therefor. 
 
 11. Power to take lauds and lay as- 
 sessments. Where land is taken for the pur- 
 pose of widening a city street, it is taken for a. 
 municipal improvement and not for a state pur— 
 
300 
 
 MUNICIPAL CORPORATIONS, II. 
 
 pose, and this, althoiigli commissioners who are 
 inot officers of the city are to a limited extent 
 intrusted with the undertaking. — City Gl. of 
 Brooklyn, July, 1880. Sage v. City of Brooklyn, 
 8 Abb. N. Cas. 279. 
 
 12. Where the charter authorizes the city to 
 repair its streets and sidewalks and collect the 
 -amount by assessment, it may make repairs on 
 a sidewalk along and upon land owned by a 
 turnpike cojnpany within the city limits, and 
 assess the expense upon the owners of the lands 
 abutting on such sidewalk. — Supreme Ct., (3d 
 DepU), Jan., 1879. Elmendorf v. City of Al- 
 bany, 17 Hun 81. 
 
 13. How assessments should be laid. 
 Where power is delegated by the legislature to 
 
 a municipal corporation to take the property of 
 •Ihe citzen in invitum, all the prescribed pre- 
 requisites to the exercise of that power must be 
 -fitriotly observed and conformed to. It cannot 
 he presumed that these requirements have been 
 met ; the corporation must be able to sKow it. — 
 -a. of App., Oct., 1879. Matter of City of Buf- 
 .falo, 78 N. Y. 362. 
 
 14. The system of assessing the expense of 
 the opening or the improvement of a public 
 street or avenue, upon the ownei-s of adjoining 
 property against their consent, condemned as 
 unjust and oppressive. — Ct. of App., May, 1877. 
 ■■Guest D. City of Brooklyn, 69 N. Y. 506. 
 
 15. Notice to land-owners. A law which 
 imposes an assessment for a local improvement 
 without a notice to, and a hearing or an oppor- 
 tunity of a liearing by the owners of the prop- 
 erty to be assessed, is unconstitutional. It is 
 not enough that the owners may by chance have 
 notice, or that they may as a matter of favor 
 have a hearing. The law must require notice 
 to them, and give them the right to a hearing and 
 an opportunity to be heard. It matters not 
 upon the question of the constitutionality of 
 such a law, that tlie assessment has in fact been 
 fairly apportioned. The constitutional validity 
 
 -of a law is to be tested, not by what has been done 
 under it, but by what may, by its authority, be 
 done. The legislature may prescribe the kind 
 of notice and the mode in which it shall be 
 given, but it cannot dispense with all notice. — 
 Ct. of App., June, 1878. Stuart v. Palmer, 74 
 N. Y. 183, 188 ; overruling, on this point, 10 Hun 
 r23. 
 
 16. Damages to land-o-wners. Where 
 proceedings by a municipal corporation to con- 
 demn lands for public purposes have so far pro- 
 gressed that the amount of compensation to be 
 paid to the owner has been fixed as a finality, 
 •the proceedings cannot be discontinued and 
 abandoned by tlie municipal authorities ; the 
 owner has a vested right to the compensation, 
 .and payment may be enforced according to the 
 statute under which the proceedings were insti- 
 tuted. This right may precede the vesting of 
 the title in the corporation. — Ct. of App., Sept., 
 1879. People, ex rel. Gaslight Co. v. Common 
 Council, 78 N. Y. 56. 
 
 17. The court should not, unless there be a 
 palpable and manifest error committed, interfere 
 with the findings and conclusions of a commis- 
 
 isipn duly appointed by the court to ascertain the 
 ■damages to be paid to the owners of property 
 taken for the widening of a street or avenue, and 
 rto assess and apportion ^uch damages. — Supreme 
 <%., (Sp. T.,) May, 1880. Matter of Union Ave., 
 -59 How. Pr. 228. 
 
 18. Where an award is payable out of assess- 
 ments not yet collected, the land assessed should 
 be sold as soon as possible. — OUy Ct, of JBrooklyn, 
 July, 1880, Sage o. City of Brooklyn, 8 Abb.N. 
 Cas. 279. 
 
 19. Where a part only of the assessments has 
 been collected, the awards should be paid pro 
 rata, and not in the order of their presentation. 
 Jb. 
 
 20. The payment of some of the awards in 
 full by the comptroller, in such a case, in obe- 
 dience to an order of a court, will not re- 
 lieve the city from the duty ol paying to the 
 owners of the other awards their ratable portion. 
 lb. 
 
 21. Assessments for benefits. Under 
 what circumstances damages to gas pipes occa- 
 sioned by the construction of a sewer, must be 
 borne by the contractor, and not included in an 
 assessment of property benefited by the sewer, 
 see Matter of Houghton, 20 Hun 395. 
 
 22. Reducing assessments. When the 
 court should reduce an assessment upon lands of 
 a party aggrieved, by deducting therefrom such 
 sum as is in the same proportion to such assess- 
 ment as is the whole unlawful increase 
 to the whole amount of the expense of the 
 local improvement, considered. — Supreme Ct., 
 {1st Dept.,) Juh/, 1879. Matter of Auchmuty, 18 
 Hun 324. 
 
 23. Vacating assessments for fraud. 
 What fraud in the letting of the contract for 
 the improvement, will require the court to va- 
 cate the assessment, see Matter of Eaymond, 21 
 Hun 229. 
 
 24. — for irregularity. A statute dele- 
 gating power to charge the property of indivi- 
 duals with the expense of local improvements, 
 must be strictly pursued, and any departure in 
 substance from the formula prescribed by the 
 statute vitiates proceedings under it. That which 
 the legislature has directed to be done, in such 
 case, the courts cannot declare immaterial, and 
 none of the steps prescribed can be held to be 
 directory merely ; and so, it cannot be held that 
 the omission to take any step does not afiTeet the 
 proceeding.— O. of App., Nov., 1877. Merritt v. 
 Village of Portchester, 71 N. Y. 309. 
 
 25. Notice of application to vacate. 
 On an application under Laws of 1858, ch. 338, to 
 vacate an assessment, it is not necessary to notify 
 the purchaser of the property at a sale for failure 
 to pay tlie assessment, although the time to re- 
 deem has expired, aiid a lease of the property has 
 been delivered to such purchaser. — Supreme Ct., 
 (Is* Dept.,) July, 1879. Matter of Jones, 18 Hun 
 327. 
 
 26. The petition. Where a petition to va- 
 cate an assessment alleges that the assessment 
 was increased after notice of its completion, the 
 petitioner must satisfactorily prove such increase. 
 —a. of App., Feb., ms. Matter of Littman, 72 
 N. Y. 612. 
 
 27. "WTien the application will be 
 denied. A sewer was laid in a strip of land 
 which had been opened and graded by some of 
 the adjoining owners. The city had constructed 
 a dock at the foot of it, and it had been actually 
 used as a street by persons desiring so to do. 
 After the assessment the street was regularly 
 opened by legal proceedings. Subsequently, an 
 application was made to vacate the assessment, 
 on the ground that no assessment could be laid 
 for constructing a sewer through private prop- 
 
MUNICIPAL CORPORATIONS, II., III. 
 
 301 
 
 erty. Hdd, that the application was properly 
 denied.— Sapreme Ct., (Isi Dept.,) Sept., 1879. Mat- 
 ter of McGown, 18 Hun 434. 
 
 III. Liabilities. 
 
 1. Upon contracts, generally, 
 
 28. Gteneral nature of the liability. 
 Where the officers of a manicipal corporation 
 fail to pursue the strict requirements of a statu- 
 tory enactment in contracting for the muni- 
 cipality, it is not bound, nor is it bound by any 
 acts of its officers in ratification of such illegal 
 contract. A person dealing with a municipal 
 body is bound to see that the provisions of the 
 statute under which it is acting are fully com- 
 plied with ; and when this is not done no subse- 
 quent act of the municipal officers can make the 
 contract effective. — Ot. of App., April, 1879. 
 Smith V. City of Newburgh, 77 N. Y. 130, 136. 
 
 29. A municipal corporation cannot set up, 
 in bar of an action to recover a debt due from 
 it, that it was once willing and offered to pay the 
 debt.— a. of App., Oct., 1878. Kead v. Ciiy of 
 Buffalo, 74 N. Y. 463. 
 
 30. Street contracts, and contracts 
 for services rendered. There can be no re- 
 covery against a municipality for services per- 
 formed upon a contract which is void for 
 want of power in the city officers to make it, 
 even where the contractor, having performed the 
 contract upon the property of the municipality — 
 it receiving the benefit — seeks to recover upon a 
 quantum meruit. — Ct. of App., Nov., 1878. Dick- 
 inson V. City of Poughkeepsie, 75 N. Y. 65, 75. 
 
 31. "Where materials supplied to a city for a 
 public work are required by law to be furnished 
 by contract after advertisement for bids, the con- 
 tractor with the city can recover only in an 
 action on his contract; he cannot recover on a 
 mtantum meruit. — Supreme Ct., {1st Dept. dr.,) 
 Jwne, 1877. Bigler v. Mayor, &c., of New York, 
 5 Abb. N Cas. 51. 
 
 32. City ■warrants. Warrants or orders 
 issued by municipal corporations, when not af- 
 fected by a resolution of the common council, as 
 to interest thereon, see Eead v. City of Buffalo, 
 supra. 
 
 2. Upon bonds in aid of railroads. 
 
 33. Construction and operation - of 
 statutory provisions. On July Ist, 1871, 
 bonds of the town of Seneca Falls, to aid in the 
 construction of a railroad, were issued by com- 
 missioners appointed by a judgment entered 
 August 26th,1870, in proceedings instituted under 
 Laws of 1869, ch. 907. Held, that the passage. May 
 12th, 1871, of Laws of 1871, ch. 925, amending the 
 act of 1869, did not nullify or avoid the judgment 
 previously entered nor take away from the com- 
 missioners appointed thereby, the power to sub- 
 scribe for stock or issue the bonds of the town. — 
 Supreme Ct., (Hh Dept.,) June, 1880. Syracuse 
 Savings Bank v. Town of Seneca Falls, 21 Hun 
 304 ; Angel v. Town of Hume, 17 Id. 374. 
 
 34. So much of Laws of 1869, ch. 907, ? 4, as pro- 
 vided that the bonds issued thereunder should 
 become due and payable at the expiration of 
 thirty years from their date, was not repealed by 
 implication.by the additional clause added thereto 
 by Laws of 1871, ch. 925, and under the amended 
 section the commissioners may make the bonds 
 
 to be issued by them payable thirty years fron* 
 their date, or at any time less than thirty years ;: 
 but in the former case all the bonds must be 
 made payable at one time, and in the latter, the- 
 times for their payment must be so distributed 
 over the said space of thirty years, as that not 
 more than ten per cent, of the entire principal 
 will become due in any one year. lb. 
 
 35. Sufilciency of the petition. It is es- 
 sential to the validity of a petition, presented to ai 
 county judge under the provisions of the towtt 
 bonding acts, that it should set forth that 
 the petitioners constitute a majority of the tax- 
 payers of the town appearing on the last prece- 
 ding assessment roll, " not including those taxed 
 for dogs or highway tax only;" a statement 
 merely that they are a majority of the tax- 
 payers is insufficient. — Ct. of App., Feb., 1879- 
 Town of Wellsborough v. New York, &c., K. B. 
 Co., 76 N. Y. 182. 
 
 36. A petition averred that the petitioners- 
 were a majority of the tax-payers ; then followed,, 
 in a separate sentence and paragraph, an avier- 
 ment that their names appear upon the last pre- 
 ceding assessment roll of the town, that they are- 
 taxed or assessed for, or represent a majority of 
 the taxable property of said town on said list,. 
 "not including those taxed for dogs or highway 
 taxes only." Held, that this was simply an 
 averment that a majority of the taxable property 
 of the town, not including taxes for dogs, etc ,. 
 was represented by the petitioners ; that the pe- 
 tition, therefore, was invalid, the county judge 
 acquired no jurisdiction, and his order was a 
 nullity.— /6. S. P. Supreme Ct., (ilh Dept.,) Oct., 
 1878. Wilson v. Town of Caneadea, 15 Hun 218. 
 
 37. The petition must also show that the 
 amount named therein as the liinit of the issu& 
 of the bonds, does not exceed twenty per cent 
 of the whole taxable property of the town ; and 
 the verification of the petition must cover all the 
 allegations contained in it. — Supreme Ct., (4t/* 
 Dept.,) April, 1879. Angel v. Town of Hume,. 
 17 Hun 374. 
 
 38. Curing defect in petition by sub- 
 sequent legislation. Where a petition pre- 
 sented by the tax-payers of a town was defective in 
 not stating that the corporation which it was 
 proposed to aid, was a railroad company in this 
 state, as required by the act, but was in all other 
 respects sufficient, and all the proceedings were 
 regular. — Held, that the legislature had power 
 to pass an act curing this defect in the petition 
 and validating the bonds issued upon it — Su- 
 preme Ct., [ith Dept.,) April, 1880. Rogers v. 
 Rochester, &c., B.. E. Co., 21 Hun 44. Compare- 
 Hardenbergh v. Van Keuren, 16 Hun 17. 
 
 39. Notice of election to tax-payers. 
 Laws of 1867, ch. 953, ? 5, and Laws of 1868,. 
 ch. 317, construed ; and what is a sufficient pub- 
 lication of notice of a special election to be held 
 by the tax-payers for the purpose of voting oa 
 the question of issuing village bonds in aid of a 
 railroad, and the proper conduct of such elec- 
 tion, determined. — Ct. -of App., May, 1877. 
 People, ex rel. Hetfield, v. Trustees of Fort Ed- 
 ward, 70 N. Y. 28. 
 
 40. PoTver of commissioners to bind 
 the to'wn. Town commissioners appointed 
 under and in pursuance of the act of 1868, (Laws 
 of 1868, ch. 553,) authorizing certain towns to 
 issue bonds and take stock in railroad corpora- 
 tions, are in no sense town officers, and do not 
 represent the town ; a town, therefore, is not 
 
302 
 
 MUNICIPAL CORPORATIONS, III. 
 
 l)Oun(i by tlie acts of its coramissioriers beyond 
 -or in contravention of said act and of a consent 
 given thereunder. — Gt. ofApp., Jan., 1878. Hor- 
 ton V. Town of Thompson, 71 N. Y. 513 ; rever- 
 sing 7 Hun 452. 
 
 41. Kelative rights of commissioners 
 ■and railroad company. Defendant's rail- 
 road commissioners, under statutory authority 
 (Laws of 1856, ch. 64. as amended in 1857 ; Laws 
 of 18S7, ch. 401,) subscribed for $70,000 of the 
 istock of the A. &. S. E. E. Co., to be paid for as 
 required by the directors of tliat company. Pay- 
 ment of the balance unpaid was required by the 
 <iirectors to be made November 1st, 1862. Pay- 
 ment was not made at that time ; but, at various 
 times thereafter, tlie commissioners issued bonds, 
 ■dated November 1st, 1862, for the balance un- 
 paid of the $70,000, part of which were de- 
 livered to the company, in payment for the 
 stock, the residue was sold, and the proceeds so 
 paid; the interest coupons, however, upon the 
 Donds, due at the time of such delivery or sale, 
 were torn oif. The company claimed interest, 
 and refused to deliver certiheates for the stock 
 until payment thereof. ^8Zcl,that the company was 
 ■entitled to bonds with coupons annexed, carrying 
 interest from November 1st, 1862; and, when 
 «ash was paid on account of bonds sold, was en- 
 titled to the cash, with interest from that date ; 
 also, that the commissioners had the right to 
 pay the interest, either by issuing bonds drawing 
 interest from the time the payment should have 
 been made, or by paying in money. — Ct. of App., 
 Nov., 1877. Gould v. Town of Oneonta, 71 N. 
 Y. 298 ; affirming 3 Hun 401. 
 
 42. Said commissioners contracted to sell de- 
 fendant's stock to W., plainlifF's assignor at par, 
 and he, by their directions, paid to the company 
 the amount claimed by it for interest, delivered 
 to the commissioners one of defendant's bonds 
 issued to pay for the stock, and gave to the com- 
 missioners his check for the balance, which,they 
 were to hold until the stock was transferred to 
 him on the books of the company. The certi- 
 ficates of stock were issued to the commissioners, 
 assigned by them to W., and left with the 
 treasurer of the company, that a transfer might 
 be made. Defendant thereafter brought an ac- 
 tion and obtained an injunction restraining the 
 ■company from transferring the stock. W. there- 
 upon rescinded the contract of sale, and de- 
 manded back the money, check and bonds. This 
 was refused, and subsequently the stock was 
 issued to defendant, and sold by it. In an action 
 brought to recover back the money paid and the 
 value of the bonds — Sdd, that the transaction 
 with W. was not violative of the provisions of 
 the act of 1857 (J 6), requiring sales of stock to be 
 for cash ; that it was, in fact, a conditional sale, to 
 become absolute only when the stock was trans- 
 ferred and money paid ; that such a sale was 
 valid, and within the power of the commis- 
 sioners to make. lb. 
 
 Even if the amount claimed by the company 
 was not legally due, the commissioners were the 
 authorized agents of defendant, and had power 
 to settle and adjust the claim; and they having 
 admitted if, and directed its payment by W., he 
 having no knowledge that it was not due, and act- 
 ing in good faith, defendant was bound by their 
 acts, and that plaintiff was entitled to recover. Ih. 
 
 43. Agreements bet^ween commis- 
 sioners and. company. Under the town 
 bonding act, as amended in 1871 (Laws of 1871, 
 
 ch. 925, J 1,) the tax-payers, in their petition, 
 were authorized to impose as a condition pre- 
 cedent to the subscribing for stock and the de- 
 livery of the town bonds, that the road should 
 be located and constructed through the town, or 
 a specified portion thereof. • Where such a con- 
 dition was imposed by the petition — Hdd, that 
 the commissioners appointed to subscribe for 
 the stock and issue town bonds were subjected 
 to the condition ; they could neither issue the 
 bonds nor subscribe for or take stock, or by an 
 agreement bind the town until the condition was 
 fully complied with. The commissioners could 
 not substitute an agreement by the railroad com- 
 pany to comply with the condition, or any other 
 agreement on its part for actual compliance, 
 and, until such compliance, they had no au- 
 thority whatever to act in any manner. — Ct. 
 oj App., May, 1877. Falconer v. Buffalo, &c., 
 E. B. Co., 69 N. Y. 491 ; affirming 7 Hun 499. 
 Compare Town of Wayne ». Sherwood, 14 Hun 
 423 ; Joslyn v. Dow, 19 Hun 494. 
 
 44. Rights ofbondholders. Purchasers 
 of the bonds, in good faith, may rely upon the 
 recitals therein, as to all matters except the 
 legislative authority for the issue of the bonds. 
 —•Supreme Ct., (Is* Dept.,) Dee., 1878. Dodge v. 
 County of Platte, 16 Hun 285. 
 
 45. Such purchasers cannot claim as bona fide 
 holders where a defect appears on the face of 
 the bonds. — Ct. of App., Jan., 1878. Horton v. 
 Town of Thompson, 71 N. Y. 513. 
 
 46. — of holders of coupons. Eailroad 
 commissioners of a town, who have received 
 from the collector of the town moneys raised by 
 a tax to pay interest coupons on bonds of the 
 town, issued in payment of a subscription to the 
 capital stock of a railroad,- cannot draw in ques- 
 tion the validity of the bonds, to justify them in 
 refusing to pay over the moneys to the owners 
 of the coupons. — Ct. of App., Jan., 1878. First 
 Nat. Bank of Oxford v. Wheeler, 72 N. Y. 201, 
 204; and see Id. 601. 
 
 47. The fact that the commissioners resist 
 payment and defend an action against them by the 
 holder of such coupons, pursuant to a resolution 
 of a town meeting, and under a promise of indem- 
 nity from the town, does not make the invalidity 
 of the bonds a defence to the action, lb. 206^ 
 
 48. As to the effect of a judgment of the Court 
 of Appeals, declaring the proceedings void, and 
 directing their dismissal, upon the powers of the 
 commissioners and the rights of holders of 
 coupons of bonds already issued, see Biddleoora 
 V. Newton, 13 Hun 582. 
 
 49. Validity of the bonds as depend- 
 ent on the consent of the tax-payers. 
 The only warrant for the action of the commis- 
 sioners is the consent of the taxable inhabitants 
 required by the act as amended in 1869. (Laws 
 of 1869, ch. 96.) Bonds issued without such con- 
 sent are invalid, and it is beyond the power of 
 the legislature to validate them, and impose 
 them as a debt upon the town. — Ct. of App., 
 Jan., 1878. Horton v. Town of Thompson, 71 
 N. Y. 513. Compare Peoplg, ex rel. New York, 
 &c., E. E. Co., V. Hutton, 18 Hun 116 ; Har- 
 denbergh v. Van Keuren, 16 Hun 17. 
 
 50. A consent of a majority of the tax-payers 
 of the town of T. was obtained, which consent 
 stated on its face that it was given in pursuance 
 of the act of 1868 ; it authorized the commis- 
 sioners appointed thereunder to borrow upon 
 the credit of the town a specified sum ; the com- 
 
MUNICIPAL CORPORATIONS, III. 
 
 303 
 
 ■miasioners, instead of disposing of the town 
 bonds " for not less than par," atid investing the 
 proceeds in the stock of a railroad company, as 
 prescribed, by the act, exchanged the bonds ex- 
 ecuted by them for an equal amount of stock. 
 In an action to recover the amount of two inter- 
 est coupons of one of said bonds — Held, that 
 tlie consent did not authorize the transaction, 
 and that the bonds were void ; also that they 
 were not validated by the act of 1871, (Laws of 
 1871, ch. 809,) purporting to legalize and con- 
 firm the acts of said commissioners. Horton v. 
 Town of Thompson, supra. 
 
 51. The bonds upon their face referred to, and 
 stated that they were executed under tlie act of 
 1868, and recited that they were given "for 
 -value received in tlie stock" of the M. & P. J. 
 Kailway Co. Hdd, that as it appeared upon the 
 face of the bond in suit that it was issued in 
 violation of the act and of the consent, plaintiff 
 •could not claim as a bona fide holder. lb. 
 
 52. Plaintiff was holder of the bond at the 
 time of the passage of the act of 1871. Held, 
 that the bond being void constituted no debt 
 against the town, and the legislature had no 
 power to impose it as such ; that as the bond 
 was not issued in conformity with the consent of 
 the tax-payers, the legislature could not validate 
 it unless they had the power to authorize the 
 •contracting of the debt without any consent or 
 action on the part of the town, and this they 
 Jiad no power to do. lb. 
 
 53. The consent did not specify the railroad 
 ■company in the stock of which the money was 
 to be invested, as required - by the act. Held, 
 that the consent was fatally defective ; but as the 
 <K>nsent was sufficiently comprehensive to em- 
 brace the road whose stock was subscribed for, 
 and as the legislature might legally have author- 
 ized a consent in that form, this defect was cured 
 i)y the act of 1871. lb. 
 
 54. It was claimed that the town, by accept- 
 ing and retaining the stock, ratified the issue of 
 the bonds and waived any irregularity. By the 
 judgment in an action to wliich the town, the 
 ■commissioners and the railroad company were 
 made parties, all of the bonds issued were ad- 
 judged void, and the certificates of stock given 
 
 by the railroad company therefor were directed 
 .to be given up and canceled. 
 
 Held, 1. That even if the commissioners still 
 held the stock the town could claim no benefit 
 therefrom. 
 
 2. That as the commissioners were not officers 
 •or agents of the town, it was not bound by their 
 acts. 
 
 3. That even if they were officers, or if town 
 ■officers had acted in the matter, they had no 
 i)0wer to contract this debt, save in the manner 
 prescribed by law, and could not by any at- 
 tempted ratification do that which they had no 
 jjower to do directly. lb. 
 
 55. Proof of consent of tax-payers. 
 Laws of 1867, ch. 874, ^ 2, provides that the fact 
 that the requisite number of tax-payers have 
 •consented to the issue of the bonds, " shall be 
 proved by the affidavit of one of the assessors 
 
 -of such village or town, indorsed upon or an- 
 -nexed to such consent in writing, and filed and 
 recorded with said consent ; and the original con- 
 -sent and affidavit, or a copy thereof, certified by 
 the clerk of the county in whose office it is re- 
 -quired to be filed, shall be legal evidence of the 
 iacts contained therein, and shall be admitted as 
 
 such in any court of this state, and before any 
 judge or justice thereof." Held, that such con- 
 sent and affidavit were not rendered incontro- 
 vertible and conclusive evidence of the facts 
 therein stated, but that they were merely prima 
 fade evidence of such facts, open to rebuttal by 
 competent proof and to impeachment for falsity. 
 —Supreme Ol., (3d Dept ,) May, 1879. People 
 ex rel. New York, &c., B. R. Co , v. Hutton, 18 
 Hun 116. 
 
 56. In an action to compel the issue of bonds, 
 the assessor, who made the affidavit, testified 
 that he signed tlie paper, but did not riiake oath 
 to it ; that the contents were not stated to him, 
 and that he did not know, and had taken no 
 means to ascertain whether or not a majority of 
 the tax-payers had consented. The affidavit 
 purported to have been taken before one of tlie 
 attorneys for the road. He testified that he 
 read the affidavit to the assessor, and swore him 
 to it ; that he told the assessor that a majority 
 of the tax-payers had consented, though he him- 
 self had no personal knowledge of that fact. 
 Held, that the town was not bound by the con- 
 sent, and that the relator could not compel the 
 issue of the bonds. — Supreme Ci., (3d Dept.,) 
 May, 1879. People, ex rel. New York, &c., R. 
 B. Co., V. Barrett, 18 Hun 206. 
 
 57. Action by tax-payer to restrain 
 negotiation of bonds illegally issued. 
 Where the bonds of a town have been issued to 
 a railroad corporation, in payment for stock, by 
 commissioners appointed under and by a judg- 
 ment, void for want of jurisdiction, rendered in 
 proceedings under the act authorizing " munici- 
 pal corporations to aid in the construction of 
 railroads," (Laws of 1869, ch. 907,) an equitable 
 action is maintainable, under the act of 1872, 
 for the protection of taxpayers, &c., (Laws of 
 1872, ch. 161,) at the suit of a tax-payer of the 
 town, to restrain the negotiation or payment of 
 the bonds, and to compel their cancellation. — 
 Ct. of App., Dee., 1879. Metzger v. Attica, &c., 
 B. B. Co., 79 N. Y. 171. 
 
 58. Effect of prohibition in constitu- 
 tion of 1875. On January 1st, 1875, when 
 the amendment of the constitution (art. 8, I 11,) 
 went into effect, which prohibits any town from 
 loaning its money or credit in aid of any corpor- 
 ation, or from becoming the owner of any stock 
 or bonds of a corporation, all action on the part 
 of any town to issue its bonds in aid of a rail- 
 road not then completed, at once become nuga- 
 tory, unless where, by operation of law, or by 
 some valid agreement, there had been, prior to 
 that time, created a right to have such action 
 perfected by the issuing of bonds. — Ct. of App., 
 May, 1877. Falconer v. Buffalo, &c., B. E. Co., 
 69 N. Y. 491 ; affirming 7 Hun 499. Compare 
 Dodge V. County of Platte, 16 Hun 285 ; Peo- 
 ple, ex rel. Hetfield, i;. Supervisors of Fort Ed- 
 ward, 70 N. Y. 28. 
 
 3. For wrongs ; and herein of liabiMty far defects 
 in streets. 
 
 59. Liability for acts or neglect of 
 oflacers and agents. A municipal corpora- 
 tion is not liable for the acts or omissions of an 
 officer elected or appointed by it, in respect to a 
 duty specifically imposed upon the officer, which 
 is not connected with his duties as agent of the 
 corporation, and in which it has no 'private in- 
 terest. It is only liable for the acts or omis- 
 
304 
 
 MUNICIPAL CORPORATIONS, III. 
 
 sions of officers in the performance of duties 
 imposed upon the corporation. — Ot. of App, 
 Jan:, 1878. New York and Brooklyn Saw Mill, 
 &c., Co. V. City of Brooklyn, 71 N. Y. 580. 
 
 60. To establish the liability of a municipal 
 corporation for damages resulting from the al- 
 leged negligence or want of skill of its agent or 
 servant in the course of his employment, it is 
 essential to show that the act complained of 
 was within the scope of the corporate powers ; 
 if outside of the powers of the corporation, as 
 conferred by statute, the corporation is not 
 liable, whether its officers directed the perform- 
 ance of the act, or it was done without any ex- 
 press direction. — Ct. of App., March, 1879. 
 Smith V. City of Rochester, 76 N. Y. 506. 
 
 61. A municipal corporation is not liable for 
 the negligence of firemen while engaged in the 
 discharge of their duties ; the members of its fire 
 department act not as its servants or agents, but as 
 officers charged with a public service, for whose 
 negligence therein no action lies against it. lb. 
 
 62. Instances. Defendant's common 
 council appointed a committee to make arrange- 
 ments for the celebration of the centennial an- 
 niversary. Said committee directed the fire 
 department to be in front of the city liall at 
 midnight of December 31st, 1875. One of the 
 defendant's hose carts, which was being driven 
 
 ' rapidly and negligently along a street on its 
 way to the place so designated, ran over the 
 plaintiff and injured him. In an action to re- 
 cover the damages — Hddj that the calling out 
 of the hose cart for such purpose was not author- 
 ized, and defendant was not liable ; that the fact 
 that the city owned the horses and hose cart did 
 not make it responsible for the negligent acts 
 of its servants having charge and control of 
 them, when using them in a service not of a 
 public nature, and not authorized by law. 1 b. ; 
 affirming 13 Hun 214. 
 
 63. The complaint alleged, in substance, 
 that by " an act to improve the Gowanus canal, 
 in the city of Brooklyn," (Laws of 1866, ch. 
 678,) and the acts amendatory thereof, commis- 
 sioners were appointed to dock the sides of said 
 canal, the expense to be assessed upon the prop- 
 erty ; that the commissioners caused docks to be 
 erected " in and upon plaintifi"'s land adjacent 
 to said canal," but prosecuted the work so negli- 
 gently that the dock sank ; that by an act 
 passed in 1871, (Laws of 1871, ch. 839,) it was 
 provided that the common council of the city 
 should cause the docks to be repaired or rebuilt 
 at the expense of the city; that thereby the 
 duty to rebuild the dock on plaintifi"'s land 
 ■was imposed upon the city, which it had neg- 
 lected to perform, to his damage, &c. Upon 
 demurrer to the complaint — Held, that the 
 court could not take judicial notice that the 
 canal was a public highway, and in the absence 
 of allegations to that effect could not presume it 
 to be such : that so far as appeared the work 
 was for the benefit of individuals solely ; that it 
 appeared by the amendatory act of 1869 to have 
 been the intention of the legislature to substi- 
 tute the common council for the commissioners, 
 without affecting the relations of the city to the 
 work ; that both bodies were to be regarded as 
 agents of the state, not of the city, and for their 
 acts or omissions the city was not liable ; that 
 the act of 1871 did not impose the duty of re- 
 building upon the city, but the directions there- 
 in to the common council, it was to be presumed. 
 
 were given to them as state agents, and that 
 therefore the city was not liable, and that th& 
 fact that the expense of rebuilding was cast upon, 
 the city did not affect its liability. New York, 
 and Brooklyn Saw Mill, &c., Co. v. City of 
 Brooklyn, sv/pra. 
 
 64. — for flo'wing lots by change of 
 grade of street. A municipal corporation, 
 has the right to fill up and grade its streets ,-: 
 and, although because of such an improvement 
 upon a street, the surface-water of adjoining lots- 
 may be prevented from flowing upon the street, 
 or the surface-water may be thrown therefrom; 
 upon said lots, and caused to flow upon them in. 
 a different way and in larger quantities than be- 
 fore, no liability arises against the corporation, 
 — Cl. of App., Jan., 1879. Lynch v. Mayor, &c., 
 of New York, 76 N. Y. 60. 
 
 65. Such a corporation may exercise its dis- 
 cretion, subject to no review or question, in any 
 court, whether, at any particular place, it will 
 build a sewer, and what water it will conduct 
 into an existing sewer, and what drains it will 
 connect therewith. lb. 
 
 66. Plaintiff's complaint alleged, in sub- 
 stance, that he owned a lot west of Eleventh 
 avenue, in New York city ; that defendant 
 caused the grade of said avenue to be raised 
 twenty feet, and neglected to provide means of 
 carrying off the rain-water, which fell upon said 
 avenue, or to prevent it draining on adjoining 
 lands, as was usually done, by reason whereof 
 the rain-water flowed from said avenue upon> 
 plaintiff's lot, doing damage, &c. Hdd, that 
 the complamt did not state a cause of action f 
 that defendant did not owe plaintiff any duty to 
 protect his premises from the flow of rain-water 
 from the avenue. lb. 
 
 67. A municipal corporation has no greater 
 right than an individual to collect the surface- 
 water from its lands and streets into an artificial 
 channel, and to discharge them upon the land* 
 of another.— Ci. of Amp., Jan., 1880. Noonan 
 V. City of Albany, 79 N. Y. 470. 
 
 68. Defendant, by means of sewers and the 
 manner of grading of one of its streets, concen- 
 trated the surface-water and sewage of a large 
 territory and discharged in one body into a 
 ravine. A small rivulet formerly ran dowa 
 through this ravine. Defendant, with the con- 
 sent of the proprietors, had changed this water- 
 course by constructing a box-drain two or three- 
 feet square in its place. The water discharged, 
 as aforesaid, into the ravine, passed over grounci 
 used as a, dumping-place for refuse, and then 
 down the ravine into the box-drain, and having^ 
 no sufficient outlet, flooded plaintiff's premise* 
 below and deposited thereon the filth carried by 
 the sewers, and the sand and dirt washed down 
 from the dumping-ground. It did not appear 
 that the defendant owned any of the lands be- 
 tween the sewer and the water-course. In aa 
 action to recover the damages — Held, thatthe 
 facts established prima facie a cause of action f 
 and that they justified a submission of the case 
 to the jury. lb. 
 
 69. It appeared that the box-drain was ob- 
 structed below plaintiff's premises, so that the 
 water and sewage were prevented from passings 
 therein, as it otherwise would ; it did not ap- 
 pear that this was attributable to any act of 
 plaintiff's, or for which he was responsible ; h& 
 had no control over the drain below his prem- 
 ises. Held, that this did not constitute a de- 
 
MUNICIPAL CORH)RATIONS, III. 
 
 305 
 
 fence; that plainliiT was not bound to protect 
 himself from the illegal act of the defendant by 
 remoying or causing the removal of the obstruc- 
 tion, lb. 
 
 70. — for property destroyed to ar- 
 rest conflagration. Where the charter of 
 a city commits to municipal officers the author- 
 ity to determine whether the exigency exists 
 which calls for the exercise of the common law 
 right to destroy private property in order to 
 stay the ravages of a fire, and vests them with 
 the authority to direct its exercise, in the ab- 
 sence of any provision for compensation to the 
 owners of the property thus destroyed, the city 
 incurs no liability. Where a limited provision 
 for indemnity is contained in the charter, one 
 who has suffered loss, from the execution of the 
 power so conferred, must bring himself within 
 the provision in order to have the benefit 
 thereof. — Q. of App., AprU, 1879. People, ex 
 rel. Brisbane, v. Common Council of Buffalo, 76 
 N. Y. 558. 
 
 71. "WTien estopped by offloial acts 
 and admissions. A fact, admitted by a 
 municipal' corporation through its officer duly 
 and properly acting within the scope of his 
 authority, is evidence against it ; and cannot be 
 withdrawn to the prejudice of one who in reli- 
 ance upon it has changed his position in respect 
 to the matter affected thereby.— Ci!. of App., 
 Jan., 1880. CurneU v. Mayor, &c., of New 
 York, 79 N. Y. 511. 
 
 72. The doctrine of estoppel applies in such 
 case to a corporation as well as to an individ- 
 ual, lb. 
 
 73. An assessment-roll is akin to a judg- 
 ment, and if an assessment is erroneously dis- 
 charged of record, its lien cannot be restored so 
 as to affect bonafde purchasers, or others stand- 
 ing in a similar relation, whose transactions 
 were entered into in ignorance of the error and 
 in reliance upon the truth of the record. lb. 
 
 74. Liability for unsafe condition of 
 streets and sidew^alks, generally. An 
 obligation to keep a street in repair requires 
 that it shall be kept in such condition as that 
 the ordinary and expected travel of the locality 
 may pass with reasonable ease and safety ; and 
 where an occasion arises for repair which is of 
 such a nature as warrants delay in making it, 
 the duty to keep in repair carries with it the 
 duty to guard the public against harm from the 
 delay. — Of. of App., Nov., 1878. McMahon ». 
 Second Ave. E. E. Co., 75 N. Y. 231 ; affirming 
 11 Hun 347. 
 
 75. While, as a general rule, a pedestrian 
 has a right to expect that the corporation will 
 have a safe sidewalk, in good repair ; yet, when 
 he knows of a defect, he is bound to use reason- 
 able and proper care to avoid injury therefrom. 
 —Supreme Ct., {2d Dept.,) Sept., 1878. Koch v. 
 Village of Edgewater, 14 Hun 544. Compare 
 Darling v. Mayor, &c., of New York, 18 Id. 340. 
 
 76. Evidence of the condition of a sidewalk 
 two days after the accident upon which the action 
 is founded is competent ; also evidence as to re- 
 pairs made a month prior to the action. — Ot. of 
 App., April, 1877. De Forrest v. City of Utica, 
 69 N. Y. 614. 
 
 77. What questions may be asked the attend- 
 ing physician of the person injured, in such a 
 case, see lb. 
 
 78. That, the mere neglect to remove, before 
 one o'clock p. m., ice which had formed during 
 
 the previous night, is not such negligence as to 
 render the city liable to a foot-passenger injured 
 by a fall thereon, see Blakely v. City of Troy, 
 18 Hun 167. 
 
 79. For injuries occasioned by ex- 
 cavations, obstructions, &c. As to the- 
 liability of a city for the negligence of a gas 
 company, in negligently excavating a ditch in. 
 the street ; the necessity of notice, actual or con- 
 structive, to the city, and what is not sufficient 
 notice, see McDermott v. City of Kingston, 19 
 Hun 198 ; reversing 6 Abb. N. Cas. 246 ; S. C, 
 57 How. Pr. 196. 
 
 80. The officers of a municipal corporation 
 are vested with authority, as commissioners of 
 highways, in regard to the streets within its . 
 limits ; they are agents of the corporation, and 
 it is liable for damages resulting from their 
 failure to keep the streets in a safe condition 
 for public travel. — Ot. of Ami., Nov., 1878. Sewell 
 V. City of Cohoes, 75 N. Y. 45. 
 
 81. Where such officers have treated a piece 
 of laud, within the municipal limits, as a public 
 street, taking charge of, regulating and paving 
 it, the same as other streets, although it has not 
 been legally laid out as a street, the corporation 
 is chargeable with the same duties and subject 
 to the same liabilities as if it had been properly 
 laid out, and in an action against it, for damages 
 sustained by reason of neglect to keep such land 
 in safe condition for travel, it ia estopped from 
 claiming that the land is not a legal highway. 
 lb. 
 
 82. The fact that a bridge over a city street 
 is of sufficient height to allow ordinary car- 
 riages to pass under it does not per se discharge 
 the municipality from liability to one injured 
 while attempting to pass under it in a vehicle 
 of unusual height ; it is for the jury to deter- 
 mine whether, under the circumstances, the 
 vehicle is of such dimensions as is suitable and 
 proper to be used in a city. lb. 
 
 83. A municipal corporation, bound to keep 
 its streets in repair, is only bound to the exer- 
 cise of reasonable skill and diligence in keeping 
 said streets safe and convenient for such use of 
 them as is ordinarily, and as may reasonably 
 be, expected ; it is not bound to keep them in 
 such a condition that damage may not oe caused 
 thereon by horses which have escaped from the 
 control of their drivers, and are running away. 
 —Ct. of App., AprU, 1879. Eing v. City of 
 Cohoes, 77 N. Y. 83, 86. 
 
 84. Where, however, without any feiult on 
 the part of a driver, his horse becomes fright- 
 ened and unmanageable, or runs away, and this, 
 with a culpable defect in the highway, produces 
 an injury, the municipality is liable, provided 
 the injury would not have been sustained but 
 for such defect ; the fact that the horse was at 
 the time beyond the control of the driver is no 
 defence, ib. 88. 
 
 85. Plaintiff was driving a blind horse upon 
 one of defendant's streets ; the horse became 
 frightened and commenced to run ; plaintiff was 
 unable to restrain or to guide him with any pre- 
 cision. The street was thirty feet wide ; a pile 
 of ashes had been negligently allowed to ac- 
 cumulate, extending eleven feet into the street ; 
 a loaded wagon was in the street next to the 
 heap of ashes, leaving a clear roadway "of about 
 twelve feet. In passing the wagon plaintiff's 
 horse ran so near a hydrant at the side of the 
 street that his sleigh struck it, and he was 
 
 20 
 
306 
 
 MUNICIPAL CORPORATIONS, III. 
 
 thrown out and injured. The hydrant was two 
 and a half feet high, with a nozzle about six 
 inches from the top, which projected over the 
 gutter about four inches ; the gutter was twelve, 
 inches wide. Upon the trial of an action to 
 recover damages for the injury, the referee 
 found defendant guilty of negligence in allow- 
 ing the pile of ashes to remain in the street, 
 and in erecting and maintaining the hydrant 
 with its nozzle so projecting, which negligence 
 contributed to the injury. There was no evi- 
 dence that the hydrant was not properly placed. 
 Held, that the finding as to the hydrant was 
 error ; that the liability of the defendant there- 
 for rested entirely upon the obstruction caused 
 by the ashes ; and that, as the referee had not 
 found and it did not appear, that the obstruc- 
 tion caused the accident, or th.at without it the 
 accident would not have happened, a judgment 
 for plaintiff was error, lb. ; reversing 13 Hun 
 76. 
 
 86. Where several proximate causes con- 
 tribute toan accident, and each is an efficient 
 cause, without which the accident would not 
 have happened, it may be attributed to all or 
 any of them ; but it cannot be attributed to a 
 cause, unless without its operation the accident 
 would not have happened. lb. 90. 
 
 87. — by falling a-wming. In an action 
 to recover damages for injuries occasioned by 
 the fall of a wooden awning over a sidewalk 
 upon one of defendant's streets, it appeared that 
 the rafters supporting the awning were fastened 
 to the building by " toe-nailing," i. e., by nails 
 driven obliquely through the ends into the 
 building, having no other support but the nails. 
 Plaintiff's evidence tended to show that this 
 mode of fastening was insecure and' improper, 
 and was patent to anybody looking at it from 
 the sidewalk ; that the tendency of the weight 
 of the awning and of snow upon it was to draw 
 out the nails or break them wlien weakened by 
 rust. The awning was supported on the outer 
 side by posts bedded in the street near the curb- 
 stone, and had stood for nearly seven years. 
 Some months before the accident it had been 
 injured by a fire engine which ran against and 
 displaced one of the beams between two of the 
 supporting posts. This was afterwards repaired. 
 It did not appear that it was weaker at the point 
 where the repairs were made than in other 
 plaOes. A few days before the accident there 
 was a heavy fall of snow which lay two or three 
 feet upon the awning, and was deepest where it 
 gave way, which was at the point where the re- 
 pairs were made. It fell because of the giving 
 way of the nails attacliing it to the building. 
 Held, that the fact that the awning did not fall 
 until after the lapse of seven years was not, as 
 matter of law, conclusive evidence that it was 
 properly constructed, or that its fall was not 
 attributable to its defective support ; that these 
 questions were proper for the jury to deter- 
 mine ; and that the evidence justified a verdict 
 for plaintiff. — Ct. ofApp., Sept., 1878. Hume v. 
 Mayor, &o., of New York, 74 N. Y. 264; re- 
 versing 9 Hun 674. 
 
 88. — by defective condition of 
 dock. Where a municipal corporation is 
 charged with the duty of keeping a dock in a 
 safe condition, and in consequence of a neglect 
 to perform this duty, the horse of one using the 
 <lock in the customary way is lost, without neg- 
 ligence of the driver, the municipality is liable, 
 
 although the horse was, in consequence of sud- 
 den fright or other cause, for the moment be- 
 yond the driver's controL-^Ct. of Am., April, 
 1878. Kennedy v. Mayor, &c., 73 K. Y. 365. 
 
 89. In an action to recover damages for the 
 loss of plaintiff's horse, the complaint alleged 
 in substance, that while plaintiff was engaged 
 in carting brick from a, dock and was backing 
 up his cart to procure a load, " his horse sud- 
 denly became unmanageable and backed off the 
 doc^" and was lost in consequence of defend- 
 ant's negligence in failing to keep a string-piece 
 on the dock ; that if the dock had been secured 
 by a string-piece the accident would not have 
 happened, and that plaintiff and his servants 
 made every effort to prevent the accident, but 
 they were unavailing.* The court on the trial 
 dismissed the complaint on the pleadings and 
 the opening of plaintiff's counsel, on the ground 
 that the unmanageability of the horse, not the 
 defect in the dock, caused the injury, and re- 
 fused to allow plaintiff to go into proof as to 
 the extent to which the horse was unmanage- 
 able. Held, error ; that it was to be assumed in 
 deciding the question that it was the duty of 
 defendant to put a string-piece on the dock, 
 which it had negligently omitted to do, and that 
 there was no negligence on plaintiff's part; 
 that the fact that the horse was for the moment 
 beyond control did not show that it was vicious 
 or unsafe, or that the owner was careless ; and 
 that the absence of the string-piece must be 
 deemed to have been the proximate cause of the 
 injury. lb. 
 
 90. Notice to city of defect. Im- 
 puted notice. Miinicipal authorities owe 
 the duty of active vigilance to keep the streets 
 in repair, and after a street has been out of re- 
 pair for such a length of time that the defect 
 has become known and notorious to those 
 traveling upon it, and there has been full Oppor- 
 tunity for the municipal officers to learn of its 
 existence and repair it, the law imputes notice 
 to the municipality, and charges it with negli- 
 gence. — Ct. of App., March, 1879. Niven v. City 
 of Rochester, 76 N. Y. 61^. 
 
 91. Recovery over against wrong- 
 doer. When a judgment is recovered against 
 and paid by a municipal corporation for injuries 
 caused by an obstruction unlawfully placed by 
 another in one of its streets, or negligently per- 
 mitted to remain there without guar£ or lights, 
 it may recover over against the person charge- 
 able with the unlawful or negligent act, the 
 amount so recovered. — Ct. of App , Jan., 1878. 
 City of Eochester v. Montgomery, 72 N. Y. 65. 
 
 92. Where due notice of the bringing of the 
 action against it is given by the corporation to 
 the wrong-doer, with a claim that he will be 
 held liable to indemnify against any recovery 
 therein, the judgment against it is conclusive in 
 the action by it against him, if it is shown that 
 he unlawfully created or negligently left the ob- 
 struction, both as to the liability of the corpora- 
 tion to the person injured, and as to any matter 
 which might have been urged as a defence, and 
 so, as to contributory negligence on the part of 
 the person injured. lb. 
 
 93. Defendant, while engaged as contractor 
 in erecting a building for plaintiff, obstructed 
 the adjoining street with building material and 
 rubbish, and negligently left the obstructions at 
 night without guards or lights ; in consequence, 
 one McN. in passing through the street was in. 
 
MUNICIPAL CORPORATIONS, III., IV., V. 
 
 307 
 
 jured. The ordinances of the city in force when 
 defendant's contract was made, prohibited the 
 placing of any building materials upon the 
 streets without permission of the proper officers ; 
 they also required all such obstructions to be en- 
 closed with suitable barriers, and to have lights 
 -at each end during the night. Defendant had 
 been notified by the city, before the accident, to 
 remove the obstructions. McN. brought an ac- 
 tion against the city to recover for the injury. 
 ■Of this action defendant had notice, and also 
 ■that he would be held liable. McN. recovered 
 ■a judgment. In an action to recover over the 
 amount of such judgment— ife(d, that defend- 
 ant was liable ; that such liability was not 
 affected by the fact that the building was being 
 erected for plaintiff and on its land. Jb. 
 
 94. Direct action against wrong- 
 ■doer. Where one contracts with a municipal- 
 ity to perform ^n its stead the duty resting upon 
 it of keeping its streets in repair and safe for the 
 passage of the public, and where, because of 
 neglect to perform the duty, a cause of action 
 arises against the municipality, the action may 
 be brought by the party injured directly against 
 ;the contractor. — Ct. of App., Nov., 1878. McMa- 
 ion V. Second Ave. K. E. Co., 75 N. Y. 231. 
 
 rv. MtJNiciPAL Ofpicebs. 
 
 95. Term of ofla.ce. Holding over. 
 
 The question as to whether or not, in the ab- 
 sence of express legislation, a village officer, to 
 be annually elected, will hold over until his suc- 
 cessor qualifies, considered. — Supreme Ct., (2d 
 Bept.,) Dec., 1878. People, ex rel. Faile, v. Fer- 
 ris, 16 Hun 219 ; affinned 76 N. Y. 326. 
 
 96. Po-wers of municipal oflacers, 
 generally. Persons appointed or designated 
 by statute to hold official relations to a munici- 
 pal corporation, and charged with specific trusts 
 and duties in respect to its property and its ap- 
 propriations, must act in conformity with the 
 law which appoints or designates them. They 
 can legally perform no duty other than that en- 
 joined or reasonably implied from the terms of 
 the statute appointing them. — Supi-eme Ct., {Sp. 
 T.,) June, 1877. Mayor, &c., of iSTew York v. 
 Union Ferry Co., 55 How. Pr. 138, 141. 
 
 97. The common council. Public powers 
 or trusts, devolved by law or charter upon the 
 •common council or governing body of a munici- 
 pal corporation, to be exercised by it when and 
 in such maner as it shall judge best, cannot be 
 •delegated by such body to others. — Cl. of App., 
 March, 1878. Birdsall v. Clark, 73 N. Y. 73; 
 reversing 7 Hun 351. 
 
 98. General powers conferred upon a city 
 exist in the common council, save when dele- 
 gated by the charter to some other body or offi- 
 cial, and pei'sons dealing with the corporation, 
 in respect to a matter within the scope of its 
 general powers, need not go behind the doings 
 of the common council, apparently regular, to 
 inquire after preliminary or extrinsic irregular- 
 ities. — Ct. of App., April, 1878. Moore v. Mayor, 
 Ac, of New York, 73 N. Y. 238 ; reversing 4 
 Hun 545, 
 
 99. When a resolution of the common coun- 
 cil of a city appointing to office must be ap- 
 proved by the mayor, see People, ex rel. Ennis, 
 V. Bchroeder, 76 N. Y. 160. 
 
 100. The board of health. The legis- 
 -lature, in the exercise of its constitutional ali- 
 
 thoiity, may confer upon boards of health the 
 power to enact sanitaiy ordinances, having the 
 force of law, within the districts over which 
 their jurisdiction extends. Ordinances designed 
 to prevent the sale of adulterated milk are 
 within the scope of sanitary regulation. — Ct. of 
 App., March, 1878. Polinsky «. People, 73 N. Y. 
 65, 69 ; affirming 11 Hun 390. 
 
 101. That under a statute providing that a 
 board of health shall annually appoint a health 
 physician, a resolution of the board making 
 such appointment, if duly adopted, entitles the 
 appointee to the office for one year, and a reso- 
 lution adopted at a subsequent meeting of the 
 board rescinding such first resolution, although 
 adopted before a delivery of a copy thereof to 
 the appointee, is void, see City of Buffalo v. 
 Mackay, 15 Hun 204. 
 
 V. Decisions op a Local Charactbb, af- 
 fecting A Pakticulab City oe Village 
 
 102. Albany. Laws of 1870, ch. 77, tit. 3, 
 J 12, subd. 29, authorized the common council 
 to make ordinances " in relation to the inspec- 
 tion and sealing of weights and measures, and 
 enforcing the keeping and use of proper weights 
 and measures by vendors." 
 
 Hdd, 1. That only the inspection and sealing 
 of weights and measures used by vendors was 
 meant, and not scales used by defendant at one 
 of its grain elevators. 
 
 2. That as said ? 12 provided for the enforce- 
 ment of the ordinances thereby authorized, by 
 penalties, the common council could not adopt 
 any other mode for their enforcement. — Suprem^- 
 Ct, (3d Bept.,) May, 1879. Hattenbach v. New 
 York Central, &c., E. E. Co,, 18 Hun 129. 
 
 103. An assessment lease executed by the 
 corporate authorities upon a sale made under 
 the city charter of 1828 (Laws of 1828, ch. 1 64, §5 
 4, 5,) is not prima faeie evidence of the regular- 
 ity of the proceedings or the sale ; the act re- 
 quires official action and record evidence of the 
 principal steps preliminary to a sale ; and to 
 sustain it the proceedings must be proved. The 
 clause of said charter declaring that the pur- 
 chaser shall " hold the land against the owner 
 and all persons claiming it," does not obviate the 
 necessity of such proof; and mere lapse of time 
 will not raise a conclusive presumption that the 
 proceedings were regular. — Ct. of App., March, 
 1877. Hilton v. Bender, 69 N. Y. 75 ; reversing 
 2 Hun 1. . 
 
 104. The provision of the act of 1844, 
 amending tjje charter (Laws of 1844, ch. 86,) 
 providing for the appointment of commissioners 
 to assess damages for land taken for streets, etc., 
 is in conflict with the constitutional provision 
 (art. 1, J 7,) providing for the appointment of 
 commissioners in such cases; and proceedings 
 taken under said act are void. lb. 
 
 105. Ballston Spa. The charter of the 
 village construed, and its corporate duties and 
 liabilities in respect to repair and safety of high- 
 ways explained, and — Held, that under the 
 charter want of funds with which to make re- 
 pairs could not be set up in defence, as the trus- 
 tees had power to appoint over.seers, and the lat- 
 ter had power to make an additional assessment 
 in case that made by the trustees proved insuf- 
 ficient to keep the streets in repair (1 Eev. Stat. 
 503, i 8) ; also that an omission to appoint over- 
 
308 
 
 MUNICIPAL CORPORATIONS, V. 
 
 seers did not justify the non-performance of such 
 duty.— a of App., March, 1879. Weed v. Vil- 
 lage of Ballston Spa, 76 N. Y. 329. 
 
 100. Bingliamton. As to the powers of 
 the common council in respect to ordering the 
 superintendent of streets to build and repair 
 sidewalks, see Birdsall v. Clark, 73 N. Y. 73 ; 
 reversing 7 Hun 351. 
 
 lOV. Brooklyn. Validity and construction 
 of the acts of 1868, 1872, 1873 and 1874, rela- 
 tive to certain street improvements in South 
 Brooklyn determined, and the powers and du- 
 ties of commissioners of assessments in proceed- 
 ings thereunder stated. — Ot. of App., June, 1878. 
 Matter of Sackett, &c.. Streets, 74 N. Y. 95. 
 SeCj also, title Bbooklyn. 
 
 108. Cohoes. The provision of the city 
 charter (Laws of 1869, ch. 912, title 13, ? 5,) 
 declaring that " no action against the city on a 
 contract, obligation or liability, express or im- 
 plied, shall be commenced except within one 
 year after the cause of action shall have ac- 
 crued," does not include actions for torts; and 
 so does not apply to an action against the city 
 for damages resulting from negligence in not 
 keeping the sidewalks of the city in proper re- 
 pair.— Ci!. of Amp., Sept., 1878. McGaffin v. City 
 of Cohoes, 74 N. Y. 387 ; affirming 11 Hun 531. 
 
 100. Under the provisions of said charter the 
 declaration and certificate of the common coun- 
 cil, prescribed by g 10, as to the person duly 
 elected, are necessary to complete the elec- 
 tion of a ward officer as well as a general offi- 
 cer of the city, and are indispensable to qualify 
 the candidate to enter upon the duties of his 
 office. Said section applies to aldermen, and 
 until an election is thus completed, and the new 
 board of aldermen thus become duly qualified, 
 the old board continue in office, and are entitled 
 to act in the discharge of any business apper- 
 taining to the office. — Ct. of App., Jan., 1878. 
 People, ex rel. ConliES,i>. North, 72 N. Y. 124, 130. 
 
 110. Deposit. The village charter (Laws of 
 1873, ch. 330, g 5, subd. 18,) authorized the board 
 of trustees "to regulate, restrain or prohibit 
 sales by auction except sales by legal proceed- 
 ings, and t) grant licenses to auctioneers." An 
 ordinance was passed providing that no. person 
 should " oflfer any goods or property for sale by 
 public auction, except residents, unless having a 
 license from the president of the village. Oflie 
 terms of such licenses shall be at the discretion 
 of the president." Sdd, that the ordinance, so 
 far as it prohibited sales without a license, was 
 authorized by the charter, and valid. — Supreme 
 Ct., (3d I)ept.,) Sept., 1879. Village of Deposit 
 V. Pitts, 18 Hun 475. 
 
 HI. Defendant put up goods at a certain price, 
 and if not taken at that price offered them again 
 at a lower price, and so on until they were taken 
 or withdrawn. HM, a sale at auction within 
 the meaning of the charter and ordinance. 76. 
 
 112. Bast Hampton. Efiect of Laws of 
 1852, ch. 139, entitled "An act to incorporate 
 the proprietors of Montauk lands in the town of 
 East Hampton," &c., as to the corporate power 
 of the town over such lands, and the rights of 
 the proprietors thereof, stated.— ySapreme Ci., (2d 
 Dept.,) Dec., 1878. Grinnell v. Maclean, 16 
 Hun 133. 
 
 113. Edgewater. As to the duties of the 
 village trustees in respect to keeping the side- 
 walks in repair, see Koch v. Village of Edge- 
 water, 18 Hun 407. 
 
 114. Gloversville. The provisions of the vil- 
 lage charter passed May 14th, 1873 (Laws of 
 1873, ch. 505,) regulating the granting of licenses 
 for the sale of intoxicati ng liquors, and submitting 
 the question of license or no license to a vote of 
 the electors — Held constitutional, and the pro- 
 vision that actions fur penalties for violation of 
 the excise laws of the village may be properly 
 maintained in the corporate name of the vil- 
 lage, declared valid. — Ct. of App., Sept., 1877. 
 Village of Gloversville v. Howell, 70 N. Y. 287 ; 
 affirming 7 Hun 345 
 
 115. Greenbueh. As to the power of th& 
 common council to pass resolutions respecting: 
 the supplying of materials for grading and pav- 
 ing streets, thereby modifying a contract already 
 made between the village and a contractor to d(v 
 the work, see Parr v. Village of Grreenbush, 72 
 N. Y. 463. 
 
 116. Harlem. The boundary of the village- 
 of Harlem, under a patent issued in 1666, of 
 lands lying in Harlem river, extends to low- 
 water line. — Supreme Ct., {1st i)g)(.,) Dec., 1878. 
 Mayor, &c., of New York v. Hart, 16 Hun 380. 
 
 UY. Kingston. Laws of 1877, ch. 387, §48, 
 directing the recorder to collect from accused 
 persons triable by him, who elect not to be tried 
 and waive examination, all the costs of the pro- 
 ceedings and to commit for five days for non- 
 payment thereof, is constitutional and valid. 
 —Supreme Ct., (3d Dept.,^ Mov., 1878. People, 
 ex rel. Stoadacher, v. Webb, 16 Hun 42. 
 
 118. Long Island Oity. The city charter 
 of 1871 (Laws of 1871, ch. 461, title 6, ? 1,) and 
 act of 1871 (ch. 460, § 6,) construed with refer- 
 ence to the power thereby conferred upon the 
 city to raise money by taxation with which to. 
 pay interest on its water bonds. — Ct. of App., 
 Jam., 1879. People, ex rel. Woolsey, v. Common 
 Council, 76 N.Y. 20. 
 
 119. Under the charter of 1871, in relation 
 to assessments (Laws of 1871, ch. 461, § 6,) giv- 
 ing to the assessors the power and subjecting 
 them to the duties of the assessors of towns, ex- 
 cept as therein provided, all lands in said city, 
 save unoccupied, non-resident lands, must be 
 assessed to the owner or occupant. (1 Eev> 
 Stat. 389, U 1, 2.) Where lands are owned by 
 a person as trustee, they must be assessed to. 
 him, "with the addition to his name of his 
 representative character." It is irregular and 
 unauthorized to make an assessment to an es- 
 tate. — Ct. of App., Nov., 1879. Trowbridge v.. 
 Horan, 78 N. Y. 439. 
 
 120. The charter gives the common council 
 power to regulate the use of streets by vehicles 
 and railways, and to enforce obedience thereto 
 by penalties, with the reservation that it shall 
 have no power to prohibit or control, in any 
 manner, the use of steam power on any railroad 
 from any part of Long Island to the East river ;_ 
 and it is declared that such railroad companies- 
 shall have unobstructed right to run to the East 
 river, " but shall furnish suitable guards or sig- 
 nals at the street crossings." The common 
 council passed an ordinance requiring railroad 
 companies running cars drawn by steam power,, 
 within the city limits, to place flagmen at every 
 crossing ; and for every violation of the ordi- 
 nance imposed a penalty of $50. Defend- 
 ant's road was constructed and in operation 
 before the enactment of the charter. Its road, 
 passed through t^e city to the East river, cross- 
 ing one of the city streets. In an action to re- 
 
MUNICIPAL CORPORATIONS, V. 
 
 309 
 
 •cover a penalty for not placing a flagman at the 
 crossing — Hdd, that plaintiflF was not entitled 
 to recover ; that it had no control over the de- 
 fendant's road, and its common council had no 
 •power to regulate by ordinance the duty imposed 
 "upon defendant to furnish proper guards and 
 signals. — Ot. of App., Jan., 1880. Long Island 
 City V. Long Island E. R. Co., 79 N. Y. 561. 
 
 121. Ne'wburgh. Under the provisions of 
 the act of 1867 {Laws of 1867, ch. 88,) author- 
 izing the common conneilto improve the water 
 works, no power was given to the common coun- 
 ■cil to enter into a lease of premises for the pur- 
 poses specified, where the rent reserved for the 
 term is more than $10,000, without causing a 
 notice to be published and a special election to 
 be held as prescribed by said act. (J 5.) There- 
 fore — Hdd, that a lease so executed was void, 
 and could not be enforced against the city, and 
 this, although the lease was for a long term, and 
 the rent reserved was payable in semi-annual in- 
 stallments, each much less than the sum speci- 
 fied. The whole liability was incurred at the 
 time of the execution of the lease. — Ot.qf App., 
 April, 1879. Smith v. City of Newburgh, 77 N. 
 T. 130. 
 
 122. Defendant's water commissioners, after 
 ■entering into such a lease, made a statement to 
 the conmion council recommending the con- 
 struction of a reservoir " on the property re- 
 •cently leased by the city for that purpose," and 
 submitted an estimate of expense. A resolution 
 was passed by the common council directing a 
 special election for the purpose of voting on the 
 subject. A notice of such election specifying 
 .the items of expense was published ; the items 
 ■did not include the rent, and nothing was stated 
 in the notice in regard to the lease. Hdd, that 
 a vote authorizing the construction of the reser- 
 voir did not ratify or validate the lease. I b. 
 
 123. By the city charter a marshal of the po- 
 lice force is to be appointed, to hold office until 
 removed for incapacity, misbehavior or neglect 
 •of duty. The relator was removed on the 
 «harge that before his appointment he had been 
 a collector of taxes of the city and had failed to 
 account for and pay over money collected by 
 Jbim. Hdd, that this did not show incapacity, 
 misbehavior or neglect of duty so as to justify 
 iis removal. — Supreme Ct., (2d Dept.,) Sept., 
 1878. People, ex rel. Bancroft, ». Weigant, 14 
 Hun 546. 
 
 124. The charter providing that " the mar- 
 shal shall possess the powers and authority of a 
 constable at common law," and that " he shall 
 also perform such duties as shall be prescribed 
 iythe common council," and that " he shall re- 
 ceive no fee for any services, but shall be allowed 
 a compensation to be fixed by the council," only 
 prevents his receiving fees for services which are 
 a charge against the city, and not for those which 
 are county charges. — Supreme Ct., {2d Dept.,) 
 May, 1879. People, ex rel. Bancroft, v. Supervi- 
 -sors, 18 Hun 19. 
 
 125. Poug'hkeepsie. Powers and duties 
 the water commissioners, under Laws of 1867, ch. 
 533, I 6, subd. 2, in respect to awarding contracts 
 forhuilding a reservoir, advertising for propo- 
 sals, &c, explained. — Ct. of App., Nov., 1878. 
 Dickinson ». City of Poughkeepsie, 75 N. Y. 65 ; 
 ■affirming 7 Hun 1. 
 
 126.'Portchester. Commissioners of esti- 
 inateand assessment appointed under the vil- 
 Jage charter, (Laws of 1868, ch. 818,) to apportion 
 
 and assess the expense of a local improvement, 
 instead of taking the oath " faithfully and fully 
 to discharge the duties " required by the charter 
 to be taken before they were .authorized to act, 
 each took an oath that he would perform the 
 duties " to the best of his ability." In an action 
 brought to restrain the collection of the assess- 
 ment — Hdd, that the failure to take the pre- 
 scribed oath rendered the proceedings illegal. — 
 Ct. of App., Nov., 1877. Merritt v. Village of 
 Portchester, 71 N. Y. 309. _ 
 
 127. Said charter requires the commission- 
 ers, after making their estimate and assessment, 
 to publish a notice of the time and place when 
 and where parties can be heard, and after a hear- 
 ing, to complete their report to the trustees. 
 The commissioners gave notice of the filing of 
 the estimate and assessment, and of a time and 
 place where and when they would meet, and that 
 "all persons feeling themselves aggrieved must 
 present tlieir objections in writing." Held, that 
 the commissioners exceeded their jurisdiction in 
 thus restricting the parties. lb. 
 
 128. Port Jervis. On trial before the po- 
 lice justice for violation of an ordinance of the 
 village, pursuant to the charter (Laws of 1873, ch. 
 370, 1 40,) the defendant is entitled to a jury, as 
 on a trial before a justice of the peace. — Ct. of 
 App., Jan., 1879. People ex. rel. Dargin v. Cox, 
 76 N. Y. 47 ; affirming 9 Hun 146. 
 
 129. Rochester. Section 212 of the city 
 charter which provides that "it shall, in all 
 cases, be the duty of the owner of every lot or 
 piece of land in said city to keep the sidewalk 
 adjoining his lot or piece of land in good repair, 
 and to remove or clean away all snow or ice, and 
 other obstructions from such sidewalk," and that 
 if the lot-owner, after notice, fails to repair his 
 sidewalk, the city may do it at his expense. — 
 Held, not to give the city the fright to presume 
 that the lot-owner has done his duty, and thus 
 relieve the city from liability to one injured by 
 reason of a defect in the sidewalk. — Ct. of App., 
 March, 1879. Niven v. City of Eochester, 76 Jf . 
 Y. 619, 621. 
 
 130. A further claim was made, that the city 
 was exempt from liability, because, by Laws of 
 1872, ch. 771, commissioners of public works are 
 required to be appointed, who are constituted 
 commissioners of highways, and given charge of 
 all the streets in the city. Hdd, that this didnot 
 affect defendant's liability ; that such commis- 
 sioners are city officers appointed by the mayor, 
 and are the agents of the city, in the discharge 
 of their duties ; and the city remains responsible 
 for the streets, just as it did before, and for pre- 
 cisely the same reasons. lb. 
 
 131. As to the powers of the police justice of 
 the city, under the charter, respecting the com- 
 mitment of persons for violating city ordinances, 
 see Merkee v. City of Rochester, 13 Hun 157. 
 
 132. Saratoga Springs. The provision 
 of the state constitution declaring that municipal 
 officers whose election or appointment is not pro- 
 vided for therein, shall be elected by the electors 
 of the municipality (art. 10, ^ 2,) does not pro- 
 hibit the legislature from appointing commis- 
 sioners for the purpose of widening a designated 
 highway in a village by proceedings diflerent 
 from those which can be taken by commissioners 
 of highways under the general laws of the state. 
 The provision, therefore, of the act providing for 
 " laying out and improving roads and avenues in 
 the village and town of Saratoga Springs," (Laws 
 
310 
 
 MUNICIPAL CORPORATIONS, V . 
 
 of 1870, ch 623j) which creates avenue commis- 
 sioners, and the acts amendatory thereof, (Laws of 
 1871, ch. 674, and Laws of 1872, ch. 500,) so far as 
 they relate to the widening of Union avenue, are 
 not in conflict with said constitutional provision. 
 — Ct. of App., April, 1877. People, ex. rel. Kil-. 
 mer, v. McDonald, 69 N. Y. 362 ; affirming 4 Hun 
 187. 
 
 133. Under the provisions of the act of 1875, 
 (Laws of 1875, ch. 517,) providing "for the set- 
 tlement of the floating debt of the village of 
 Saratoga Springs," etc., before one holding 
 a claim audited by the auditors appointed 
 under said act as part of the floating debt of the 
 village, can enforce or demand payment thereof, 
 he must produce to the receiver of laxes either 
 a warrant from a majority of the board of trus- 
 tees, or one from the auditors. — Ot. of App., Dee., 
 1877. People, ex rel. Ctooke, v. Wood, 71 N. Y. 
 371. 
 
 134. If the former, it must specify the fund 
 from which payment is to be made ; and in 
 either case it cannot be paid, unless there is 
 money of the fund provided for the payment of 
 such claims, {. e., the avails of the bonds au- 
 thorized to be issued by the act. lb. 
 
 135. The minutes of the meeting, and pro- 
 ceedings of the board of auditors showing the 
 audit of the claim, or an authenticated copy 
 thereof, is not a sufficient warrant to authorize 
 the receiver of taxes to make payment. lb. 
 
 136. Syracuse. An ordinance prohibiting 
 any person from peddling or delivering milk in 
 any of the public squares, streets or alleys of the 
 city without a license from the mayor, is valid, 
 and the common council may authorize the 
 mayor, within certain limits, to tix the license 
 fees. — Swpreme Ct., (ilk Dept.,) Jan., 1880. Peo- 
 ple, ex rel. Larrabee, v. MulhoUand, 19 Hun 548. 
 
 13*7. As to the powers of the common council 
 in respect to passing ordinances concerning the 
 weight to be carried on vehicles in the public 
 streets, see People v. James, 16 Hun 426. 
 
 138. As to the right of trial by jury in the 
 court of the police justice acting as a Court of 
 Special Sessions, see lb. 
 
 139. As to the right of a land-owner to ap- 
 peal from the report of commissioners appointed 
 to ascertain damages to owners of lands taken 
 for street purposes, and the effect of his omis- 
 sion to appeal within ten days after the filing 
 of their report, see People, ex rel. Gaslight 
 Co., V. Common Council, 78 N. Y. 56. 
 
 140. Troy. The provision of the charter 
 making it the duty of the chamberlain to cause 
 to be published in two daily papers a list of the 
 real estate on which city taxes and assessments 
 remain unpaid, and a notice of sale, etc., was 
 intended to cover the whole subject of such ad- 
 vertisement ; no duty of advertising in the cases 
 specified is imposed upon the common council, 
 and they are unauthorized to incur any expense 
 for that purpose. — Ct. of App., Sept., 1878. 
 Francis v. City of Troy, 74 N. Y. 338 ; reversing 
 10 Hun 515. 
 
 141. Plaintiffs were the publishers of a 
 'ally newspaper in the city of Troy, which was 
 aesignated by the common council as one of the 
 four official papers. The cx)mmon council 
 passed an ordinance that all advertisements and 
 
 official notices emanating from the chamberlaio 
 should be published in all the official papers. 
 The chamberlain caused said list to be pub- 
 lished in two daily papers, but not in plaintiffs'. 
 Plaintiffs, however, published it. In an action 
 to recover for such publication — Held, that the^ 
 city was not liable, lb. 
 
 _ 142. As to the power of the police commis- 
 sioners to remove members of the force, the 
 necessity of written charges, and a public hear- 
 ing and examination, on notice, before the- 
 board, see People, ex rel. Seery, v. Police Com- 
 missioners, 55 How. Pr. 454. 
 
 143. What is a sufficient compliance with 
 the provision of the city charter, that no action 
 shall be brought against the city " by any per- 
 son for injuries to perspn or property, unless it 
 appears that the claim for which the action was- 
 brought was presented to -the comptroller, with 
 an abstract of the facts out of which the cause^ 
 of action arose, duly verified by the claimant,, 
 and that the comptroller did not, within sixty 
 days thereafter, audit the same," see Minick v.. 
 City of Troy, 19 Him 253. 
 
 144. As to the power of the board of educa- 
 tion to employ coimsel, and when the city is not 
 liable for the compensation of counsel employed 
 by the board, see Johnson v. City of Troy, 19- 
 Hun 204. 
 
 145. tJtlca. The board of charities have 
 no authority to adopt a resolution authorizing,, 
 in advance, the clerk to commence and carry 
 on, in the name of the board, any and all pros- 
 ecutions in cases of alleged bastardy, without 
 further order of the board. — Supreme Ct., (4<A- 
 Dept.,) Get., 1878. People, ex rel. Board of 
 Charities, v. Davis, 15 Hun 209. 
 
 146. Under the city charter the city is to be 
 regarded as a town, within the provisions of the- 
 Kevised Statutes relating to the dividing of a. 
 road running between two towns into districts, 
 and requiring each town to maintain and keep 
 in repair the portion assigned to it. — Supreme 
 Ct., (4«A Dept.,) Jan., 1879. Jones v. City of 
 Utica, 16 Hun 441. 
 
 147. The city charter (Laws of 1862, ch. 18, § 
 108,) construed as respects the levying and col- 
 lection of assessments for the construction and 
 repair of sewers. — Supreme Ct., (Sp. T.,y 
 Nov., 1879. People, ex rel. Kerber, v. City of 
 Utica, 58 How. Pr. 136 ; S. C, 7 Abb. N. Cas. 
 414. 
 
 148. Yonkers. The common council, in 
 acting as commis-sioners of highways, under 
 Laws df 1841, ch. 225, as amended by Laws of 
 1857, oh. 383, act not as agents of the city, but as 
 independent public officers. The dividing line 
 between the city and the town of East Chester 
 is the middle line of the Bronx river. — Supreme 
 Ct., (2d Dept.,) May, 1880. Theall v. City of 
 Yonkers, 21 Hun 265. 
 
 For decisions of a local character applicable- 
 to the City of New York, see New Yobk City- 
 
 MURDER. 
 
 Homicide, I. 
 
NAVIGATION.— NEGLIGENCE, I. 
 
 311 
 
 N 
 
 NATIONAL BANKS. 
 
 Banes and Banking 
 
 NATURALIZATION. 
 Citizens, 2-8. 
 
 NAVIGATION. 
 
 1. Harbor regulations. The regulations 
 of the harbor masters of New York harbor, 
 providing that no vessel shall anchor within 
 certain prescribed limits, does not apply to small 
 sail or row-boats. So, also, the provision of the 
 Kevised Statutes (1 Kev. Stat, 685, § 12,) requir- 
 ing the master of a vessel at anchor in tlie night- 
 time to cause a light to be shown in her rigging,- 
 at least twenty feet above her deck and from her 
 taflrail, does not apply to a small open undecked 
 sail-boat, having no rigging twenty feet above 
 the place where the deck would be, if it had 
 one. — Ct. of App., June, 1877. Lambert v. Sta- 
 ten Island R. E. Co., 10 N. Y. 104, 110. 
 
 2. Obstruotions. That the East river 
 bridge, having been constructed in accordance 
 with the requirements of law, is not an obstruc- 
 tion to navigation, see People, ex rel. Murphy, 
 V. Kelly, 76 N. Y. 475. 
 
 NECESSARIES. 
 
 Husband and Wipe, 15-24. 
 Parent and Child, 1, 2. 
 
 NEGLIGENCE. 
 
 I. What Amounts to NEaLiGENCE, and 
 THE Liability thebefob. 
 
 IL CONTBIBUTOBY NeGLIGENCE. 
 
 L What Amounts to Negligence, and 
 THE Liability thebefob. 
 
 1. The standard of care requirea to 
 establish the absence of negligence is that 
 which, as experience teaches us, men of ordi- 
 nary caution and prudence would exercise under 
 similar circumstances. The jury are not to 
 weigh a man's faculties and see how smart he 
 was, how bright, how attentive, and say whether 
 or not, as a matter of fact, he was as prudent as 
 he could be by nature. — Superior Ot., Nov., 1876. 
 Adolph V. Central Park, &c., K. R. Co., 43 Su- 
 perior 199 ; affirmed 76 N. Y. 530. 
 
 2. Who is liable for negligence. Asa 
 general rule, whenever one has suffered injury 
 from the negligenoe of an administrative officer, 
 who therein acts contrary to or neglects to act 
 in accordance with his official duty, an action 
 
 lies on behalf of him injured. And such an 
 officer is also liable for the misconduct or negli- 
 gence, in the scope of their employment, of those 
 employed by or under him, voluntarily or pri- 
 vately, and paid by or responsible to him. — Ol. 
 of App., Nov , 1878. Bassett v. Fish, 75 N. Y. 
 303, 310. 
 
 3. It is the duty, as well as the right, of a 
 person whose property is endangered by the 
 negligence of another, to do what he reasonably 
 can to save and protect it ; he cannot stand still 
 and omit such care as he can reasonably and 
 prudently take, and thus suffer a loss and cast it 
 upon another. If, therefore, while exercising 
 such care he is injured, the person guilty of the 
 negligence is liable. — Ct. of App., April, 187H. 
 Eexter«. Starin, 73 N. Y. 601. 
 
 4. As to the liability of a bridge company for 
 the negligence of its servants in removing a 
 ferry-boat which had drifted down upon, and 
 partly under their bridge, whereby the boat was 
 damaged and sunk, see Mark v. Hudson River 
 Bridge Co., 56 How. Pr. 108. 
 
 5. Who is not. Defendants, or the firms 
 of which some of them were members, severally, 
 cut and placed on the ice in the E. river saw- 
 logs, to be floated down the river to their respect- 
 ive mills (luring the high water in the spring. 
 They or their firms, severally, entered into a 
 written contract with S. & D., by which the 
 latter agreed to take tlie logs, drive them down 
 and put them in the booms of the respective 
 owners. Other parties also placed logs in the 
 river to be floated down, ami employed servants 
 to dryre them. The logs of all the parties, 
 mingled together, were driven down, and in con- 
 sequence of the negligence of those driving them, 
 a large number lodged and formed a jam against 
 plaintiff's bridge, by which it was carried away 
 and destroyed. It did not appear whose logs in 
 particular did the injury. In an action to 
 recover the damages — Held, that S. & D. did not 
 stand in the relation of servants to the defend- 
 ants, but were contractors exercising an inde- 
 pendent employment ; and that defendants were 
 not answerable for tlieir negligence ; also, that, 
 in the absence of findings to that effect, it could 
 not be held that the undertaking in itself was 
 dangerous to third parties. — Ct. of App., Jam,., 
 1878. Town of Pierrepont ». Loveless, 72 N. 
 Y. 211. 
 
 6. It appeared that it had been customary to 
 float logs down the river for thirty years, and 
 that the legislature had recognized such use of 
 it as lawful, by making appropriations for im- 
 proving it for that purpose, and tliat an act was 
 passed making it a public highway for the 
 purpose of floating logs and lumber. JIdd, that 
 the defendants' undertaking was not unlawful; 
 also that plaintiff could not raise the objection 
 that the latter act was unconstitutional, because 
 no provision was made to compensate riparian 
 owners ; that the owners alone could set up this 
 defect when their rights were interfered with. 
 Ih. 216. 
 
 7. Wliat amounts to negligence, gen- 
 erally. The anchoring of a sail-boat in New 
 York harbor with a light set, on a night not 
 dark, and when a light can be seen for miles, at 
 
312 
 
 NEGLIGENCE, I. 
 
 a pl^ce known by those in charge to be in the 
 cuBtomary track of a ferry-boat, is not negligence 
 per se. — Ct. of App., June, 1877. Lambert v. 
 Staten Island K. K. Co., 70 N. Y. 104, 109. 
 
 8. In an action to recover damages for injuries 
 sustained by plaintiff, in consequence of falling 
 from a piazza or wooden awning in front of de- 
 fendant's inn, plaintiff's evidence tended to show 
 that in the third story of the inn was a hall, 
 which was let by defendant for public purposes ; 
 it was reached by two. flights of steps, one di- 
 rectly over the other ; the entrance from the 
 street was by a door opposite the foot of the 
 lower flight of stairs ; a door in the second story, 
 which occupied the same relative position to 
 the upper stairs, opened upon the awning. De- 
 fendant let the hall for a dance, to which all who 
 applied were admitted on payment of the 
 entrance fee. Plaintiff paid the fee and was 
 admitted. When he left to go home, after 
 passing down the upper flight of stairs, he went 
 out of the door opening oh the awning, supposing 
 it was the street door, walked off from the awning, 
 to which there was no railing or guard, fell to 
 the ground and was- injured. The night was 
 dark, and the door was open when plaintiff came 
 from the hall. Defendant understood the danger 
 of leaving the door open. Defendant's evidence 
 tended to show that plaintiff was somewhat 
 under the influence of liquor. Held, that by 
 letting his hall for public purposes, defendant 
 held out to the public that it was safe ; and he 
 was bound to exercise proper care in providing 
 safe arrangements for entrance and departure to 
 those invited to the hall ; and that the question 
 whether there was a breach of this duty, and 
 also the question whether plaintiff was in such 
 a state of intoxication that it contributed to the 
 injury, were properly submitted to th« jury. 
 —Gt. of App., Jan., 1879. Camp v. Wood, 76 
 N. Y. 92. 
 
 O. Excavations in streets. Plaintiff, on 
 the evening of May 7th, 1872, while driving along 
 one of defendant's streets, drove into a trench 
 and was injured. The trench had been dug 
 before May 1st by the owner of a lot adjoining 
 the street, without permission of the village au- 
 thorities. The excavation was left with slabs 
 laid across it, with boxes and a barrel thereon, 
 and sometimes a light was placed there. The 
 night of the accident was dark ; the street lamps 
 were not lighted, and there was no light at the 
 excavation. The street was the principal 
 thoroughfare of the village. Several of the vil- 
 lage trustees had knowledge of the excavation 
 some days before the accident. Plaintiff was 
 familiar with the street, and had seen the exca- 
 vation several times prior to the accident. HM, 
 that the facts justified findings, charging defend- 
 ant with notice of the existence of the excavation, 
 and with negligence in not abating the nuisance, 
 or so guarding it as to prevent accident ; also, 
 that the question of contributory negligence was 
 one of fact. — Ct. of App., March, 1879. Weeds. 
 Village of Ballston Spa., 76, N. Y. 329. 
 
 10. Bridges over streets. Some years 
 prior to August 15th, 1874, defendant had appro- 
 priated, n strip of land within its limits as a 
 street, had graded, paved and laid sidewalks 
 thereon, and it was used as a public street. Over 
 this land and about ten feet above it was a tram- 
 way or bridge erected and used by private indi- 
 viduals. On the day specified, plaintiff, who 
 was driving a team of six horses attached to a 
 
 wagon of unusual dimensions containing lions 
 belonging to a circus company, turned into such 
 street from another. After the leading horses 
 turned the comer plaintiff did not look to the 
 front, but was looking to the rear to see if the 
 hind wheels of the wagon cleared the corner, 
 and so did not perceive the bridge until the 
 second pair of horses were passing under it ; he 
 then tried to stop the horses, but before he could 
 do so he was struck by the bridge and injured. 
 In an action to recover damages for the injury — 
 Seld, 1. That the question of negligence on 
 the part of defendant and of contributory negli- 
 gence on the part of plaintiff were questions of 
 fact for the jury. 
 
 2. That the question whether plaintift's em- 
 ployers should have provided an additional man, 
 considering the character of the vehicle and 
 team, was for the jury. 
 
 3. That it was competent for plaintiff to 
 prove resolutions of defendant's common council 
 as to grading and paving the strip of land in 
 question, and a- resolution passed soon after the 
 accident, directing the removal of the bridge, 
 and that the same was removed, as tending to 
 show that defendant exercised authority and 
 control over the strip of land. — Ct. of App., Nov., 
 
 1878. Sewell v. City of Cohoes, 75 N. Y. 45; 
 affirming 11 Hun 626. 
 
 11. The burden of proof in cases in- 
 volving negligence. An action is main- 
 tainable against the owner of a powder magazine 
 which exiplodes, to the injury of an adjoining 
 dwelling, without showing negligence on the 
 part of defendant. — Ct. of App., May, 1880. 
 Heeg V. Licht, 8 Abb. N. Cas. 355 ; reoersing 16 
 Hun 257. 
 
 12. The fact that the explosion took place 
 without apparent cause, tends to show that the 
 magazine was dangerous, and liable to injure 
 neighboring property. lb. 
 
 13. Evidence to prove negligence. 
 In an action against a railroad company, the 
 presence or absence of a flagman at a crossing at 
 the time of an accident to a person crossing 
 the track, are facta relevant to the issue upon 
 the question of negligence ; and the fact of the 
 absence of a flagman at the time of the accident 
 taken together with the fact that a flagman had 
 been stationed there prior to the accident, may 
 be shown as tending to prove negligence. — Chm. 
 Pleas, Feb., 1879. Casey v. New York Central, &c., 
 E. E. Co., 6 Abb. N. Cas. 104 ; S. C, 8 Daly 220. 
 
 14. In an action founded upon alleged negli- 
 gence in blasting rocks within the limits of a 
 city, evidence that such blasting was not done 
 in accordance with the ordinances of the city 
 relative to blasting, is admissible on the question 
 of defendant's negligence.— ^ Com. Pleas, April, 
 
 1879. Koster v. Noonan, 8 Daly 231. 
 
 15. In an action to recover damages for the 
 loss of plaintiff's ice-house, alleged to have been 
 set on fire through defendant's negligence, plain- 
 tiffs' evidence tended to show that defendant 
 erected a small house for a switchman nearly 
 opposite the cantre of the ice-house, which latter 
 was a long, wdoden building near and parallel 
 to defendant's road ; a wood stove was placed in 
 the switch-house, the pipe from which went 
 straight up through the roof, and was about 
 fifteen feet distant from the ice-house ; sparks of 
 considerable size were emitted from the phie 
 before and after the fire. On the day of the fire 
 a strong wind was blowing from the directiou 
 
NEGLIGENCE, I., II. 
 
 313 
 
 ■of the switch-house towards the ice-house ; the 
 latter took fire just opposite the switch-house ; 
 and while the fire was in progress sparks were 
 seen flying from the stove-pipe to the burning 
 building at the spot where the fire first took ; 
 this was the first windy day after the erection of 
 the switch-house. On the part of defendant, 
 evidence was given to the efiect that engines 
 burning wood were constantly passing on its 
 track about eighteen feet distant from the ice- 
 house, but they had so passed for five years 
 without doing injury. 
 
 Hdd, 1. That the evidence was sufficient to 
 authorize' a finding that the fire took from sparks 
 from the switch-house, and that defendant was 
 negligent, in the use of the stove. 
 
 2. That a municipal ordinance prohibiting 
 the putting up of a pipe to any stove, unless con- 
 ■ducted into a brick or stone chimney, without 
 written consent of the superintendent of fire, was 
 competent evidence and proper to be considered 
 upon the question of negligence — the testimony 
 bemg such as to permit an inference that its vio- 
 lation contributed to the injury. — Ct. of App., 
 Jan., 1878. Briggs ti. New York Central, &c., 
 E. K. Ck)., 72 N. Y. 26. 
 
 16. The violation of the ordinance in such 
 case is not evidence of negligence, which would 
 of itself render the defendant liable where it ap- 
 pears that it did not contribute to the injury, or 
 where it could not reasonably be inferred that it 
 did. lb. 
 
 17. wnen the guestlon of neg'lig'ence 
 is for the jviry. The act of a canal boatman, in 
 lielping to discharge ore from a vessel, in going 
 partly under the iron tub in which the ore was 
 being hoisted, while pushing it in the manner 
 Customary in such work, is not per se contribu- 
 tory negligence, but the question is for the jury. 
 And there being some evidence that the rope by 
 which the tub was stispended was unsafe, the 
 ■question of defendant's negligence is for the jury 
 alao.^SMpreme 01., {Ist Dept.,) JvXy, 1880. Der- 
 renbecker v. Lehigh Valley K. E. Co., 59 How. 
 Pr. 283. 
 
 18. Proper ins'tructions ■to the jury. 
 In an action to recover damages for injuries to 
 plaintifl^'s canal boat, alleged to have been 
 caused by defendant's negligence, plaintiff 
 claimed, and his evidence tended to show, that 
 two of defendant's tug-boats, in consequence of 
 being improperly moored and fastened to a 
 wharf, broke loose in the night time and drifted 
 ■down upon plaintiff's boat, doing the damage 
 complained of Defendant's evidence tended to 
 ■show that its tugs did not in fact strike plain- 
 tiff's boat, and it was claimed that if they did, 
 they were broken from tlieir moorings by float- 
 ing ice, without negligence on the part of de- 
 fendant. After the court had charged that de- 
 fendant was liable only for negligence, and that 
 if the jiiry found that the tugs did come down 
 •on the boat, they must further inquire if there 
 was negligence in making them fast, it charged 
 that, if the tugs became loosened from their 
 moorings and came down on plaintiff's boat, 
 defendant was chargeable with this negliglenoe. 
 This was excepted to! SM, no error ; that the 
 intent was, not to charge that the mere fact that 
 
 ""the tugs became loosened and came in contact 
 ■with plaintiff 's boat was sufficient to establish 
 negligence, but simply that if the jury found 
 rsuch "feet, then defendant was chargeable, pro- 
 vided they found it guilty of negligence in moor- 
 
 ing the tugs. — Ct. of App., Jan., 1878. Carpen- 
 ter V. Eastern Trans. Co., 71 :S. Y. 574. 
 
 1&. Subsequently, at the request of defend- 
 ant's counsel, the court charged that if defend- 
 ant's tugs came down against plaintiff's boat and 
 were forced to do so by pressure of ice, which 
 could not havjB been avoided by the exercise of 
 care and prudence, there could be no recovery. 
 Hdd, that if there could have been any possible 
 misunderstanding on the part of the jury of the 
 portion of the charge excepted to, it was re- 
 moved. Ih. 
 
 II. CONTEIBIITOKY NeGUGENCB. 
 
 20. Care required from person In 
 peril. "Where one is placed by the negligent 
 acts of another in such a position that he is com- 
 pelled to choose upon the instant, and in the 
 face of apparently grave and impending peril, 
 between two hazards, and he makes such a 
 choice as a person of ordinary prudence placed 
 in the same situation might make, and injury 
 results thereform, the fact that if he had chosen 
 the other hazard he would have escaped in- 
 jury does not prove contributory negligence. — 
 Ot. of App., March, liilT. Twomley v. Central 
 Park, &o., E. E. Co., 69 N. Y. 158. S. P., Nm., 
 1878. Voak v. Northern Central Ey. Co., 75 
 N. Y. 320. Supreme Ct., {Sd Dept.,) Nm., 1878. 
 EoU V: Northern Central Ey. Co., 15 Hun 
 496 ; Cuyler v. Decker, 20 Id. 173. 
 
 21. What will not amount to contri- 
 butory negligence, generally. The mere 
 fact that there is ice upon a city sidewalk does 
 not necessarily establish that it is dangerous ; 
 and that one having knowledge thereof at- 
 tempts to walk over it in the night time, does 
 not establish negligence on his part ; he is simply 
 bound to exercise such care and caution as a 
 person of ordinary prudence would exercise 
 under the circumstances: — Ct. of App., March, 
 1877. Evans v. City of Utica, 69 N. Y. 166. 
 
 22. It is not, under all circumstances, negli- 
 gence, as it matter of law, for a person to get 
 upon a street car while in motion. In excep- 
 tional cases, where the conditions are unfavor- 
 able, it may be so, but ordinarily, it is a ques- 
 tion of fact for the jury.— C*. of App., April, 
 1877. Eppendorf v. Brooklyn City, &c., E. E. 
 Co., 69 N. Y. 195. 
 
 23. In an action by a school teacher against 
 a school board, for injuries received by reason 
 of want of repair of the school-house, the neg- 
 ligence complained of was the omission to re- 
 pair the floor in a passage-way in one of the 
 school-rooms. There was a hole in the floor 
 about twelve by six inches, into which plaintiff, 
 a teacher in the school, stepped and was injured. 
 Plaintiff testified that she saw the hole about 
 three weeks prior to the accident ; during the 
 interval she was engaged in another room in the 
 building. Held, that plaintiff's prior knowledge 
 did not constitute contributory negligence ; that 
 she had a right to suppose that, after so long an 
 interval, repairs had been made. — Ot. of Apip., 
 Nov., 1878. Bassett v. Fish, 75 N. Y. 303. 
 
 24. There was testimony that the hole when 
 uncovered was plainly in sight to any one in the 
 passage-way, but that a portion of the time the 
 tom-off cover of a dictionary was laid over it. 
 Plaintiff was engaged in her duties as teacher, 
 with her eyes upon her scholars andtheirbooks, 
 and was in the act of turning from a pupil when 
 
314 
 
 NEGLIGEJiCE, II.— NEW TRIAL, I. 
 
 she fell. Held, that having her eyes and thoughts 
 60 occupied, and thus not observing the defect 
 was not per se negligence. lb. 
 
 25. The break in the floor had been there for 
 three months, and it was inferable that it was 
 due to natural wear and tear ; two unsuccessful 
 attempts had been made to repair it. The floor 
 of the room was baiily out of repair; this was 
 known to the members of the board, and repairs 
 had. been proposed by that body. Held, that 
 the evidence authorized a finding that the pass- 
 age-way was negligently out of repair. lb. 
 
 26. — on part of a blind person. The 
 presence in a public place of a blind man is not 
 conclusive proof of negligence on his part, still 
 less on the part of a female who accompanies 
 him and who relies upon liim for the exercise 
 of his othej faculties, she using her own faculty 
 of sight to intelligently direct his strength and 
 skill.— Ci! ofApp., Nov., 1878. Harris v. Uebel- 
 hoer, 75 N. Y. 169. 
 
 27. Where a blind man, so accompanied, 
 passing along a public way where he has often 
 safely passed before under the same guidance, is 
 injured by some obstacle newly placed there, or 
 by some person negligently running against him, 
 the mere fact of his being in the public way is 
 not, as a matter of law, contributory negligence. 
 It is for the jury to determine whether he used 
 a degree of care commensurate with all the cir- 
 cumstances, including his lack of vision. lb. 
 
 28. WTien a question for the jury. 
 In an action for negligence, to justify a non-suit 
 on the ground of contributory negligence, the 
 undisputed facts must show the omission or com- 
 mission of some act which the law adjudges 
 negligence; the negligence must appear so 
 clearly that no construction of the evidence or 
 inference drawn from the facts will warrant a 
 contrary conclusion. — Ct. of App., Jan., 1880. 
 Stackus V. New York Central, &c., E. K. Co., 79 
 N. Y. 465. 
 
 For decisions upon the lAahility of carriers, 
 for negligence, see Carriers; Express Com- 
 panies; KAILROAD CoMPANtES, IV. 
 
 As to negligence of Oily and town authorities, 
 see MiTNiciPAi. Cosporations, 59-94, 
 
 For the liability of Master to servant, for neg- 
 ligence of the former, or of fellow servant, see 
 Master and Servant, 9-24; Railroad 
 Companies, 125-134. 
 
 NEGOTIABLE INSTRUMENTS. 
 
 Bills op Exchange ; Promissory Notes. 
 
 NEWBURGH. 
 
 Municipal Corporations, 121-124. 
 
 NEWLY-DISCOVERED EVIDENCE. 
 New Trial, 15-20. 
 
 NEW PROMISE. 
 
 Limitations of Actions, V. 
 
 NEW TRIAL. 
 
 I. GROtTNDS. 
 
 II. The Application; and how Di3posei> 
 
 OP. 
 
 III. New Trials in Criminal Cases. 
 
 I. Grounds. 
 
 1. In general. In an action by a wife,, 
 under the " civil damage act," a verdict for the 
 defendant will not be disturbed except for som& 
 misdirection to the jury or error of law commit- 
 ted on the trial.— Supreme Ct., (Oir.,) April, 1879. 
 Decker v. Stauring, 57 How. Pr. 495. 
 
 2. Conviction for perjury is necessary before 
 a motion for a new trial will be granted on the 
 ground of perjury by a witqess of the successful 
 party. Voluntary confession of his perjury, and 
 an affidavit of the witness to that efl^ect, does not 
 make an exception to this rule, especially where 
 one of the unsuccessful parties made admissions 
 on the trial to about the same effect as the testi- 
 mony of the witness sought to be falsified. — Su- 
 perior Ol-, Nov., 1878. Holtz v. Schmidt, 44 Su- 
 perior 327. 
 
 3. Upon what grounds a motion for a new 
 trial on the minutes of the judge may be made, 
 see Eobson v. New York Central, &c., R. R. Co., 
 21 Hun 387. 
 
 4. Irregularity in impaneling the jury. 
 A verdict will be set aside, where a person whose 
 name is not on the panel answers to the name of 
 a juror not in attendance and serves on the jury. 
 Such a verdict is the verdict of eleven men only. 
 —aiy Ct.of Brooyyn,(Sp. T.,) Nov., 1879. Day- 
 ton v. Church, 7 Abb. N. Cas. 367. 
 
 5. Admission of improper evidence- 
 As to when the admission of evidence which wa» 
 proper at the time it was given, but becomes 
 irrelevant in the course of the trial, is ground 
 for a new trial; and when the presence of such 
 improper evidence is not cured by the instruc- 
 tions given to the jury, see American Nat. Bank 
 V. Wheelock, 45 Superior 205. 
 
 6. Erroneous instructions. Before any 
 request to charge had been made, the court said 
 to the jui-y : "If you find,/»-om the testimony, that 
 this unfortunate man contributed, in any way, by 
 his own act, to the accident which resulted in 
 his death, the plaintiff cannot recover. But of 
 that you must be satisfied. You must set your 
 hand upon something that is sworn to in evidence 
 here." And again : If you put your hands upon 
 anything, and satisfy yourselves that he has done 
 something, by his own acts, by which he has lost 
 his life, then the plaintiff cannot recover." The 
 defendant's counsel excepted to these proposir 
 tions charged, and requested the court to charge, 
 " that if the jury believe, from the evidence, that 
 any act of Louis Sohappert aided or contributed 
 toward his injury, then the defendants are not 
 liable. Plaintiff must prove, to the satisfaetion 
 of the jury, that Schappert was entirely free 
 from fault." This request: was denied, and ex- 
 ception taken. Held, that there should be a new 
 trial. — Superior Ct., Nm)., 1879. Schappert *- 
 Ringler, 45 Sviperior 345. 
 
 7. In an action to recover damages sustained 
 by reason of plaintiffs falling through a hatch- 
 way on defendant's premises, after the jury had 
 
NEW TRIAL, I., II. 
 
 315 
 
 i: 
 
 retired, they sent a communication asking the 
 udge if plainlift had been paid his salary while 
 aid up, to which he replied that there was no 
 evidence upon that point, and that if paid it was 
 a mere gratuity. The jury being unable to g.gree, 
 came into court, and plaintiflF's counsel was in- 
 formed of wliat had taken place, and made no 
 objection. The jury then retired and found 
 a verdict for plaintiff for $50. On plain- 
 tift's motion to set aside the verdict, on the 
 ground of " such communication having been 
 made — Held, that if he knew of it and made 
 no objection to the jury's second retirement, he 
 thereby waived the irregularity ; and that, in 
 any event, as lie could not have been prejudiced 
 by the communication, it furnished no ground 
 for granting a new trial. — Supreme Ct., {2dDept.,) 
 July, 1879., Mahoney v. Decker, 18 Hun 365. 
 
 8. When a refusal to charge a request as to 
 question of damages, is ground for granting a new 
 trial, see Havemeyer v. Havemeyer, 45 Superior 
 464. 
 
 9. Verdict against evidence. Where, 
 on a disputed question of fact, there is a conflict 
 of testimony, the preponderance of evidence 
 must be overwhelming to induce a court to dis- 
 turb a verdict. — Supreme Ct., {ith Depl.,) Jan , 
 
 1879. Chenev». New York Central, &c., R. E. 
 Co., 16 Hun 415. 
 
 10. In a case where no motion was made for 
 the dismissal of the complaint, nor for the direc- 
 tion of a verdict, but the case was treated on the 
 part of the defence throughout as one which 
 could be disposed of by a jury only, and it not 
 appearing from the evidence how the case could 
 have been taken from the jury, the judgment 
 should not be disturbed on the ground that the 
 verdict was against the weight of evidence. — ■ 
 Superior Ct., June, 1877. McMahon v. Walsh, 
 43 Superior 36. S. P., Fe6., 1878. Cohn ». Gold- 
 man, Id. 436. 
 
 11. Excessive damages. In an action for 
 personal injuries, a verdict will not be set aside 
 as excessive unless it manifestly appears to be 
 the result of passion, partiality, prejudice or cor- 
 ruption. — Supreme Ct.., (3rf Dept.,) Nov., 1879. 
 Minick v. City of Troy, 19 Hun 253. S. P., Jan., 
 
 1880. Kiff V. Youmans, 20 Hun 123. 
 
 12. The verdict was for $1000. Plaintiff's 
 injuries resulted in the loss of a third finger of 
 the left hand ; and it appeared that he was con- 
 fined ten days in the hospital, and subsequently 
 frequently returned there for treatment ; that he 
 was compelled to carry his hand in a sling for 
 three months ; that it took eight months to heal, 
 and ever since that injury plaintiff was unable 
 to do the same work that he had been accustomed 
 to before that time, or to earn the same amount 
 of wages. Held, that under these circumstances 
 the verdict should not be set aside on the ground 
 that the damages were excessive. — Superior Ct., 
 June, 1877. McMahon v. Walsh, 43 Superior 
 36. And see, also, Qalev. New York Central, &c., 
 K. E. Co., 13 Hun 1 ; a^rmed 76 N. Y. 594. 
 
 13. where, in an action by a husband to re- 
 cover damages for an injury to his wife, occa- 
 sioned by defendant's negligence, the plaintiff 
 died before the trial and some two years after the 
 accident, and it appeared that before the accident 
 the wife did all the house-work for her husband 
 and three children, assisted in taking charge of a 
 store, and sometimes earned by sewing as 
 much as $20 per week. — Held, that a verdict in 
 favor of the administrator of the husband for 
 
 the loss of earnings of the wife as well as for th& 
 loss of her services, of $2500, would not be set 
 aside as excessive. — Supreme Ct., {2dl>ept.,) July, 
 1879. Cregin v. Brooklyn Crosstown E. E. Co., 
 18 Hun 368. 
 
 14. Inadequate damages. A verdict 
 for more than the amount tendered, but not all 
 tlie plaintiffs claim, nor all their.evidence tends 
 to show to be owing, if the theory of the defend- 
 ant is rejected, will not be set aside as inade- 
 quate.— SMpreme Ct., {1st Dept.,) Oct., 1878. 
 Scheider v. Corby, 15 Hun 493. 
 
 15. Newly-discovered evidence. Ad- 
 missions by parties since the trial are not suf- 
 ficient ground for a new trial, when fully met ; 
 nor are facts discovered since the trial, when it 
 appears that'such facts do not necessarily bear 
 upon the issues involved. — Superior Ct., Feb.,. 
 1878. Fowler v. Kelly, 43 Superior 380. 
 
 16. In an action for rent, the defence being a 
 surrender and substitution of tenants, the alleged 
 new tenant testified to thesubsfitution, and that 
 he paid the rent by a check ; and after the trial 
 it was discovered from his bank account and 
 checks that no such check existed. Held, that it 
 was proper to grant a new trial on the ground of 
 newly-discovered evidence. — Oily Ct. of Brooklyn,.. 
 ( Oen. T., ) 1880. May v. Strauss, 8 Abb. N. Cas. 274. 
 
 17. This evidence is not objectionable as being 
 merely cumulative and impeaching testimony, 
 but must be regarded as direct and independent 
 proof. lb. 
 
 18. The principle that it is in the discretion 
 of the court to grant a new trial where a witness- 
 has fallen into an error which may have affected 
 the verdict, applied lb. 
 
 19. As there was nothing in the answer to put 
 the plaintiff on inquiry, want of diligence can- 
 not be imputed to him. lb. 
 
 20. What is a sufficient excuse for not having 
 produced on the trial, a witness relied upon to 
 give the newly-discovered evidence, see Huebner 
 V. Eoosevelt, 7 Daly 111. 
 
 21. In ejectment. Where an ejectment 
 case was tried before the court and jury, and a 
 verdict rendered for plaintiff, and the court 
 ordered that the entry of judgment be stayed, 
 and that the defendant's exception be heard in. 
 the first instance at General Term ; and after- 
 wards, at General Term, the exceptions were over- 
 ruled, and judgment for plaintiff ordered — Held, 
 that this judgment was entered upon the verdict 
 of a jury, and is such a judgment as is described 
 in 2 Eev. Stat., p. 309, tit. 1, part 2, ch. 5, 8 36, 
 allowing new trials in ejectment. — Superior Ct., 
 Nov., 1879. Phyfe v. Masterson, 45 Superior- 
 338. See, also, Biicher v. Carroll, 19 Hun 618. 
 
 II. The Application ; and how Disposed op- 
 
 22. Tlie riglit to move. A motion for a 
 new trial, on the minutes of the justice before 
 whom the action was tried, can only be made- 
 where a verdict has been rendered ; it cannot be 
 made where the plaintiff has been nonsuited.. 
 —Supreme Ct., {ith Dept.,) Oct., 1879. Van 
 Doren v. Horton, 19 Hun 7. 
 
 23. When the omission to point out an objec- 
 tion to the court on a former trial, is deemed a 
 waiver thereof for the purposes of a motion for 
 a new trial, see Phyfe v. Masterson, 45 Superior- 
 338. 
 
 24. Proper time and place to move. 
 When and where a motion for a new trial om 
 the judge's minutes should be made ; when a case 
 
316 
 
 NEW TRIAL, II., III.— NEW YORK CITY, I. 
 
 is necessary ; and effect of failure to more on the 
 minutes during the trial term, see Thayer 
 Manufacturing, &c., Co. v. Steinan, 58 How. 
 Pr. 315. 
 
 25. A motion for a new trial on the ground 
 •of surprise cannot be made upon the minutes of 
 the justice before whom the action was tried. 
 Such motion must be made at Special Term. — 
 ■Supreme Ot., (IsJ Dept.,) May, 1880. Argall v. 
 Jacobs, 21 Hun 115; S. C, 56 How. Pr. 167. 
 
 26. When a motion for a new trial on the 
 ground of mistake and surprise, is made too late, 
 -Bee Schweizer v. Raymond, 6 Abb. N. Cas. 378. 
 
 27. A juror's aflSdavit as to the character 
 and extent of the deliberations in the jury -room 
 -cannot be received to impeach the verdict. — 
 Oity Ct. of Brooklyn, {So. T.,) Nov., 1879. Dayton 
 ■V. Church, 7 Abb. N. Cas. 367. 
 
 28. Granting n&w trial on terms. A 
 new trial, on the ground of newly-discovered 
 -evidence, should only be granted upon condition 
 *hat the party applying shall pay the costs of the 
 former trial. — Supreme Ct., (Zd Dept.,) Jan., 
 1878. Comstock v. Dye, 13 Hun 113. 
 
 29. Conduct of the neTW trial. Where 
 a. new trial has been ordered and the facts pre- 
 sented on the second trial do not differ materially 
 ^om those presented on the former appeal, the 
 decision on that appeal should be followed on 
 ■the second trial as the law. If there was error 
 ■in the decision of the General Term, the remedy 
 was either by appeal to the Court of Appeals or 
 hj motion for a re-argument. — Supei-ior Ct., 
 ■June, 1877. Cooper v. Smith, 43 Superior 9. 
 
 30. Questions appearing on the face of the 
 record, which the Court of Appeals, in its rever- 
 
 -^al of the judgment appealed from, do not pass 
 npon, but which, if they had substance, would 
 lead to an affirmance, must be regarded on a 
 mew trial ordered by that court (when the ques- 
 tions are for the first time raised), as of no sub- 
 stance. — Superior Ct., April, 1879. Valeau v. 
 Smith, 45 Superior 598. 
 
 31. Re-^riewing the order in appel- 
 late covurt. Upon appeal from an order de- 
 nying a. new trial upon a motion made on the 
 judge's minutes, it is not necessary that the 
 particular grounds assigned in support of the 
 motion should be specifically mentioned ; it is 
 sufficient if it appear from the order that the 
 motion was actually heard and decided. — Svh 
 preme Ct., {1st Dept.,) April, 1878. Cowles ». 
 Watson, 14 Hun 41. 
 
 32. An application for a new trial, under the 
 -statute, in an action of ejectment, was made on 
 
 behalf of defendant, and one L., who claimed to 
 have derived his interest from B., who, it was 
 a,ljeged, was the landlord under whom defend- 
 ant was in possession. The right of L. was ex- 
 pressly controverted by the opposing affidavits, 
 %and it was also shown that, when the action was 
 ready for trial, defendant withdrew his answer, 
 and judgment was entered by his consent in 
 -open court.- The application was made by an 
 attorney who was not the attorney of record of 
 defendant, and who had not been substituted in 
 place of- the original attorney. The application 
 ■was denied, with leave to renew. Held, that as 
 it was at least very uncertain what were the 
 ^acts, and whether a case was made out within 
 the statute (2 Rev. Stat., 309, ^? 36, 37, as 
 amended by Laws of 1862, ch. 485,) and as the 
 'moving parties had not availed themselves of 
 4he permission given to supply the defects, the 
 
 order should be affirmed, — Ct. of App., Dee., 
 1879. Sacia v. O'Connor, 79 N. Y. 260 ; S. C, 
 58 How. Pr. 420; affirming 45 Superior 633. 
 
 III. New Tbial in Cbiminal Cases. 
 
 33. Necessity of an exception taken 
 at the trial. Under the statute authorizing 
 the granting of a new trial on motion of the 
 prisoner, after conviction, (Laws of 1876, ch. 
 295,) the court has no power to . grant such a 
 motion, for an alleged error, where no exception 
 was taken on the -trial. — Ct. of App., Nov., 1879. 
 Buel V. People, 78 N Y. 492. 
 
 As to Other modes of remew, see Appeai ; Cee- 
 TioBAEi; Ebkoe; Exceptions. 
 
 NEW YORK CITY. 
 
 I.' COBPOEATE POWEES. 
 
 1. In general. 
 
 2. Ordin.ances. 
 
 3. Segulation of streets, piers, &e. 
 
 4. Other police regulations. 
 n. LocAi Impeovements; and 
 
 MENTS THEREFOE. 
 
 HI. MuNicrpAi, Officebs. 
 
 1. In general. 
 
 2. Decisions relating to particular officers 
 
 or boards. 
 
 rV. COEPOEATB LlABrUTIES. 
 
 1. Upon contracts. 
 
 2. For wrongs. 
 
 I. COEPOBATE POWEES. 
 
 1. In general. 
 
 1. Power to acquire, property. _ The 
 resolution of the board of supervisors is not 
 sufficient to authorize a lease to be made to the 
 mayor, aldermen, and commonalty. This can 
 only be done by a resolution of the common 
 council, and for a period not exceeding five 
 years. — Superior Ct., Nov., 1879. Dayies ». 
 Mayor, &c., of New York, 45 Superior 373. 
 
 2. — to grant lands under -water. The 
 corporation having, prior to 1807, the title in 
 fee to lands between high and low-water mark, 
 known as the " tide way," did not, by accepting 
 title to lands under water, granted to it by 
 the state by the act of 1807, (Laws of 1807, ph. 
 115,) with a proviso giving the pre-emptive 
 right to the owners of adjacent lands in all 
 grants made by the corporation of the lands 
 under water, consent to qualify its title to the 
 "tide way," so that it could thereafter only 
 grant land therein to the persons to whom it 
 could grant the adjoining lands under water. 
 In the absence of a condition in the act, that 
 the city should not dispose of that which it then 
 owned in fee simple, to whom and upon such 
 terms as it might think proper, no such condi- 
 tion can be implied. — Cl. of App., Sept., 1877. 
 Towle V. Remsen, 70 N. Y. 303. 
 
 3. The sale of lands under water, by the dty, 
 
NEW YORK CITY, I. 
 
 3ir 
 
 is not subject to the restrictions imposed upon 
 the sale of corporate property by Laws of 1870, 
 ch. 137, I 105, and § 13, tit. 4 of the sinking 
 fund ordinance of Feb. 22d, 1844, but such lands 
 should be sold in pursuance of ^ 11 of the 
 ordinance. — Supreme Ct., (IsJ Dept.,) Dec., 1878. 
 Mayor, &c., of New York v. Hart, 16 Hun 380. 
 
 4. Construction of grant of -water 
 lots. In 1837 the city granted to certain per- 
 sons certain water lots ; the grant contained a, 
 reservation of annual rent, with a covenant on 
 the part of the grantees to pay, and a condition 
 of re-entry for non-payment thereof, with vari- 
 ous covenants as to improvements ; also a condi- 
 tion, that if at any time thereafter it should 
 appear that the grantees, at the date of the con- 
 veyance, were not seized of an estate in fee simple 
 of the adjoining lands above high-water mark, or 
 should make default in the performance of their 
 covenants, " then and in every such case," that 
 the grant should be void, and the grantees might 
 "forthwith thereupon enter into and * * * 
 be seized of the said premises." Hdd, that the 
 condition last mentioned was not a condition of 
 limitation or a condition precedent, but was a 
 condition subsequent ; that the grant conveyed 
 a present estate in fee simple, although the 
 grantees had in fact at the time no title to the 
 uplands ; said estate subject to be, and which 
 could only be defeated by a subsequent event, 
 i, e., a re-entry, because of discovery of a defect 
 in title, or default in the performance of any of 
 the covenants ; that the condition could only be 
 taken advantage of by the grantor, and the right 
 of re-entry for breach thereof was not assign- 
 able, and did not pass by a subsequent convey- 
 ance of the land by the city, in hostility to, and 
 after attempted repudiation of the original 
 grant ; and that therefore an action to enforce 
 the right of re-entry could only be brought in 
 the name of the city. Towle v. Remsen, supra. 
 
 5. A stipulation in the grant, that it was not 
 to be taken as a covenant of warranty, or to 
 operate further than to pass the estate of the 
 grantor, did not show an intent that said con- 
 dition should be precedent. lb. 
 
 6. If the condition should be interpreted as 
 precedent, and if the grantees of the city took 
 no title under the grant, then, at least as to a 
 stranger to the grant, although an owner of the 
 adjoining uplands, the statute of limitations 
 began to run at the time of the execution of the 
 grant ; the possession of the grantees was ad- 
 verse, and, continued by them and their succes- 
 sors in interest for twenty years, barred a re- 
 entry ; and the statute was a defence to an 
 action of ejectment brought by such owner 
 claiming title to the land under water, by vir- 
 tue of a subsequent grant from the city. lb. 
 
 1. Contracts for services rendered to 
 the city. A contract obtained from the board 
 of public works, is invalid, as against public 
 policy as well as positive law, where the con- 
 tractor, previous to obtaining the contract 
 entered into a secret partnership with a third 
 person in respect to such contract.^/Sitpen'o)' Ct., 
 \Sp. T.,) Dee., 1879. Kelly v. Devlin, 58 How. 
 Pr. 487. 
 
 8. A contract for regulating and grading a 
 street, containing a special covenant on the part 
 of the contractor to pay liens for work and mate- 
 rials, construed ; and the rights of the lienors in 
 respect to priority of payment, determined. — 
 Supreme Cl., (Sp. T.,) Dec., 1879. Mechanics' 
 
 and Traders' Nat. Bank v. Mayor, &a., of New- 
 York, 58 How. Pr. 207. 
 
 2. Ordinances. 
 
 O. Passage— publication. The provi- 
 sion of the amended charter of 1857 (ch. 446) 
 ? 7,) requiring all resolutions recommending any- 
 specific improvement involving the appropria- 
 tion of public moneys, taxation, or assessment, 
 to be published in all the newspapers employed 
 by the corporation, is not a limitation or quali- 
 fication of the general powers granted. There- 
 fore an ordinance passed by the common council, 
 under said charter, for the improvement of a 
 street, is within the legislative power conferred, 
 and is not ultra vires and void, although passed 
 without the prior publication required; while 
 the omission is a subsfctntial and fatal defect, 
 invalidating a local assessment upon property 
 benefited, yet, as to the city, and those dealing 
 with it, it is but an irregularity not fatal to the- 
 ordinance, or to contracts made in pursuance of it. 
 — Cl. ofApp., April, 1878. Moore v. Mayor, &o., of 
 New York, 73 N. Y. 238 ; reverdnp 4 Hun 545-. 
 
 10. In 1866 the common council of the city 
 passed an ordinance, in due form, directing the- 
 pavement of a portion of Eighth street. Prior 
 notice of the ordinance was not published in one- 
 of the'newspapers employed by the corporation^ 
 The Croton Aqueduct Board, having general 
 power to contract for such work, when author- 
 ized by the common council, and having com- 
 plied with the statute in all respects, as to adver- 
 tising for proposals, etc., entered into a contract 
 with plaintifl''s assignor for the work. In an. 
 action upon the contract — Seld, that the publi- 
 cation prior to the passage of the ordinance wa& 
 not a condition precedent to the existence of 
 power in the common council, and the omission, 
 was a mere irregularity not affecting the juiis- 
 diction of that body ; also, that the contractor 
 having entered into the contract in good faith, 
 in reliance upon the regularity of the proceed- 
 ings of the common council, and the city cor- 
 poration, having received the benefit of the per- 
 formance, was estopped from questioning the 
 regularity in the respect specified, lb. 
 
 11. The provision of the charter (Laws of 1870, 
 ch. 137, ? 20,) to the effect that no vote shall be- 
 taken in either board of the common council, 
 upon a resolution or ordinance for any specific- 
 improvement, " untU after such notice shall 
 have been published at least three days," only 
 applies to the passage of the resolutioti or ordi- 
 nance in the board in which it is originally in- 
 troduced and not to its subsequent passage in 
 the other branch of the common council. — 
 Supreme Ct., {1st Dept.,) March, 1880. Matter of 
 Depierris, 20 Hun 305. 
 
 After the vote is regularly taken, theresolutioa 
 or ordinance need omy be publbhed for one day. 
 Supreme Ct., {1st Dept.,) April, 1878. Matter of 
 Corwin, 14 Hun 34. 
 
 3. Regulation of streets, piers, &e. 
 
 12. Po-wer of the city over the streets, 
 generally. The corporation has plenary 
 power over the making, repairing, improving 
 and paving the streets of the city, it being one 
 of the usual and necessary ppw&s existing in 
 all municipal corporations. The rule, therefore, 
 governing extraordinary or " extra municipal " 
 powers, i. e., that they must be strictly pursued, 
 and that the grant thereof will be deemed subject 
 
:518 
 
 NEW YORK CITY, I., II. 
 
 to all the terms and conditions annexed to or 
 <;onnected with it, does not, in all respects, apply. 
 — Ct. ofApp., April, 1878. Moore v. Mayor, &c., 
 ■of New York, 73 N. Y. 238 ; reversing i Hun 545. 
 
 13. This power over the streets was, by the 
 amendment to the charter of the city of 1857 
 (Laws of 1857, § 2, ch. 446,) vested in the com- 
 mon council. lb. 
 
 14. Povirer to permit venders and 
 others to obstruct streets and side- 
 "walks. The common council have no power 
 to authorize the placing or continuing of any 
 •obstruction upon any street or sidewalk, except 
 the temporary occupation thereof during the 
 •erection or repair of a building on a lot opposite 
 the same. — Supreme Ct., May, 1880. People, ex 
 xel. O'Reilly, v. Mayor, &c., 59 How. Pr. 277. 
 
 15. Nor have they power to authorize the oc- 
 cupation of the streets and sidewalks, in the 
 neighborhood of the markets, with stands and 
 booths to be kept and maintained continuously 
 at all hours of the day. It is the duty of the 
 commissioner of public works to remove all 
 illegal obstructions placed upon the streets and 
 sidewalks. — Supreme Ct., {Sp. T.,) Augttst,1879. 
 Ely V. Campbell, 59 How. Pr. 333. 
 
 16. Power to construct piers, and 
 right to ■wharfage. The power of the ciiy 
 to construct piers, under its charter, is legisla- 
 tive, and no covenant on the part of the muni- 
 ■cipal officers can restrict or abrogate such power. 
 — Ct. ofApp., 1855. Whitney v. Mayor, &c., of 
 New York, 6 Abb. N. Cas. 329, n. 
 
 IT. The provisions of the act of 1798 (Laws 
 of 1798, ch. 80,) giving to the corporation au- 
 thority to construct piers in front of certain 
 streets and to collect wharfage, did not vest in 
 the city the title to the land under waier be- 
 tween the piers. — Ct. o/App., June, 1879. Walsh 
 V. New York Floating Dry Dock Co., 77 N. Y. 448. 
 
 18. Under the provision of the act of 1860 
 (Laws of 1860, ch. 254, amended by Laws of 
 1875, ch. 405,) in relation to wharfage in the 
 city, etc., which authorizes the collection of 
 " half the usual wharfage * * * for every 
 vessel lying at anchor within any slip," the 
 owner or lessee of a pier cannot maintain a claim 
 for whaifage against a vessel attached to an ad- 
 jacent pier, although it occupies the greater 
 part of the slip between the piers. A. vessel is 
 not lying at anchor, within the meaning of the 
 statute, when it is fastened to a pier. lb. 
 
 19. As to whether the permanent occupation 
 of an entire slip by a vessel fastened to one pier, 
 ■of such size as nearly to fill the slip, thus de- 
 priving the owner of the adjoining pier of any 
 valuable use thereof, is an actionable injury, 
 ■quoere. lb. 
 
 20. Condemnation of streets for rail- 
 road purposes. Streets and avenues in the 
 •city of New York, the fee of which belongs to 
 the city, cannot be condemned in proceedings by 
 a railroad company to acquire additional land 
 " for the purposes of its incorporation." The 
 rule, however, that corporations deriving power 
 from the legislature to take property under the 
 right of eminent domain cannot exercise such 
 power in reference to property already dedi- 
 cated to public use, does not prohibit the ac- 
 quisition of a right to use streets and avenues, 
 and piers at the end thereof, included within 
 land sought to be condemned for railro.ad pur- 
 poses.— a. ofApp., May, 1879. Matter of New 
 York Central, &c., K. E. Co., 77 N. Y. 248. 
 
 21. The rights in the waters of the port of 
 New York reserved to the public by the acts of 
 the legislature granting lands under water to the 
 city of New York, are not invaded by the ap- 
 propriation of the land for such railroad pur- 
 poses, lb. 
 
 22. Land under water in the Hudson river, *"' 
 with or without a water-front, required by ^ 
 railroad corporation for piers and wharves to 
 facilitate the transportation of freight, may be 
 condemned by proceedings for the purpose. Jb. 
 
 For decisions respecting the Elevated railroads, 
 their occupation of the city streets, &c., see 
 Bailboad Companies, V., 2. 
 
 4. Other police regtdationa, 
 
 23. Sanitary ordinances. As the pro- 
 vision of the city charter of 1878, (ch. 335, § 82,) 
 authorizing the board of health to pass sanitary 
 ordinances, and declaring that any violation of 
 the sanitary code shall be treated and punished 
 as a misdemeanor, does not prescribe the punish- 
 ment, the provision of the Revised Statutes (2 
 Kev. Stat. 697, § 4,) fixing the punishment for 
 any misdemeanor, when the punishment is not 
 specifically prescribed by statute, is applicable. — 
 Ct. of App., March, 1878. Polinsky v. People, 
 73 N. Y. 65 ; aMrming 11 Hun 390. 
 
 24. The general statute (Laws of 1862, ch. 
 467,) as amended by Laws of 1864, ch. 544, 
 prohibiting the selling, or exposing for sale, of 
 adulterated milk, does not embrace the oifence 
 of bringing such milk into the city for sale; 
 nor was it intended to cover the whole subject 
 of the traffic in milk. The said provision of the 
 charter conferred upon the board of health the 
 power to make additional regulations to those 
 contained in the general act. lb. 
 
 II. Local Improvements ; and Assessments 
 
 THEEEFOB. 
 
 25. Powers of the legislg,ture re- 
 specting local improvements. The legis- 
 lature has power to determine where and when 
 streets shall be constructed, their width and 
 mode of improvement, and its action in refer- 
 ence thereto cannot be reviewed by the courts, 
 [t has power to adopt and sanction an improve- 
 ment or expenditure which it could previously 
 authorize, and it may authorize an assessment 
 for an improvement after the improvement is 
 made. — Ct. of App., June, 1878. Matter of 
 Sacket, &o., Streets, 74 N. Y. 95. 
 
 26. Power of city to take lands. 
 Rights of abutting owners. Where land 
 is taken for streets under theactof 1813, the 
 abutting owners have no excliisive right or inter- 
 est therein and no easement in the nature of aright 
 of way over the same, other than that which is 
 held and enjoyed by the public at large. Abut^ 
 ting owners, as such, have no special and pecu- 
 liar interest in the enforcement of trusts created 
 by the said act. — Sumei-imr Ct , Jan., 1878. Sixth 
 Ave. E. E. Co. v. Gilbert Elevated E. E. Co., 
 43 Superior 292. 
 
 27. What property may be assessed. 
 A local assessment for a sewer, may be ira posed on 
 the property of an hospital ; and the fact that 
 the necessity of a sewer has not been laid out and 
 designated on a plan of a district, prepared by 
 the Croton Aqueduct Board under Laws of 
 1865, ch. 381, will not avoid the assessment.— 
 
NEW YORK CITY, II. 
 
 319 
 
 Supreme Ot., (Isf Dept.,) Oct., 1879. Eoosevelt 
 Hospital V. Mayor, &o., of New York, 18 Hun 582. 
 28. Consent of land- owner. Laws of 
 1867, ch. 697, conferring upon tiie Commis- 
 sioners of Central Park tlve exclusive power to 
 lay out and establish streets, avenues, roads, etc., 
 and to alter and amend the grades of any road, 
 street or avenue retained, and to establish new 
 grades for all other streets, avenues or roads, 
 within a certain portion of the city therein spe- 
 cified, repealed, by necessary implication, as to 
 the said portion of the city, the provision of 
 Laws of 1852, ch. 52, ? 2, requiring the consent 
 in writing of two-thirds of the owners of the 
 land, in lineal feet, fronting on each side of any 
 street or avenue, to be obtained, before any 
 change in the established grade-thereof could 
 be made. — Supreme Ct., (ls« jPep*.,) June, 1880. 
 Matter of Walter, 21 Hun 533. 
 
 29. Under and in conformity with the act of 
 1871, providing for the drainage of lauds in the 
 «ity of New York (Laws of 1871, ch. 566,) per- 
 manent blind drains were constructed upon the 
 lands of C. and others, the outlet of all being 
 through C.'s lands into a river. C.'s lands were 
 •dry, having natural drainage, and were in no 
 way benefited by the drains. C. did not con- 
 sent to the construction of the drains. In pro- 
 •ceedings to vacate an assessment upon Cs lands 
 for the expenses — Hdd, that said statute did not, 
 and no statute could, confer authority to con- 
 struct the drains through C.'s lauds without his 
 consent, and without compensation for the land 
 taken ; that the construction, therefore, was a 
 tre-pass and an assessment to pay the cost thereof 
 ■could not legally be laid. — Ct. of App., Sept., 
 IH79. Matter of Cheesbrough, 78 N. Y. 232 ; 
 ■affirming 17 Hun 561 ; S. C. at Special Term, 56 
 How. Pr. 460. 
 
 30. Publication of resolution or ordi- 
 nance. Under the provision of the charter of 
 1870, ch. 137, I 20, making it the duty of the 
 clerks of the respective boards of the common 
 council to publish all resolutions and ordinances, 
 and prohibiting the passage, by either board, of 
 a resolution or ordinance contemplating any 
 specific improvement until the same has been 
 published three days, and under the provision 
 of the act of that- year, making further provi- 
 sion for the city government, (ch. 383, § 1,) which 
 declares that the city advertising sliall be done 
 in newspapers designated by the mayor and 
 comptroller, the clerk has no authority to pub- 
 lish, in any other than the designated papers, 
 -although no designation has been made ; and a 
 publication, according to the statute, is a con- 
 dition precedent to any right of the common 
 -council to act. Therefore where it appeared that 
 
 no legal designation of the papers had been 
 made, a resolution for a local improvement, 
 passed by the common council, wsis held unau- 
 thorized.— C«. of App., Feb., 1879. Matter of 
 Burmeister, 76 N. Y. 174 j S. C, 56 How. Pr. 416. 
 
 31. Interpreting the resolution. A reso- 
 lution directing "that Madison avenue, /rom 
 Forty-second to Eighty-sixth streets, be paved 
 with Belgian pavement, and that at the several 
 intersecting streets and avenues cross-walks be 
 laid," etc., authorizes the paving of Eighty-sixth 
 street as being one of the intersecting streets. — 
 ■Supreme Ct., {1st Dept,,) March, 1880. Matter 
 of Murphy, 20 Hun 346. . , 
 
 . 32. Letting out the work — when 
 -(vork must be done by contract. The 
 
 provision of the charter of the city of New 
 York of 1873, (Laws of 1873, ch. 335, ? 91,) 
 in reference to letting work by contract, imper- 
 atively requires that where an aggregate expen- 
 diture of more than $1000 is involved in the com- 
 pletion, in all its parts, of any particular Job tt> 
 be thereafter undertaken for the corporation, or 
 in obtaining supplies to be furnished to it for 
 any particular purpose, the same shall be, by 
 contract, awarded to the lowest bidder after ad- 
 vertisement for sealed proposals, unless other- 
 wise ordered by a vote of three-fourths of the 
 member^ elected to the common council. — Ct. of 
 App., Dec., 1878. Matter of Emigrant Indus- 
 trial Savings Bank, 75 N. Y. 388. 
 
 33. The power conferred by said provision 
 upon the common council to dispense with a 
 contract by a three-fourths vote is a discretion- 
 ary power to be exercised in each particular 
 case, and cannot be delegated. lb. 
 
 34. Under an ordinance of the common 
 council adopted by a three-fourths vote, in De- 
 cember, 1873, the work of improving One Hun- 
 dred and Forty-fifth street was undertaken. The 
 ordinance directed the work to be done in such 
 manner as the commissioner of public works 
 " may deem expedient and for the best interests 
 of the city and property-owners." i The work 
 was done by day's work, without a contract, in- 
 volving an expenditure of over $107,000 ; and 
 an assessment was laid to defray such expendi- 
 ture. In proceedings to vacate the assessment 
 — Sdd, that the commissioner of public works, 
 as succeeding to the powers of the commissioners 
 of Central Park, had no authority under said acts 
 of 1865 and 1866 to cause tliework to be done by 
 day's work ; tliat the improvement fell within the 
 provision of the charter of 1873 above specified ; 
 that the clause in the ordinance attempting 
 to delegate to the commissioners the power to 
 determine the method of doing the work was 
 unauthorized; that the expense was incurred in 
 violation of said charter provision and could 
 not form the basis of a valid assessment ; and 
 that therefore the assessment was void. lb. See, 
 also, Matter of Newton, 19 Hun 470. 
 
 35. As to the power of the common council 
 to order a local improvement to be made, and 
 the work to be done otherwise than by contract, 
 see Matter of the Trustees of the Presbytery of 
 New York, 57 How. Pr. 500. 
 
 36. The commissioner of public works, in 
 causing the eastern boulevard to be graded and 
 improved, in pursuance of the power conferred 
 by Laws of 1873, ch. 528, was not required to 
 have the work done by contract, nor was any 
 ordinance of the common council necessary. — 
 Supreme Ct., {1st Dept.,) April, 1880. Matter of 
 Bobbins, 20 Hun 530. 
 
 37. Appointment of assessors. Laws 
 of 1813, ch. 86, and Laws of 1859, ch. 302, pro- 
 viding for the appointment of assessors, charged 
 with the duty of making the estimates and as- 
 sessments for local improvements, are constitu- 
 tional and valid. — Supreme Ct., {1st Dept.,) May, 
 1879. Matter of Roberts, 17 Hun 559. 
 
 38. The valuation. In enacting the pro- 
 vision of the act of 1840, (Laws of 1840, ch. 
 326, J 7,) which prohibits an assessment of prop- 
 erty in the city of New York for local improve- 
 ments exceeding half its value as valued by the 
 general tax-assessing officers, it was not the in- 
 tention of the legislature to relieve from such 
 assessments property that is exempt from tax- 
 
320 
 
 NEW YORK CITY, II. 
 
 ation.— C*. of Ap'p., April, 1877. Matter of St. 
 Joseph's Asylum, 69 N. Y. 353; affirming 10 
 Hun 113, n. 
 
 39. In assessing for a local improvement, 
 the assessors are not confined to a valuation 
 made for the purpose of general taxation during 
 the year when the assessment for the local im- 
 provement is made, but a resort may be had to 
 the last valuation, if any, whenever it was made. 
 Therefore, where property had been valued by 
 the ward assessors on the assessment roll for the 
 year 1858 — Seld, that assessments might be im- 
 posed thereon for local improvements in the 
 years 1864, 1865, 1873 and 1875, limited to half 
 the valuation appearing on said rolh lb. Com- 
 pare Matter of Scholle, 14 Hun 14. 
 
 40. Whether the general tax-assessing offi- 
 cers have power implied by said act to assess the 
 value of exempt property for the purposes of 
 assessment for local improvements, see Matter 
 of St. Joseph's Asylum, supra. 
 
 41. Practice on application to con- 
 firm report of commissioners. After the 
 commissioners of estimate and assessment, act- 
 ing under Laws of 1862, ch. 483, had heard the 
 parties interested, and prepared their report, and 
 a motion to confirm the same had been duly 
 noticed, the court, upon application of certain 
 parties interested, granted an order directing 
 that certain affidavits should be submitted to, 
 and considered by, the commissioners, or that 
 the same should be used upon the motion to con- 
 firm the report of such commissioners, as the 
 corporation counsel should prefer. Hdd, that 
 the order was proper and should be affirmed. — 
 Supreme Ct., (1st Dept,) March, 1878. Matter 
 of Dept. of Public Works, 13 Hun 483. 
 
 42. Necessity of appearing and ob- 
 jecting before the commissioners. A 
 suit in equity cannot be maintained to set aside 
 or reduce assessments laid by the commissioners 
 in proceedings for opening and extending streets 
 under the act of 1813, on the ground of irregu- 
 larity, mistake or error, after their report has 
 been confirmed by the court. The party ag- 
 grieved should have appeared before the com- 
 missioners in person, and interposed his objec- 
 tions. — Supreme Ct., (1st Dept.,) Nov., 1877. 
 Methodist Episcopal Church at Harlem v. 
 Mayor, &c., of New York, 55 How. Pr. 57. 
 
 43. Damages to land-owner — rigMs 
 of rival claimants. In case of an award 
 for damages under Laws of 1852, ch. 52, for 
 changing grade of streets, made to a certain 
 named person by the board of assessors, and de- 
 posited Dy the comptroller with the city cham- 
 berlain, a claimant, in opposition to the person 
 named in the assessment list as entitled thereto, 
 has the remedy of an action against the party 
 named in the assessment-list for the recovery of 
 a sum equal to the amount so deposited. The 
 statute makes such deposit equal to a payment 
 to the person named in the assessment list, for 
 the purposes of a suit to be brought thereon. 
 This right to bring action enures to every per- 
 son seeking to enforce a claim to the award, no 
 matter whether his alleged rights accrued before 
 or after the making of the award, by operation 
 of law or the act of the parties. — Superior Ot., 
 J'e6.,1878. Hatch v. Bowes,43 Superior 426. Com- 
 pare Hatch V. Mayor, &c.,of New York, 45 Id. 599. 
 
 44. The provision of the act. of 1813, to the 
 efiect that no compensation need be made to the 
 owner of any buildings erected in whole or in 
 
 part on land taken for streets and public places,, 
 after the filing of the map therein mentioned, is 
 constitutional.^— /Supreme CJ., [Sp. T.,) Sept., 1878. 
 Matter of One Hundred and Twenty-seventh 
 Street, 56 How. Pr. 60. 
 
 45. Bights of purchaser — payment 
 of assessments and how proved. That 
 the payment, by mistake, of an assessment to 
 the collector of arrears, and an entry to that 
 eflfect on his books, will not protect a purchaser 
 from the lien of the assessment, the certificate 
 of the clerk of arrears, countersigned by th& 
 comptroller, being necessary to estop the cor- 
 poration, see Curnen v. Mayor, &c., of New 
 York, 7 Daly 544. 
 
 46. Charging interest on assess- 
 ments. When an assessment is due and be- 
 comes a lien, so that interest thereon may be 
 properly charged, see Matter of Deering, 5& 
 How. Pr. 296. 
 
 47. Review of assessments, gener- 
 ally. Assessors, having jurisdiction, act judi- 
 cially in fixing the amount to be imposed upon 
 the property benefited, and such an assessment 
 is in fact a judgment. Such an assessment may 
 be reviewed : 1. By the body or board who 
 laid the same, upon a hearing of objections 
 made thereto; 2. By the court, on certiorari; 
 and, 3. By the court, on petition, in certain 
 cases in the city of New York, for fraud or 
 irregularity, under Laws of 1858, ch. 338. — 
 Superior Ot., Dec., 1879. Strusburgh v. Mayor, 
 &c., of New York, 45 Superior 508. 
 
 48. Powers and duties of board of 
 revision and correction. Laws of 1861,. 
 ch. 308, transferring to a board of revision and 
 correction of assessments, consisting of the 
 comptroller, the corporation counsel, and the- 
 recorder, the power to confirm assessments 
 previously possessed by the common council, is 
 constitutional and valid. — Supreme Ct., (1st 
 Dept.,) May, 1880. Matter of Lester, 21 Hun 
 130. May, 1879. Matter of Roberts, 17 Id. 559. 
 
 49. Under the act of 1861, the board of re- 
 vision and correction had the same authority as 
 was conferred upon the common council by the 
 act of 1859, relating to taxes and assessments 
 (Laws of 1859, ch. 302, § 17,) to refer back the as- 
 sessment-lists to the board of assessors for revisal 
 and correction ; and in case of such reference the 
 provision of said act of 1861, providing that if 
 the assessment-lists shall not be confirmed with- 
 in thirty days by said board of revision and cor- 
 rection, they shall be deemed to be confirmed^ 
 does not apply ; after they are referred back they 
 cannot be confirmed in any way until they are 
 again certified and presented to the board for 
 confirmation. — Ct. of App., June,1877. Tone*. 
 Mayor, &c., of New York, 70 N. Y. 157._ 
 
 50. The thirty days' limitation contained ijp 
 the act of 1861, was not repealed by the provi- 
 sions of the act of 1872 (Laws of 1872, ch. 580,) 
 defining the powers of said board of revision and 
 correction. lb. 
 
 51. In May, 1871, T., plaintifi''s intestate, con- 
 tracted to do certain work upon a street in the 
 city. The contract referred to and made a part 
 thereof a city ordinance regulating the mode of 
 making payments for work done under such con- 
 tracts, which provided that the final payment 
 should not be made until the assessment for the 
 work shall have been confirmed. The work was 
 completed by T. in December, 1872 ; in March, 
 1874, the board of assessors completed the as- 
 
NEW YORK CITY, II. 
 
 321 
 
 sessment-lisfs, and presented them to the board 
 of revision and correction, by whom they were 
 returned for revision and correction. The lists 
 had not been corrected or again presented to the 
 board for confirmation when this action, which 
 was brought to recover the final payment, was 
 commenced. Held, that the action was prema- 
 turely brought, and plaintiff was not entitled to 
 recover; that it was immaterial whetlier said 
 board of revision and correction acted legally or 
 illegally in refusing to confirm and in returning 
 the assessment-lists ; they not having been again 
 certified to the board, were not confirmed, lb. 
 
 52. The ordinance referred to and made part 
 of the contract was passed prior to the passage 
 of the act of 1861, and provided for a confirma- 
 tion "by the common council." BeH, that the 
 condition as to confirmation was not rendered in- 
 operative by the fact that when the contract was 
 jnade the common council could not confirm ; 
 that the words, " by the common council," in the 
 ordinance were made inoperative by the act of 
 • 1861, and as the parties contracted with refer- 
 ence to that act, the ordinance and the contract 
 are to be read as if these words were stricken 
 out ; and the condition required a confirmation 
 by competent authority. lb. 
 
 53. In the discharge of their duty the board 
 of revision and correction were independent 
 public officers, acting not for the peculiar benefit 
 of the corporation, but for the public good, in 
 obedience to the mandate of the legislature ; and 
 therefore the city corporation was not responsi- 
 ble for negligence or omission on their part in the 
 discharge of their duties, and so was not liable be- 
 cause of a failure to confirm the assessment. lb. 
 
 54. Oorreoting assessment-roll on 
 certiorari. Where, in street improvement 
 cases, assessors have completed the roll and sent 
 it to another board, it cannot be corrected on cer- 
 tiorari issued to the assessors.— j'/S'Mjjreme Ct., (1st 
 Dept.,) Dec, 1878. People, ex. rel. Heiser, v. 
 Board of Assessors, 16 Hun 407. 
 
 55. Power of the covtrt to vacate 
 under Laws of 1874. Under Laws of 1874, 
 ch. 313, relative to assessments in New York 
 city, no assessment for a local improvement can 
 be vacated for any of the defects or irregulari- 
 ties specified therein, unless actual fraud is 
 shown ; under ch. 312, passed the same day, they 
 may be vacated for fraud or substantial error, 
 hut the error must not be one mentioned or de- 
 scribed in ch. 313. The two provisions are not 
 inconsistent. — Ct. of App., Nov., 1878. Matter 
 of N. Y. Prot. Epis. Pub. School, 75 N. Y. 324. 
 S. P., Matter of Emigrant Industrial Savings 
 Bank, Id. 388, 394. 
 
 56. An ordinance was passed by the common 
 council for curbing, guttering and flagging a por- 
 tion of First avenue. Proposals were called and, 
 the bid which was accepted offered to do the 
 flagging for nothing, although a large amount 
 wa^ required, while the price bid for curbing and 
 guttering was largely in excess of the value of 
 that work and in excess of the prices of other 
 bidders, and was intended as a compensation 
 also for the flagging. The board of assessors, in 
 making their assessment, omitted all lots in front 
 of which flagging only was done. In proceed- 
 ings to vacate the assessment — 
 
 Hdd, 1. That it was the duty of the assessors 
 to assess the expense upon all the property on 
 the line of the improvement, according to the 
 benefits conferred on each parcel. 
 
 21 
 
 2. That the Case was not one of erroneous 
 judgment as to the extent of benefits, but the 
 adoption of an illegal rule by which' many lots- 
 confessedly benefited were omitted. 
 
 3. That the error was. a substantial one and 
 operated as a fraud upon the owners whose prop- 
 erty was assessed, and, as it was not an error em- 
 braced in the statute last above specified, that 
 proceedings under the former statute to set aside 
 and vacate the assessment were proper. — Ct. of 
 App., Nov., 1878. Matter of N. Y. Prot. Epis, 
 Pub. School, 75 N.Y. 324. 
 
 57. It is not indispensable in such case to find 
 that the assessors intended to commit a wrong ; it 
 is sufiicient if they have assessed one class of 
 property for improvement upon another class and 
 have exempted the latter from assessment, 
 whether they believed it illegal and wrong or 
 not. lb. 
 
 58. A rehearing could not be ordered with a 
 view of reducing the petitioner's assessment, as 
 there was no fixed sum or criterion for the court 
 to act upon, and as it had n6 power to make the 
 assessments upon the omitted parcels ; and there- 
 fore the whole assessment was void. lb. 
 
 59. "WTio may move to vacate. Where 
 a mortgagee of premises in the city of New York, 
 who took his mortgage before the completion of 
 a local improvement and an assessment upon the 
 premises therefor, foreclosed his mortgage, and 
 the judgment of sale directed the referee ap- 
 pointed to sell, before paying the mortgage, to 
 deduct from the avails of sale the amount of any 
 lien on the premises for assessments ; and where, 
 on sale, the premises were struck off to the mort- 
 gagee for a sum less than the assessment and the 
 amount of the mortgage debt — Held, that in the 
 absence of proof that the mortgagor was per- 
 sonally liable for the deficiency, or in case of 
 such liabity, that by a resort to it the mortgagee 
 would have been successful in obtaining payment 
 of his debt, he was a party aggrieved within the 
 meaning of the act of 1858 (Laws of 1858, ch. 
 338, § 1,J " in relation to frauds in assessments for 
 local improvements" in said city, and could 
 move to vacate the assessment. — Cc. cf App., Dec., 
 1878. Matter of Walter, 75 N. Y; 354. , 
 
 60. The only proof of the value of the premi- 
 ses was the price at which they were sold and the 
 assessed value ; both were much less than the 
 amount of the mortgage and the assessment. 
 Held, that it could not be assumed that the premi- 
 ses were worth more than that amount, lb. 
 
 61. Vacating for fraud. The object of 
 the act of 1858 (Laws of 1858, ch. 338,] in rela- 
 tion to " frauds in assessments for local improve- 
 ments in the city of New York," authorizing 
 proceedings, in certain cases, to vacate assess- 
 ments, was to remove the lien created by an as- 
 sessment ; and it is only applicable where such a 
 lien exists. An assessment cannot be vacated, 
 therefore, under said act when it appears that it 
 has been paid before the making of the applica- 
 tion. — Ct. of App., April, 1879. Matter of Lima, 
 77 N. Y. 170. 
 
 62. — fot- irregularity. Under the pro- 
 vision of the act of 1872, (Laws of 1872, ch. 
 580, § 7,) which, in the absence of fraud, prohib- 
 its the vacating of an assessment for irregularity 
 save for re-paving a street, where an assessment 
 upon the property for paying the same street has 
 once been paid, to sustain proceedings to vacate 
 an assessment for re-paving, actual payment of a 
 prior assessment must be proved ; the applicant 
 
322 
 
 NEW YORK CITY, II. 
 
 cannot rely upon a presumption of payment aris- 
 ing from lapse of time— a. of App., Sept., 1877. 
 Matter of Willett, 70 N. Y. 490. 
 
 63. Under the provisions of the charter of 
 1873, (Laws of 1873, ch. 335, § 115, as amended 
 hj Laws of 1873, ch. 757, ? 22,) declaring that no 
 street which has been once paved, and the ex- 
 pense thereof paid by assessment by the adjoin- 
 ing owners, shall thereafter be paved at 
 their expense, or an assessment imposed there- 
 for, unless petitioned for by a majority of such 
 owners, where the city has once determined the 
 character and extent of the flagging of a side- 
 walk, and has assessed and collected the expense 
 of the owners, it has no further jurisdiction over 
 the flagging of that sidewalk until a petition is 
 presented as so prescribed. — Ct. of App., June, 
 1879. Matter of Garvey, 77 N. Y. 523. 
 
 64. Where, therefore, a sidewalk twelve feet 
 wide was, in pursuance of an ordinance, " graded, 
 curbed, guttered and flagged," the flagging 
 bein^ a strip of four feet wide in the centre of 
 the sidewalk — Mdd, that a new ordinance cover- 
 ing said sidewalk, directing that "curb and gut- 
 ter-stones be set and re-set and the sidewalk be 
 flagged and re-flagged, where not already done," 
 which was not so petitioned for, was illegal ; and 
 that an assessment upon the owners to pay the 
 expenses of the improvement was void. lb. 
 
 65. Vacating excessive assess- 
 ments. Assessments for street improvements 
 must not exceed one-half the value of the lots as 
 valued for taxation, and the valuation to be 
 used as a basis for the assessment must be the 
 one last preceding the assessment. — Ct. of App., 
 March, 1879. Matter of Schell, 76 N. Y. 432 ; 
 reversing 16 Hun 283. 
 
 66. Where, for what is practically and in 
 reality one improvement, two separate appor- 
 tionments and assessments are made, the aggre- 
 gate amount of which is more than half of the 
 assessed value of the premises, though such as- 
 sessments are coniirmed at different times, the 
 provision of the act of 1840, (Laws of 1840, ch. 
 326, § 7,) forbidding assessments " in any one 
 case," exceeding half the assessed value, ap- 
 plies, and there is substantial error in the assess- 
 ments. — Ct. of App., Dec., 1878. Matter of 
 Walter, 75 N. Y. 354, 359 ; reversing 14 Hun 148. 
 
 67. The paving of a street, or the adoption 
 of a peculiar kind of pavement, is not necessa- 
 rily so disconnected from the grading, regu- 
 lating and setting of curb-stones and flagging as 
 to constitute a difierent and separate improve- 
 ment, lb. 
 
 68. The provision of the act of 1840 (Laws 
 of 1840, ch. 326, § 7,) which limits assessments 
 for local improvements to one-half the value of 
 the property assessed, was not repealed by the 
 provision of the act of 1872 (Laws of 1872, ch. 
 580, §5,) authorizing assessments for work done 
 under contracts approved by the commissioners 
 appointed by the latter act; and such assess- 
 ments are subject to and controlled by said lim- 
 itation. Therefore, an assessment under said 
 act of 1872, exceeding half the value of the 
 property assessed, was unauthorized and was 
 properly vacated under and in pursuance of the 
 act of 1874, in relation to taxes and assessments 
 (Laws of 1874, ch. 302.) And, where a num- 
 ber of lots were assessed together, with no sep- 
 arate valuation upon each — Held, that the assess- 
 ment could not be reduced to the limits pre- 
 scribed by the act of 1840, and affirmed to that 
 
 extent, as there was no sufficient basis for ap- 
 portioning the tax.— Ci!. of App., April, 1877. 
 Matter of Cram, 69 N. Y. 452. 
 
 69. Where application is made to set aside 
 an assessment upon the ground that it is vio- 
 lative of the provision of the act of 1840, above 
 cited, if it appears that there was a prior valu- 
 
 ■ ation of the property, it is not incumbent upon 
 the city to show tliat in making the assessment 
 it kept within the limit prescribed by the act ; 
 but the burden of proof is upon the petitioner 
 to show that such limit has been exceeded. The 
 presumption in such case is in favor of the reg- 
 ularity of the assessment. — Ct. of App., Sept., 
 1877. Matter of Hebrew Benev. Orphan Asy- 
 lum Soc, 70 N. Y. 476. 
 
 70. Where, the?efore, it appeared that the 
 premises in question had been included with 
 other lots in, and valued upon a prior assess- 
 ment roll, as one parcel — Seld, that, in the ab- 
 sence of evidence that the lots in question were 
 not of equal value with those included with, 
 them in the prior valuation, an assessment not 
 exceeding one-half the value of the lots, as as- 
 certained by apportioning the assessed valuation 
 of the whole parcel equally on the lots included 
 therein, was valid. 76. 
 
 71. Keducing assessments. But where 
 it appears that the assessment exceeds half the 
 valuation, the power of the court to reduce the 
 assessment to one-half the valuation cannot be 
 exercised, and the assessment must be set aside 
 wholly, unless the precise valuation appears; 
 the burden of proof in such case is upon the 
 city, and the correct amount must be clearly 
 shown. lb. ; reversing 10 Hun 112. 
 
 72. Where an assessment for a local improve- 
 ment exceeds half the value as fixed by the 
 ward assessors, the assessment is valid up to one- 
 half, and the Supreme Court has power to cor- 
 rect the assessment by reducing it to that- 
 amount. In such a case, however, the owner of 
 the property assessed should not be required to 
 pay interest until the assessment is fixed accord- 
 ing to law, i. c, only from the date of the order 
 correcting it.— Ci. of App., April, 1877. Matter 
 of St. Joseph's Asylum, 69 N. Y. 353 ; affirming 
 10 Hun 113, n. 
 
 73. OorTectlng mistakes on motion 
 to vacate. Under a resolution directing the 
 pavement of Madison avenue, from forty-second 
 to eighty-sixth street, the latter street was 
 paved, and the petitioner's lot, situated on 
 the northwest comer of Madison avenue 
 and eighty-sixth street, was assessed by 
 mistake, not only for its proportionate part 
 of the paving done at the intersection, but as 
 though it were situated wholly within the area 
 of assessment. Held, that the error could be 
 corrected on a petition to vacate the assessment 
 under Laws 1874^ ch. 312 — Supreme Ct., (let 
 Dept.,) March, 1880. Matter of Murphy, 20 
 Hun 346. 
 
 74. Effect of petitioner's delay m 
 moving. In proceedings under the act of 
 1858 (Laws of 1858, ch. 338,) to vacate an as- 
 sessment for re-paving a street after the property 
 had been once assessed for a like work on the 
 same street (Laws of 1874, ch. 313,) it appeared 
 that the assessment was confirmed September 1st 
 1869; the petition was dated December 27th, 
 1876. The petitioner established the irregulari- 
 ties complained of. It did not appear that the 
 city had enforced the assessment against any 
 
NEW YOEK CITY, II., III. 
 
 32.3 
 
 property or owner, or that any part of it had 
 been paid, and no change of circumstances ap- 
 peared save that the city had paid the expenses 
 •of the improvement. Held, that the delay of 
 the petitioner in applying for relief was not, 
 under the circumstances, an answer to his appli- 
 •cation, and did not justify a refusal to grant the 
 relief sought.— C*. of App., Sept., 1879. Matter 
 •ofLord,78N. Y. 109. 
 
 75. It seems, however the court is not abso- 
 lutely bound to entertain a petition under said 
 act of 1858, where it sets forth & prvma facie case, 
 or to grant relief when the facts stated are 
 proved, without regard to the lapse of time since 
 the irregular official action complained of, but 
 imay refuse the relief when, because of the delay, 
 ■or for other cause upon any principle recognized 
 hy the courts, the petitioner is not entitled to 
 present relief. lb. 
 
 76. It afterwards appearing that the assess- 
 ment had been partly enforced and paid, 
 and that some of the lots had changed hands, 
 thereby rendering it impossible to do justice to 
 the other property-owners, if the assessment 
 upon the petitioner's lot should be vacated, his 
 application was denied on account of his laches 
 in instituting the proceedings.- — Supreme Cl., {1st 
 Dept.,) June, 1880. Matterof Lord, 21 Hun 555. 
 See, also, Matter of Saunders, 21 Hun 579. 
 
 77. Vacating the sale, but not the 
 .assesBiuent. Section 27 of chapter 383 of 
 1870, providing that no assessment shall be va- 
 cated " by reason of fraud or irregularity in the 
 proceedings to collect the same, by sale of the 
 -assessed premises, but upon proof of such fraud 
 or irregularity such sale shall be set aside, and 
 the respective rights and liabilities of the as- 
 sessed persons and of the mayor, &c., shall 
 become and be the same as if such sale had not 
 teen made," has not been repealed, and it is still 
 the duty of the court in a proper case to vacate 
 the sale and refuse to vacate the assessment. — 
 JSupreme Gt., {1st Dept.,) May, 1880. Matter of 
 
 Lester, 21 Hun 130. 
 
 78. Costs of proceedings to vacate. 
 A proceeding under the act of 1858 (Laws of 
 1858, eh. 338,) to vacate an assessment, at least 
 Tvhen instituted at Special Term, is a special 
 proceeding within the meaning of the act of 
 1854 (Laws of 1854, ch. 270,) authorizing the 
 allowance of costs in such proceedings. — Ut, of 
 App., Nov., 1879. Matter of Jetter, 78 N. Y. 601. 
 
 70. It seems that the distinction between pro- 
 ceedings instituted at Special Term, and those 
 •commenced before a judge at chambers, is dis- 
 regarded in the Code of Civil Procedure (?§ 
 1356, 1357.) Jb. 
 
 80. The provision of the act of 1859 (Laws 
 •of 1859, ch. 262, § 2,) in reference to payment 
 -of costs by municipal corporations, which pre- 
 scribes that no costs shall be recovered in any 
 judgment against such a corporation, unless the 
 
 •claim upon which the judgment is founded was 
 presented for payment to the chief fiscal ofiicer 
 thereof before suit brought, has no application 
 to the costs of such proceedings. lb. 
 
 81. In proceedings instituted under said act 
 of 1858, the Special Term vacated the assess- 
 ment with costs to the applicant, from which 
 •order no appeal was taken ; costs were taxed as 
 
 in an action, which, were struck out by the Gen- 
 eral Term on appeal from an order of Special 
 Term denying a motion to strike out. Held, 
 •«rror ; that said applicant was entitled to costs 
 
 at the rate allowed for similar services in civil 
 actions. 16. 
 
 III. Municipal Offiqeks. 
 
 1. In general. 
 
 82. Who is a city officer. A District Court 
 justice is not " an officer of the city government 
 or a person employed in its service" within the 
 meaning of Laws of 1873, ch. 335, ? 95.— Su- 
 preme Ct., {1st Dept.,) March,lS78. People, ex. 
 rel. Phelps, v. General Sessions, 13 Hun 395. 
 
 83. Compensation. The corporation is 
 not liable for officers' salary, where there has 
 been no performance of the duties of the office.— 
 Superior Ot., Nov., 1878. Wood v. Mayor, &c., 
 44 Superior 321. 
 
 84. The claim of a court officer for an in- 
 crease of salary in pursuance of the resolution 
 of the board of supervisors, of May 26_th, 1870, 
 denied ; and said resolution — Held, void, as in 
 conflict with Laws of 1870, ch. 382, ? 3.— Supe- 
 rior Ot., Nov., 1878. Eowland v. Mayor, &c., of 
 New York, 44 Superior 559. 
 
 But see, to the contrary, Wines v. Mayor, &c., 
 of New York, 70 N. Y. 613. 
 
 85. Liability to account for fees re- 
 ceived. Under Laws of 1873, ch. 335, ? 96, 
 providing that no officer of the city of New York 
 should have or receive to his own use any fees, 
 perquisites or commissions, or any percentages, 
 but that every such officer should be paid a fixed 
 salary, and that all the fees, percentages and 
 commissions received by him should be the prop- 
 erty of the city, it is no defence to an action 
 to compel one of the city officers to account for 
 the fees received by him, that no salary has ever 
 been fixed or attached to his office. — Supreme Ct., 
 {1st Dept.,) June, 1880. Mayor, &c., of New 
 York V. Kent, 21 Hun 483. 
 
 86. Removal by mayor. Laws of 1873, 
 ch. 335, ? 25, provides that "the heads of all de- 
 partments * * and all other persons, whose 
 appointment is in this section provided for, may 
 be removed by the mayor for cause, and after op- 
 portunity to be heard, subject, however, before 
 such removal shall take efiect, to the approval 
 of the governor, expressed in writing. The 
 mayor shall, in all cases, communicate to the gov- 
 ernor, in writing, his reasons for such removal." 
 
 Held, 1. That the proceedings of the mayor in 
 removing a person from his office, in pursuance 
 of the said section, were not final and conclusive, 
 but were reviewable by the court upon a certiorari 
 issued upon the application of the party ag^ieved. 
 
 2. That the proceedings of the mayor m so re- 
 moving an officer were reviewable by certiorari, 
 though at the time of the issuing of the writ, 
 such removal had not been either approved or 
 disapproved by the governor, to whom the record 
 of the proceec&ngs had before the mayor, had 
 been by him transmitted. — Supreme Ct., {1st 
 Dept.,) June, 1880. People, ex. rel. Nichols, v. 
 Cooper, 21 Hun 517. 
 
 87. Before an officer can be removed under 
 the above provision of the charter he is entitled 
 to have a definite and specific statement of the 
 charge served upon him ; a reasonable time to 
 appear and answer it ; the right to hear and ex- 
 amine the evidence by which it was attempted to 
 be sustained ; to produce testimony to show its 
 falsity, and to the aid and advice of coun- 
 sel in the conduct of the examination: and 
 the cause of removal must be found in 
 
324 
 
 NEW YORK CITY, III. 
 
 some act of omission or commission by 
 the officer in regard to his duty or af- 
 fecting his general character, which the law and 
 a sound public opinion pronounce to be sufficient 
 to justify a forfeiture of the office, and not in the 
 political bias or personal dislike of the officer 
 having the power of removal. — Supreme Ct., {1st 
 Dept.,) Dec., 1879. People, ex rel. Nichols, v. 
 Mayor, 19 Hun 441 ; S. 0. at Special Term, 58 
 How. Pr. 358. 
 
 88. As to the power of the mayor to remove 
 public officers, and when a vacancy exists to 
 which the mayor may appoint without confirm- 
 ation by the board of aldermen, see People, ex 
 rel. Wheeler, v. Cooper, 57 How. Pr. 416 ; Peo- 
 ple, ex rel. Nichols, v. Cooper, 58 Id. 358. 
 
 2. Decmam relating to partieidar officers or 
 boards. 
 
 89. Board of aldermen. As to the right 
 of the board of aldermen to judge of the election 
 of their own members, see People, ex rel. Hat- 
 zel, V. Hall, 58 How. Pr. 147 ; Same v. Board of 
 Supervisors, Id. 141. 
 
 90. Under the provision of the charter of 
 1873, (Laws of 1873, ch. 335, § 18,) prohibiting 
 the common council from taking or making a 
 lease of any real estate or franchise "save at a 
 reasonable rent and for a period not exceeding 
 five years," it is for the common council to deter- 
 mine what is a reasonable rent ; and mere error 
 in judgment on its part, or a difference of opin- 
 ion as to the rental value of property, will not 
 invalidate a lease, in the absence or fraud or 
 collusion; therefore the determination of the 
 common council is conclusive. — Cl. of Amp., 
 April, 1877. Schanck v. Mayor, &c., of New 
 York, 69 N. Y. 444 ; affirming 10 Hun 124. 
 
 91. Board of assistant aldermen. 
 Laws of 1873, ch. 335, § 2, abolishing the board 
 of assistant aldermen after Jan. 1st, 1875, con- 
 strued, and held a valid exercise of the legisla- 
 tive power. — Ct. of App., June, 1878. Demarest 
 u. Mayor, &c., of New York, 74 N. Y. 161; 
 affirming 11 Hun 19. 
 
 02. Auditor. Where, prior to the passage 
 of the act of 1874 (Laws of 1874, ch. 304,) con- 
 solidating the city and county governments, a 
 claim against the county had been audited and 
 allowed by the board of supervisors, all that the 
 city auditor had to do, in reference to such 
 claim, was to examine the voucher, and see that 
 it was in proper form ; he had no right to revise 
 the action of the supervisors and re-adjust the 
 claim. — Ct. of App., Sept., 1877. Lanigan v. 
 Mayor, &c., of New York, 70 N. Y. 454. 
 
 93. Such a claim having been presented to 
 the auditor, he certified to the comptroller that 
 he had "examined, revised, allowed and set- 
 tled " the account at a reduced sum ; the comp- 
 troller received and filed the voucher in his de- 
 partment, paid most of the sum ceitified to by 
 the auditor, and without objection to the 
 -voucher, offered to pay the balance. In an 
 action against the city to recover the balance of 
 the claim, as audited by the board of supervi- 
 sors — Held, that the certificate of the auditor 
 was, in effect, a statement that he had " exam- 
 ined and allowed" the voucher as required by 
 the act of 1873 (Laws of 1873, ch. 335,) but that 
 he disapproved of the amount ; and the action 
 of the comptroller was, in effect, an approval of 
 the voucher as required by said ^ct; that the 
 
 action of the auditor, in reducing the amount, 
 was nugatory, and in the absence of any other de- 
 fence, that plaintiffs were entitled to recover. 7J, 
 94. After the audit and allowance of plain- 
 tiff's claim by the board of supervisors, a re- 
 ceiver of plaintiff's properly, appointed in sup- 
 plementary proceedings, took possession of the 
 voucher, and upon refusal of the auditor to ex- 
 amine and allow, obtained a peremptory rmm- 
 damm, commanding him to do so. He there- 
 upon made the examination, allowance and 
 deduction above stated, and after the commence- 
 ment of this action made a return to the writ, 
 stating such action in obedience to the writ. 
 Nothing further was done in the mandamm pro- 
 ceedings. The receiver received from the comp- 
 troller a sufficient sum to satisfy the judgment 
 under which he was appointed, and expenses, 
 and was discharged. It was claimed by defend- 
 ant that the man^mus proceedings constituted an 
 adjudication, that only the sum allowed by the 
 auditor was due upon plaintiff's claim, and that 
 they were estopped thereby. Seld, untenable f 
 that there was no adjudication, and the action 
 of the auditor was not judicial, and neither 
 bound the receiver nor the plaintiffs ; also, that 
 upon the discharge of the receiver, plaintiffi be- 
 cam& re-invested with their property and were 
 entitled to recover the fall amount of the balance 
 of their claim as audited by the supervisors. lb. 
 _ 05. Chamberlain. In an action of parti- 
 tion, funds belonging to infant parties were paid 
 to the city chamberlain and no order directing 
 the investment thereof made. The funds were 
 deposited in the Fulton Bank to the chamber- 
 lain's credit, and several months thereafter were 
 invested, with other sums held by him, in a 
 mortgage for $10,000, upon real estate, which at 
 the time was ample security for such sum. At 
 the time there were taxes in arrears on the- 
 mortgaged property, which were subsequently 
 paid by the mortgagor. Two years afterward 
 a municipal assessment of $8000 was made on 
 the property, which had fallen away greatly in 
 value, and the mortgagor abandoned paying the- 
 interest. Thereafter the mortgage was foreclosed 
 by the chamberlain and he bid in the property 
 for the benefit of those for whom he took the 
 mortgage, including the infants. Held, that the 
 investment made by the chamberlain was not 
 in violation of his duty, and he or his successor 
 was not liable to the infants for any loss which 
 resulted therefrom. — Ct. of App., June, 1880. 
 Chesterman v. Eyland, 22 Alb. L. J. 129; S. C, 
 8 Abb. N. Cas. 92. 
 
 06. The commissioner of accounts 
 appointed under Laws of 1873, ch. 335, i 106, 
 may be removed at the pleasure -of the mayor; 
 J 28 of that act, requiring removals to be for 
 cause, has'no application to him. — Supreme 08., 
 (1st Dept.,) Dee., 1878. People, ex rel. Westray, 
 V. Mayor, &c., 16 Hun 309. 
 
 07. Commissioners of sinking fand. 
 As to the powers and duties of the Iward of com- 
 missioners of the sinking fund in the employ- 
 ment of appraisers of county property, and the- 
 compensation recoverable by a person so em- 
 ployed, see Bleecker v. Mavor, &c., of New 
 York, 7 Daly 439. 
 
 98. Department of docks. As to the 
 power of the department of docks, to let out 
 work on the docks, otherwise than by contraeti. 
 see Bigler v. Mayor, &c., 5 Abb. N. Cas. 51. 
 
 99. The board of education is a gov^ 
 
NEW YOEK CITY, III. 
 
 325 
 
 •ernmental agency created by the sovereign 
 power of the state, for the discharge of such 
 powers and duties as were conferred upon it by 
 law, and in addition to its being or existence as 
 ■such agency, it is also a corporation. — Superior 
 Ct., April, 1878. Donovan v. Board of Educa- 
 tion, 44 Superior 53 ; S. C, 55 How. Pr. 176. 
 
 100. The statutes expressly provide that for 
 the purposes for which it was created, the board 
 should possess the powers and privileges of a 
 •corporation {Laws of 1851, ch. 386, ? 2, siibd. 1, 
 i 8.) They must, therefore, be subject to the obli- 
 gations incident to the exercise of such powers. 
 
 101. The board of education may take prop- 
 ■erty by bequest for the library fund of the Col- 
 lege of the City of New York. And the boards 
 of trustees for common schools, in the several 
 •wards, may take by bequest for school purposes. 
 —Supreme Ct., {Sp. T.,) July, 1878. Betts v. 
 Betts, 4 Abb. N. Cas. 317. 
 
 _ 102. Board of estimate and appor- 
 tionment. It seems that the statutes (Laws of 
 1873, ch. 335, | 112, as amended by Laws of 
 1873,_ch. 757, ? 20, Laws of 1873, ch. 779, § 1,) 
 ■creating a board of estimate and apportion- 
 ment to ascertain the amounts to be raised by 
 tax for the expenses of the city and county 
 «f New York, are constitutional. — Ot. of App., 
 Sept., 1879. Townsend v. Mayor, &c., of New 
 York, 77 N. Y. 542 ; affirming 16 Hun 362. 
 
 103. When the board of police justices, as re- 
 ■quired by Laws of 1873, ch. 335, 1 112, submits 
 to the board of estimate and apportionment, a 
 statement of the salaries and expenditures to be 
 made by them, the latter board have power, 
 lunder Laws of 1873, ch. 538, ? 4, to determine 
 whether the expenditures and number of persons 
 ■employed about such courts, and the salaries paid, 
 ■are more than the public interests, in their 
 opinion, require. — Supreme Ct., {1st Dept.,) Dec., 
 1878. Brinck v. Mayor, &c., of New York, 16 
 Hun 340. 
 
 104. The action in striking from the appro- 
 jjriation the whole amount contained in the re- 
 port for the salaries of janitors, is equivalent to 
 ■a determination that the services of such janitors 
 •are no longer required. lb. 
 
 105. Board of fire commissioners. — 
 The provisions of the charter of 1873,. (Laws of 
 1873, ch. 335,? 28,) limiting the power of removal 
 •of clerks, employees, etc., given to the board 
 of fire commissioners, by declaring that it " can- 
 not be exercised in respect to any regular clerk 
 * * until he has been informed of the cause 
 •of the proposed removal, and has had an oppor- 
 tunity of making an explanation," is substantial 
 and capable of execution, and therefore cannot be 
 disregarded.— a. of App., Feb., 1878. People, ex 
 rel. Munday, v. Fire Commissioners, 72 N. Y. 445. 
 
 100. The provision necessarily implies that 
 the "cause" must be some dereliction or gene- 
 ral neglect of duty, or some delinquency affect- 
 ing the general character of the one sought to be 
 removed, and his fitness for the office ; that some 
 •other person can more efficiently perform the 
 •duties is not sufficient. lb. 
 
 _ 107. The relator was removed from his po- 
 -fiition as clerk in the fire department. No cause 
 for removal was assigned in the notice to him, 
 or stated in any way before or at the time he 
 was called upon to show cause. The only cause 
 for the removal stated in the resolution, as en- 
 tered upon the records, was that the relator had 
 
 not given satisfactory reasons why he should not 
 be removed. Held, that the statute was in no 
 respect complied with, and that the order of 
 removal was a nullity. lb. 
 
 108. After the removal to the Supreme Court 
 by certiorari of the order, a second notice was 
 served, and order of removal made, in which 
 the cause of removal stated was that " the duties 
 pertaining to the [relator's] position can be more 
 efficiently performed by another person." Held, 
 
 - that the second order was not brought up for re- 
 view, and was probably a nullity, because made 
 after a removal of the proceeding ; but if not, 
 that no " cause," within the requirement of the 
 statute, was assigned, and the order was void. lb.- 
 
 109. The provision of the section above cited 
 gives the power to remove at pleasure, save in 
 the case of a " regular clerk or head of a bureau." 
 — Ct.of App., April, 1878. People, ex rel. Sims v. 
 Fire Comm'rs of New York, 73 N. Y. 437. 
 
 110. The provision of said charter (? 76), de- 
 claring that thereafter the appointment of th-e 
 fire marshal and his assistants should be by the 
 board of fire cbmmissionen^j, did not derogate 
 from the general power of appointment and re- 
 moval vested in the heads of departments. lb. 
 
 111. The power to appoint to office or place, 
 where the term and tenure are not defined, neces- 
 sarily carries with it the power of removal. 
 Therefore where, in the returns to writs of cer- 
 tiorari to review proceedings of the board of fire 
 commissioners in removing the relators, it was 
 stated that thejelator S. " was surveyor in the 
 board of combustibles in the fire department * 
 * * and was not a regular clerk or head of 
 bureau," and that the relator E. " was assistant 
 to the fire marshal in the fire department" — Held, 
 that the designation of the positions of the re- 
 lators did not indicate or authorize the inference 
 that they were in any sense clerks ; that if either 
 held the position of "regular clerks" it should 
 have been made to appear ; that by the returns it 
 appeared that they were simply subordinate min- 
 isterial officers, removable at the pleasure of the 
 board. lb. 
 
 112. Under the provision of the charter (J 77) 
 declaring that members of the uniformed force 
 of the fire department " shall be removable only 
 after written charges shall have been preferred 
 against them," all that is required is that the 
 commissioners should specify in writing the 
 offence with which the member is charged, in 
 any language sufficient to convey that informa- 
 tion, and thus enable the accused to be prepared 
 for trial. — Ct. of App., Api-U, 1879. People, ex 
 rel. Donovan, v. Fiie Comm'rs of New York, 77 
 N. Y. 153. 
 
 113. While Laws of 1870, ch. 137, ? 85, was 
 in force, a fireman was tried on, and found 
 guilty of a certain charge preferred against him, 
 and the board of fire commissioners sentenced 
 him to be " retired from active service on an an- 
 nuity of $150, to date from the 12th inst." 
 
 Held, 1. That though the board may not have 
 power to grant the annuity, yet its action in re- 
 tiring the fireman was valid and operative. 
 
 2. That the sentence of retirement was in sub- 
 stance and effect one of discharge and dismissal 
 from the service. 
 
 3. That the fireman not having performed any 
 service after such discharge, was not entitled to 
 the salary attached to the position of fireman 
 thereafter accruing. — Superior Ct., Nov., 1878. 
 Wood V. Mayor, &c., 44 Sunerior 321. 
 
326 
 
 NEW YORK CITY, III. 
 
 114. Board of health. An action cannot 
 be maintained by the health department of the 
 city of Nevf York to recover a penalty for an 
 omission of the owner of premises to comply 
 with a special order of the department relating 
 thereto ; no penalty is now prescribed by law 
 for such omission. — Ot. of App., Sept., 1877. 
 Health Dept. of New York v. Knoll, 70 N. Y. 
 530 ; S. C, 4 Abb. N. Cas. 97. 
 
 115. The provision of the act of 1873 (Laws 
 of 1873, ch. 757,) supplementary to the city 
 charter of that year (Laws of 1873, ch. 335,) 
 conferiing upon the health department and the 
 board of health, as far as the city is concerned, 
 the authority, duties and powers vested in the 
 metropolitan board of health by the act of 1866 
 (Laws of 1866, ch. 74,) creating that board, and 
 the subsequent acts relating to it, does not in- 
 clude the penalties imposed by said acts ; they 
 are no part of the authority, duty or power. lb. 
 
 116. It seenis that the board of health has 
 power to make a special order for the ventila- 
 tion or other improvement of particular prem- 
 ises when in a condition dangerous to life or 
 health, and when the case is not provided for 
 by the sanitary code ; and the board has ample 
 authority to cause such orders to be executed ; 
 the existence of a penalty for its violation iS 
 not essential. . lb. And see, also. Health Dept. 
 of New York v. Pinckney, 7 Daly 260. 
 
 117. The only power conferred upon the 
 board of health by the provisions of the act of 
 1871, "to provide for the proper drainage of 
 lands," in the city (ch. 566), is to direct the 
 drainage of land by means other than sewers, 
 where surface water, injurious to public health, 
 could not be carried off by the sewers ; and to 
 assess the expense upon lands benefited by the 
 drain, the area of assessment being restricted to 
 the lands between the drain and the adjacent 
 streets and avenues. — Ot. of App., Jan., 1880. 
 Matter of Van Buren, 79 N. Y^ 384. 
 
 118. The commissioner of public works, in 
 pursuance of a requisition of the board of 
 health, directing him to cause the lands within 
 certain bounds, which included many blocks 
 and. about seventy acres of sunken land, to be 
 drained by other means than sewers, caused 
 drains to be dug and the lands to be filled in, 
 the whole cost of the improvement being about 
 $308,000, of which only i5491.20 was for 
 drains ; $248,5*34.27 of the cost was assessed in 
 one assessment upon the property-owners, blocks 
 of land being assessed through which the 
 drains did not run. Held, that said act did not 
 authorize such improvement; also, that, even 
 if the filling in could be claimed as merely an 
 incident to the construction of the drains, the 
 assessment was illegal, as there was no authority 
 for mingling in one assessment the costs of 
 drains running between different streets. lb. ; 
 affirming 17 Hun 527. 
 
 119. Inspectors of -weights and meas- 
 ures. As to the appointment and removal of 
 inspectors of weights and measures, and the 
 right of such inspector to be heard, in proceed- 
 ings for his removal by the mayor, see People, 
 ex rel. Banta, *. Kneissel, 58 How. Pr. 404. iSee, 
 also, Same v. Kent, Id. 407. 
 
 120. Board of police. In proceedings in- 
 stituted under the charter of 1873 (Laws of 1873, 
 ch. 335, § 55,) authorizing the removal of mem- 
 bers of the police force in certain cases, the re- 
 lator was removed by the board of police of 
 
 said city from the office of patrolman, after trial 
 and conviction upon the charge of "conduct 
 unbecoming an officer." The specification* 
 were, in substance, that the relator acted as pat- 
 rolman without legal authority, he being ineli- 
 gible to the office at the time of his appoint- 
 ment, and that the appointment was not made 
 in accordance with law. The evidence upon 
 the trial was confined to proof of the specifica- 
 tions. Held, that the evidence had no rele- 
 vancy to the charge and did not justify thfr 
 conviction ; that the exercise of official fiinc- 
 tions by one in office by color of appointment 
 of a body having the appointing* power does- 
 not constitute " conduct unbecoming an officer." 
 —a. of App., Feb., 1878. People, ex rel. Clapp, 
 V. Board of Police of New York, 72 N. Y. 415 ;, 
 reversing 5 Hun 457. 
 
 121. Under the section above referred to the 
 board cannot remove an officer, upon the charge- 
 of conduct unbecoming an officer, in that he 
 swore falsely when testifying as a witness uponi 
 the trial of another officer before the board. 
 To justify removal for such an offence, the offi- 
 cer must first have been convicted of false swear- 
 ing upon a trial before a jury, and in the ordin- 
 ary courts of justice.^-jSupreme Ct., (1st Dept.,) 
 March, 1880. People, ex rel. Siebert, v. Police- 
 Commissioners, 20 Hun 333. 
 
 122. On police trials, the evidence may be 
 taken down by a stenographer in the presence- 
 of a single commissioner, and afterwards sub- 
 mitted to the board. — Supreme Ct., (1st Dept.,) 
 March, 1880. People, ex rel. Farrell, v. Boards 
 of Police, 20 Hun 402. 
 
 123. Police captains. The effect of the- 
 provision of the charter of 1870 (Laws of 1870,' 
 ch. 137, § "47,) fixing the salaries of the officers, 
 in the police department at the amount then 
 paid to the officers holding such offices (see, 
 also, similar provision of charter of 1873, (Laws 
 of 1873, ch. 335, J 43,) was to abrogate the pro- 
 vision of the act of 1866, (Laws of 1866, ch. 
 861, ? 1,) regulating the salaries of members of 
 the metropolitan police department, which pro- 
 vided " that whenever the currency of the- 
 United States shall attain a par value in gold," 
 the salaries therein fixed "shall be reduced 
 twenty per cent." Therefore— JSe/d, that the- 
 relator, a captain of police, after January 1st, 
 1879, when such currency became at par with 
 gold, was entitled to the same salary as before ;; 
 and that upon refusal of the board of police to- 
 pay more tlian the salary as reduced by said 
 provision, relator was entitled to a writ of man- 
 damus to compel payment of the residue. — Ct. of 
 App., May, 1879. People, ex rel. Walsh, v. 
 Smitli, 77 N. Y. 347 ; affirming 17 Hun 286. 
 
 124. Police surgeons. That a police- 
 surgeon cannot recover from the city for ser- 
 vices rendered to the police department, since 
 Laws of 1873, chs. 335, 755, making the police- 
 department a separate and distinct branch of 
 the municipal government, see Waterman v. 
 Mayor, &c., of New York, 7 Daly 489. 
 
 125. The board of police have no power to- 
 fix the salary of a police surgeon at a less 
 amount than that fixed by law as the salary of 
 said office, or to make a binding contract with their 
 appointee to perform the duties of the office at 
 a less sum. The police surgeon is not a clerk 
 or employee, within the meaning of Laws of 
 1873, ch. 755, I 2, which gives to the board of 
 police power to fix the salaries and compen- 
 
NEW YORK CITY, III., IV. 
 
 327 
 
 Eation of all clerks appointed by said board, and 
 of all employees whom they may be authoi;ized 
 to appoint ; he is an officer within the meaning 
 of that act. — Gt-. of App., Nov., 1878. People, 
 ex rel. Satterlee, v. Board of jPolice, 75 N. Y. 
 38 ; reoersing 12 Hun 653. 
 
 126. The acceptance and discharge of the 
 duties of the office, after appointment, is not a 
 waiver of a statutory provision fixing the salary 
 thereof, and does not establish a binding con- 
 tract to perform the duties of the office for the 
 sum named. lb. 
 
 127. The department of public in- 
 struction created under and by the act of 
 1871 (Laws of 1871, ch. 574, ? 7,) re-organizing 
 the local government of that city, although 
 formally constituted a part of the city govern- 
 ment, is charged with the performance of 
 duties, not local or corporate, but relating and 
 belonging to an administrative branch of the 
 state government. The commissioners of said 
 department have also exclusive "authoiity as to 
 the employment and control of subordinates 
 and servants. The city corporation, therefore, 
 is not liable for negligence or unskillfulness in 
 the discharge of their duty on the part of sub- 
 ordinates or servants employed by the commis- 
 sioners. — Ct. of App., Sept., 1877. Ham «. 
 Mayor, Ac, of New York, 70 N. Y. 459. 
 
 128. Commissioner of public -works. 
 It seems that the commissioner of public works 
 being charged with the care of the public build- 
 ings has the power to appoint janitors to take 
 charge of the buildings in which the police and 
 district courts are located. — Ct. of App., Jan., 
 1880. Kennedy v. Mayor, &c., of New York, 
 79 K Y. 361. 
 
 129. Plaintiff was appointed by said com- 
 missioner janitor of the building occupied by 
 the police court of the second district, and by 
 the district or civil court of the third district ; 
 the justice of the latter court appointed C. 
 janitor for that court. The board of estimate 
 and apportionment made an appropriation for 
 the salary of one janitor for said building, con- 
 ditioned however, substantially, that no portion 
 thereof should be paid by the comptroller to 
 either appointee until the question was judi- 
 cially determined that he was and that the other 
 was not entitled to be paid. Held, that the ap- 
 propriation could only be availed of in an' 
 action or submission, to which both claimants 
 were parties, and then only on establishing that 
 the power to appoint janitors was exclusive, 
 either in the court or the commissioner, and 
 that there could be but one janitor ; and that, 
 therefore, plaintiff was not entitled to judgment 
 upon a submission of the controversy under the 
 Code of Civil Procedure (? 1279) as between 
 him and the city, to whicli C. was not a party. 
 
 130. Register of deeds. As to the 
 liability of the register of deeds for neglect or 
 error in making and returning an official search 
 of the records under his charge, see Van 
 Shaick v. Sigel, 58 How Pr. 211. 
 
 181. Superintendent of buildings. 
 A complaint which alleges that the defendant 
 was the head of the department of buildings ; 
 that it was his duty to see that all unsafe build- 
 ings were taken down or made secure, and that he 
 was furnished with the means necessary to ful- 
 fill said duty ; that a building, known as No. 
 25 Duane street, was so injured by fire as to 
 
 render it unsafe and that defendant had notice 
 of its condition ; that the said building fell 
 upon an adjoining building in which the plain- 
 tiff's intestate lawfully was and killed her, states 
 facts sufficient to constitute a cause of action, 
 and a demurrer thereto should be overruled. — 
 Supreme Ct., {1st Dept.,) March, 1878. Connors , 
 V. Adams, 13 Hun 427. 
 
 IV. CoBPORATE Liabilities. 
 1. Upon contracts. 
 
 132. Contracts for repairs and ma- 
 terials. The right of one who has performed 
 labor for the city and furnished materials in the 
 repair of sewers, to recover therefor, discussed ; 
 and the statutes on the subject, construed. — Su- 
 preme Ct., (Oir.,) March, 1877. Brown v. Mayor, 
 &c., of New York, 55 How. Pr. 11 ; Same o. 
 Same, Id. 8. 
 
 133. Street-cleaning contracts. The 
 city is not liable on contracts for removing gar- 
 bage or sweeping the streets, made by the police 
 department under Laws of 1872, ch. 677, as 
 amended by Laws of 1873, ch. 335, ? 67.— (Su- 
 preme Ct., i4:th Bept.,) May, 1879. Swift v. 
 Mayor, &c., 17 Hun 518. 
 
 134. "Work on ne-w court-house. The 
 city is not liable for services rendered on the 
 employment of the commissioners of the New 
 York county court-house, under the provision 
 of the act of 1871, ch. 583, ? 7, making an ap- 
 propriation for the completion of said building. 
 — Ct. of App., Jan., 1879. Miller v. Mayor, &c., 
 of New York, 76 N. Y. 151. 
 
 135. Enforcement of lien on fund in 
 hands of mayor, &c. — personal judg- 
 ment. In an action brought to foreclose a lien, 
 filed against a fund in the possession of the mayor, 
 &c., on account of a contract made by the city 
 for public work, the court has power under the 
 act of 1878 (Laws of 1878, ch. 315,) to render 
 2l personal judgment against the original debtor 
 for the amount due from him in excess of the 
 amount for which a lien has been established. 
 —Supreme Ct., (Sp. T.,) Feb., 1880. Bryon v. 
 Mayor, &c,, of New York, 59 How. Pr. 455. 
 
 136. Where the lien is established to a cer- 
 tain amount, a personal Judgment can be ren- 
 dered in favor of plaintiff against the contractor 
 for the full amount due from him. lb.' 
 
 137. "When the city is liable to pay 
 interest. The city is not liable to pay inter- 
 est on interest-bearing claims from the time 
 they become due, but only after demand of pay- 
 ment. — Com. Pleas, Api-il, 1877. Paul*. Mayor, 
 &c., of New York, 7 Daly 144. 
 
 2. For vyrongs. 
 
 138. Unauthorized act of public ad- 
 ministrator. The city is not liable for the 
 act of the public administrator in taking into 
 his possession the goods and money of a third 
 person as being the effects of a decedent intes- 
 tate, the act being one which he was not author- 
 ized by law to do. — Supreme Ct., {Sp. T.,) Jvly, 
 1878. Douglass v. Mayor, &c., of New York, 56 
 How. Pr. 178. 
 
 139. Obstructions in streets. The duty 
 of the corporation of the city of New York to 
 keep the streets of the city in such repair that 
 they may be safely traveled, is not limited to 
 the road-bed. — Ct, of App., Sept., 1878. Hume 
 
328 
 
 NEW YORK CITY, IV.— NUISANCE, I. 
 
 V. Mayor, &c., of Neif York, 74 N. Y. 264: S. 
 C, 57 How. Pr. 359. 
 
 140. A permanent wooden awning or roofing 
 covering the sidewalk of a street, and resting 
 for support upon posts bedded in the street, if 
 insecurely supported so as to be dangerous to 
 persons using the street, is a defect in the street 
 which the city is bound to repair ; and if the 
 city has notice of the danger, or if it has existed 
 so long, and is so easy lo be observed that notice 
 may be inferred, the city is liable for damages 
 resulting therefrom; and this, although the 
 structure was not made by authority of the dty, 
 or under the supervision of any of its officers. 
 Such a structure, made for private purposes, if 
 unauthorized, is an encroachment upon the pub- 
 lic street, and a nuisance, which it is the duty 
 of the city officers, after notice express or im- 
 plied, to remove. This is especially true as to 
 those streets the fee of which is in the city. lb. 
 
 141. If such a structure exists by authority 
 of the city, the city is liable for any defect aris- 
 ing from want of proper supervision, or from 
 negligence in its construction, although there be 
 no external indication of imperfection. lb. 
 
 142. As to the scope and extent of the duty 
 of the city to remove snow and ice from the 
 streets, see Battersby k. Mayor, &e., of New 
 York, 7 Daly 16. 
 
 For decisions afiecting the city of New York 
 in common with Other municipal corporations, 
 see Municipal Cokpobations. 
 
 For decisions upon the jurisdiction and pro- 
 cedure in the various Courts of justice sitting 
 in New York, see Appeal, IV. ; Courts, II., 
 
 NEXT OF KIN. 
 
 DisTBiBUTioN, 2; Executors and Adminis- 
 trators, 67-69. 
 
 NON COMPOS MENTIS. 
 
 Insane Persons; Wills, 63, 64. 
 
 NON-JOINDER. 
 
 Parties, 3 ; Pleadinvj, 11-13. 
 
 NON-SUIT. 
 
 s TRLiL, 35, 36. 
 
 NOTES 
 
 Promissoey Notes. 
 
 NOTICE. 
 
 1. Suflacienoy, generally. When the 
 record of a deed is sufficient notice to a releasor, 
 to put in effect the rule as to discharge of part 
 of premises aliened, by operation of release of 
 part retained, see Kendall v. Niebuhr, 45 Su- 
 perior 542. 
 
 2. The constructive notice which every 
 one has, at common law, of proceedings in 
 courts of record is only of pending proceedings ; 
 after judgment fixing the rights of the parties, 
 no such notice is implied. — Ot. of App., March, 
 1879. Page v. Waring, 76 N. Y. 463, 474. 
 
 3. When parties purchasing property are 
 chargeable with constructive notice of contents 
 of bill of lading under which it was shipped, see 
 Farmers, &c., Nat. Bank v. Logan, 74 N. Y. 
 568 ; Same v. Atkinson, Id. 587. 
 
 As to filing Notice of miit pending, see Mort- 
 gages, 82 ; Practice, O. 
 
 As to Notice of appeal, see Appeal, 211- 
 214 ; Justice of the Peace, 19-22. 
 
 As to Notice to quit, see Landlord and Ten- 
 ant, 9-13. 
 
 As to effect of notice to an Agemt, to bind his 
 principal, see Principal and Agent, 58-62. 
 
 As to notices in proceedings under Medujiaiaf 
 lien laws, see Mechanics' Lien, 23, 24. 
 
 As to Notice of rrwiion, see Motions and 
 Orders, 7. 
 
 NUISANCE. 
 
 I. What Amounts to a Nuisance. 
 II. Bemedies. 
 
 I. What Amounts to a Nuisance. 
 
 1. Storage of gunpowder. The keeping 
 or manufacture of gunpowder or fire-works is 
 not necessarily a nuisance; it depends upon 
 the locality, quantity, and surrounding circum- 
 stances, and not entirely on the degree of care 
 used. — Ct. of App., May, 1880. Heeg v. Licht, 
 8 Abb. N. Cas. 355 ; r^ersing 16 Hun 257. 
 
 2. The fact that an establishment for storing 
 it is outside the city limits does not relieve the 
 owner from responsibility or alter the case, if it 
 is in close contiguity with other buildings. lb. 
 
 3. A liability to explosion, which cannot be 
 avoided by the greatest care, would be sufficient 
 in some localities to render the establishment 
 a private nuisance. lb. 
 
 4. It should be left to the jury to determine, 
 whether, from the dangerous character- of the 
 business, the proximity to other buildings and 
 the attendant facts and circumstances, a build- 
 ing for the manufacture and storage of fireworks 
 is or is not a private nuisance. lb. 
 
 5. One has no right to keep gunpowder in a 
 place where', in case of explosion, it would be 
 liable to injure the dwelling-houses of those re- 
 siding near by. lb. 
 
 6. Obstructions in streets. Streets, 
 which include sidewalks, are for the use of the 
 public at large. Any obstruction erected thereon 
 without the sanction of the legislature is a nuis- 
 ance. — Supreme Ct., {Sp. T.,) August, 1879. Ely 
 V. Campbell, 59 How. Pr. 333. 
 
 1. A coal-hole in the sidewalk, maintained 
 without license from the proper city authorities, 
 is a nuisance, and the party upon whose prem- 
 ises it is, irrespective of his negligence, becomes 
 responsible to any one passing upon the side- 
 walk who is, without fault on his part, injured 
 by it.— Superior Ct., Jan., 1879. Clifford e. 
 Dam, 44 Superior 391. 
 
 8. A wooden awning erected for private pal- 
 
NUISANCE, I., II.— OFFICERS, I. 
 
 329 
 
 poses over a sidewalk in the city of New York, 
 without authority, is a nuisance. — Ct. of App., 
 May, 1878. Hume v. Mayor, Sm,, of New York, 
 74 N. Y. 264. 
 
 n. Beuedies. 
 
 9. Abatement. As to the right of action 
 to abate an obstruction of a highway as a pub- 
 lic nuisance, and the sufficiency of the com- 
 plaint in such an action, see Van Brunt v. 
 Ahearn, 13 Hun 388. 
 
 10. Injunction. One erecting or maintain- 
 ing a common nuisance is not liable to an action 
 by a person who has sustained no damage except 
 such as is common to all, but is liable to one 
 who has sustained damage peculiar to himself, 
 and may he restrained in equity from erecting 
 or continuing the nuisance. — Ct. of App., 
 March, 1879. Adams v. Popham, 76 N. Y. 
 410, 413. 
 
 11. Action for damages. "Where differ- 
 «nt parties pollute a stream by the discharge of 
 sewerage therein, each from his own premises, 
 and each acting separately and independently 
 of the others, one of the number is not liable 
 for all the injury suffered by another, because 
 
 of the nuisance thus created ; each is liable only 
 to the extent of the wrongs committed by him. 
 —Ct. of App., April, 1879. Chipman v. Palmer, 
 77 N. Y. 51, 56 ; affirming 9 Hun 517. 
 
 12. The authorities holding that where a 
 direct personal injury is occasioned by the sep- 
 arate and concurring negligence of two or more 
 parties, an action against one or all will lie, and 
 those holding that an equitable action will lie, 
 to restrain parties' who are severally contribut- 
 ing to a nuisance, distinguished. Ih. 
 
 13. Criminal prosecution. Where a rail- 
 road corporation carries a highway over its track 
 by a bridge, it is its duty, not only to properly 
 make the approaches to the bridge, but also to 
 keep them in suitable repair. For a substantial 
 non-compliance with the duty imposed upon it in 
 this respect an indictment against the corporation 
 for a nuisance in obstructing the highway is 
 proper.— a. of App., Sept., 1878. People v. N. 
 Y. Central, &c., K. R. Co., 74 N. Y. 302 ; S. C, 
 12 Hun 195. 
 
 14. The civil remedy provided for by the act 
 of 1855, (Laws of 1855, ch. 255,) does not super- 
 sede common law remedies ; it is merely cumu- 
 lative. Therefore the remedy by mandamus is 
 not inconsistent with that by indictment, lb. 
 
 o. 
 
 OATH. 
 
 Of Officers, see Officers, and the titles of the 
 various officers. 
 As to taking False oiths, see Pebjuby. 
 
 OBSTRUCTIONS. 
 
 HiaHWATS, III.; MtraiciPAii Cohpoeations, 
 74-94 • Nuisance, 6-8. 
 
 OFFICERS 
 
 I. Geneeal Principles. Acquisition and 
 
 Tenure of Office. 
 n. Powers and Duties of Officers. 
 
 III. Thetb Liabzlities. Official Bonds. 
 
 IV. Decisions Relative to Particular 
 
 Officers. 
 
 L General Principles. Aoiuisition and 
 Tenube of Office. 
 
 1. WHO are public officers. An attend- 
 ant of the Marine Court of the city of New 
 York holds an "office" within the meaning of 
 that term, as used in Laws of 1870, ch. 382, § 3, 
 prohibiting any increase in the salaries " of per- 
 sons then in office, or their successors." — Su- 
 preme Ct., (1st Dept.,) May, 1880. Moser v. 
 Mayor, &c., of New York, 21 Hun 163. 
 
 2. Election or appointment. A right 
 
 to an office by election may be perfect when the 
 votes have been cast and canvassed, and the re- 
 sult certified according to law, but then a com- 
 mission, or the duly authenticated certificate of 
 the result, as the substitute for a commission, is 
 the highest and best evidence of the title. An 
 appointment by the executive by and with the 
 advice and consent of the senate, is only evi- 
 denced by the commission, as the executive 
 may decline to make the appointment and to 
 issue the commission, notwithstanding the ad- 
 vice and consent of the senate. — Ct. of App., 
 Sept., 1877. People, ex rel. Babcock, v. Murray, 
 70N.Y. 521. 
 
 3. It seems that no appointment to any civil 
 office can be made verbally, save where permit- 
 ted by the terms of the statute conferring the 
 appointing power ; in the absence of such per- 
 mission, there must be a commission, i. e., a 
 formal writing signed by the- official with whom 
 the power of appointment rests, showing clearly 
 his intention to appoint the person named, his 
 belief that such writing is that required by the 
 statute, and his intention to make it the final 
 act on his part to perfect the appointment. lb. 
 
 4. Filling vacancies. As to filling va- 
 cancies in the office of superintendent of the 
 poor, see People, ex rel. Barrett, v. Dempsey, 19 
 Hun 322. 
 
 5. Proceedings to try title to office. 
 In a controversy submitted upon agreed facts, 
 under Code of Civ. Pro., § 1279, the city of 
 Buffiilo asked the court to determine which of 
 the two defendants was entitled to the office of 
 health physician of the city, in order that it 
 might pay to him his salary. Held, that the 
 right to the salary depended upon the right to 
 the office, and that the right to a public office 
 could only be tried in an action in the name of 
 
330 
 
 OFFICERS, L, II., Ill, IV.-ORDINANCES. 
 
 thepeople.-%,reme Q,., (4ih Bept.,) Od., 1878. 
 Cityof Bufialos. Mackay, 15 Hun 204. Con- 
 sult title Quo Waekanto. 
 
 6- -A-H officer de facto cannot be com- 
 pelled to act, and will not incur any liability by 
 his mere omission so to do. — 01!. of App., May, 
 1879. Olmsted v. Dennis, 77 N. Y. 378, 387. 
 
 7. Term of office— holding over. The 
 provision of the Eevised Statutes (1 Eev. Stat., 
 117, ? 9,) declaring that an officer " shall con- 
 tinue to discharge the duties of his office, al- 
 though his term of office shall have expired, 
 until a successor in such office shall be duly 
 qualified," applies only where a term of office 
 has expired ; not to a case of vacancy caused 
 by resignation. lb. 
 
 11. Powers and Duties of OmcEBs. 
 
 8. In general. Discretionary po-ro-- 
 ere. A custodian of public funds, directed by 
 law to pay them to persons charged with the 
 duty of expending them, cannot withhold pay- 
 ment because of the apprehended extravagance 
 of those charged with that duty.— Ct. of App., 
 
 ■ March, 1879. People, ex rel. Murphy, v. Kelly, 
 76 Jf . Y. 475 ; 5 Abb. N. Cas. 383. 
 
 9. Where a work of public necessity is done 
 under an invalid contract, or even voluntarily, 
 without the authority of any public officer, and 
 the legislature appropriates money to pay for it, 
 a disbursing officer cannot refuse to apply the 
 money to the purpose for which it was appro- 
 priated, on the ground that the state was not 
 originally under any legal obligations to make 
 payment, or that the legislature was not suffi- 
 ciently informed of the facts ; the only question 
 for such officer is whether the appropriation was 
 for the purpose claimed ; when this is ascer- 
 tained his duty is ministerial only. — Ot. of App., 
 Dee., 1879. People, ex rel. Sage, v. Schuyler, 
 79 N. Y. 189. 
 
 10. Power to make contracts. The 
 validity of contracts made by public officers 
 depends upon the authority of the officer, and 
 is not affected by his intentions or belief. — Su- 
 preme &., (1st Depi,,) June, 1880. Matter of 
 Fuller, 21 Hun 497. 
 
 III. Their Liabilities. Official Bonds. 
 
 U. Liability for negligence. It seems 
 that a public officer, charged with the perform- 
 ance of ministerial duties, who falls to discharge 
 those duties with reasonable skill and care, is 
 liable for the damage resulting from such fail- 
 ure to one specially interested in the discharge 
 of the duties.— CJ, of App., May, 1879. Olm- 
 sted V. Dennis, 77 N. Y. 378, 382. 
 
 12. When process is a protection. 
 Ministerial officers who are bound by law to 
 execute process are protected by the process 
 when the subject matter of the suit or proceed- 
 ing is within the jurisdiction of the court issu- 
 ing the process, and nothing appears on its face 
 so show that the person was not also within it. 
 — Superior Ct., Jan., 1878. Koderigas v. East 
 Eiver Savings Inst., 43 Superior 217 ; affirmed 
 76 N. Y. 316. 
 
 13. An officer sued for wrongfully seizing 
 personal property under insufficient process, by 
 a person who was in possession thereof at the 
 lime of the seizure, cannot defend by attacking 
 
 the plaintiff's title.— Com. Ple<K, March, 187T. 
 Oberwarth v. McLean, 7 Daly 70. 
 
 14. Official bonds, and liability of 
 sureties. — The sureties upon an official bond 
 are not liable for a defalcation of their princi- 
 pal, occurring during a term preceding that for 
 which the bond was given ; nor are they mad& 
 liable because their principal had, during the 
 term for which the bond was given, property 
 out of which he might have provided funds to- 
 make good the defalcation.— a of App., Api-U, 
 1879. Bissell i>, Saxton, 77 N. Y. 191. 
 
 15. Where an officer elected for a second: 
 term has in his hands at the beginning of, and 
 after he gives a bond for that term, public mon- 
 eys which came into his hands during his first 
 term, his failure thereafter to pay and account 
 therefor is a breach of the condition of the bond,, 
 and the sureties are liable. — Ct. of App., May,. 
 1879. Board of Education of Fairport ». 
 Fonda, 77 N. Y. 350, 357. 
 
 IV Decisions Relative to Pabtioulab Of- 
 
 FICEBS. 
 
 16. The state commissioner in lun- 
 acy. As to the powers and functions of the- 
 state commissioner in lunacy, his control over 
 the commissioners of charities in the several 
 counties in respect to the management of county 
 insane asylums, and his power to institute a 
 formal inquiry, of a judicial nature, as to the- 
 treatment of patients confined therein, compel 
 attendance of witnesses, production of papers^ 
 &c., see Matter of Kings County Insane Asy- 
 lum, 7 Abb. N. Cas. 425. 
 
 17. The state treasurer may delegate- 
 the power to endorse drafts delivered into his 
 office by a county treasurer for the payment of 
 taxes due the state, to a clerk in his office ; it is- 
 not an act involving the exercise of judgment 
 or discretion, and it is not one of the official 
 duties prescribed by statute which must be per- 
 formed by the treasurer in person. — Cl. of App., 
 Jan., 1879. People v. Bank of North America,. 
 75 N. Y. 547. 
 
 18. The "warden of the city prison, ia 
 New York, is a public officer, and an action 
 brought to recover damages for an act done by 
 him in virtue of his office, must be tried in the- 
 county of New York. — Supreme Ct., (2d Dept.,) 
 Feb., 1878. Cowen v. Quinn, 13 Hun 344. 
 
 As to officers of Corporations, generally, see- 
 
 "CORPOBATIONS, VI. 
 
 As to County, Town and Municipal officers, see 
 Counties; Municipal Corpobations, IV.;. 
 
 TOVTNS. 
 
 As to CompdMng or Restraining offieUA aeHon^ 
 see Injunction, 13-15 ; Mandamus, II. 
 
 ORDERS. 
 
 Motions and Orders, III. 
 
 ORDINANCES. 
 
 Municipal Corporation, 7, 8 ; New Yobk: 
 City, 9-11. 
 
PARDON— PARTIES. 
 
 33 B 
 
 OVERDRAFTS. 
 
 Banks and Banking, 30. 
 
 OWNER 
 
 Who is, under Mechanic^ lien laws, see Me- 
 chanics' Lien, 7, 8. 
 
 When Purchaser of land becomes, see Ven- 
 dor AND PUBCHASEB, 6. 
 
 OYER AND TERMINER. 
 
 Courts, 46. 
 
 PARDON. 
 
 1. Effect of, on pending ■writ of error. 
 The fact that a plaintiff in error has received a 
 pardon from the executive does not authorize 
 the dismissal of his writ of error ; injury may 
 be presumed from the judgment until reversed, 
 as the infamy and discredit to "which he is sub- 
 jected by it will remain. — Ct. of App., Oct., 1879. 
 Eighmy v. People, 78 N. Y. 330. 
 
 2. As to whether when, after a pardon, the 
 judgment is aflSrmed by reason of proceedings 
 upon the part_ of the defendant, he will be 
 deemed to have waived the benefit of the par- 
 don, qvtere. lb. 
 
 PARENT AND CHILD. 
 
 1. Duty to support child. Liability 
 for necessaries. Where they have property 
 which may lawfully be used for the purpose of 
 their maintenance, a father is not obliged to 
 support his minor children. — Surr. Ct., Oct., 
 1878. Matter of Marx, 5 Abb. N. Cas. 224. 
 Supreme Ct., {1st Bept.,) Dec., 1876. Mc- 
 Naughten v. Chave, Id. 225. 
 
 2. While the refusal of the wife, in whose 
 care the children of the marriage are, to give 
 them up to the husband, will ordinarily relieve 
 the latter from liability for necessaries, to the 
 person harboring the wife with knowledge of 
 such refusal ; yet the husband's consent that the 
 children remain with their mother until the 
 determination of habeas corpus proceedings in- 
 stituted by him, continues nis liability. — Com. 
 Pleas, April, 1877. Grunhut v. Kosenstein, 7 
 Daly 164. 
 
 3. Contracts bet'ween parent and 
 cbild. Where a father, who was the owner of 
 a farm and entitled to the possession thereof, 
 agreed with his daughter to lease the same from 
 her and pay a stipulated rent therefor, and did 
 thereafter pay to her certain sums on account of 
 the said rent — Held, that the payments actually 
 made took effect as gifts, but that his promise 
 to continue such payments for the future, was 
 void, for want of any consideration to support 
 it, and could not, after liis death, he enforced 
 against his repiesentatives either at law or in 
 equity. — Supreme Ct., {4th Dept.,) June, 1880. 
 Snyder v. Guthrie, 21 Hun 341. 
 
 4. Where a son, during infancy, has con- 
 veyed lands to his father, a reentry by him for 
 the purpose of disaffirming the deed is not a 
 
 ■Ct. of App., May, 1877. Green v_ 
 Green, 79 N. Y. 553. 
 
 5. Emancipation. When a minor -wiVS 
 be presumed to be emancipated so as to be able- 
 to recover the value of his services rendered to- 
 his father, see Lind v. Sullestadt, 21 Hun 364.. 
 
 6. Adoption. Laws of 1873, ch. 830, 
 legalizing adoptions, only applies to such as 
 take place after its passage. — Supreme Ct., {4th- 
 Dept.,) AprU, 1879. Hill v. Nye, 17 Hun 457.- 
 
 7. That the surrender of a child for the pur- 
 pose of adoption, prior to Laws of 1873, ch. 
 830, 2 13, did not deprive his natural parents 
 of the right to inherit as the next of kin of the 
 child surrendered, see lb. 
 
 As to the Hghts of Infants, generally, irre- 
 spective of the relation with the parent, see- 
 Gtjabdian AND Wabd ; Infants. 
 
 PARTIAL LOSS. 
 
 Instjbance, 134-138. 
 
 PARTIES. 
 
 [Includes only General rules illative to parties in 
 civil actions, at law or in equity. Such rules as are- 
 peculiar to any particular cause of action, remedy or 
 defence, which is the subject of a separate title in th&- 
 work, will be found under that title.] 
 
 1. Who may sue, generally. Where a . 
 statute imposes a duty upon a citizen, any per- 
 son having a special interest in the performance- 
 thereof may sue for a breach, causing him in- 
 jury.— O. of App., Sept., 1879. Willy v. Mul- 
 ledy, 78 N. Y. 310. 
 
 2. "Who is deemed the "real party- 
 in interest." Under the code, a plaintiff is 
 the real party in interest when lie has a valid 
 transfer, and holds the legal title to the demand 
 that is the subject of the action. It is not 
 necessary that there should be any valuable 
 consideration for the transfer or indorsement of 
 the demand to the plaintiff. The defendant is 
 fully protecte by a payment of the same, on a 
 recovery by the assignee or indorsee of the de- 
 mand. — Superior Ct., Nov., 1879. Freeman v. 
 Falconer, 45 Superior 383. 
 
 3. Misjoinder of parties plaintiff in the 
 complaint is good cause for demurrer, on thfe 
 ground that as to the party plaintiff improperly- 
 
■S32 
 
 PARTIES— PARTITION. 
 
 joined, the complaint does not state facts suffi- 
 ■cient to constitute a cause of action. — Smreme 
 O., [So. T.,) June, 1875. Eumsey v. Lake, 55 
 How. Pr. 339. 
 
 4. 'Who are not necessary parties. 
 In actions ex delictu the plaintiff may sue one or 
 -till the wrong-doers : and the objection that 
 others should have been joined as defendants 
 cannot prevail. — Ct. of App., Sept., 1880. Hun 
 V. Gary 59 How. Pr. 439. 
 
 5. When the mortgagor is not a necessary 
 party to an action on a promise of a third party 
 to pay the mortgage, see Hand v. Kennedy, 45 
 ^Superior 385. 
 
 6. Where a non-resident associate has died, 
 leaving no property in this state which would 
 authorize the appointment of personal repre- 
 sentatives here, and his personal representatives 
 are not within the jurisdiction of the court, 
 they are not necessary parties to an action 
 brought by another of the associates for an ac- 
 -counting and for contribution. — Cft. of App., 
 April, 1879. Angell v. Lawton, 76 N. Y. 540: 
 S. C, 14 Hun 70. 
 
 7. That co-legatees are not necessary parties 
 'to an action by a legatee against the executor, 
 for the sum found due her on his final account- 
 ing, see Hitchcock v. Linsly, 17 Hun 556. 
 
 8. Bringing in ne'w parties. In a pro- 
 •ceeding under Code of Pro., J 375, to bring in 
 and have judgment against a joint debtor, not 
 -served with process, the fact that pending the 
 proceeding the judgment has been assigned by 
 the plaintiff, constitutes no defence. The assig- 
 nee might, by motion, have been brought in as 
 plaintiff) or he might continue' the proceedings 
 in the name of the original plaintiff. — Supreme 
 ■<Jl., {1st Dept.,) April, 1878. Merchants'Exchange 
 Nat. Bank v. Waitzfelder, 14 Hun 47. 
 
 9. More than five years after a judgment was 
 .Tecx)vercd against W., as survivor of a firm, on 
 & firm note, and after an execution had been 
 issued and partly^collected, the summons and 
 ■complaint were amended, on notice of W., by 
 adding thereto the names of three other alleged 
 surviving partners, and a summons was issued 
 requiting the additional defendants to show 
 ■cause why they should not be bound by the 
 
 judgment. Seld, that the summons was irregu- 
 larly issued and should be set aside. — Supreme 
 a., (3d Dept.,) Nm,:, 1879. Organ v. Wall, 19 
 Hun 184. 
 
 10. Intervention. Under Code of Civ. 
 Pro., 2 452, a person interested in the subject of 
 an action, or in the real property the title to which 
 is sought to be affected thereby, at the time of the 
 filing of the lis pendens-, has an absolute right 
 ■to be made a party ; but whether one acquiring 
 «uch an interest after the filing of the lis pendens 
 shall be allowed so to come in and defend, rests 
 in the sound discretion of the court. — Supreme 
 ■Ct., {1st Dept.,) Jan., 1880. Earle v. Hart, 20 
 Hun IS. 
 
 11. No supplemental summons need be served, 
 where one is made a party to an action on his 
 
 ■own petition. — Supreme Ct., (1st Dept.,) Deo., 
 1879. Haas v. Craighead, 19 Hun 396. 
 
 As to Arnendmenta with respect to parties, see 
 Amendment 2-4. 
 
 PARTITION. 
 
 1. When the action lies. Proceedings 
 
 for the partition of infants' lands cannot be 
 maintained when a sale would defeat the pro- 
 visions of the will under which the infants' title 
 is derived, e. g., a provision forbidding a sale 
 until testator's youngest child becomes of age. 
 —Supreme Gt., {Sp. T.,) Sept., 1878. MuUer v. 
 Struppman, 55 How. Pr. 521 : S. C, 6 Abb. N. 
 Cas. 343. 
 
 2. A suit for partition can be maintained 
 under the act of 1853, only where it is shown 
 that the entire devise, or the whole will, to 
 which objectionis taken, is void. (Laws of 1853, 
 ch. 238, S 2.)— Supreme Ct., {Sp. T.,) Dec., 1878. 
 McKeon v. Kearney, 57 How. Pr. 349. 
 
 Such an action may be brought when the 
 property sought to be partitioned was devised 
 to a devisee who was injiompetent to take be- 
 cause of alienage. — Supreme Ct., (2d Dept.,) 
 Feb., 1878. Hall v. Hall, 13 Hun 306. 
 
 3. "Who may maintain it. One having 
 a present interest pur autre vie, in an undivided 
 portion of lands, and a contingent remainder in 
 fee in an undivided part, is entitled to parti- 
 tion ; and, if actual partition cannot be had, to 
 a sale of the premises. — Ct. of App., Jv/ne, 1877. 
 Brevoort v. Brevoort, 70 N. Y. 136. 
 
 4. Tenants for life, in possession, may have 
 partition as between themselves, and all per- 
 sons entitled to the reversion or remainder, and 
 all who may be, or who may become entitled to 
 any beneficial interest in the lands, may be 
 made parties to the action or proceedings. — Ct. 
 of App., April, 1878. Jenkins v. Fahey, 73 N. 
 Y. 355, 359. 
 
 6. An assignee in bankruptcy may maintain 
 partition, and leave of the bankruptcy court is 
 not necessary before commencing the action. — 
 Supreme Ct., {Steuben Equity T.,) March, 
 1880. Butherford v. Hewey, 59 How. Pr. 
 231. 
 
 6. As to whether a receiver appointed in 
 supplementary proceedings obtains such a title 
 to real estate as will enable him to maintain an 
 action for partition, see Ct. of App., Nov., 1878, 
 Dubois V. Cassidy, 75 N. Y. 298. 
 
 7. The complaint must set forth the 
 " rights and titles " of the plaintiff, and should 
 conform to the requirements of a petition for 
 partition under 1 Kev. Stat., p. 318, § 5. — Su^ 
 preme Ct., {Sp. T.,) Oct., 1878. Stewart v. Mun- 
 roe, 56 How. Pr. 193. 
 
 8. The complaint in an action for partition, 
 in which one of the defendants was an in&nt, 
 alleged that the land described was the only real 
 estate owned in common by the defendants. One 
 of the defendants demurred on the ground that 
 the averment should have been that the lands de- 
 scribed were the only lands owned in common by 
 the parties, as required by Kule 78 of 1876. 
 Held, that if the allegation was defective it was 
 because of its uncertainty, and the proper 
 remedy was by motion, not by demurrer. — Su- 
 preme Ct., {1st Dept.,) March, 1878. Moffatt ». 
 McLaughlin, 13 Hun 449. 
 
 0. The answ^er. Defences. In an action 
 for partition of lands, on which there was a stone 
 quarry — Held, that a tenant in commoHj who 
 was made a defendant, might set up in his an- 
 swer that plaintiff had been in the sole posses- 
 sion of the premises, collected the rents and 
 quarried and sold stone therefrom, and might 
 require an account to be rendered of moneys so 
 received by plaintiff, and have an allowance 
 made to himself therefor. — /Supreme Ct., (3d 
 
PARTITION— PARTNERSHIP. 
 
 333; 
 
 Dept.,) May, 1879. McCabe v. McCabe, 18 Hun 
 153. 
 
 10. Where, in an action for partition, brought 
 by plaintiff as heir-at-law of C, against the 
 widow and other heirs, the defendants set 
 up a deed from C. to a third person, without 
 connecting themselves therewith — Held, no 
 defence ; also that if defendants had derived title 
 through or under the deed, they could not have 
 availed themselves thereof against the plaintiff, 
 unless their possession was hostile in its incep- 
 tion, or they had surrendered their prior pos- 
 Bession and entered under the newly-acquired 
 title.— a. of App., Dec., 1877. Knolls v. Barn- 
 hart, 71 N. Y. 474. 
 
 11. The judgment, and liO"w far con- 
 clusive. — A judgment in partition is conclu- 
 sive on all having any interest who are made 
 parties, and conveyances upon sale under the 
 judgment are a bar in law and equity as 
 against all such parties or their representatives. 
 (2 Eev. Stat. 318, R5,6; Id. 322, ? 35 ; Id. 327, 
 i 60 )—Ct. of App., Aprii, 1878. Jenkins v. 
 Fahey, 73 N. Y. 355, 359. 
 
 12. In an action for partition by one of several 
 tenants for life, a, sole owner of the estate in re- 
 mainder, who was a non-resident, was made a 
 party defendant, and an order for service 
 upon him by publication was obtained; the 
 summons and complainant were served upon 
 him personally out of the state; he did not 
 appear and judgment was perfected, adjudging 
 that the premises be sold, and charging the 
 estate in remainder with the payment of a 
 portion of certain taxes and assessments. Held, 
 that the court had jurisdiction, and the judg- 
 ment was conclusive, as against the remainder- 
 man, in favor of the purchaser at the sale under 
 the judgment ; and that in an action brought by 
 said purchaser against one who had contracted 
 to purchase a portion of the premises, for specific 
 performance of the contract, the defendant could 
 not be heard in impeachment of the judgment. 
 lb. See, also, Brevoort v. Brevoort, 70 N. Y. 136. 
 
 18. Although the judgment omits to provide 
 for ascertaining the value of the inchoate right 
 of dower of one entitled thereto, yet it can only be 
 corrected on appeal ; the omission does not avoid 
 the judgment, and a purchaser at a sale there- 
 under acquires a good title to the premises, free 
 from all claim of dower therein. — Supreme Ol., 
 {4th Dept.,) Jan., 1880. Jordan v. Van Epps, 
 19 Hun 526 ; S. C, 58 How. Pr. 338. 
 
 14. The judgment of partition cannot bind 
 the contingent interests of persons not in esse, un- 
 less it provides for and protects such interests 
 by substituting and preserving the proper part 
 ofthefiind. — Ct. of App., March, 1880. Monarque 
 V. Monarque, 8 Abb. N. Cas. 102, reversing 19 
 Hun 332. 
 
 15. Sale— in gross, or in parcels. The 
 court has power, in an equitable action for par- 
 tition, where the parties are tenants in common 
 of real or personal estate, to direct a sale of the 
 whole in one parcel, where the interests of the 
 parties will be promoted by such sale. — Ot. of 
 App., Jan., 1880. Prentice v. Jansseri, 79 N. Y. 
 478. 
 
 16. Fees of referee to sell. The provi- 
 sion of the act of 1869, ch. 569, § 4, relative to 
 the fees of referees on sales in partition cases, is 
 not local, but public, and is not affected by the 
 fact that certain local provisions of the 
 act are violative of the' constitutional provision 
 
 (art. 16, J 3,) because not expressed in the 
 title. Under said provision, the referee is en- 
 titled to the commissions there provided, and 
 also to the fees specified in ^ 2 of the act. — Ct. 
 of App., Feb., 1879. Richards v. Eichards, 75 
 N. Y. 186 ; affirming 14 Hun 25. 
 
 17. As to the fees of referees in partition, for 
 selling property subject to a mortgage, se& 
 Strauss v. Hellman, 58 How. Pr. 377. 
 
 18. Rights of purchaser. Oompelling- 
 him to take title. A purchaser upon a par- 
 tition sale has a right to require a good title, and 
 will not be compelled to complete his purchase 
 and accept a deed which leaves him to the un- 
 certainty of a doubtful title, or to the hazard of 
 contest with other parties which will seriously 
 affect the value of the property. — Ct. of App.,. 
 June, 1879. Jordan v. Poillon, 77 N. Y. 518. 
 
 19. Upon a motion to compel the purchasers- 
 upon a partition sale to complete their purchaser 
 it appeared that the premises in question and 
 other real estate were formerly owned by A. 
 and C, as tenants in common. A. died, leavings 
 a will, by which, after bequeathing various 
 legacies, he gave all the residue of his estate, 
 real and personal, to his wife, A. L. In pursu- 
 ance of an agreement between her and C, par- 
 titioning the lands so held in common, A. L> 
 deeded to 0. the premises in question. C. died 
 intestate, and the partition suit was between his- 
 heirs. The legatees of A. were not made par- 
 ties. The opposing affidavits alleged that none 
 of the said legacies had been paid, and .that the 
 estate of A. was insufficient to pay his debts. 
 Held, that an order requiring the purchasers to- 
 complete their purchase was improper, as the 
 question as to the lien of the legacies could not 
 be determined so as to be binding upon the 
 legatees who were not parties, and the purchaser 
 might be subjected to the hazard and expense 
 of another litigation ; and that the difficulty wa» 
 not obviated by the fact that a voluntary parti- 
 tion had been made between C. and A. L., as the 
 legatees not having assented, and having re- 
 ceived no notice, were not bound thereby. lb.. 
 
 20. Matters of practice. As to the in- 
 vestment of infants' shares of the proceeds of 
 sale, by the chamberlain of the city of New 
 York, see Chesterman i>. Eyland, 17 Hun 520. 
 
 21. For rulings on various incidental matters 
 of practice, up to and including the entry of final 
 judgment, see Offinger v. De Wolf, 43 Superior 
 144. 
 
 PARTNERSHIP 
 
 I. The Eelation ; and how CoNsnTmED.^ 
 
 1. In general. 
 
 2. Bights of partners; and herein of 
 
 partnership property, generally, 
 
 3. Interpretation of partnership artudes. 
 
 4. The firm name. 
 
 II. Power of One Partner to Bind An- 
 other, OK THE Firm. 
 
 III. Suits Between Partners. AccouNTiNa» 
 
 IV. Eights op Creditors. 
 V. Dissolution. 
 
 1. How a partnership may be dissolved^ 
 
 2. Consequences of dissolution. 
 
 VI. Limited Partnership 
 
334 
 
 PARTNERSHIP, I. 
 
 I. The Eelation ; and how Constituted. 
 1. In general. 
 
 1. What constitutes a partnership, 
 generally. — An agreement entered into be- 
 tween one partner in a firm and a third person, 
 ■whereby the third person is to receive a certain 
 proportion of such partner's share in the profits 
 ■of the firm, and pay to such partner a corres- 
 ponding proportion of the losses of the firm, con- 
 stitutes a sub-partnership, and does not make the 
 third person a partner in the firm either inter 
 -seae or mtoad other parties. — iSuperior Cl., Jan., 
 1878. Burnett v. Snyder, 43 Superior 238. 
 
 2. One who becomes a joint owner with a, 
 partner of his share in a partnership, standing 
 in his name alone, with the knowledge and con- 
 sent of all the members of the firm, is liable as 
 « partner. Ih. 
 
 3. Instances. E. advanced $700 to M., a 
 traveling showman, under the agreement that, 
 *fler payment of expenses, E. was to receive 
 back the $700, and one-half of the net profits 
 Held, that E. and M. were partners as to third 
 persons, irrespective of any agreement to the con- 
 trary between themselves. — Supreme Cl., (4(A 
 Dept.^ Jan., 1879. Haas v. Eoat, 16 Hun 
 •526. 
 
 4. Two of five members of a co-partnership, 
 in their individual capacity, entered into an 
 agreement with defendant, S., in which it was 
 ■stated that it was for the interest of said firm 
 that 8. should have an interest and become a 
 ■co-partner, therefore it was agreed that he " is 
 a co-partner in the firm," and that he shall be 
 entitled to receive from the other parties to the 
 agreement one-third of the profits earned and 
 received by each ; he agreeing to pay one-third 
 ■of any losses sustained by either "by reason 
 of their connection as' co-partners, or otherwise, 
 with the firm." In an action by a creditor of 
 the firm, in which it was sought to charge S. as 
 a partner. — Held, that the agreement did not 
 constitute him a partner, as nil the partners 
 had not joined or concurred therein ; that the 
 <ieclaration of S. therein did not render him 
 liable to a firm creditor, who did not give credit 
 to the firm on account of that declaration ; and 
 that he did not become liable because of the 
 agreement as to profits and losses, as he was not 
 to take profits as such from the co-partnership or 
 its property, and had no interest therein, but 
 simply an interest in the individual shares of two 
 of the members after they were received by them. 
 — Gl. of App., March, 1879. Burnett v. Snyder, 
 76 N. Y. 344 ; affirming 43 Superior 238. 
 
 5. An agreement was made between several, 
 that certain of their number should be named as 
 ■co-partners in partnership articles, and that the 
 others should have a certain proportion of the 
 interest of certain of those so named, which 
 agreement was carried into eflFect. Held, to 
 create a partnership as to the latter class, under 
 the facts of the particular case. — Superior Ct., 
 March, 1879. Burnett i>. Snyder, 45 Superior 
 •577. 
 
 6. Effect of agreements to share 
 profits and losses. One who has no interest 
 in the capital, or in the business of a firm, save 
 that he is to receive a percentage of the net 
 profits of the business for his services, is not, at 
 least, as between himself and othei-s interested in 
 the profits, a partner.— O. of App., May, 1878. 
 
 Smith V. Bodine, 74 N. Y. 30. Jan., 1879. 
 Eichardson v. Hughitt, 76 N. Y. 55. 
 
 7. Where money is loaned for the benefit of 
 a business, and is to be refunded absolutely, - 
 without regard to the profits, the fact that the 
 lender is to receive a share of the profits, to 
 apply on the indebtedness, does not make him 
 liable to creditors as a partner; to have that 
 eifect, the payment of the advancement must 
 depend upon the profits. — Ct. of App., Jan., 
 1879. Eager v. Crawford, 76 N. Y. 97. 
 
 8. Proof of partnership. When, in an 
 action to charge, with a firm debt, one who has 
 held himself out to be a member of the firm, 
 the declarations of the person to whom the goods 
 were sold are admissible as against the person 
 sought to be charged, see Greenwood v. Sias, 21 
 Hun 391. 
 
 9. What is insufficient proof of partnership 
 by general reputation, see Gulke v. TJhlig, 55 
 How. Pr. 434. 
 
 2. Mights of partners; and herein of partner- 
 ship property, generally. 
 
 10. Rights of partners inter sese. The 
 interest of a member of a co-partnership in the 
 firm assests, is the share to which he is entitled 
 under the co-partnership agreement, in the sur- 
 plus, after all the partnership debts are fully 
 paid. — Cl. of App., April, 1878. Staats v. Bris- 
 tow, 73 N. Y. 264. 
 
 11. Where one of several joint debtors pays 
 the debt, his remedy against the others is con- 
 fined to a claim for contribution, and where the 
 debt arises out of a partnership transaction, the 
 amount, if any, to which the party paying is 
 entitled as against the others necessarily depends 
 upon the state of the partnership account. He 
 cannot keep the paid claim, or any judgment 
 thereon, alive and enforce it against the others, 
 either in his own name or in that of any third 
 party to whom he may cause it to be assigned, 
 unless, perhaps, under special circumstances, to 
 the extent of the sum which may be found due 
 to him from his co-partners on an accounting 
 with them. Prima fade, at least, the debt and all 
 judgments recovered thereon against the co- 
 partners are discharged by the payment of the 
 debt by one of them.— Ct. of App., Sept., 1878. 
 Booth V. Farmers', &c., Bank, 74 N. Y. 228 ; 
 affirming 11 Hun 258. 
 
 12. In an action for the conversion of certain 
 machinery, it appeared that plaintiffs and de- 
 fendant were carrying on business as partners, 
 the articles providing that the capital contribu- 
 ted by plaintiffs should belong to them respect- 
 ively and exclusively. Plaintiflfe purchased 
 machinery, which was put in the custody of de- 
 fendant, who was to carry on the business, and 
 one-half its cost was, by one of the plaintiffs, 
 credited to each of them upon the books of the 
 firm. HM, that, by the credit of the cost of the 
 machinery to plaintiffs, it became the property 
 of the firm, and it having been removed by de- 
 fendant, plaintiffs could not maintain trover 
 therefor. — Supreme Cl., (4«A Dept.,) Oct., 1878. 
 Eobinson v. GilfiUan, 15 Hun 267. 
 
 13. As to the right of one of two partners in 
 the hotel business, without the knowledge or 
 consent of the other, to secure for his sole bene- 
 fit a renewal lease of the hotel, the term of 
 which is to begin at the date specified in the 
 co-partnership articles for the termination of 
 
PAETNERSHIP I. 
 
 335 
 
 the partnership, and the right of the other 
 partner to claim such renewal lease as partner- 
 ship property, see Mitchell a. Bead, 19 Hun 
 418. 
 
 14. Real estate as partnership prop- 
 erty. Whether a parol agreement between 
 two or more persons to purchase a specific 
 parcel of real estate with a view of selling 
 at a profit, to pay for the same from their in- 
 ■dividual means, and to take the deed in the 
 name of one of them, constitutes a partnership 
 in any commercial sense, and so is not violative 
 ■of the statute of frauds, see Gt., of App,, Nov., 
 1878. Williams v. Gillies, 75 N. Y. 197. 
 
 15. Conceding a partnership in some sense it 
 -does not follow that all the incidents and liabili- 
 ties of a commercial partnership attach. lb. 
 
 16. Where, in such case, the party taking 
 title gives back his individual bond, for a part 
 •of the purchase money, the name of his associa- 
 ates not appearing in the bond and nothing 
 therein indicating that it was executed on their 
 behalf or for their benefit, they cannot be held 
 personally liable thereon, lb. And see BisseU 
 *. Harrington, 18 Hun 81. 
 
 17. There is no presumption that a leasehold, 
 standing in the name of one of several co-part- 
 ners, and used by the firm for their business, 
 conslitutes partnership assets. The presump- 
 tion is otherwise. Its mere use for partnership 
 purposes does not operate to divest or affect the 
 legal title. — Superior Ct., May, 1878. Chamber- 
 Jin V. Charaberlin, 44 Superior 116. 
 
 18. If, however, it be made to appear that 
 real estate and chattels real standing in the 
 name of one of a firm, does in fact belong to 
 the partnership, equity will treat it as such, and 
 ■will decree the person holding it to be a trustee 
 €or those beneficially interested, but it must ap- 
 pear that such real estate has been so treated, 
 and was purchased and held for partneship pur- 
 poses and account, or in some form voluntarily 
 subjected by the legal owner to the equitable 
 rights and liens of all the partners and partner- 
 ship creditors. lb. 
 
 19. For a discussion of the law relative to 
 real estate as partnership property, and the 
 aright of one partner to mortgage his interest 
 therein, see Tarbel v. Bradlev, 7 Abb. N. Cas. 
 273. 
 
 20. Suits by partners against third 
 persons. One member of a partnership can- 
 not maintain action to recover a debt due the 
 firm, even where there are more than forty 
 partners. The fact that plaintiff is the irrnn- 
 oging partner does not alter the rule. — Svpreme 
 
 &, (1st Dept.,) Oct., 1878. Brainerd v. Ber- 
 .tram, 5 Abb. N. Cas. 102. 
 
 3. InUrpretation, of partnership articles. 
 
 21. As to duration of the partner- 
 tship. Where, in a co-partnership agreement, 
 no time is named for its continuance, and no 
 provision made for the settlement of its con- 
 cerns upon dissolution, it is dissolvable at the 
 will of either of the partners ; an action is 
 maintainable for that purpose, and the appoint- 
 ment of a receiver therein is proper. — Gl. of 
 App., March, 1879. McElvey v. Lewis, 76 N. 
 Y. 373 ; affirming, 44 Superior 561. 
 
 22. As to shares of profits. E., plain- 
 tiff's testator, defendant and one S. entered into 
 a co-partnership in 1865, " for so long a time as 
 
 they shall mutually agree,'' E. to receive one- 
 tenth, defendant four-tenths and S. five-tenths 
 of the net profits. For the year 1872, E. re- 
 ceivod a greater proportion, defendant a less, S. 
 the same. On January 1st, 1873, defendant exe- 
 cuted an instrument by which he agreed to pay 
 E. " four and three-eighths per cent, of the net 
 ascertained profits" of the firm "during the 
 year 1873." E. remained in the firm, receiving 
 during the year the share of profits stated in 
 the original agreement. In an action upon the 
 instrument — Held, that the facts authorized an 
 inference that E. consented to continue the co- 
 partnership, in consequence of the promise of 
 defendant; and that this was a sufficient con- 
 sideration for the promise. — Ot. of App., Nov., 
 1879. Emery v. Wilson, 79 N. Y. 78. 
 
 23. Upon the death of S., defendant brought 
 an action for an accounting and settlement of 
 the partnership affairs. E. set up in his answer 
 therein that he was entitled, for the year 1873, 
 by agreement, to a greater percentage of profits 
 than that sptecified in the co-partnership agree- 
 ment. On the trial he offered in evidence the 
 instrument above described, which was rejected. 
 Held, that the former action was no bar to this ; 
 that the undertaking of defendant was an indi- 
 vidual one having no relation to the partnership 
 or its affairs, as such. lb. 
 
 24. By the articles of co-partnership it was 
 provided that quarterly accounts should be 
 taken and settled between " the co-partners, to 
 the intent that it may thereby appear what are 
 the net profits." Held, that it was proper to 
 take the quarterly statements so taken, and 
 entered upon the books for the year 1873, as the 
 " net ascertained profits " upon which the per- 
 centage was to be paid by defendant ; and that 
 it was no error for the referee to refiise to de- 
 duct from the profits so ascertained the depre- 
 ciation in value of the firm property. lb. 
 
 4. The firm name. 
 
 25. Necessity of contracting under 
 Arm name. When funds or property are ob- 
 tained on the obligation of only a portion of 
 the members of a firm, the fact that the property 
 thus obtained goes to the use of the firm is not 
 of itself sufficient to render the firm liable. But 
 where the property is not only obtained for and 
 applied to the benefit of the firm, but is so ob- 
 tained by the joint act and upon the joint writ- 
 ten obligation of all its members, and the credit 
 is given to all, the transaction is in substance a 
 co-partnership transaction, though the firm 
 name is not actually used in the writing, and 
 though the partners may hs^ve superadded to 
 their joint obligation the several liability of each 
 of them. — Ct. of App., Jam., 1879. Berkshire 
 Woolen Co. v. Juillard, 75 N. Y. 535, 540; af- 
 firming 13 Hun 506. 
 
 Such an obligation is payable out of the firm 
 assets, although the firm name is not mentioned 
 therein, and it appears upon its face to be sim- 
 ply the obligation of the co-partners contracted 
 in their individual names. lb. 
 
 26. D., G. and K. entered into a parol agree- 
 ment to purchase certain premises on joint ac- 
 count as a speculation, each to contribute a 
 specified proportion of the purchase money ; D. 
 to take the title and give back his bond and 
 mortgage for so much of the purchase money as 
 was not paid down ; the profits to be divided 
 
336 
 
 PARTNERSHIP, I., II,, III. 
 
 pro rata. The purchase was made in pursuance 
 of the agreement, D., with the consent and 
 authority of the others, taking title in his own 
 name and giving to the vendor his individual 
 bond, secured by mortgage on the premises. 
 In an action to foreclose the mortgage, a judg- 
 ment for deficiency was rendered against Q. 
 
 Hdd, 1. That the facts did not authorize a 
 finding that the name of D. was to be regarded 
 as the agreed name of the firm for the purpose 
 of executing the bond, or that it represented 
 any one but himself. 
 
 2. That payments on the bond by G. had not 
 the efiect oi changing the chaiacter of the bond 
 from an individual to a joint obligation. — Cl. of 
 App., Nov., 1878. Williams v. Gillies, 75 N. Y. 
 Iff7 •.reversing 13 Hun 422. 
 
 2t. Using fictitious firm name. An 
 action or defence founded on tlie statute prohib- 
 iting the use of fictitious partnersliip names 
 (Laws of 1833, ch. 281 ; see, also. Laws of 1854, 
 ch. 400, and Laws of 1863, ch. 144,) must be 
 based upon the statute. What is not a violation 
 of the statute. — Superior Ct., Feb., 1878. Hen- 
 nequin v. Butterfield, 43 Superior 411. 
 
 28. The statute being highly penal, will not 
 be extended by implication or construction to 
 cases not within the terms of the act, fairly in- 
 terpreted. — Cl. of App., Jan., 1878. Wood v. 
 Erie Kailway Co., 72 N. Y. 196. See, also, Lunt 
 II. Lunt, 8 Abb. N. Cas. 76. 
 
 IL Power of One Partner to Bind An- 
 other, OB THE Firm. 
 
 29. In general. The power of one partner 
 to act as agent for and to bind his co-partners, 
 discussed, and the authorities upon the subject 
 collated. — Ct. g/' App., March, 1877. King v. 
 Sarria, 69 N. Y. 24. 
 
 80. By making or transferring nego- 
 tiable paper. A promissory note made by 
 one of two members of a firm, in the firm name, 
 is valid against the firm in the hands of a bona 
 fide holder for value, although not made in the 
 partnership business, and although the other 
 partners did not consent to and did not know of 
 the making of the note. The note is presump- 
 tive evidence that it is valid business paper, and 
 was given for a debt due from the makers to the 
 payee. — Ct. of App., March, 1878. First Nation- 
 al Bank of Chittenango d. Morgan, 73 N. Y. 
 593 ; affirming 6 Hun 346. 
 
 31. Where the promissory note of a firm is 
 so given by one of its members for the accom- 
 modation of the payee, as to a bona fide holder 
 for value, without notice of the actual relation 
 of the parties, the members of the firm are 
 bound as principals, and upon the death of one 
 of them, an action may be maintained thereon 
 against his personal representatives upon show- 
 ing the insolvency of the surviving partner ; 
 the rule absolving the estate of a joint surety 
 upon his death is not applicable. lb. 
 
 32. Where, after the death of one member 
 of a firm, the holder of a note in the firm name, 
 without knowledge of the death, received a new 
 note signed in the firm name in renewal of such 
 note, and delivered up the same — 
 
 Seld, 1. That the new note, having been taken 
 through a mistake of fact, was not a payment of 
 the old note. 
 
 2. That the bringing of an action upon the 
 
 last note against the surviving partner, and re- 
 covery of judgment thereon, in the absence of 
 proof of knowledge on the part of plaintiif at 
 the time of bringing the action, that the de- 
 ceased partner died before the giving of the 
 note, was not a ratification of the transaction as 
 a release of the estate of the deceased. lb. 
 
 33. When the firm is liable^ on a note given, 
 by one partner in payment of the premium of 
 insurance on property represented by him to her 
 firm property, whether such be the case or not; 
 see Osgood v. Glover, 7 Daly 367. 
 
 34. Bffect of notice of want of au- 
 thority. When a party takes negotiable paper,, 
 made, accepted or indorsed by one of several 
 partners, in or with the partnership namej and 
 the fact that such name was not signed or in- 
 dorsed in the regular course of the business of 
 the firm is apparent on the face of the instru- 
 ment, or necessaarily implied in the nature of 
 the transaction, such party cannot, though he- 
 may have parted with value on the faith of the- 
 paper, charge the other members of the firm, 
 except upon proof that they assented to the 
 transaction. In every such case he is charge- 
 able, as matter of law, with notice of want of 
 authority in the individual partner to bind the- 
 firm without their express assent. — Superior 
 Ct., March, 1879. St. Nicholas Nat. Bank v. 
 Savery, 45 Superior 97. 
 
 35. When the fact, though existing, that 
 such name was not signed or indorsed in the 
 regular course of the business of the firm is not 
 apparent from the face of the instrument, and 
 the nature of the transaction appears to be sus- 
 ceptible of difierent conclusions, the question of 
 notice is one of fact, to be determined by the 
 jury upon all the circumstances. In everysuch 
 case, the burden is again upon the plaintifi^ 
 though he may have parted with value, to satis- 
 fy the jury, either that the circumstances of the 
 case did not. constitute notice to him, or that, if 
 they did, the other members of the firm as- 
 sented to the transaction. lb. 
 
 36. When the fact, though existing, that 
 such name was not signed or indorsed in the 
 regular course of the business of the firm, is not 
 apparent from the face of the instrument, and 
 the nature of the- transaction appeara to have 
 been of such a character as to give the plaintiff 
 a right to suppose that it was a partnership- 
 transaction, the members contesting their lia- 
 bility must not only show that in fact it did not 
 constitute such a transaction, but also that tlie 
 plaintiff had in some way actual notice thereof- 
 In every such case, the burden is shifted upon 
 the defendant-to establish notice. lb. Compare 
 Union Nat. Bank of Rahway v. Underhill, 21 Hun 
 178 ; Atlantic State Bank v. Savery, 18 Id. 36. 
 
 37. By giving bond and mortgage. 
 When the taking of a bond and mortgage fron» 
 two of three partnere, will merge and extin- 
 guish a demand against the firm, see Baxter v.. 
 Bell, 19 Hun 367 
 
 III. Suits between Partners. Accounting. 
 
 38. An action at law is proper to re- 
 cover for services rendered a co-partnership,, 
 under an agreement providing for a payment 
 of a share of the net profits of the firm busi- 
 ness as a compensation for the services ; the fact 
 that an accounting is necessary to ascertain the 
 amount of the compensation does not require 
 
PARTNERSHIP, III., IV. 
 
 337 
 
 an equitable, action, ana plaintiff, not being a 
 partner, could not bring such an action ; an ac- 
 counting is proper in the action at law, and the 
 introduction of the requisite evidence does not 
 change the nature of the action. — Ct. of App., 
 May, 1878. Smith v. Bodine, 74 N. Y. 30. 
 
 39. In such an action plaintiff claimed to 
 recover for services during the years 1865, 1866 
 and 1867 ; the answer alleged that one of the 
 defendants was not a member of the firm in the 
 year 1867. During the trial a stipulation was 
 entered' on the minutes that the account of 1867 
 should be included, and subsequently evidence 
 was given in relation thereto. It was claimed 
 by defendants that the business of that year re- 
 sulted in a loss ; at about the close of the evi- 
 dence, defendants' counsel moved to amend their 
 answer by setting up an agreement between the 
 parties by which all were to share in the profits 
 and losses for 1867 ; the motion was denied, 
 with leave to plaintiff to withdraw his claim for 
 that year, which he did, and the referee refused 
 to consider the accounts for that year. Held, 
 no error ; that it was in the discretion of the 
 court whether or not to grant the amendment ; 
 that it had power to make the order, which was 
 not controlled by the stipulation ; and that after 
 the order the stipulation ceased to be binding. 
 lb. 
 
 40. Eequbites of the complaint in an action 
 by one partner to recover from his co-partner 
 the amount of a co-partnershi p debt paid by him, 
 see Torrey v. Twombly, 57 How. Pr. 149. 
 
 41. Suits to compel accounting. After 
 a firm has made a general assignment for credi- 
 tors, one of the partners cannot sue the others 
 for an accounting, pending the administration 
 of the estate by the assignee. — Saperior Ot., 
 March, 1880. Kuhnemundt v. Haar, 58 How. 
 Pr. 464. 
 
 42. The principles of partnership account- 
 ing, under an agreement containing peculiar 
 provisions, explained, and the respective rights 
 of the several partners, determined. — Superior 
 Ct., Dee., 1875. Schulte v. Anderson, 45 Superior 
 489. 
 
 43. "WTiat are proper charges and 
 credits, generally. Upon an accounting 
 between partners, where some have overdrawn 
 and others underdrawn, as to each partner who 
 has underdrawn, all the others are liable to him 
 for their respective portions of the amount of 
 the underdraft ; and as to each partner who has 
 overdrawn, he is liable to all the others for 
 their respective portions of such overdraft. The 
 insolvency of the overdrawing partners does not 
 affect the application of the above principles. 
 — Superior Ct., Jan., 1878. Butler v. Ballard, 
 43.Superior 191. 
 
 44. In an action for an accounting between a 
 surviving partner and the representatives of a 
 deceased partner, the former is entitled to credit 
 for all sums paid by him to the latter, after 
 their appointment, out of ftinds collected by him 
 as surviving partner. — Ct. of App., Jam., 1880. 
 Collender v. Phelan, 79 N. Y. 366. 
 
 45. In the case upon appeal, in such an ac- 
 tion, it appeared that plaintiff the surviving 
 partner, testified without objection to pa/ments 
 so made ; in a subsequent part of the case it was 
 stated that it was understood plaintiff should 
 produce vouchers ; it did not appear what vouch- 
 ers were wanting, or that there was any appli- 
 cation to strike out the testimony in default of 
 
 such production, nor was there any objection, 
 ruling or exception on the subject of the neces- 
 sity of the vouchers. Held, that this question 
 not having been raised on the trial could not be 
 raised on appeal, lb. 
 
 46. Plaintiff, in making payments of the in- 
 debtedness of the firm, advanced naoneys from 
 time to time from his own funds, in excess of 
 the amount in his hands as surviving partner. 
 Held, that he was entitled to interest on such 
 advances, lb. 
 
 47. The findings of the referee did not show 
 upon what particular payments interest was al- 
 lowed. Held, that it could not be claimed that 
 too much interest was allowed, as there was no 
 specific finding disclosing any such error, lb. 
 
 48. The rule that when one member of a 
 partnership wrongfully interrupts the business 
 and causes its termination before the period 
 fixed, and thereby deprives his associate of pro- 
 fits which it may reasonably be assumed he 
 would derive from the business if continued, 
 an allowance may be made to a party thus in- 
 jured, to indemnify him for such loss, applied 
 to the facts of the particular case. — Supreme Ct., 
 (1st Dept.,) April, 1878. Locke v. Filley, 14 
 Hun 139. 
 
 49. Compensation for special ser- 
 vices, or capital. Where, by the terms of 
 the agreement, the defendant furnished the capi- 
 tal stock, and the plaintiff contributed his skill 
 and service, and the profits of the co-partnership 
 were to be equally divided, the plaintiff is not 
 entitled to any part of the capital stock, on a 
 settlement of the affairs of the partnership. He 
 has no interest in any part of the capital ex- 
 cepting so far as, in the progress of the busi- 
 ness, the same may have been converted into 
 profits.— /Sitpmor Ct., June, 1879. Conroy v. 
 Campbell, 45 Superior 326. 
 
 50. In an action to settle partnership ac- 
 counts, in proving the amount of repairs made 
 by one partner, the items of labor and materials 
 must be given ; the partner cannot testify as to 
 the average amount of repairs. — Supreme Ct., 
 {3d Dept.,) April, 1880. Chandler v. Allen, 20 
 Hun 424. 
 
 51. When, on an accounting, a partner who 
 has made advances to the firm is entitled to in- 
 terest thereon ; and when he can charge com- 
 missions for making sales in the course of the 
 business, see Gilhooly v. Hart, 8 Daly 176. 
 
 IV. Bights of Cbeditoes. 
 
 52. Relative rights of individual and 
 firm creditors. A division of co-partner- 
 ship property between the partners in propor- 
 tion to their interests, for the purpose of pro- 
 tecting the property from seizure by the 
 individual creditors of one of the partners, is 
 not unlawful, and cannot be avoided as a fraud 
 upon the individual creditors. By such a trans- 
 action the other partners do not acquire any of 
 the property of the debtor, but only separate 
 their own from his, so that their portion shall 
 not be interfered with for his debt. But even 
 if a fraud is perpetrated, the whole property 
 does not become liable to seizure upon attach- 
 ment at the suit of an individual creditor; 
 nothing more than the debtor's interest in the 
 property can, in any event, be liable. — Ct. of 
 App., May, 1879. Atkins v. Saxton, 77 N. Y. 
 195, 199. And see Eyder v. Gilbert, 16 Hun 163. 
 
 22 
 
338 
 
 PARTNERSHIP V. 
 
 v.- Dissolution. 
 
 1. How a partnership may be dissolved. 
 
 _ 53. Injunction and receiver. In an ac- 
 tion to dissolve a partnership an injunction and 
 receiver will be granted almost as a matter of 
 course.— -/Siipreme Ct., {Sp. T.,) Nov., 1879. Mc- 
 Encroe v. Decker, 58 How. Pr. 250. 
 
 54. Where the order appointing the receiver 
 requires a bond to be given with one surety 
 only, instead of two, as required by Code of Civ. 
 Pro., § 715, such order is not void; but the 
 court may, at Special Term, amend it so as to 
 require a bond with two sureties to be given. — 
 Smrem Ct., {Sd Dept.,) Nov., 1878. Holmes v. 
 McDowell, 15 Hun 585 ; affirmed 76 N. Y. 596. 
 
 55. Notice of dissolution. What is a 
 sufficient notice to previous dealers with a firm, 
 of its dissolution by the retirement of one of the 
 partners, see Hier v. Odell, 18 Hun 314. 
 
 5Q. Publication of notice of dissolution in a 
 newspaper, at the place where the business is 
 carried on, is not sufficient to relieve a retiring 
 partner from liability for subsequent transactions 
 in the firm name with one having dealings with 
 the 'firm prior to the dissolution ; in such case 
 notice must be brought home to the dealer, or it 
 must appear that facts came to his knowledge 
 sufficient to advise him, or to give him reason 
 to believe that a dissolution had taken place. — 
 Cl. of App., May, 1877. Austin v. Holland, 69 
 N. Y. 571, 575. 
 
 57. The mailing of a notice of dissolution, 
 properly directed, to the party sought to be 
 charged with suoh notice, is not sufficient alone 
 b relieve the retiring partner ; it raises a pre- 
 sumption of notice, but one which may be re- 
 pelled by proof that the notice was not in fact 
 received. lb. 576. 
 
 58. One H. had been in the employ of the 
 firm of D. B. & Co., of Toledo, prior to its dis- 
 solution ; he resided at Detroit. Notice of the 
 dissolution was published in the Toledo papers, 
 and a copy mailed to plaintiff, addressed to him 
 at Detroit. The business was thereafter con- 
 tinued in the same firm name. In an action 
 against the members of the original firm, upon 
 a promissory note given in the firm name to H., 
 for services rendered subsequent to the dissolu- 
 tion, H. testified, on Jiis direct examination, that 
 he never received the notice ; on his cross-ex- 
 amination, that he had no recollection of receiv- 
 ing or seeing it, and that if he had seen it he 
 thought he should have remembered it. Seld, 
 that the question of notice was properly sub- 
 mitted to the jury, and justified a finding that 
 none had been received. lb. 
 
 2. Conseqiiences of dissolution. 
 
 59. As between the partners. Where, 
 on the retirement of one partner, the others, 
 with his consent, continue the business under 
 the old firm name^ they will be held to have 
 succeeded to the business of the original firm, 
 and may use trademarks belonging thereto. — 
 Supreme Gt.,iSp. T., ) Sept., 1 878. Hazard v. Cas- 
 well, 57 How. Pr. 1. S. P., Adams v. Adams, 7 
 Abb. N. Cas. 292. 
 
 60. Powers of surviving partner, 
 generally. Plaintiff and three brothers, who 
 were partners, recovered judgment in 1857 
 against defendant. In 1859 plaintiflTs firm 
 
 made an assignment for the benefit of creditors ; 
 the judgment was sold at auction and bid off by 
 D. for a nominal sum. D. had been attorney 
 for the assignors and bid off the judgment for 
 their benefit. In 1866 E., one of the brothei-s, 
 the other two having died, executed an assign- 
 ment of the judgment in his own name and as 
 attorney for plaintifl^ to J. In 1874 D. assigned 
 the judgment to plaintiff. In an action upon 
 the judgment — Held, that the purchase by D. was 
 in legal effect a purchase by plaintiff and his 
 partners and vested the title in them, and his 
 assignment to plaintiff conveyed no interest; 
 that in the absence of proof it was to be pre- 
 sumed that such purchasers held the judgment 
 as partners, not as tenants in common, and either 
 of the surviving partners had authority to sell 
 the judgment to close up the business, each 
 being for that purpose the agent of the other ; 
 and that therefore the assignment to 3. was 
 valid as a transfer of the whole judgment, and 
 plaintiff had no cause of action. — Ct. of App., 
 April, 1877. Thursby v. Lidgerwood, 69 N. Y. 
 198. 
 
 61. Duty of surviving law partner as 
 to carrying on pending litigations for benefit of 
 estate of deceased partner, pointed out. Sterne 
 V. Goep, 20 Hun 396. 
 
 62. Liability of retiring partner. A 
 retiring partner is liable for services rendered 
 subsequent to the dissolution of the partnership 
 by an agent in its employ at that time, and who, 
 thereafter, without notice of the dissolution, 
 continues under the same apparent employment. 
 — &. of App., May, 1877. Austin v. Holland, 
 69 N. Y. 571. 
 
 63. When a retiring partner becomes a mere 
 surety for the firm debts, he is released by an 
 extension of the time of their payment by the 
 creditor, e. g., taking notes payable in fuiuro. — 
 Supreme Ct., (Is* Dept.,) May, 1879. Dodd v. 
 Drey fuss, 17 Hun 600; S. C, 57 How. Pr. 319. 
 
 64. As to the liability of a retiring partner, 
 to one whom he has notified to " go and get his 
 money " from the continuing partner, see Maiei' 
 V. Canavan, 8 Daly 272. 
 
 65. Power of one partner to bind 
 flnn after dissolution. Where the rela- 
 tions of a partner to his co-partners had been 
 terminated, yet his name was continued in the 
 name and style of the firm formed by his former 
 co-partners with his knowledge, sanction and 
 approval — Held, that he was liable on the con- 
 tracts and obligations of the firm so usingxhis 
 name as if he had actually continued as a mem- 
 ber and partner thereof. — Superior Ct., May, 
 1878. Freeman v. Falconer, 44 Superior 132. 
 Compare Van Doren v. Horton, 19 Hun 7. 
 
 66. The giving of his individual promissory 
 note, by one of the members of a co-partner- 
 ship after its dissolution, for a portion of a co- 
 partnership debt, is a good consideration for an 
 agreement on the part of the creditor to release 
 and discharge the maker from liability for the 
 debt. — Cl. of App., April, 1879. Ludington v. 
 Bell, 77 N. Y. 138; reversing 4:3 Superior 557. 
 
 67. Agreements upon dissolution. 
 That an agreement by the retiring partner, who 
 has been paid for the good-will, not to start a 
 competing business so near by as to injure trade 
 and take away customers, is not illegal; and 
 what is a breach of such agreement, see Deth- 
 lefs V. Tamsen, 7 Daly 354. 
 
 68. Instances of the interpretation of vsji- 
 
PARTNERSHIP, V., VI.— PATENTS. 
 
 339 
 
 ous agreements upon dissolution, where the 
 rights of the parties were determined, in view 
 of the facts of each parliciilar case. Bragel- 
 man v. Daue, 69 N. Y. 69 ; Kohler v. Matlage, 
 72 Id. 259; Deering v. Metcalf, 74 Id. 501; 
 Morgan v. Schuyler, 79 Id. 490; Drake v. . 
 Porter, 13 Hun 658 ; Finley v. Fay, 17 Id. 67. 
 
 VI. Limited Pabtnbeship. 
 
 69. Paying in capital. The capital fur- 
 nished by special partners must be cash. Their 
 uncertified checks upon a bank, in which, at the 
 date of the checks, they have not money suffi- 
 cient to meet and pay their checks, cannot be 
 deemed cash, although before the checks were 
 presented they had arranged or provided funds 
 to pay the same, and they were paid. — Superior 
 Gt., April, 1879. Maginn v. Lawrence, 45 Su- 
 perior 235. 
 
 70. The certificate and affidavits. 
 Any false statement in the certificate or affidavit 
 filed, makes all the persons interested in said 
 partnership liable, as general partners, lb. 
 
 71. A certificate and affidavits filed for the 
 purpose of forming a limited partnership pur- 
 suant to the statute, (1 Eev. Stat., 763, ^ i, et 
 eeq.,) were dated and filed December 23d, 1870; 
 the former stated the sum contributed by the 
 special partners, the latter that said sum " had 
 actually and in good faith been paid in cash." 
 The partnership was to commence January 1st, 
 1871. A. in fact gave his checks for the sum 
 specified, dated December 31st, 1870, which were 
 paid January 2d, 1871. Held, that the state- 
 ments in said certificate and affidavits were false 
 within the meaning of said statute, (§ 8,) and 
 that A. was liable as a general partner for the 
 debts of the firm. — Ct. of App., March, 1877. 
 
 ^Durant v. Abendroth, 69 N. Y. 148. 
 
 72. In such a case, neither the honest inten- ' 
 tion of the parties that the sum shall be paid at 
 or before the time of the commencement of the 
 partnership; nor their good faith manifested by 
 the actual payment ; nor the consideration that 
 no injury resulted to any creditor from the fact 
 that the statements were untrue, can remedy the 
 defect. lb. 
 
 73. Rights, powers and liabilities of 
 -special partner. Defendant S., a resident 
 of Cuba, was a special partner of a firm organ- 
 ized anddoing business in said island. All of 
 the provisions of the Spanish law in reference 
 to the formation and the carrying on of the busi- 
 ness of limited partnerships were complied with 
 «o far as under said law to limit the liability of 
 the special partner to the amount of funds which 
 he had contributed in accordance with the part- 
 mershlp ajgreement. The firm became indebted 
 to plaintiflfe for advances. S. had no personal 
 connection with the transactions. In an action 
 rto recover such indebtedness — Held, that the 
 contract of partnership was to be construed and 
 governed by the laws of Spain ; that the liabil- 
 ity of S., and the extent of the authority of the 
 acting partners to bind him were to be deter- 
 mined thereby ; and that therefore S. was en- 
 titled to set up his limited liability as a special 
 partner, as a defence.— Ci. of App., March, 1877. 
 King V. Sarria, 69 N. Y. 24, 35; affirming 7 
 Hun 167. 
 
 74. Where, at tiie time of the giving of a 
 ■mortgage upon his individual property, by the 
 .special partner, he was insolvent, and had, by 
 
 his acts, become liable as a general partner, the 
 mortgage being given with intent to give the 
 mortgagee a preierence over the firm creditors, 
 such mortgage is void and will be set aside at 
 the instance of the firm creditors. (1 Eev. Stat. 
 766, U 20, 21.)— Supreme a., {1st Df^t.,) March, 
 1880. George v. Grant,_ 20 Hun 372. 
 
 75. Enjoining misappropriation of 
 assets. As to the right of a creditor of an 
 insolvent limited partnership to restrain, by in- 
 junction, a misappropriation of assets by the 
 partners, see Whitcomb v. Fowle, 56 How. Pr. 
 365 ; S. C , 7 Abb. N. Cas. 295. 
 
 As to the competency of one partner An a wU- 
 nees, for or against the others, see Witnesses. 
 
 PART PAYMENT. 
 
 Eflect of, generally, see Debtor aot) Cebdi- 
 TOB, in., V. On Statute of frauds, see Con- 
 tracts, 24. On Slatuie of limitation*, see Lim- 
 itations OF Actions, 30-33. 
 
 PARTY WALLS. 
 
 Easements, 11-13. 
 
 PASSENGERS. 
 
 Carriers, II.: Bailboai) Comfanike^ IV. 
 
 PATENTS. 
 
 1. Interference proceedings. A final 
 decision in interference proceedings, instituted 
 under and in pursuance of the patent laws of 
 the United States, (U. S. Eev. Stat., § 4904, ei 
 seq.,) so long as it remains unreversed and un- 
 affected by any proceedings authorized to be in- 
 stituted in equity (g 4915,) is final and obli- 
 gatory upon the parties. — Gt. of App., Sept., 
 1877. Peck v. Collins, 70 N. Y. 376. 
 
 2. As to the effect of such proceedings on the 
 patentee's right to enforce contracts for the sale 
 of interests in the patents involved, see lb. 
 
 3. Contracts respecting patent- 
 rights. A contract between the owners of a 
 patent and persons employed by them to sell the 
 patent-light in certain specified counties, con- 
 strued, and the rights of the parties thereto de- 
 termined. — Ct.of App., Nov., 1878. Van Noy r. 
 Failing, 75 N.Y. 594. 
 
 4. Assignments. As to the nature of an 
 assignment of a right to the use of a patented 
 machine ; its analogy to an assignment of a 
 lease ; the right to a royalty ; and the right of 
 licensees of patent-rights, see Wilde v. Smith, 8 
 Daly 196 ; Wooster». Sandman, Id. 218. 
 
 _ 5. That a renewal of a patent may be as- 
 signed by the patentee before such renewal is 
 obtained by him, see Consolidated Fruit Jar Co. 
 V. Mason, 7 Daly 64. 
 
 For decisions respecting Trade-marka, see In- 
 JXTNCTioN, 24-29 ; Trade-marks. 
 
 PAUPERS. 
 
 POOB. 
 
340 
 
 PAYMENT— PERJURY. 
 
 PAYMENT. 
 
 [Consult, also, Di^btob and Cebditob, S-11.] 
 
 L Who may receive payment of 
 note. Payment of a note payable to bearer 
 before it is due, to the holder, is a good payment 
 of the note. — Supreme Ct., (3d Dept.,) May, 1878. 
 Merritt v. Cole, 14 Hun 324., 
 
 a. Payment by bill, note or check. 
 Payment made by check or note, when inopera- 
 tive if such check or note be dishonored. — Ct. 
 of App., Feb., 1880. Nidig v. Nat. City Bank 
 of Brooklyn, 59 How Pr. 10. 
 
 3. For an application of tfie rule that the 
 receipt of a draft, in the absence of an express 
 agreement, is not payment of a bond, see Board 
 of Education of Fairport v. Fonda, 77 N. Y. 
 350. 
 
 As to Payment into court, see Pbactice ; Ten- 
 ser. 
 
 As to Application of payments, see Bebtob 
 AND Creditor, 8-11. 
 
 As to payment of Legacies, and Debts of dece- 
 dent, see Executors and Administrators, 
 44-69 ; Legacies, III. 
 
 As to payment of Fkeeutums, or of Jtedemption 
 mAmey, see Execution, 49. 
 
 As to Receipts for money paid, see Eeceipts. 
 
 For rules regulating the Recovery back, of 
 money paid, see Money Paid ; Money Ee- 
 
 CEIVED. 
 
 PENALTIES. 
 
 1 .Powers of the legislature respect- 
 ing penalties. Where a penalty has been 
 imposed by law, the legislature has power to 
 repeal it entirely, or to limit the cases in which 
 it is recoverable, even though an action has 
 been brought for its recovery. — Supreme Ct., 
 (Alb. ar.,) May, 1879. Fire Dept. of West 
 Troy V. Ogden, 59 How. Pr. 21. 
 
 2. Enforcement by action. In an 
 action to recover penalties for violating Laws 
 of 1869, ch. 563, which provides that whoever 
 shall knowingly bring to be manufactured to 
 any cheese factory, any milk adulterated with 
 water, shall forfeit for each oflfence not less 
 than $25 nor more than one $100, it ap- 
 peared that several of the plaintifis saw de- 
 fendant adulterate his milk with water and send 
 it to the factory; that they said nothing but 
 mixed his with other milk and manufactured it 
 into cheese— fleM, that, while such conduct 
 might prevent plaintiffs from maintaining an 
 ordinary action for damages it did not prevent 
 them from maintaining an action for the statu- 
 tory penalty. — Supreme Ct., (3d Dept.,) May, 
 1878. Lammond v. Volans, 14 Hun 263. 
 
 3. The judge charged the jury that in fixing 
 the amount of the penalty, between the limits 
 of $25 and $100 they might make it as 
 large as they thought, from the circumstances 
 and from public necessity, it ought to be made. 
 Hdd, correct. lb. 
 
 PENSIONS. 
 
 Attorney's fees for prosecuting pen- 
 sion claims. While an attorney is prohib- 
 ted from charging or taking more than $10 
 for prosecuting a claim for a pension, yet 
 this prohibition does not apply to services ren- 
 dered for the pensioner after the issue of the 
 certificate for the pension. — Supreme Ct., (Del. 
 dr.,) March, 1880. Adee v. Howe, -59 How Pr, 
 459. 
 
 PERILS OF THE SEA. 
 
 Insurance, 128-130. 
 
 PENDENCY OF ANOTHER ACTION. 
 
 Abatement, 3-5; Pleading, 26. 
 
 PERJURY. 
 
 1. What constitutes the offence. Ad 
 officer of a bank, who makes willfully false 
 statements under oath in liis report to the super- 
 intendent of the banking department (Laws of 
 1843, ch. 218, S 3, as amended by Laws of 1848,. 
 ch. 419,) ' is guilty of perjury. — Supreme Ct. 
 (3d Dept.,) Eenss. Oyer and T., March, 1879. 
 People V. Vail, 6 Abb. N. Cas. 206; S. 0. 57 
 How Pr. 81. 
 
 2. The examination on oath of a person, 
 offered or offering himself as bail for a persop. 
 indicted or convicted for crime, as to his quali- 
 fication as such bail, is an examination taken in 
 a " cause, matter or proceeding," and the person 
 60 examined as to his qualifications is a " wit- 
 ness," within the meaning of 3 Eev. Stat. (6 ed.) 
 956, I 8, providing that "every person who' 
 shall, by the offer of any valuable consideration, 
 attempt unlawfully and corruptly lo procure^ 
 any other to commit willful and corrupt pequry, 
 as a witness, in any cause, matter or proceeding,, 
 in or concerning which such other person 
 might, by law, be examined as a witness, shall, 
 upon conviction, be punished by imprisonment 
 in a state prison not exceeding five years."^ 
 —Supreme Ct., (Is* Dqat.,) March, 1880. Strat- 
 ton V. People, 20 Hun 288. 
 
 3. The indictment. It is not necessary,, 
 in an indictment charging perjury committed 
 before a court of general jurisdiction, to set out. 
 all the facts showing jurisdiction; an averment 
 that the court had sufficient and competent au- 
 thority to administer the oath will suffice. — CC 
 of App., Jan., 1880. Eighmy ». People, 79 N. 
 Y. 546. 
 
 4. An indictment charged perjury in evidence- 
 given by the accused on the trial of a civil action 
 before a referee, the indictment did not allege, in 
 terms, the commencement and pendency of th& 
 <avil action ; it charged that a referee was duly 
 appointed in an action then pending in the Su- 
 preme Court of this state, naming the parties, 
 Seld, that this was a sufficient averment to show 
 that the court had jurisdiction of the parties. lb. 
 
 5. The indictment charged that the referee 
 was " duly and legally appointed in the action " 
 by a justice of said court, "by an order duly 
 made * * * in said action at the chambers 
 of said justice ;" also that the referee was "duly 
 authorized and qualified to perform the duties^ 
 of that office." It was objected that the indict- 
 ment was defective, as it did not state that the 
 order of reference was made by the court, but 
 set up an ex parte chamber order. Udd, unten- 
 
PERJUEY— PHYSICIANS AND SURGEONS. 
 
 341 
 
 able; that it was to be presumed the justice 
 acted in accordance with law, and as he had a 
 right to hold Special Term at his chambers, and 
 as the appointment was alleged to have been 
 lawfully made, the legitimate inference was that 
 the order was made at Special Term. lb. 
 
 6. Where, in an indictment for perjury in 
 verifying an affidavit, it is alleged that the oath 
 was absolute and unqualified, and that the same 
 was untrue, and where it appears by the affida- 
 vit that the averments therein were made upon 
 " information, knowledge and belief," a convic- 
 tion cannot be had under the indictment; it 
 should negative, not only the truth of the oath, 
 but also the information and belief — Ct. ofApp., 
 Feb., 1879. Lambert v. People, 76 N. Y. 220 ; 
 S. C, 6 Abb. N. Cas. 181 ; reversing 14 Hun 
 
 7. Evidence. Upon a trial for perjury in 
 swearing to an affidavit, which purported to 
 have been sworn to before a notary public, the 
 notary, as a witness for the prosecution, after 
 looking at the affidavit, testified that it was 
 «wom to before him, and that it was subscribed 
 by him as notary. On cross-examination, how- 
 ■ever, he testified that he had no recollection of 
 the transaction, and testified to the verification 
 from seeing his signature to it as notary. The 
 prisoner testified, in his own behalt) that he 
 never took the oath ; two other witnesses testi- 
 fied that the affidavit was signed in the office 
 of the company, of which the prisoner was presi- 
 dent, was not sworn to, but was taken by a porter 
 to the notary to be certified, and was so certified 
 in the absence of the prisoner ; the porter testi- 
 fied that he took the affidavit to the office of the 
 notary, who wrote his name and attached his 
 seal, and that witness then returned it to the 
 ■office of the company. Held, that a. refusal of 
 court to direct an acquittal was error ; that 
 proof of the taking of the oath was requisite, in- 
 dependent of the j«i-ai; and that, assuming that 
 the evidence given on the part of the prosecu- 
 tion, was prima fade sufficient, the proof on the 
 part of the prisoner, overcame it, and conclusive- 
 ly established that the affidavit was not sworn 
 to.— O!. ofApp., Feb., 1879. Case v. People, 76 
 lif. Y. 242 ; 8. 0., 6 Abb. N. Cas. 151 ; reversing 
 14 Hun 504. 
 
 8. The testimony of the prisoner, which was 
 alleged to be false, was to tlie effect that one A. 
 had told him that he had taken charge of all of 
 ibe papers of the testator after his decease, and 
 in moving them lost the will ; that he had re- 
 ■quested A. to make an affidavit of such fact, 
 which he did. The prosecution was allowed to 
 prove, under objection and exception, that the 
 testator in his lifetime burned a paper resem- 
 hling the will, he declaring at the time that it 
 was bis will, and stating its provisions and his 
 reasons for destroying it. 
 
 Meld, 1. That the declarations were compe- 
 tent, as part of the res gestce, but that evidence 
 of declarations of the deceased, made after the 
 alleged destruction of the will, were incompe- 
 tent, 
 
 2. That it was competent for the prosecution 
 to show that when A. signed the affidavit, 
 «worn to by him, he was imposed upon by the 
 prisoner, he substituting for it another A. had 
 heard read, which did not contain the clause in 
 question. Eghmyu. People, supra. 
 
 9. The false affidavit purported to have been 
 sworn to before a notary public. The prosecu- 
 
 tion proved that M., the alleged notary, had 
 acted as such for some years, and produced a 
 book from the county clerk's office containing a 
 list of notaries, the time of their appointments, 
 &c., among which appeared the name of M. 
 Defendant offered to prove that M., at the time 
 of his alleged appointment, and at the date of 
 the verification, was a resident of the State of 
 New Jersey. This evidence was rejected. Held, 
 error ; that it was necessary for the prosecution 
 to show that the oath was taken before a de jure 
 or de facto officer ; that the evidence given for 
 that purpose was, at best, but prima facie, and 
 proof that the alleged notary was a non-resi- 
 dent, and so incapable of holding the office, (1 
 Kev. Stat. 116, ? 1,) was competent to rebut any 
 presumption arising from such evidence. Lam- 
 bert V. People, supra. 
 
 10. For an instance of failure of proof to 
 show guilty intent in swearing to a false affida- 
 vit as to the holding of an inquest by a coroner, 
 see Dempsey v. People, 20 Hun 261. 
 
 PERPETUATING TESTIMONY. 
 
 Depositions, L 
 
 PERPETUITIES. 
 Wills, 23-25. 
 
 PERSONAL INJURIES. 
 
 Municipal Cokporations, 74-94 ; Eail- 
 EOAD Companies 85-134. 
 
 PHYSICIANS AND SURGEONS. 
 
 1. The skill required, and liability 
 for malpractice. It is not necessary, in 
 order to sustain an action for malpractice 
 against a surgeon, that there should be proof of 
 gross culpability on his part ; having engaged 
 in the performance of services requiring skill 
 and care, he is liable for a want of the requisite 
 skill, or for an omission to exercise proper care. 
 — Ct. of App., Nov., 1878. Carpenter v. Blake, 
 75 N.'Y. 12; affirming 10 Hun 358. 
 
 2. In in action for malpractice it appeared that 
 plaintiff" dislocated her elbow joint, defendant 
 was called in as a surgeon and attempted to re- 
 duce the dislocation, but, as the plaintiff's evi- 
 dence tended to show, either through negligence 
 or want of skill, he did not succeed ; also, after the 
 operation was performed, he omitted to give the 
 arm the requisite support to keep thejoint in place, 
 and to prevent relaxation, if the dislocation was 
 in fact, reduced, and omitted to give necessary 
 instructions to the attendants, although instruc- 
 tions were asked for. In consequence, either of 
 the dislocation not having been properly re- 
 duced, or of a subsequent relaxation, plaintiff 
 became permanently crippled. Held, that the 
 evidence was sufficient to justify a submission 
 of the case to the jury, and to sustain a verdict 
 for plaintiff. lb. 
 
342 
 
 PHYSICIANS AND SURGEONS— PLEADING, I. 
 
 3. Upon the trial of the action it appeared 
 that after attending plaintiff for a time defend- 
 ant dismissed himself, stating that his services 
 were no longer required ; he subsequently, lipw- 
 ever, called and gave directions about the arm, 
 and made statements as to its condition. Plain- 
 tiff was subsequently asked, " Did you rely upon 
 what the doctor told you about the condition of 
 your arm at these various times when he ex- 
 amined it?" This was objected to and objection 
 overruled. Hdd, no error; that as far as this 
 question was concerned, it might be assumed 
 that the defendant occupied the same position 
 as if he had acted continuously, but if not, if 
 what defendant said misled plaintiff in respect 
 to the importance of giving the arm additional 
 surgical attention, defendant was responsible. 
 
 4. The court was requesled by defendant's 
 counsel to charge that if plaintiff was guilty of 
 any negligence in the management of the arm, 
 through or without the fault of the attending 
 surgeon, after defendant ceased to have charge 
 of the case, and such negligence contributed in 
 any material degree to produce the present bad 
 condition of the arm, defendant was not respon- 
 sible. Hdd, that a refusal so to charge was not 
 error. 1st. Because there was no evidence of 
 such negligence. 2d. That the request was too 
 broad, as, even if there had been subsequent 
 negligence, the cause of action for defendant's 
 negligence, which had then accrued, would not 
 be discharged ; in any view it would simply go 
 in mitigation of damages. Jb. 
 
 5. A judgment in favor of a physician and 
 surgeon for professional services, rendered in 
 a justice's court having jurisdiction, in an action 
 in which the defendant appeared and put in an 
 answer, but afterwards withdrew it and did not 
 contest plaintiff's claim, is a bar to a subsequent 
 action by the defendant against the plaintiff for 
 malpractice in rendering the services. — Ct. of 
 App., Nov., 1878. Blair v. Bartlett, 75 N. Y. 
 150. 
 
 6. Privilege of communications be- 
 t-ween physician and patient. The gene- 
 ral rule is that information acquired by a physi- 
 cian in attending a patient, cannot be disclosed 
 by him.— Supreme a., (3d Dept.,) Sept., 1878. 
 Grattan v. Nat. Life Ins. Co., 15 Hun 74. 
 
 But to excuse a physician from testifying it 
 must appear that the information was ac- 
 quired while he was being consulted profes- 
 sionally to obtain medical assistance. — Supreme 
 Ct., (ith Dept.,) Oct., 1878. Babcock v. People, 
 15 Hun 347. 
 
 v. In an action on a life policy a physician 
 is prohibited from disclosing on the witness- 
 stand, information as to the condition of the in- 
 sured acquired while attending upon him, and 
 which was necessary to enable the physician to 
 prescribe, (2 Eev. Stat. 406, | 73,) and he is in- 
 competent as a witness to testify thereto. — Ct. of 
 App., April, 1877. Dilleber ti. Home Life Ins. 
 Co., 69 N. Y. 256, 260. 
 
 8. The prisoner was accused of having caused 
 the death of W., the deceased, by poison. A 
 physician who was called to see W. when sick 
 from the poison, and who examined and pre- 
 scribed for him, as a witness for the prosecution 
 was asked to state the condition in which he 
 found W. at that time, both from his own 
 observation and what W. told him ; this was 
 objected to, on the ground that the evidence was 
 
 prohibited by the statute (Code of Civ. Pro, $' 
 834.) _ The court overruled the objection, and 
 the witness stated what he learned from his own 
 examination of W., made in the presence of 
 W.'s wife and the prisoner, and from their state- 
 ments. There was nothing of a confidential 
 nature in anything so learned. Held, that the 
 evidence was competent.— CC. of App., Jan., 1880. 
 Pierson v. People, 79 N. Y. 424 : affirmmq 18 
 Hun 239. _ • ." n 
 
 9. The object of the statute prohibiting the- 
 disclosure of professional information acquired 
 by a physician in attending a patient, is to pro- 
 tect the latter, not to shield one charged with 
 his murder. lb. 
 
 As to competency of physicians as WUnmes,, 
 see Witnesses, 35, 138. 
 
 PLACE OF TRIAL. 
 
 Teial, IL 
 
 PLANKROAD COMPANIES. 
 
 Supervisory powers of highway 
 commissioners. The determination of high- 
 way commissioners when acting as plankroad 
 inspectors, (Laws of 1877, ch. 164, g 1, amend- 
 ing Laws of 1873, ch. 440, § 3,) that the road is- 
 out of repair, or in such a condition that it can- 
 not be conveniently used by the public, and 
 ordering a toll-gate to be thrown open, should 
 be in writing, as should also a determination 
 upon a subsequent inspection, that the road has 
 been put in repair by the company and is iir 
 proper condition. — Supreme Ct., ( Yaieg Sp. T.,} 
 June, 1878. People, ex rel. Penn Yan, &c.,, 
 Plankroad Co., v. Martin, 56 How. Pr. 516. 
 
 PLEADING. 
 
 [Includes rules of pleading in civil actions at law or 
 in equity, except such as Are-pectdiar to some particu- 
 lar cause of action, remedy, or d^ence, which is the- 
 subject of a separate title in the work.] 
 
 I. Complaint. 
 II. Answer. 
 
 III. DEMilEKEE. 
 
 IV. Eeply. 
 
 V. Vbkification of Pleadings. 
 VI. The Issue; its Scope, and hovt 
 Joined. 
 VII. Evidence under the Pleadings. 
 VIII. Amended and Supplemental Plead- 
 ings. 
 IX. Remedies for Errors and Defects^ 
 Waiver. 
 
 I. Complaint. 
 
 1. Describing the parties, their inter- 
 ests, &o. Adding the word " executor," &c., or 
 " executors,"&c., to the name of parties to an ac- 
 tion may be treated as mere descriptio personce and 
 surplusage, when nothing appears in the summons- 
 
PLEADING, I., II. 
 
 343 
 
 or complaint indicating the intention of the 
 plaintiff to charge defendants in their repre- 
 sentative capacity. — /Superior Ct., Dec., 1879. 
 Bannon v. McGrane, 45 Superior 517. Com- 
 pare Griswold v. Watkins, 20 Hun 114. 
 
 2. Averment of leave of court to 
 sue. "Where leave of court to sue is required 
 the complaint should allege authority ; it is 
 not necessary to set up as a defence, lack of 
 authority.— Os. of App., Feb., 1878. . Scofield v. 
 Dosclier, 72 N. Y. 491. 
 
 3. Statement of the cause of action, 
 generally. Where a complaint is for fraud, 
 the action cannot he maintained, on the ground 
 of mutual mistake. — Ct. of App., Jan., 1879. 
 McMichael ii. Kilmer, 76 N. Y. 36. 
 
 4. A complaint in an action on contract 
 ■which alleges no more than "that although 
 often requested so to do, the said Garrison has 
 refused and does refuse to fulfill his said con- 
 tract and agreement with the plaintiff," is de- 
 murrable because of the omission to state by 
 whom the request was made. — Swpei~ior Ct., 
 April, 1879, Marie v. Garrison, 45 Superior 
 157. 
 
 5. Instances of complaints in which the 
 causes of action were held to be sufficiently 
 stated on demurrer. Dodge v. Bradstreet Co., 
 59 How. Pr. 104 ; Donnelly v. West, 17 Hun 
 564; Kiggs v. American Tract Soc, 19 Hun 
 481; S. C, 7 Abb. N. Cas. 433 ; Eector v. Clark, 
 78 N. Y. 21. 
 
 6. For illustrations of insufficient statements 
 of the cause of action, see Sheridan v. Jackson, 
 /2 N. Y. 170 ; Hartford, &c.. Steamboat Co. v. 
 Mayor, &c., of New York, 78 N. Y. 1. 
 
 v. Setting forth copy of instrument- 
 sued, on. ^o make, a complaint good under 
 the provision of the code of procedure (Old 
 Code, § 162,)~ providing that in an action upon 
 an instrument for the payment of money, it 
 shall be sufficient to set forth a copy of the in- 
 strument and to allege that a specified sum is 
 due thereon, the instrument so set forth must, 
 upon its face, be a complete, valid and binding 
 obligation. Where it is, upon its face, incom- 
 plete and invalid, and facts not stated in it need 
 to appear to show its validity, such other facts 
 must be alleged. — Ct. of App., April, 1879. 
 Broome v. Taylor, 76 N. Y. 564. _ 
 
 8. The provision, therefore, is not applic- 
 able where the liability of the party, by the 
 terms of the instrument, is conditional, and 
 depends upon outside facts ; in such case those 
 facts must be averred. — Cl. of App., March, 1879. 
 Tooker v. Arnoux, 76 N. Y. 397. 
 
 9. Alleging conclusion of law. An 
 allegation in a complaint, in an action to re- 
 cover the rents and profits of land, that plain- 
 tiff is entitled to the possession of the land and 
 to the rents and profits thereof, is a mere allega- 
 tion of a conclusion of law, and is insufficient; 
 the fex;ts should be alleged, from which such a 
 conclusion may he drawn. — Ct. of App., Jan., 
 1878. Sheridan I). Jackson, 72 N. Y. 170. 
 
 10. An averment in a complaint that plain- 
 tiff "is the only heir-at-law of the deceased," 
 and as such is entitled to certain property, where 
 it is not alleged that deceased died intestate, or 
 what issue, if any, he left him surviving, or 
 how plaintiff's claim as sole heir-at-law arose, 
 is a conclusion of law and not the allegation of 
 a f&ct. — Supreme Ct., (Sa. T.,) Oct., 1879. 
 Beiners v. Brandhorst, 59 How. Pr. 91. 
 
 11. Joinder of causes of action. A 
 subsequent cause of action cannot be upheld by 
 allegations contained in a preceding one unless 
 they are connected therewith by proper aver- 
 ments, lb. 
 
 12. Multifariousness. The code has not 
 essentially altered the rules of equity pleading 
 as regards multifariousness. See this case as to 
 what will be deemed a single cause of action. — 
 Superior a, {Sp. T.,) Nov., 1878. Garner v. 
 Thorn, 56 How. Pr. 452. 
 
 13. The complaint in an action by various 
 firms, as plaintiffs, alleged that defendant was in- 
 debted in different sums to the plaintiffs herein, 
 which he had agreed to pay as soon as able ; 
 that he had paid $10,000 on account, but re- 
 fused to pay tlie balance, on the ground that he 
 had been released by plaintiffs; that plaintiffs 
 were induced by fraudulent concealment and 
 representations on the part of defendant to exe- 
 cute and deliver to him a joint release. The 
 prayer was to set aside such release, and for 
 separate judgments for the balance of plaintiffs' 
 respective claims. 
 
 Held, 1. That the complaint did not improp- 
 erly unite several causes of action. 
 
 2. That as plaintifls were induced, by a com- 
 mon fraud, to execute a joint release, they were 
 entitled to maintain a joint action to set it 
 aside. 
 
 3. That the fact that they prayed for separate 
 judgments for the respective amounts due to 
 them, did not render the complaint multifari- 
 ous. — Supreme Ct., (1st Dept.,) April, 1878. 
 Smith V. Schulting, 14 Hun 52. 
 
 14. Surplusage. In the construction of a 
 complaint, as determining what action is pre- 
 sented thereby, allegations unnecessary to 
 entitle plaintiff to the relief lie asks may be 
 disregarded as superfluous. — Superior Ct., Dec., 
 1879. Banfield v. Hseger, 45 Superior 428. 
 
 15. When a complaint setting forth a cause of 
 action on contract contains allegations of fraud, 
 these may be rejected and a recovery had on 
 the contract. — Ct. of App., Feb., 1879. Tugman 
 V. Nat. Steamship Co., 76 N. Y. 207. 
 
 _ 16. The prayer for relief is not conclu- 
 sive as to whether the cause of action stated in 
 the complaint is legal or equitable. — Cl. of App., 
 June, 1877. Williams v. Slote, 70 N. Y. 601. 
 
 I. Answeb. 
 
 17. "When an ans-wer is proper. Where 
 the wrong person is sued for a debtor, he is not 
 bound to seek relief by motion. He may serve 
 an answer denying his indebtedness to plaintifl^ 
 not being the person against whom plaintifl's 
 alleged claim exists. — Supreme Ct., {&>. T.,)Jan., 
 1878. Barney v. Northern Pacific E. E. Co., 56 
 How. Pr. 23. 
 
 19. Facts, not conclusions of law, 
 must be alleged. An allegation in an an- 
 swer " that the contract set forth in said com- 
 plaint is inoperative and void for want of a 
 sufficient and adequate consideration therefor" 
 is bad, being a conclusion of law ; the facts 
 showing want of consideration should be pleaded. 
 — Supreme Ct., (Sp. T.,) Jan., 1880. Hammond 
 V. Earle, 58 How. Pr. 426. 
 
 19. General and specific denials. 
 That a denial in a pleading in this form, " he 
 eays that he denies each and every allegation," 
 
344 
 
 PLEADING, II., III. 
 
 etc., is a good general denial, see Jones v. Lud- 
 lum, 74 N. Y. 61. 
 
 20. An answer alleging that " the defendant 
 denies each and eyery allegation in the com- 
 plaint contained, and not hereinafter specifically 
 admitted or avoided," is neither a general or 
 specific denial, and is bad. — Supreme Ct., (Sp. 
 T.,) Nov., 1879. McEncroe v. Decker, 58 How. 
 Pr. 250. 
 
 21. A denial upon information and 
 belief, is not authorized by Code of Civ. Pro., 
 J 500, and its effect is to admit the truth of the 
 allegations in the complaint. — Supreme Ct., {Sp. 
 T.,) August, 1879. Swinburne v. Stockwell, 58 
 How. Pr. 312. 
 
 22. Under the code of civil procedure a party 
 has no right to interpose an unqualified denial 
 in a verified answer, unless it be founded upon 
 personal knowledge ; and where he has no posi- 
 tive knowledge, but has knowledge or informa- 
 tion sufficient to form a belief, he is not only 
 permitted, but bound, at his peril, to deny upon 
 information and belief. — Supreme Ct., (Ist Dml.,) 
 June, 1880. Brotherton v. Downey, 21 Hun 
 437 ; S. C, 59 How. Pr. 206. 
 
 23. Under the new code a denial on informa- 
 tion and belief must be so expressed in the 
 answer itself ; the verification cannot be relied 
 on to show this. — -Supreme Ct., (\st Dept. Sp. T.,) 
 Dec., 1877. Stent v. Continental Nat. Bank, 5 
 Abb. N. Cas. 88. S. P., Sept., 1878. Metraz 
 V. Pearsall, Id. 90. 
 
 24. — of knowledge, &c., sufficient 
 to form a belief. Where an answer in an 
 action on a note contains a verified denial of 
 knowledge or information sufficient to form a 
 belief whether the note sued on was ever Irans- 
 ferredto the plaintiff as stated in the complaint, 
 it cannot be stricken out as sham. — Supreme 
 Ct., (i.th Depl. Monroe Sp. T.,) August, 1878. 
 Boby V. Hallook, 5 Abb. N. Cas. 86 ; S. C, 55 
 
 - How. Pr. 412. S. P., Webb v. Foster, 45 Superior 
 311. 
 
 25. The denial of "any knowledge or infor- 
 mation sufficient to form a belief as to any or all 
 the allegations in the complaint contained, and, 
 therefore, denies the same, except as hereinafter 
 specifically admitted," is goocf. The form of 
 pleading is one well known to the profession 
 and has been sanctioned for years. — Manne Ct., 
 {Sp. T.,) July, 1880. Smith v. Gratz, 59 How. 
 Pr. 274. 
 
 26. Plea of another action pending. 
 An answer setting up another action pending 
 must show on its face that the first suit was 
 pending when the second one was commenced. 
 —Supreme Ct, (Sp. T.,) May, 1879. Hadden v. 
 St. Louis, &o., K. R. Co., 57 How. Pr. 390. 
 
 27. A plea of former recovery against 
 one or more joint tort-feasors, whether in con- 
 tract or in tort, to be good, must also aver actual 
 satisfaction.— iSupenor Ct., Feb., 1878. Cohn v. 
 Goldman, 43 Superior 436. 
 
 28. Plaintiffs sued H. in an action for goods 
 sold and delivered. Upon an affidavit setting 
 forth that the sale was procured by false and 
 fraudulent representations made by H., an order 
 of arrest in that action was obtained against H. 
 H. defended. After issue joined, an arrange- 
 ment was made whereby plaintiffs consented to 
 a vcteatiutr of the order of arrest, and in consider- 
 ation thereof, H. allowed them to take judgment 
 for their claim and costs. Afterward the plain- 
 tifiB in that suit commenced an action in tort 
 
 against G. and H., charging they did in concert 
 by conspiracy, cheat and defraud plaintiffs out 
 of said goo(&. G. alone defended this action, 
 and relied on the action against H., and the 
 judgment therein, as a, bar. Seld, that those 
 matters constituted no defence, there being no 
 satisfaction of the judgment. Ih. 
 
 III. Demurbeb. 
 
 29. Grounds, generally. A demurrer 
 will not lie to the prayer for judgment in the 
 complaint. That the plaintiff has an adequate 
 remedy at law is no ground of demurrer. — Su- 
 perior Ct., March, 1879. Walker ». Spencer, 45 
 Superior 71. 
 
 30. If the complaint sets up a cause of ac- 
 «tion, the court has jurisdiction to dispose of a 
 
 controversy, whether the relief called for be 
 legal or equitable, or both. The forum of the 
 trial, whether before the court or a, jury, 
 will be determined when it comes to be heard. 
 lb. 
 
 31. Misjoinder "of parties. That there 
 is a misjoinder 'of parties defendant is not a 
 ground of demurrer. The only defect of par- 
 tics defendant, for which a demurrer may be 
 interposed, is a deficiency. — Supreme Ct., {Sp. 
 T.,) AprU, 1880. Fish v. Hose, 59 How. Pr. 
 238. 
 
 32. Insufficient statement of cause 
 of action. In an action against two defend- 
 ants a complaint will not be held defective on a 
 joint demurrer by both, pnt upon the ground 
 that it does not state facts sufficient to constitute 
 a cause of action, if it states a cause of action 
 against either defendant. lb. 
 
 33. Plaintiff, suing as receiver of a savings 
 bank, alleged in his complaint that while de- 
 fendant was one of the trustees of the bank, he 
 sold to it a lot for $89,500 ; that a building w-is 
 erected thereon by the bank for $125,000, de- 
 fendant being one of the building committee ; 
 that such sale was voidable at the option of the 
 bank, but that owing to the improvements it 
 was not practicable, consistently with the rights 
 and interests of the bank, to simply avoid the 
 sale and receive back the purchase price, with 
 interest, and (he complaint asked that defendant 
 be compelled to take a reconveyance of the lot 
 and building, and to pay to plaintiff the amount 
 expended by the bank, with interest, or to pay 
 the difference between the purchase price of 
 $89,500 and the value of the lot at the date of 
 the judgment to be entered in the aetion. Held, 
 that the complaint was demurrable, on the 
 ground that it did not state facts sufficient to 
 constitute a cause of. action. — Supreme Ct., (Isi 
 Dept.,) Dec., 1878. Paine v. Irwin, 16 Hun 390. 
 
 •34. Service of demurrer. As to ser- 
 vice of a demurrer by mail, and when the time 
 of mailing becomes important, see Green c 
 Howard, 14 Hun 434. 
 
 35. Decision upon demurrer. When a 
 pleading is demurred to, the pleading to which 
 it professes to be an answer may be attacked, 
 and if insufficient to constitute a cause of action 
 judgment miiy be directed accordingly. — Su- 
 preme Ct., {Monroe Sp. T.,) Oct., 1879. Girvin 
 V. Hickman, 58 How. Pr. 244. 
 
 36. The doctrine of res ac^udicata has no 
 proper application on demurrer to an amended 
 complaint where the amendment is material 
 and the pleading essentially different by reason 
 
PLEADING, III., IV., v., VI. 
 
 345 
 
 of the amendment. Such amendment relievea 
 the question from being res adjvdimta, and the 
 complaint is tested as to its sufficiency or in- 
 sufficiency by the rules of pleading otherwise 
 applicable.— Sup-erne Ct., {Sp. T.,) May, 1880. 
 
 Clegg V. American, Newspaper Union, 59 How. 
 
 Pr. 122. 
 
 37. Where a complaint states facts sufficient 
 to constitute a cause of action, and in addition 
 facts constituting a defence, the whole must be 
 considered together in determining, upon de- 
 anurrer, whether the complaint states a cause of 
 miction ; as well the allegations tending to dis- 
 charge as those tending to charge the defendant. 
 —Ot. ofApp., April, 1878. Calvo v. Da vies, 73 
 N. Y. 211. 
 
 38. The complaint in an action brought to 
 vacate certain assessments and sales as a cloud 
 on title was demurred to, and it was claimed by 
 plaintiff that by the statute a conveyance on 
 the sale was presumptive evidence of regularity. 
 Held, that without determining the questions 
 involved, the proper disposition was to overrule 
 the demurrer and require an answer. — Gt. of 
 App., March, 1878. Townsend v. City of Brook- 
 lyn, 73 N. Y. 589. 
 
 39. Effect of demurring'. Defendant, in 
 (he first instance, demurred to the complaint ; 
 the demurrer was overruled, with leave to with- 
 draw it and put in an answer. Defendant 
 availed himself of this leave, setting up facts 
 showing that the court had not jurisdiction. 
 add, that defendant was not precluded by the 
 demurrer from interposing this defence, as the 
 demurrer was then out of the case, and was not 
 available to either party for any purpose. — Of. 
 of Arm., Oct., 1878. Wheeloek v. Lee, 74 N. Y. 
 495; S. C, 5 Abb. N. Cas. 72. 
 
 IV. Reply. 
 
 40. ■When necessary. In an action for 
 •dower, defendant alleged that the deceased had 
 been divorced. Held, that a reply was neces- 
 sary, and would be compelled on defendant's 
 motion. — Supreme Ct., {Xst DepL,) Feb., 1880. 
 Briukerhoff v. Brinkerhoff, 8 Abb. N. Cas. 207. 
 
 41. When unnecessary. A defence made 
 by way of new matter not constituting a counter- 
 <daim, is deemed controverted, and plaintiff, 
 without pleading, may traverse or avoid it, and 
 is entitled to the benefit of every possible an- 
 swer to it the same as if pleaded ; for that pur- 
 pose evidence, admissible under the principles 
 of either law or equity, takes the place of plead- 
 ing. — Ct. of App., Nov., 1879. Arthur v. Home- 
 stead Fire Ins. Co., 78 N. Y. 462. 
 
 V. Veripication op Pleadings. 
 
 42. 'WTien a verification is necessary. 
 A copy of the summons and a verified complaint 
 were served upon two defendants, and an un- 
 verified complaint on the third. Defendants 
 served a joint unverified answer. 3eld, that as 
 their interests were several this was improper, 
 and that the two defendants served with verified 
 complaints must serve verified answers. — Su- 
 preme Ct., (lat Dept.,) April, 1878. Wendt v. 
 Peyser, 14 Hun 114. 
 
 VI. The Isstje ; its Scope, and How Joined. 
 
 43. "What is a sufQcient joinder of 
 issue. Where, after issue joined, and the ac- 
 
 tion regularly noticed for trial by defendant, 
 plaintiff, in good faith and within the time al- 
 lowed by law, serves an amended complaint, the 
 issue joined and noticed for trial is destroyed, 
 and the action cannot be tried until new issues 
 have been joined and noticed for trial. — Supreme 
 Ct., (3d Dept.,) April, 1880. Ostrander v. 
 Conkey, 20 Hun 421. 
 
 44. If the amended pleading is served in bad 
 faith, the remedy is by motion to strike it out. — 
 lb. 
 
 45. Scope of the issue. The scope and 
 extent of the litigation is not now necessarily 
 limited to the case presented in the complaint, 
 but it may be enlarged and extended by the an- 
 swer in such a manner as to require the investi- 
 gation and determination of other subiects of 
 controversy than those set forth by the plaintifij 
 and where that is the case it is the practice to 
 requii-e the entire controversy, whether pre- 
 sented by the complaint or answer, or by both 
 together, to be settled and determined by the 
 judgment to be rendered in the case. — Supreme 
 Ct., {1st Dept.,) Sept., 1879. Jones v. Jones, 18 
 Hun 438. 
 
 46. Where a discharge in bankruptcy is 
 pleaded, the territorial jurisdiction of the court 
 granting the discharge, to entertain the proceed- 
 ings, is an issuable fact. — Ct. of App., May, 1879. 
 Poillon V. Lawrence, 77 N. Y. 207, 218. 
 
 47. Effect of express admissions. A 
 defendant who formally and explicitly admits, 
 by his pleading, that which festablishes the 
 
 ' plaintiff's right, will not be suffered to deny its 
 existence, or to prove any state of facts incon- 
 sistent with that admission. — Superior Ct., (Oen. 
 T.,) May, 1878. Donovan v. Board of Educa- 
 tion, 55 How. Pr. 176. 
 
 48. Where an admission in a pleading is 
 alone relied upon by the opposite party to estab- 
 lish a fact, any statement made in connection 
 with the admission, of another fact which would 
 nullify the effect of the admission, must be also 
 held as established ; the whole of the statement 
 must be taken and construed together. This 
 rule, however, does not prevent the party claim- 
 ing the benefit of the admission from disproving 
 the fact so alleged in connection with it ; so far 
 as the statement ia not disproved it is effectual ; 
 so far as it is shown to be untrue it is of no 
 avail. — Ct.ofApp., April, 1878. Gildersleeve jj. 
 Landon, 73 Nt Y. 609. S. P., Vauderbilt v. 
 Schreyer, 21 Hun 537. 
 
 49. Admission by omission to deny. 
 In an action of trespass upon lands, the com- 
 plaint alleged possession and ownership of the 
 bens in quo in plaintiff. The answer alleged in 
 substance that defendant was the owner of lands 
 adjoining the lands of the plaintiff, mentioned 
 and described in the complaint, that he had a 
 right of way across the said lands of the plain- 
 tiff, and that he entered to remove obstructions 
 unlawfully placed thereon. The answer con- 
 cluded by denying the allegation of the com- 
 plaint, "except as hereinbefore answered." 
 Meld, that the ownership and possession in the 
 plaintiff of the loem in quo were admitted by 
 the pleadings ; and that although plaintiff un- 
 necessarily attempted to show possession in fact 
 at the time of the alleged trespass, but failed, 
 and the proof showed title and possession in his 
 wife, yet it was no error for the court to allow 
 him to repose upon the admissions. — Ct. of App., 
 Sept., 1877. Potter v. Smith, 70 N. Y. 299. 
 
346 
 
 PLEADING, VII., YIII., IX. 
 
 yn. Evidence under the Pleadings. 
 
 50. What facts must be specially 
 pleaded. In an action for damages for fall- 
 ing into an open coal hole, defendant cannot 
 prove the usual license as a defence unless the 
 eame was pleaded in his answer. — Superior Ot., 
 Jan., 1879. Clifford v. Dam, 44 Superior 391. 
 
 51. In an action upon a check against the 
 maker by a holder after dishonor, the defence of 
 fraudulent representations by the payee to the 
 maker must be pleaded. — Superior Ct., Mov., 1878. 
 Eaubitschek v. Blank, 44 Superior 564..-' 
 
 52. In an action against a sheriff for a false 
 return to an execution in claim and delivery, 
 commanding a return of the property to the 
 plaintiff, who was defendant in the replevin suit, 
 defendant offered in evideilce a chattel mortgage, 
 purporting to cover the property, given by one 
 A. H. to M., a third person, in whose possession 
 the property was. There was no allegation in 
 the answer or offer to prove that plaintiff did 
 not own the property, or that M. did own it or 
 have any right to the possession thereof. Held, 
 that the mortgage was properly excluded. — Ot. 
 of App., Jan., 1879. Hoffman v. Conner, 76 N. 
 Y. 121. 
 
 53. WTiat need not be. In trover, defend- 
 ant may show any facts tending to show title in 
 himself, without specially pleading them ; e. g., 
 — the laws of a foreign country. — Supreme Ot., 
 (3d Dept.,) Nov., 1878. Edgeily v. Bush, 16 
 Hun 80. 
 
 54. When a plea of payment is based upon 
 a receipt stating in substance a payment by notes, 
 it may be shown that there was a mistake, with- 
 out setting it forth in the complaint or by reply. 
 — Ct. of App., April, 1878. Meyer v. Lathrop, 
 73 N. Y. 315, 321. 
 
 VIII. Amended and Supplemental Plead- 
 ings. 
 
 55. Amended complaint. When the 
 defendant, by answering tlie allegations of both 
 the original and amended complaint, waives 
 the objection that the former is superseded by 
 the latter ; and when the original and amended 
 complaint will be considered as consolidated, see 
 Kline v. Corey, 18 Hun 524. 
 
 See, also, title Amendment. 
 
 56. Power of the court respecting 
 suppleraental pleadings. The authority 
 of the court to permit or refuse a supplemental 
 pleading has not been changed or affected by 
 the new code, (J 544.) The declaration 
 therein that the court, " in a proper case must, 
 upon such terms as are just," permit a party to 
 make such a pleading, simply presents the law 
 as it existed before. The party must apply to 
 the court for leave, which must be granted, 
 uhless the motion-papers show a case in which 
 the court may exercise a discretion, in granting 
 or refusing leave. — Cl. of App., Feb., 1878. 
 Spears v. Mayor, &c., of New York 72 N. Y. 
 442. 
 
 57. A supplemental complaint should 
 not be allowed upon an ex parte application.^ 
 Ct. of App., Jan., 1880. Fleischmann v. Ben- 
 nett, 79 N. Y. 579. 
 
 58. Notwithstanding the mandatory language 
 of the code of civil procedure (§ 544,) it is the 
 duty of the court, upon the application, to con- 
 
 sider all the circumstances, and to grant or 
 refuse it, as may be just and proper in the par- 
 ticular case ; such application, therefore, should 
 be upon notice, so that both parties may be 
 heard. lb. 
 
 59. Where, upon the facts presented, the al- 
 lowance of a supplemental pleading is in the- 
 discretion of the Supreme Court, the exercise of 
 tliis discretion by the Special Term may be re- 
 Viewed by the General Term, but not by this 
 court. lb. 
 
 60. In an action on a contract payable in in- 
 stallments, payments falling due after the 
 commencement of the action, may be set up by 
 supplemental complaint.— iWeme Ot., (2d 
 D&pt.,) Feb., 1880. Fincke v. Kourke, 20 Hun, 
 264. » 
 
 61. Supplemental answer. When th& 
 recovery of judgmeiit in a second action for rent 
 on the same lease, during the pendency of the 
 first action, may be set up by supplemental an- 
 swer in the action first commenced, see, Jex v. 
 Jacob, 19 Hun 105; S. C, 7 Abb. N. Cas. 452. 
 
 IX. Remedies for Errors and Detects. 
 Waiter. 
 
 62. Striking out false or sham plead- 
 ings. In an action to recover penalties for 
 violation of certain laws, the complaint alleged 
 that defendant failed to do certain things therein 
 specified. The answer denied as to all the mat- 
 ters specified in the complaint, and in the same 
 language, that defendant had failed to do said 
 things. Held, that the answer should be stricken 
 out as false or sham, on the ground that such 
 denials were denials of conclusions of law. — Su- 
 preme Ot., {1st Dept.,) May, 1879. Mayor, &c., 
 of New York, v. James, 17 Hun 588. 
 
 63. — frivolous pleadings. A counter- 
 claim cannot be stricken out as frivolous ; the 
 proper remedy is by demurrer, or by motion to- 
 make it more definite and certain. ~&M))em6 Of. 
 (4«A Dept.,) Jan., 1879. Cooper v. Howe, 16,. 
 Hun 502. 
 
 64. In an action for liquors sold, defendant 
 set up that plaintiff had accepted defendant's 
 promissory note for the amount due, whereby 
 the time for payment was extended,' and that 
 such note was not yet due. Held, tbat as the 
 answer did not allege that the note so accepted 
 was negotiable, it was properly overruled as 
 frivolous. — Supreme Ot., (4<A Dept.,) Jan., 1878. 
 Webster v. Baiubridge, 13 Hun 180. See, also, 
 Parkinson v. Jacobson, Id. 317 ; Chatham Nat- 
 Bank V. Shipman, 20 Id. 543. 
 
 65. Striking out irrelevant matter. 
 Matter will not be stricken out of an answer as 
 irrelevant, when it is responsive to irrelevant 
 matter in the complaint. — Svpreme Ct., {lstDy>t.,} 
 May, 1879. Mclntyre v. Ogden, 17 Hun 604. 
 
 66. When striking out of a complaint,, 
 allegations of fraud in contracting the debt sued 
 for, as irrelevant, is erroneous, because it leaves 
 the complaint insufficient to sustain the action, 
 see Starkweather v. Bronner, 18 Hun 346. 
 
 67. Making allegations more definite 
 and certain. When a complaint sets forth a 
 cause of action on contract, and also contains, 
 allegations of fraud, the remedy of defendant is 
 to move to make more definite or to strike out. 
 —Ot. of App., Ap-il, 1879. Neftel v. Light- 
 stone, 77 N-Y. 96, 99. 
 
 68. When relief in case of indefinite and 
 
PLEADING, IX.— POOR. 
 
 347 
 
 uncertain pleading, should not extend to per- 
 mission to move for judgment, in case of failure 
 to amendj see Hughes v. Chicago, &c., E. E. Co., 
 45 Superior 114. 
 
 69. Disregarding pleadings. Since the 
 adoption of the code of civil procedure the 
 plaintiff can no longer treat an answer as a 
 nullity and enter a judgment as upon a default ; 
 his only remedy in such a case is to apply to the 
 court or a judge thereof, upon notice, as pre- 
 scribed in § 537 of the said code. — Supreme CM., 
 (4th Dept.,) June, 18S0. Decker «. Kitchen, 21 
 Hun 332. 
 
 70. Returning pleadings. Where an 
 answer is returned on the ground that the veri- 
 fication is defective, the notice must point out 
 specifically the particulars in which it is defect- 
 ive. — Supreme Gt., {1st J>epl.,) March, 1878. 
 Snape v. Gilbert, 13 Hun 494. 
 
 11. "Waiver of defects by omission to 
 demur or ans'wer. In a complaint in an 
 action to vacate a judgment against a corpora- 
 tion, it was not expressly averred that the judg- 
 ment was fradulent in fact, or that the officers 
 of the corporation colluded with the plaintiff 
 therein ; but facts were averred, whieli if proved 
 authorized the inference that the judgment was 
 without consideration, and fraudulently and 
 collusively obtained. Hdd, sufficient after judg- 
 ment ; that if the complaint was technically 
 defective the objection should have been taken 
 by demurrer or otherwise before issue on the 
 facts ; also, that it was not necessary to employ 
 the word " fraud " or " fraudulent " to charac- 
 terize the transaction. — Ct. of App., May, 1878. 
 Whittlesey v. Delaney, 73 N. Y. 671, 575. See, 
 also, Derby v. Yale, 13 Hun 273. 
 
 VS. Defect in parties plaintiff not taken by 
 answer or demurrer, will be deemed to have 
 been waived, and cannot be taken on the trial. — 
 Ot.qfApp., April, 1877. Davis v. Bechstein, 69 
 N. Y. 440. 
 
 73. Effect of pleading to cure prior 
 errors. Where a complaint, in an action in 
 the county court, fails to allege that defendant 
 is a resident of the county, a dismissal thereof 
 on the trial, on that ground, will not be sustained 
 where defendant has answered on the merits. — 
 Supreme Ct., {2d Dept.,) Dec., 1878. Holbrook 
 V. Baker, 16 Hun 176. 
 
 As to pleas in Abatement, see, also. Abate- 
 ment, 8, 9. 
 
 For rules governing the Amendment of plead- 
 ings, see, also. Amendment, 7-13. 
 
 For rules of pleading peculiar to any Par- 
 tieular form, or Cause of action, see the title of 
 the action or cause of action in question. 
 
 As to pleading in suits by or against Personal 
 represetntalives, see ExEoniORS and Admin- 
 ISTBATOKS, 123, 124. 
 
 In actions by or against Husband and wife, 
 see Husband and Wipe, 80-86. 
 
 PLEDGE. 
 
 Bajlment, 6-14; Debtob and Ceeditob, 
 19, 20. 
 
 POLICE. 
 
 New York City, 120-126. 
 
 POOR. 
 
 1. Superintendents of the poor. Ap- 
 pointment — filling vacancies. The pro- 
 vision of the state constitution, (art. 10, § 2,) 
 declaring that county officers, whose election or 
 appointment is not provided for in the constitu- 
 tion, shall be elected by the electors or appointed 
 by the board of supervisors of the county, as the 
 legislature shall direct, includes superintend- 
 ents of the poor ; and the power conferred upon 
 the legislature embraces the power to fill vacan- 
 cies in that office. — Ct. of App., Oct., 1879. Peo- 
 ple, ex rel. Hatfield, v. Cftnistock, 78 N. Y. 
 356. 
 
 2. Under the provisions of the statute of 
 1854, declaring that in counties wherein the 
 board of supervisors determine to have but one 
 superintendent of the poor, he shall hold his 
 ofSce for three years, and providing for triennial 
 elections thereto, (Laws of 1854, ch. 188,) and 
 under the provision of the statute of 1847 (Laws 
 of 1847, ch. 498, § 4,) authorizing boards of 
 supervisors to fill vacancies in that office, wher& 
 a vacancy occurs in .a county whose board of 
 supervisors have determined to have but one 
 superintendent, said board may fill the vacancy 
 by appointment for the unexpired term. lb. 
 
 3. Term of ofBce. The provision of the 
 constitution, (art. 10, J 5,) declaring that "in 
 case of elective officers no person appointed ta 
 fill a vacancy shall hold his office * * * 
 longer than the commencement of the political 
 year next succeeding the first annual election- 
 after the happening of the vacancy," has no ap- 
 plication to the office of superintendent of the 
 poor ; it speaks only of offices which are certain 
 and fixed as elective offices, not of those which 
 may become so by the action of the legislature. 
 Therefore, where the superintendeat of the poor 
 of Oneida county, who was elected in 1876, was 
 removed by the governor, and defendant was 
 appointed in October, 1878, by the board of 
 supervisors to fill the vacancy — Seld, that 
 defendant's term did not expire untU Janu- 
 ary 1st, 1880, and that therefore the elec- 
 tion of relator to that office at the annual elec- 
 tion in 1878 was unauthorized. lb. 
 
 4. Their powers. Superintendents of the- 
 poor have no power to expend money for the 
 temporary relief of the poor. This right or 
 duty devolves upon towns and their officers. 
 Nor can the superintendents afford support to 
 paupers elsewhere than at the poor-house oir 
 place provided for that purpose by the county 
 supervisors. — Swpreme Ct., (3d Dept.,) Jan.^ 
 1880. Gallup «. Bell, 20 Hun 172. 
 
 5. Overseers of the poor. As to the- 
 duty of an overseer of the poor to "render an ac- 
 count to the town officers of all moneys received' 
 and disbursed by him, and the punishment for 
 willful neglect so to do, see Matter of Pickett, 55 
 How. Pr. 491. 
 
 As to the relative liability of a Parexii or 
 Child, to support the other, see Pakent ani> 
 Child, 1, 2. 
 
 Of Busband, to support wife, see Husband«- 
 AND Wife, 15-25. 
 
 PORT JERVIS. 
 
 Municipal Corpgeatigns, 128. 
 
548 
 
 POWERS— PRACTICE. 
 
 POSSESSION, (Writ of.) 
 
 EJJICTMENT, O. 
 
 POST-NUPTIAL SETTLEMENTS. 
 
 Husband and Wife, O. 
 
 POWERS. 
 
 1. Distinction between powers by 
 ■deed and by will. A power created by 
 ■deed must be more formal than one created by 
 will. In the latter case, there may be a mere 
 naked power, no estate in the land being given 
 to any one. In the former case, the deed must 
 convey, and be sufficient in form and manner of 
 execution to convey, some estate in the land, 
 and then a power relating to the same land 
 may be granted.— CK. ofApp., April, 1878. Jen- 
 nings V. Conboy, 73 N. Y. 230, 234. 
 
 2. Interpretation of instruments 
 conferring powers. A formal instrument, 
 •delegating powers, is ordinarily subject to a 
 strict interpretation, and the authority is not 
 extended beyond that given in terms, or which 
 is necessary to carry into effect that which is 
 
 •expressly given. — Ct. of App., Jan., 1878. 
 •Craighead v. Peterson, 72 N. Y. 279. 
 
 3. A power to sell land can only be exer- 
 cised in the manner and for the precise purpose 
 •declared and intended by the donor ; when the 
 purpose becomes wholly unattainable the power 
 •ceases ; and this is so, although the purpose is 
 defeated by the voluntary act of the person for 
 ■wliose benefit the power was created. — Ct. of 
 App., March, 1877. Hetzel v. Barber, 69 N. Y. 
 1, 10. 
 
 4. A power of sale to be exercised after a 
 definite term is not necessarily an illegal re- 
 straint upon alienation ; it does not necessarily 
 suspend the absolute power of alienation. When 
 the beneficiary under a power is also vested 
 with the title to the real estate as heir or de- 
 visee, he may, before the power has been or 
 could be exercised, convey the real estate by 
 warranty deed, and thus defeat or annul the 
 power of sale. — Ct. of App., Feb., 1878. Garvey 
 e. McDevitt, 72 N. Y. 556, 563. 
 
 5. Where, to a devise of a fee, is added a 
 power of sale, the devisee and donee being the 
 same person, the power is merged in the fee 
 and is inoperative. — Ct. of App., April, 1878. 
 Jennings v. Conboy, 73 N. Y. 230 ; reeersing 10 
 Hun 77. 
 
 6. Under the provisions of the Kevised 
 Statutes in reference to powers (1 Eev. Stat., 
 732, ? 74, el seq.) it is not necessary to the crea- 
 tion of a valid beneficial power of sale that the 
 instrument creating the power shall, by its ex- 
 press terms, give to the donee an interest in the 
 
 • execution of the power; "when no person, 
 -other than the grantee, has, by the terms of its 
 creation, any interest in its execution [' (§ 79), 
 then such grantee is the sole beneficiary, and 
 the power is beneficial. Jb. 
 
 7. When a power of sale given to an execu- 
 tor by will, will be deemed to authorize an ex- 
 -change of a portion of testator's real estate for 
 -other lands, see Mayer v. McCune, 69 How. 
 Pr. 78. 
 
 8. For the construction of powers of sale in 
 wills containing peculiar provisions, see Ham- 
 ilton V. New York Stock Exchange Building 
 Company, 20 Hun 88; Wild v. Bergen, 16 Hun 
 127 ; Hetzel v. Barber, 69 N. Y. 1, 8. 
 
 9. Power to appoint. A power author- 
 izing the donee thereof to appoint, by his last 
 will, a person or persons to whom real estate, 
 belonging to the donor, should be conveyed, is 
 a general beneficial power within 1 Kev. Stat., 
 732, ? 79. The word "enumerated," in | 92, 
 providing that " no beneficial power, general or 
 special, hereafter to be created, other than such 
 as are already enumerated and defined in this 
 article, shall be valid," is not to b&read literally 
 as limiting beneficial powers to those specifically 
 detailed in the previous sections, but is to be 
 construed as used in the sense of " mentioned," 
 " indicated," " referred to," or " authorized." — 
 Supreme Ct., {1st Dept.,) March, 1880. Cutting 
 V. Cutting, 20 Hun 360. 
 
 10. The doctrine that where the donee of a 
 general power of disposition executes it in favor 
 of a purchaser, not for a valuable consideration, 
 and then dies, such purchaser is considered in 
 equity as a trustee for the creditors of the donee 
 of the power, was abolished by the Revised 
 Statutes as to real estate, but still continues in 
 force as to personal property, lb. 
 
 11. A general po-wer in trust is never 
 to be exercised for the benefit of the donee of 
 the power. He has no beneficial interest in its 
 exercise. He must exercise it for the sole 
 benefit of the beneficiaries of the power, and 
 when for any reason it is impossible to exercise 
 it for their benefit it cannot be exercised. — Ct. 
 of App., Feb.i 1878. Garvey v. McDevitt, 72 
 N. Y. 556, 563. 
 
 As to Powers of Attorney, see Pbincipal akd 
 Agent, 8-13. 
 
 PRACTICE. 
 
 [Includes only such decisions upon questions of 
 practice, as could not be conveniently arranged under 
 the various practice titles, or elsewhere in the digest. 
 For rules of practice in actions, and special proceed- 
 ings, generally, see the title of the adtion or proceeding 
 in question, or that of the cause o/ acfzon out of which 
 it would naturally arise ] 
 
 1. The system of practice in this state 
 consists of, 1. The code of civil procedure; 2. 
 Unrepealed portions of the old code ; 3. Statutes 
 not embraced in either ; 4. Bules and practice 
 of the courts preserved by \ 469 of the old code, 
 so far as they are not inconsistent with later 
 legislative enactments. — Superior Ct., Nov., 1878. 
 Levy V. Loeb, 44 Superior 291 ; affirmed 76 N. 
 Y. 609. 
 
 2. Matters of practice on discontinu- 
 ance. There is no valid discontinuance with- 
 out an order of the court, and while, as a general 
 rule, plaintiff may, on payment of costs, enter 
 an order of discontinuance, give notice thereof 
 and the cause is thereby discontinued, yet the 
 court has the right to control the order; alid 
 where circumstances exist making a discontinu- 
 ance without terms inequitable, the court may 
 refuse it altogether or except on terms, and may 
 open an order entered ex parte. — Ct. of App., 
 Dec, 1878. Carleton v. Darcy, 75 N. Y. 376. 
 Compare Smith v. Green, 14 Hun 529. 
 
PEACTICE. 
 
 349 
 
 3. Plaintiff's right to discontinue the action 
 on payment of costs terminates when it passes 
 into judgment, for then defendant can claim a 
 right to the adjudication even though wholly or 
 partly unfavorable to him ; and this right does 
 not depend upon the judgment having been ac- 
 tually entered of record.— (Sttperior Ct., Feb., 
 1878. Carleton v. Darcy, 43 Superior 373. 
 
 4. Leave to discontinue was never granted 
 after a peremptory rule for judgment on demur- 
 rer. After a special verdict, the plaintiff might 
 discontinue by leave, as a matter of great favor, 
 because the special verdict was not complete 
 and final. Leave to discontinue after a general 
 verdict was never granted. lb. 
 
 5. After the evidence has been agreed upon 
 and submitted to the trial justice and a motion 
 to open the case and take further evidence has 
 been denied, a discontinuance should not be al- 
 lowed. — Supreme Ct., (3d Bept.,) Jan., 1878. 
 Clearwater v. Decker, 13 Hun 63. 
 
 6. On plaintiff's application, it was ordered 
 that he " have leave to discontinue the action " 
 upon payment of costs, and that upon payment 
 thereof he might enter an order of discontinu- 
 ance. Seld, that plaintiff might at his election 
 refuse to accept the terms imposed by the order 
 and continue the action. — Supreme Ct., {1st 
 I)ept.,) Oct., 1878. Soc. of New York Hospital 
 •J. (Joe, 15 Hun 440. 
 
 7. As to costs on discontinuance where the 
 compensation of an attorney is involved, see 
 Bryon v. Durrie, 6 Abb. N. Cas. 135. 
 
 8. — on dlBmissal. After the reference of a 
 case to hear and determine, and after several hear- 
 ings had been had, the referee refused to appoint 
 another hearing until his fees were paid. After 
 the case had remained in this condition for two 
 years, defendant applied, under Code of Civ. 
 Pro., i 822, to have the complaint dismissed for 
 want of prosecution. Held, that the applica- 
 tion should be granted. — Supreme Ct., (3d JJept.,) 
 Nov., 1878. Ellsworth v. Brown, 16 Hun 1 ; S. 
 C, sit6 iiam. Ellsworth v. Smith, 56 How. Pr. 
 237. 
 
 9. Filing a lis pendens and its effect. 
 That a party is not required, in a notice of lis pen- 
 dens, to anticipate and state all the defects which 
 may appear in the proof of another claimant of 
 the land, on the trial of any action which the 
 latter may bring, see Brown v. Goodwin, 75 N. 
 Y. 409. See, also, Mortgages, 82. 
 
 10. Service of papers after tlie death 
 of party. The death of a party to a pending 
 action vacates the power of his attorney there- 
 in, and he is not required or authorized to do 
 anything further in the action except upon the 
 reteiner of the legal representative. Service of 
 papers, in the action, upon an attorney therein 
 after the death of his client is void and of no effect, 
 and such service will be set aside on motion. — 
 Supreme Ot., (Sp. T.,) JvXy, 1880. Adams v. 
 Nellis, 59 How. Pr. 385. 
 
 11. Submission of controversy vritli- 
 Out action. Under the provision of Code of 
 Civ. Pro., ? 1279, providing for the submission 
 of a controversy upon facts admitted, the facts 
 agreed upon must be such as will enable the 
 court to render the proper judgment, and the 
 submission must be by the parties to be affected 
 thereby.— 0!. of App., Feb., 1879. Dickinson 
 V. Dickey, 76 N. Y. 602; S. C, 14 Hun 617. 
 
 12. A case purporting to be submitted under 
 said section, was entitled the same as an action 
 
 for foreclosure, which was set forth therein. It 
 was stated, in substance, that under judgment 
 of foreclosure and sale in said action, a referee 
 was appointed to sell, that plaintiffs became the 
 purchasers, and, "as such purchasers and 
 owners," they afterwards agreed to sell to a pur- 
 chaser whose name was not given, that such pur- 
 chaser objects to the title, upon the ground that 
 the referee was not properly appointed, and the 
 submission closed with the statement that mo- 
 tion was made to compel said purchaser to take- 
 title. Held, that the case submitted was fatally 
 defective ; and that no decision could properly 
 be given thereon. lb. 
 
 13. Under Code of Civ. Pro., ? 1281, a contro- 
 versy submitted upon agreed facts, is to be tried 
 at General Term. — Supreme Ct., (3d Dept.,) Sept,f 
 1878. Waring v. O'Neill, 15 Hun 105. 
 
 14. Stipulations. Parties who enter into % 
 a stipulation with fiiU knowledge of the facts, 
 will not be relieved from the effect of such stipu- 
 lation. — Com, Pleas, April, 1879. Conner v. Bel- 
 den, 8 Daly 257. S. P., Eust v. Hauselt, 43- 
 Superior 571. 
 
 15. Settlement of case on appeal. 
 A case on appeal, settled by a judge, will be as- 
 sumed to have been settled in accordance with, 
 the judge's minutes. The evidence furnished 
 by such settlement as to the real fact prepon- 
 derates over that of the affidavit of the counsel 
 who tried the cause for the party making the 
 case, to the effect that the proposed case em- 
 bodied the fact as it occurred, and suggesting a 
 cause which might have led to its having es- 
 caped the attention and notice both of the judg& 
 and stenographer. — Superior Ot., Jan., 1878. 
 Canzi v. Conner, 43 Superior 569. 
 
 As to the mode of Commencing an action, see 
 Peocess. 
 
 For rules relative to Parties, generally, and 
 parties appearing in a Bepresentaiive (xmacity^ 
 see Pabties; also, Assignmeitcs foe Ceedi- 
 TOBS, 21, 22 ; Bankruptcy, 15-21 ; Exbcu- 
 
 TOBS AND AdMINISTATOM, IV.J GUABDIAN AD 
 lilTEM. 
 
 For rules of Pleading and Emdenoe, see 
 Pleading; Evidence; and the titles of the- 
 various forms and causes of action. 
 
 For matters of practice in connection with 
 the various Prommmal remedies and Special pro- 
 ceedings, see their titles, chiefly, Abebst ; At- 
 tachment ; Bail ; Cebtioeabi ; Injunction ;. 
 Mandamus ; Pbohibition ; Eeoeivees ; Spe- 
 cial Proceedings, &c. 
 
 As to the Mode of trial of actions, see Abbi- 
 teation; Refbeence; Teial. 
 
 As to PUwe of trial ; changing it; and what 
 actions are local, and what transitory, see 
 Trial, II. r- 
 
 For various proceedings IruMental to an ac- 
 tion, see Amendment ; Contempt of Coubt ;; 
 Notice ; Removal of Causes ; Stat op Pbo- 
 ceedinos. 
 
 For rules governing the Enforcement of judg- 
 ments, see Contempt of Court ; Execution • 
 Impeisonment ; Judicial Sale ; Sei-off 
 
 PRAYER. 
 
 For Bdief or Damages, see PleadinGj 16, 
 For Instructions, see Tbial, VI. 
 
350 
 
 PRINCIPAL AND AGENT, I. 
 
 PRELIMINARY PROOFS. 
 
 To obtain admission of Secondary evidence, see 
 Evidence, 43. 
 
 Of Loss, to obtain insarance money, see In- 
 fiTOANOE, 2-5, 64-73, US. 
 
 PREMIUMS. 
 
 Instjbance. 46, 47, 104-114. 
 
 PRESUMPTIONS. 
 AppBAii, 55-59 ; Evidence, 20-42. 
 
 PRINCIPAL AND AGENT. 
 
 I. Appointment op Agents; axd theie 
 
 Powers, genbbailt. 
 II. Bights, Duties, and Liabilities op 
 Agents. 
 
 1. In general, 
 
 2. As towards the prindpdl, 
 
 in. Ei&HTs AND Liabilities op Fbinoipaxs. 
 
 1. In general. 
 
 2. When bound by agenSs ads or con- 
 
 tracts. 
 
 IV. Decisions Eelative to Pabticulab 
 Ci.Assia op Agents. 
 
 I. Appointment op Agents; and theib 
 
 POWEBS, GENEBALLY. 
 
 1. Implied po'wers of agents, gener- 
 ally. When a limitation on the authority of 
 an agent may be regarded as private instmc- 
 •tions not binding upon one dealing with the 
 agent, determined. — Ct. of App., Jan., 1879. Hill 
 V. MUler, 76 N. Y. 32. 
 
 2. P. was styled " cashier " in the state trea- 
 surer's office ; his general duties were to keep 
 the treasurer's ledger and cash-book and the 
 bank pass-books, to make bank deposits, and to 
 make certain petty bank disbursements ; it was 
 no part of his duty to indorse drafts, he was ex- 
 pressly prohibited from doing so, and upon sev- 
 eral-occasions when he assumed to do it the 
 treasurer, when it came to his knowledge, for- 
 bade it. In^n action by the state for the con- 
 version of a Maft indorsed by P. — Seld, that the 
 evidence authorized a finding 'that P. had no 
 authority, express or implied, to indorse. — Ct of 
 App., Jan., 1879. People v. Bank of North 
 America, 75 N. Y. 547. 
 
 3. Even if on one or two occasions when P. 
 indorsed, the treasurer, when advised of it, did 
 not express to him his disapproval, this was not 
 material upon the question of actual authority. 
 76. 
 
 4. At one time, the treasurer, when absent 
 fi;om his office, sent two drafts payable to his 
 ■order as treasurer to P. with directions to de- 
 posit ; the clerk indorsed the name of the trea- 
 surer and deposited them. Held, that this did 
 
 not show authority to indorse drafts generally. 
 lb. 
 
 5. Upon another occasion, when P. had in- 
 dorsed a draft, the holder, not satisfied with the 
 indorsement, sent it to the treasurer, who in- 
 dorsed it himself. Held, that this was not evi- 
 dence that the treasurer sanctioned or ratified 
 the indorsement by P., but on the contrary that 
 he recognized its invalidity. lb. 
 
 6. — of agent appointed to buy or 
 sell. An agent authorized to sell property, in 
 the absence of any express limitations of his 
 powers, is authorized to do any act or to make 
 any declaration in regard to the property found 
 necessary to make a sale and usually incidental 
 thereto. — Ct. of App-, Jan., 1878. Ahem v. 
 Goodspeed, 72 N. Y. U)8. 
 
 7. In the case of a parol contract for the 
 sale of goods, where no part of the price has 
 been paid, and a delivery of the goods and ac- 
 ceptance by the vendee is relied upon to take 
 the sale out of the statute of fraucb, the same 
 person cannot act as the agent of the seller to 
 negotiate the sale, and as the agent of the buyer 
 to receive and accept the goods. — Supreme Ct., 
 (4iA Dept.,) June, 1878. Caulkins v. Hellman 
 14 Hun 330. 
 
 8. Powers of attorney, and how In- 
 terpreted. Defendant executed a power of 
 attorney authorizing his son-in-law, P.," to draw 
 and indorse any check or checks, promissory 
 note or notes, on any bank in the city of New 
 York" in which defendant had an account, 
 " and to do any and all matters and things con- 
 nected with " defendant's account in any such 
 bank which he might or could do, etc. The 
 words " promissory note or notes" were inter- 
 lined. P. executed in the name of the defend- 
 ant, and delivered to plaintlflf's testator, two 
 promissory notes payable at a bank where de- 
 fendant had no account. In an action upon the 
 notes — Held, that the making of them was ultra 
 vires, and defendant was not liable thereon. — Ct. 
 of ApV; Jan., 1878. Craighead v. Peterson, 72 
 N. Y. 279. 
 
 9. Defendant, at the request of P., executed 
 a mortgage which, by its terms, secured the pay- 
 ment of ihe notes, upon lands the nominal title 
 to which was in him, but of which P. was the 
 real owner, the title having been taken in defend- 
 ant's name without his knowledge. Defendant 
 supposed the mortgage was executed for the 
 benefit of P., or of defendant's daughter. De- 
 fendant testified that he did not understand or 
 know that the mortgage was given to secure 
 notes of which he was the maker. The notes 
 were not, in fact, given in his business or for his 
 benefit, and it did not appear that he had ever 
 received any benefit or advantage therefrom. 
 Hdd, that the evidence authorized a finding 
 that there was no ratification by defendant of the 
 acts of P. ; that to constitute a ratification under 
 such circumstances there should be a deliberate 
 and intentional act of the party sought to be 
 charged, with full knowledge of all the circum- 
 stances, lb. 
 
 10. Defendant executed a power of attorney 
 as follows: "I hereby authorize L. as my 
 agent, to make drafts on me from time to time, 
 as may be necessary for the purchase of lumber 
 on my account, and to consign the same to the 
 care of P. W. Scribner & Co." In an action 
 upon a draft, drawn by L. in his own name and 
 discouilted by plaintin upon the faith of and 
 
PRINCIPAL AND AGENT, I., II. 
 
 351 
 
 upon delivery of the instrument — Held, that the 
 authority given was absolute ■within the pre- 
 ■scribed limits, and was equivalent to an uncon- 
 ditional promise to pay drafts so ^ drawn ; that 
 tthe words " as my agent" did not refer to the 
 form of the draft but to the capacity in which 
 L. acted, and if he drew the draft as agent, it 
 was not material whether he described himself 
 as such or not; that the words "as may be 
 necessary for the purchase of lumber " did not 
 constitute a condition precedent which plaintiff 
 was required to show had been performed, but 
 it was for the agent to determine the necessity ; 
 that the agent, by procuring the discount, repre- 
 sented that it was to be used in the business and 
 that the amount was necessary, which repre- 
 sentation bound the principal ; also, that the 
 requirement as to shipping the lumber was not 
 a condition to the power to draw ; at least the 
 presumption was that the agent observed these 
 directions, and if defendant could avail himself 
 of a neglect so to do, it was incumbent upon 
 him to show it. — QS. of Ajpp., Feb., 1878. Mer- 
 chants' Bank of Canada v. Griswold, 72 N. Y. 472. 
 
 11. The drafts did not specify any place of 
 payment ; they were drawn and discounted in 
 Canada. Defendant pleaded usury. Seld, that 
 the contract was to be governed by the laws of 
 Oanada, not of this state, and as by the laws of 
 -Oanada usury is not a defence, the plea was not 
 sustainable. lb. 480. 
 
 12. It seems that a power of attorney author- 
 izing the assignment of mortgages, impliedly 
 includes the assignment of bonds accompanying 
 the mortgages.— OS. of App., Sept., 1879. Feld- 
 man v. Beier, 78 N. Y. 293. 
 
 13. Where the investment of money is the 
 object of a power of attorney, and the attorney 
 is authorized thereby to use the principal's 
 signature and seal, when necessary or proper, in 
 the transaction of the business of the principal, 
 the agent has authority to re-assign a bond, as- 
 signed as collateral security for a loan of the 
 inoneys of his principal, upon payment of the 
 loan^ lb. 
 
 IL Bights, Duties and Liabilities of 
 
 Agents. 
 
 1. In general. 
 
 14. Right to compensation. The right 
 ■of an agent employed to procure orders for 
 goods manufactured by his principals, to com- 
 missions on an order obtained by him, deter- 
 mined in a case depending upon particular facts. 
 — Oom. Pleas, Jam., 1880. Sinclair v. Galland, 
 8 Daly 508. 
 
 15. For the construction of a contract between 
 the principal and an agent for the purpose of 
 ^selling goods on commission, as to the time 
 when the commissions were earned, see Kussell v. 
 ■Consolidated Fruit Jar Co., 13 Hun 286. 
 
 16. Prinoipal'spo'wer to modify terms 
 of eniploymeut. In case of an agent to sell, 
 with no interest in the subject of sale, a modifi- 
 cation of terms of employment may be made at 
 any time before the agent has fullj* performed 
 the service for which he was employed ; or in 
 case the principal has waived or prevented full ' 
 performance, then at anytime before substantial 
 {)erformance. The effect of modification at such 
 .time is that the agent may decline to further 
 act, or may make a new agreement with the 
 
 principal as to the terms of his employment ; 
 but if he does neither, and thereafter makes 
 sales, such sales, and his compensation therefor, 
 must be governed by the modified terms. This 
 although he protests against the modification. — 
 Superior Ct., Nov., 1877. May v. Schuyler, 43 
 Superior 95. 
 
 17. The distinction, as to the time when com- 
 pensation is earned, between an agent or broker 
 to sell on certain specific terms, and an agent or 
 broker employed generally to find a purchaser, 
 is as follows : 1st. In the first case he must find 
 a purchaser, ready and willing to complete the 
 purchase on the terms specified. 2d. In the 
 second case it is sufficient if he brings the parties 
 together, and a sale results in consequence 
 thereof, lb. 
 
 18. A settlement, made by the principal with 
 parties from whom he procured the goods which 
 he had employed the agent to sell at certain 
 prices, (the agent to receive all above such 
 prices for his compensation,) on the basis and 
 statement that he, the principal, was entitled to 
 receive only those prices, is not absolute proof 
 that the principal had not lawfully modified the 
 original terms of the agent's employment so that 
 he was, in fact, entitled to receive much higher 
 prices than those he thus stated to the third 
 party, on the faith and basis of which statement 
 a settlement was made with such third party. lb. 
 
 19. Agent's right to indemnity. The 
 promise of indemnity, which the law implies on 
 the part of the person at whose instance and 
 request another does an act, supposed at the 
 time to be lawful, but which turns out to have 
 been wrongful as to a third person, is limited to 
 indemnity against the natural consequences of 
 the wrongful act. If the act was a trespass 
 upon the lands of another, the damages which 
 the party committing the trespass might be com- 
 pelled to pay, in satisfaction of the injury, would 
 plainly be recoverable against his principal. — 
 Ot. of App., Sept., 1878. People, ex. rel Van 
 Keuren, v. Town Auditors,' 74 K Y. 310. 
 
 20. If sued, before defending the action it is 
 his duty to give his principal notice that he may 
 elect either to conduct the defence or make vol- 
 untary satisfaction. But if the agent is justified 
 in defending and incurring costs without specific 
 direction, he is not justified in continuing the 
 litigation without the sanction and at the 
 expense of his principal after the right of the 
 third person has been established by judgment 
 in his favor. lb. 
 
 21. Bight of agent to deal for his 
 0"WT1 benefit. The rule that an agent cannot 
 bind his principal in a matter in which the 
 agent has secured to himself an interest, is well 
 settled. In such a case the principal may repu- 
 diate the act of the agent whenever the facts 
 become known to him. — Superior Ct., June, 1879. 
 Loeb V. Hellman, 45 Superior 336. 
 
 For an exception to the above rule, see 
 O'Grady v. Coe, 13 Hun 594. 
 
 22. — or to act both for self and prin- 
 cipal. An agent cannot bind his principal to 
 the receipt of money due from himself, by a 
 mere acknowledgment, signed by himself as 
 agent, that he has received it ; he cannot act for 
 himself and for his principal also in the same 
 transaction.— Ci. of App., April, 1877. Neuen- 
 dorff D. Worid Mut. Life Ins. Co., 69 N. Y. 389. 
 
 23. Right to sue on contract made 
 for principal. Where itdistinctlyappearsfrom 
 
352 
 
 PRINCIPAL AND AGENT, II. 
 
 an instrument under seal that the seal is that of 
 the person subscribing, who designates himself 
 as agent, and not tlie seal of the principal, the 
 former only is the real party who can maintain 
 an action upon the instrument. In order to 
 take a case out of the general rule, where the 
 cxjnlract is one valid without a seal, it must ap- 
 pear from the instrument that it was really 
 made on behalf of the principal, or that he has 
 derived benefit from and accepted and confirmed 
 it by acts on his part.— CK. of App., Dec., 1878. 
 /Schaefer v. Henkel, 75 N. Y. 378 ; S. C, 57 
 How. Pr. 97 ; 7 Abb. N. Cas. 1. 
 
 24. Lia)3illty of agent to third per- 
 sons, generally. As to the liability of an 
 agent to refund money which he has paid over 
 to his principal, see Bixby v. Drexel, 56 How. 
 Pr.478. 
 
 25. What contracts bind the agent, 
 personally. The general rule is that if an 
 agent, in the course of his agency, signs a bill 
 in his own name, he is liable, and his principal 
 is not. — Superior &., April, 1878. Joynson v. 
 Bichard, 44 Superior 16. 
 
 26. 1 Kev. Stat. 768 | 2, which provides 
 that "every note signed by the agent of any 
 person under a general or specisS authority, 
 shall bind such person," refers to a note which 
 upon its face appears to have been signed by an 
 agent, and does not refer to a note so signed by 
 an agent that, under the general rule, he be- 
 comes liable. lb. 
 
 27. An agent can legally bind himself for 
 the price_ of goods_ purchased for the benefit of 
 his principal, and if the goods are received, ac- 
 cepted and used by the principal, with the 
 knowledge and sanction of the agent, he is 
 bound thereby.— Ci!. of App., Jan., 1878. Wil- 
 cox Silver Plate Company v. Green,.72 N. Y. 17. 
 
 28. In an action to recover for goods sold 
 and delivered, it appeared that defendant and 
 other directors of a fair association orally or- 
 dered the goods for the use of the association to 
 be sent by express to J. ; that they were ordered 
 on the credit of defendant, he agreeing to be 
 individually responsible ; that the goods were 
 shipped as directed, addressed to defendant, and 
 upon arrival at J. were received by T., one of 
 the other directors, with the knowledge of and 
 without objection by defendant, and were used 
 by the association. Held, that the evidence 
 warranted a finding that T. had authority to 
 receive and accept the goods, and did so with 
 the sanction of defendant ; and that there was a 
 good delivery and acceptance within the statute 
 of frauds. lb. 
 
 29. Wliat contracts do not bind him, 
 personally. One who without authority as- 
 sumes to make a contract in the name of an- 
 other, does not thereby become personally liable 
 on the contract. The remedy of the other 
 party to the void contract is by an action for 
 deceit, or for breach of warranty of authority, 
 in case there is no fraud. — Com. Pleas, June, 
 1877. Noe.D. Gregory, 7 Daly 283. 
 
 30. Liability of agent of undisclosed 
 principal. One purchasing goods for another 
 makes himself personally liable, if he contracts 
 in his own name without disclosing his princi- 
 pal ; and this, although the seller supposes the 
 purchaser is acting as agent ; it is not sufficient 
 to clear the agent from liability that the seller 
 has the means of ascertaining the name of the 
 principal; he must have actual knowledge. — 
 
 Of. of App., Dec., 1877. Cobb o. Knapp, 71 N. 
 Y. 348. 
 
 31. In an action to recover for wheat alleged 
 to have been sold by plaintifi" to defendant, 
 which was in fact purchased by the latter for 
 third persons, plaintifi's evidence was to the 
 efiTect that the principal was not disclosed, but 
 that defendant expressly purchased on his own 
 credit and directed the goods to be charged to 
 him ; he stated that the wheat was for the 
 " Blissville Distillery," and was to be delivered 
 there. Plaintiff testified he did not kww the 
 proprietors of the distillery. 
 
 Mdd, 1. That the evidence was not conclusive 
 as to a disclosure of the principals, and that a 
 non-suit was properly denied. 
 
 2. That a subsequent disclosure of the princi- 
 pals by defendant, and the commencement of an 
 action against them by plaintifi) was not con- 
 clusive of an election to hold them only respon- 
 sible ; that the fact of commencing such action, 
 and the statements in the complaint were 
 proper to be considered by the jury on the 
 question of knowledge as to the principals, but 
 did not operate as a legal discharge. lb. And 
 see, also, Mattlage v. Poole, 16 Hun 556. 
 
 2. As towards the principal. 
 
 32. Liability for negligence, losses, 
 etc. Collection agents, to whom promissory 
 notes are entrusted for collection, are responsible 
 for moneys received by sub-agents (attorneys) 
 employed by them, and not paid over. — Supreme 
 Ct., June, 1878. Mandel v. Mower, 55 How. Pr. 
 242. 
 
 33. Loss occasioned by the negligence of the 
 agent in the fulfillment of his duties, must fall 
 upon the agent, and he is liable therefor to his 
 principal. — Superior Ct., June, 1879. Loeb v. 
 Hellman, 45 Superior 336. 
 
 34. As to the liability of an agent to whom' 
 a draft is sent for collection, for negligence, see 
 First National Bank of Meadville v. Fourth 
 National Bank of New York, 77 N. Y. 320, 323 ; 
 reversing 16 Hun 332. 
 
 35. — for departure ftom instructions. 
 As to the liability of an agent employed to loan 
 money on bond and mortgage, who, without the 
 consent of his principal, takes a second mort- 
 gage, see Whitney v. Martine, 6 Abb. N. Cas. 
 72. And see, also, Harrison v. Glover, 72 N. Y. 
 451 ; reversing 9 Hun 196. 
 , 36. — for conversion of principal's 
 property. - Where a principal has executed 
 and deposited with his agent negotiable obliga- 
 tions, to be issued by the latter in certain con- 
 tingencies which do not occur, and the agent 
 refuses to return them on demand, an action in 
 equity may be maintained by the principal 
 against the agent to compel a surrender of the 
 obligations, and for damages arising from the 
 detention, or, in case a surrender cannot be 
 made, for the value of the instruments as valid 
 obligations. — Ct. of App., Nov., 1878. Western K> 
 E. Co. V. Bayne, 75 N. Y. 1 ; affirmimg 11 Hun 66. 
 
 37. Where a complaint contains the requisite 
 allegations for such an action, the fact that it. 
 avers some facts which the code (? 207) requires 
 shall be shown by affidavit, where a delivery is- 
 claimed, or that the alternative relief is asked, 
 does not make the action one in replevin. lb. 
 
 38. In determining, in such an action, the 
 value oif the obligations for the purpose of the 
 alternative judgment in case the defendant doe» 
 
PRINCIPAL AND AGENT, II., III. 
 
 353 
 
 not surrender tlieni, where they have not ma- 
 tured, it is to be assumed that they are in the 
 hands of a bona fide holder for value, and the 
 pima facie value is the amount unpaid upon 
 the instruments, principal and interest. This 
 may be met by proof of inability of the maker 
 to pay them, in whole or in part, but not by 
 proof of the market value, as the maker is liable 
 to meet his obligation in full, and tliis is its 
 value, unless it is shown that it cannot be en- 
 forced against him for that amount. lb. 
 
 39. The principal delivered certain stock to 
 his agent, authorizing him to borrow thereon 
 the sum of $3000. The agent borrowed the 
 ^3000, and agreed that the lender should also 
 hold the stock to secure some $500 or $600 then 
 due from himself. Held, that these acts did not 
 amount to a conversion. — Supreme Ct., (1st 
 Bept.,) May, 1879. Dickinson v. Dudley, 17 
 Hun 569. 
 
 III. Rights and Liabilities or Pbinci- 
 
 PAIS. 
 
 1. In general. 
 
 40. Bight to sue on contract made 
 "by agent. An executory contract in writing, 
 not under seal, executed by an agent and within 
 the scope of the authority of the latter, may be 
 enforced by the principal, although executed in 
 the name of the agent ; and tliis whether he 
 describes himself as agent or not, or whether 
 the principal is known or unknown. — Ot. of 
 App., Nov., 1879. NicoU ■». Burke, 78 N. Y. 580. 
 
 4X. ^A7■hat acts of principal Tvill con- 
 stitute rectification. It-is not needed that 
 there be an express act of ratification, in order 
 to hold the principal. His subsequent assent 
 may be inferred from circumstances, which the 
 law considers tantamount to an express ratifica- 
 tion. And the acts of the principal are to be 
 construed liberally in favor of the adoption of 
 the acts of an agent.— Ct. of App., Jan., 1878. 
 Ahem v. Goodspeed, 72 N. Y. 108, 115. 
 
 42. Effect of -want of knowledge of 
 material facts. To constitute ratification of 
 an unauthorized act of an agent, the act must 
 be deliberate and intentional, with full knowl- 
 edge of the facts. — Ot. of App., Jan. , 1878. Craig- 
 head V. Peterson, 72 N. Y. 279, 285. And see, 
 also, Manning v. Keenan, 73 N. Y. 45. 
 
 2. When bound by agents ads or cmtracts. 
 
 43. In general. The authority of an agent 
 is not only that conferred upon him by his com- 
 mission, but also, as to third persons, that which 
 he is held out as possessing. The principal is. 
 often bound by the act of bis agent in excess or 
 abut>e of his actual authority, but this is only true 
 between the principal and third persons, who, 
 believing and having a right to believe that the 
 agent was acting within and not exceeding his 
 authority, would sustain loss if the act was not 
 considered that of the principal. — Ct. of Amp., 
 March, 1878. Walsh v. Hartford Fire Ins. Co., 
 73 N. Y. 5, 10. 
 
 44. Agent's contracts. A simple con- 
 tract, executed by an authorized agent in his 
 own name, as agent, is binding upon his princi- 
 pal.— a of App., Jan., 1879. Hill v. Miller, 
 76 N. Y. 32. 
 
 45. An agent acting under parol authority 
 may bind his principal by a contract for the sale 
 
 of lands executed by him in the name of hia 
 principal. — Ct. of App., June, 1877. Moody v. 
 Smith, 70 N. Y. 598. 
 
 46. Where a principal has ^xjpressly author- 
 ized his agent to act or contract in his business 
 to the benefit of the agent, the principal is 
 bound ; in such case, the rule, that he who 
 undertakes to act for another shall not act for 
 his own benefit, and to the detriment of his 
 principal, has no application. lb. 
 
 47. The assignee from an agent, of a non- 
 negotiable chose in action, takes as against the 
 owner when the agent is vested with the appar- 
 ent control as owner, and the assignee is a bona 
 fide purchaser for value without notice. — Su- 
 perior Ct., March, 1879. Hazewell v. Coursen, 
 45 Superior 22. 
 
 48. The voluntary assumption by an agent 
 of a claim for which he was not liable, but 
 which was necessary to be paid to secure certain 
 interests of the assignee, and which the assignee 
 declined to pay, and the subsequent assignment 
 of the chose in action in consideration of the 
 assignee's payment of the clain;i, and its subse- 
 quent payment by the assignee, will constitute 
 parting with value, lb. 
 
 49. Where the agent is intrusted by the real 
 owner with an assignment of a chose in action 
 executed in blank, lie is invested by the owner 
 with the, apparent control of it as owner. lb. 
 
 50. The principal's liability on contracts 
 made by the agent, determined in cases depend- 
 ing upon particular facts, and involving no new 
 or important principles of law. Barkley v. 
 Rensselaer, &c., R. R. Co., 71 IJ. Y. 205; 
 Waters' Patent Heater Co. v. Tompkins, 14 Hun 
 219. 
 
 51. Agent's representations. Declara- 
 tions of an agent of the vendor of cabbage seed, 
 made eight months after the sale, and not con- 
 nected with any business then being transacted, 
 to the effect that the seed was defective and not 
 genuine Bristol cabbage seed, because of im- 
 proper cultivation, were admitted in evidence 
 in an action on an implied warranty as to the 
 quality of the seed. Held, error; that they 
 were the declarations of an agent when not en- 
 gaged in the business of his agency. — Ct. of App., 
 Nov., 1877. White v. Miller, 71 N. Y. 118, 135 ; 
 reversing 7 Hun 427. 
 
 52. The rule that the declarations of an 
 agent are inadmissible to bind his principal, 
 unless they constitute an agreement the agent is 
 authorized to make, or relate to and accompany 
 an act done in the course of the agency, is ap- 
 plicable in all cases, whether the agent is gen- 
 eral or special, or the principal a corporation or 
 a private person. lb. 136. 
 
 53. Plaintiff, being indebted to B. & Co., 
 note brokers, placed in their hands his promis- 
 sory" notes to be sold at a discount of twelve per 
 cent., and the proceeds applied on his account. 
 Defendant G. purchased the notes of B. & Co. at 
 the discount stated, upon the representation by 
 B. & Co. that they were first-class business 
 paper. In an action, among other things, to 
 compel the cancellation of the notes as usurious 
 — Held, that the notes had no inception until 
 they were passed to G., and were therefore 
 usurious ; but that B. & Co. were the agents of 
 plaintiff in making the sales ; that he was bound 
 by their representations, and so was estopped 
 from setting up usury.— Ct. of App., Jan., 1878. 
 Ahern v. Goodspeed, 72 N. Y. 108. 
 
 23 
 
55 1 
 
 PRINCIPAL AND AGENT, III., IV. 
 
 T'or facts showing that the representations 
 Vere relied upon, see lb. 
 
 54. Agent's negligence. When the re- 
 lation of principal and agent does not exist so as 
 to render the alleged principal liable ifor the 
 negligent acts of the alleged agent, see Kelly v. 
 Lehigh Valley Coal Co., 8 Daly 291. 
 
 65. When principal is estopped by 
 agent's dealings. Apparent authority ope- 
 rates only by way of estoppel, and takes the 
 place of real authority only where some person 
 tas acted upon the appearances. — Ct. of App., 
 Jan., 1879. People v. Bank of North America, 
 75 N. Y. 547. 
 
 56. A person is not, as a general rule, 
 estopped from showing title to property simply 
 because he has not exercised ordinary care to 
 prevent an unauthorized transfer thereof by an- 
 other. It is only where, by negligence, he has 
 permitted such other person to clothe himself, 
 or to be clothed, with apparent authority to act 
 for him, and thereby a third person has been 
 induced to rely and act upon the appearance 
 that t he ow ner is estopped. lb. 
 
 5*7. "When he may repudiate them. 
 A contract between an agent of a manufacturing 
 house, and one proposing to buy the goods sold 
 by him as such agent, by which payment for 
 the said goods was to be made by supplying 
 said agent with merchandise dealt in by the 
 buyers — i. e., groceries — ^the parties dealing with 
 such agent being aware that he was 'acting for 
 others — Held, one which requires special au- 
 thority or ratification. — Superior Ct., Dec., 1879. 
 Erie Preserving Co. v. Pearsall, 45 Superior 636. 
 And see, also, Meiggs v. Meiggs, 15 Hun 453; 
 Merchants' Bank of Canada v. Living.'iton, 74 
 N. Y. 223. 
 
 58. Wlien notice to agent -will bind 
 principal. The notice which will estop- the 
 party from claiming a. breach of a covenant, 
 may be either actual or constructive. Notice 
 to the agent who negotiated the contract on his 
 part is notice to him. — Ol. of App., March, 1879. 
 Bennett v. Buchan, 76 N. Y. 386. 
 
 59. The rule that notice to an agentis notice 
 to his principal is only applicable to cases 
 where the agent is acting in the course of his 
 employment. — Ct. of App., April, 1878. Welsh 
 V. German-American Bank, 73 N. Y. 424. 
 
 60. Where an agency is continuous and 
 made up of a long series of transactions of the 
 same general character, knowledge acquired by 
 the agent in one or more of the transactions is 
 notice to the agent and the principal, which 
 will affect the latter in any other transaction in 
 which the agent, as such, is engaged, and in 
 which the knowledge is material. — Ct. of App., 
 Jan., 1878. Holden v. New York and Erie 
 Bank, 72 N. Y. 286. 
 
 61. If the agent acquires knowledge of a fact 
 whUe engaged in the business of his principal 
 which should put him upon inquiry, and fails 
 to institute the proper inquiries by reason of 
 forgetfulness, it is negligence, aud the doctrine 
 of constructive notice applies. Bennett v. 
 Buchan, supra. 
 
 62. Defendant executed to plaintiff an as- 
 -signment of a judgment; the assignment con- 
 tained a covenant that a sum therein named, 
 which was the full amount of the judgment, 
 was then due thereon. In an action to recover 
 <iamages for an alleged breach of the covenant, 
 it appeared that, prior to the assignment, one 
 
 of the judgment debtors had paid a percentage 
 thereof, and had been released and discharged ; 
 it also appeared that the agent of plaintiff, who 
 negotiated the purchase of the judgment, was 
 informed of the fact of such discharge a'short 
 time before taking the assignment. Held, that 
 plaintiff was bound by the knowledge of her 
 agent; and, being thus chargeable with knowl-. 
 edge of the release, could not claim it as a 
 breach, and was not entitled to recover, lb. 
 
 63. Bights and liabilities of undis- 
 closed principal. In the principal's suit for 
 the price of goods, sold for him to defendant by 
 an agent who did not disclose his principal, de- 
 fendant set may off a debt due to him from such 
 agent, unless he knew at the time that he was 
 acting as agent, or unless circnmslances were 
 brought to his knowledge .which would necessa- 
 rily put him on inquiry in regard thereto. 
 Mere public rumor or knowledge possessed by 
 others will not deprive him of his right of set- 
 off.— Supreme Ct., {3d Dept.,) Jan., 1880. Pratt 
 V. Collins, 20 Hun 126. 
 
 63 a. In a sale of goods to a factor or agent, 
 who purchases in his own name, and to whom 
 the credit is given and the merchandise billed 
 and charged, the principal is not liable to re- 
 spond to the vendor for the price of the goods, 
 where it appears that the principal has paid his 
 factor or agent, for the goods. — Superior Ct., Dee., 
 1879. McCullough V.Thompson, 45 Snperior449. 
 
 64. That one selling to the agent of an un- 
 disclosed principal, 'may hold the latter, when 
 discovered, for the price, see, Ct. of App., Dec., 
 1878. Jessup v. Steurer, 75 N. Y. 613. 
 
 IV. Decisions Eblative to Paeticulak 
 Glasses of Agents. 
 
 65. Brokers, generally. A broker, who 
 agrees merely to bring parties together for the 
 purpose of negotiation, upon consideration of a 
 promise of one of said parties to pay him a 
 certain percentage upon the amount of a con- 
 tract thereby expected to be made, and who 
 takes no part in the subsequent proceedings of 
 the parties, can recover his said commissions ac- 
 cording to agreement, though the contract en- 
 tered into, and upon which they depend, is ille- 
 gal and void as against public policy ; e. g., a 
 contract for advertising a lottery scheme. — Supe- 
 rior Ct., March, 1879. Ormes v. Dauchy, 45 
 Superior 85. 
 
 66. The law does not punish a wrongful 
 intent where nothing is done to carry that intent 
 into effect, much less baire knowledge of such an 
 intent, without any participation in it. I b. 
 
 6*7. If the defendants desired that the ques- 
 tion whether they were to pay the comipission 
 as the money was paid to them, or not until 
 they had been paid the full cpntract price of the 
 work, be submitted to the jury, they should 
 have requested it. The exception to the court's 
 directing a verdict was not equivalent to a 
 request. lb. 
 
 68. Merchandise brokers. A sold note 
 signed by the brokers stated the parties on whose 
 account the sale was made, alnd then contained 
 the following : " Send invoice and bill of lading 
 to our oflBce. Collect at our office." Hdd, not 
 authority for payment by the vendees to the 
 brokers. — Superior Ct., Nov., 1878. Harrison v. 
 Eoss, 44 Superior 230. 
 
 69. A real estate broker, before his 
 
PRif CIPAL AND AGENT, IV. 
 
 355 
 
 ■commissions were earned, agreed to take his 
 pay in land, and selected the lots he would take 
 — Sdd, that he could not thereafter refuse a 
 ■deed of such lots and sue for his commissions 
 in money. — 0cm. Pleas., (Sp. T.,) Jan., 1879. 
 Bailey v. Gardner, 6 Abb. N. Gas. 147. 
 
 70. In exchanges of real property, real estate 
 brokers who have brought the parties together 
 may charge commissions to botli parties. They 
 are not within the rule prohibiting their acting 
 as agents for both parties. — Swmeme Gl., {Sp. T.,) 
 Jan., 1878. Balheimer v. Kexchardt, 55 How. 
 Pr. 414. 
 
 71. Effect of the acts of a real estate broker 
 4icting as agent for both parties, see Strause v. 
 Josephthal, 77 N. Y. 622. 
 
 72. As to the liability of the purchaser of 
 land to pay the broker's commissions, and by 
 ■what acts such commissions are earned, see 
 Lynch v. McKenna, 58 How. Pr. 42. 
 
 73. Stock brokers. A broker who pur- 
 chases stocks under a certain arrangement with 
 his principal, cannot, without the latter's knowl- 
 edge or consent, under a usage or custom of 
 brokers not known to the principal or with 
 respect to which he has not contracted, make a 
 «ale of such stocks which departs from such ar- 
 rangement. — OUy Ct. of Brooklyn, May, 1879. 
 Harris v. Tumbridge, 8 Abb. N, Gas. 291. 
 
 74. A ratification by a principal of a sale of 
 ■stocks by a broker, to be binding, must be une- 
 quivocal, lb. 
 
 75. Plaintiff's assignors, who were stock 
 brokers, purchased stock for defendant on a mar- 
 gin, and carried the same. Their request for 
 more margin being disregarded, three days after 
 making the 8an)e, they sold the stock without 
 notice to defendant, which sale he refused to 
 accept, and thereafter sent defendant an account 
 showing a balance thereon against him, for 
 which this action is brought. 
 
 Sdd, 1. That the relation between said 
 brokers and defendants being that of pledgee 
 and pledgor, the sale of the stock without notice 
 to the defendant was an act of conversion that 
 debars plaintiff from maintaining this action. 
 
 2. That a subsequent offer by said brokers of 
 stock to replace that improperly sold, was 
 nugatoTy. -^Superior Ct., Jan., 1879. Gruman v. 
 Smith, 44 Superior 389. 
 
 76. As to when the acceptance by a stock 
 fcroker of a guaranty of third party, does not re- 
 lease the principal from original liability, see 
 Lee V. Gargulio, 45 Superior 595. 
 
 77. Ooramercial correspondents. 
 "Where commercial correspondents, on the order 
 •of a principal, make a purchase of property ulti- 
 mately, for him, but on their own credit, or with 
 their own funds, and such course is contem- 
 plated when the order is given, they may retain 
 title in themselves until they are reimbursed. 
 This may be done by taking the bill of sale in 
 their own name, and when the property is 
 shipped, taking from the carrier a bill of lading 
 in such terms as to show that they retain the 
 power of control and disposition of it. — Gt. of 
 App., Nov. 1878. Farmers', &c., Nat. Bank i>. 
 Logan, 74 N. Y. 568. 
 
 TS. S. & D., correspondents and agents at 
 Buffalo of defendant B., of New York, to fill an 
 ■order from B., purchased in their own name, a 
 boat-load of wheat ; they were not furnished by 
 B. with money or credit to make the purchase, 
 ;and B. knew that they would need to raise the 
 
 money to pay for the wheat upon the bill of la- 
 ding thereof. B. was not known to the owner 
 in the sale. PlaintiflJ in accordance with a pre- 
 vious arrangement, discounted the draft of S. & 
 D. upon B., upon delivery of a bill of lading of 
 the wheat, which slated that it was shipped to 
 New York on account and order of plaintiff, and 
 with the avails S. &D. paid for the wheat. Upon 
 acceptance of the draft the bill of lading was 
 delivered to B., with a statement stamped there- 
 on, to the effect that the wheat was pledged to 
 -plaintiff as security for the payment of the 
 draft, and was put into the possession of B. in 
 trust for that purpose, not to be diverted to any 
 other purpose until the draft was paid. B. ac- 
 cepted the draft, received the bill of lading, re- 
 ceived the wheat on its arrival and sold it at 
 the produce exchange to defendant A. In an 
 action for a conversion of the wheat — 
 
 Held, 1. That the notice stamped upon the 
 bill of Jading wrought no change in the legal 
 relations or rights of the parties; that it did not 
 authorize a sale by B., but only conferred a 
 power to take and hold until until the draft was 
 paid ; and that, as the bill of lading showed 
 plaintiff to be the owner, and the notice stamped 
 thereon, that the possession of B. was clogged 
 with a plain inhibition against a sale. A. having 
 constructive notice thereof, acquired no title by 
 his purchase.^ 
 
 2. That if the indorsement on the bill of la- 
 ding was to be considered a private letter of in- 
 struction to B. this did not destroy or lessen its 
 effect as characterizing his possession. 
 
 3. That the factor's act had no application to 
 such a case. — Ct. of App., Nov., 1878. Farmers', 
 &c., Nat. Bank v. Atkinson, 74 N. Y. 587 ; 
 affirming 43 Superior 546. 
 
 79. Consignees. Where a consignee re- 
 ceives goods, with instructions to sell at a price 
 named, and sells accordingly, remitting the 
 proceeds to the consignor, and is thereafter com- 
 pelled to take back the goods, as not being equal 
 to the sample, it is his duty at once to notify 
 the consignor, and demand repayjnent of the 
 amount remitted ; if, without notifying the con- 
 signor, he sells the goods at a less price than 
 that at which he was instructed to sell, he acts 
 wrongfully, and cannot call on the consignor to 
 make good the loss. — Supreme Ct., (3d Depl.,) 
 Sept.,\S18. Maxwell B.Audin wood, 15 Hun ill. 
 
 80. The clerk of the consignee, who oversees 
 the discharge of the cargo, is not to be considered 
 the clerk of the owner of the vessel, and notice 
 to him is not notice to the owner. — Ct. of App., 
 May, 1877. Eobinson v. Ghittenden, 69 N. Y. 
 525, 534. 
 
 81. Factors, generally. The factoi-s' act, 
 (Laws of 1830, ch. 179, 1 1,) providing that every 
 person in whose name any merchandise shall 
 be shipped, shall be deemed the true owner, so 
 far as, in certain cases, to give the consignee a 
 lien thereon for advances made by him, applies 
 only to cases where the owner consents to the 
 shipment being made in the name of a third 
 person. — Swpreme Ct., (4«A Dept.,) June, 1879. 
 Hazard v. Fiske, 18 Hun 277. 
 
 82. The mere neglect of the true owner to 
 take all precautions against a fraud upon his 
 rights and title, is not equivalent to a voluntary 
 consent on his part to the sale or other dispo- 
 sition of the property by a person who, under 
 color of a fraud, assumes to control it for such 
 purpose. Ih. 
 
 / 
 
356 
 
 PRINCIPAL AND SURETY, I." II., III. 
 
 _ 83. The provision of said act (? 3,) protect- 
 ting persons dealing with "any factor or 
 other agent entrust^ with possession of any 
 bill of lading," etc., does not apply to cases 
 where the possession of the goods, or of the evi- 
 dences of title, is obtained in hostility to the 
 right, and without the consent of the owner. lb. 
 
 84. — under del credere commission. 
 The fact that a factor acts under a del credere 
 commission, does not destroy the fiduciary rela- 
 tion existing between himself and his consignor ; 
 if he is in fact paid by the purchaser of the 
 goods, the money received is the consignor's not 
 his, and for a conversion thereof, he is liable to 
 arrest. — Supreme Ct., {let Dept.,) April, 1878. 
 Wallace ». Castle, 14 Hnn 106. 
 
 85. As to the rights and interests in the 
 goods consigned to him, of a factor with a del 
 credere commission, see Merrill v. Thomas, 7 
 Daly 393. 
 
 For decisions relative to the powers, duties, 
 and liabilities of Particular dasaes of agents, see 
 Attornet and Client; Banks; Carriers; 
 Express Companies ; OFricERS. 
 
 As to agents of Oorporatiorie, see Corpora- 
 tions, VI.; also, Insurance, 190-202 ; Mu- 
 nicipal Corporations, IV.; Railroad Com- 
 panies, III. 
 
 As to Preirumplwna respecting agents, see Evi- 
 dence, 27. 
 
 PRINCIPAL AND SURETY. 
 
 I. General Principles. 
 II. Eights and Liabilities of the Par- 
 ties. 
 III. What vvill Exonerate the Surety. 
 
 I. General Principles. 
 
 1. Validity of the contract. Suretyship 
 for a guardian is not an exception to the rule 
 that the contract of suretyship, if void at law, 
 cannot be enforced in equity. — Ct. of App., 
 March, 1877. Gosman v. Cruger, 69 N. Y. 87. 
 
 II. Eights and Liabilities of the Par- 
 ties. 
 
 2. Liability of sureties, generally. As 
 to when the sureties are not bound by admis- 
 sions of their pirincipals, see Horn v. Perry, 14 
 Hun 409. 
 
 3. Surety's right to be reimbursed by 
 principal. A surety, as between himself and 
 his principal, is equitably entitled to full in- 
 demnity against the consequences of the default 
 of the latter. He may call upon him for reim- 
 bursement, not only of what he has been obliged 
 to pay in discharge of the obligation for which 
 he was surety, but also of all reasonable ex- 
 penses legitimately incurred in consequence of 
 such default, or for his own protection; these 
 include expenses reasonably incurred in secur- 
 ing the application of the property of the prin- 
 cipal to the payment of the debts, in exonera- 
 tion of the surety. The equitable rule is not 
 abrogated by the provision of the act of 18S8, 
 (Laws of 1858, ch. 314, § 3,) in reference to the 
 allowance lo indorsers, etc., of costs and ex- 
 penses.— Ct. of App., Jan., 1878. Thompson v. 
 
 Taylor, 72 N. Y. 32. S. P., Enos v. Leach, 18 
 Hun 139. 
 
 4. — to be subrogated to position of 
 creditor. While an accommodation indorser 
 may be regarded as a surety in some cases, andS 
 under certain circumstances, and has all the 
 rights applicable to that relationship, yet as be- 
 tween him and a bona fide holder where his 
 liability has become fixed, he becomes the prin- 
 cipal debtor, and if he desires the benefit of any 
 security held by the creditor, he must pay np 
 the debt, fulfill the contract and enforce the 
 right of subrogation to the holder as to the- 
 securities held by him. — Ot. of App., Dee., 1877.. 
 First Nat. Bank of BufiTalo v. Wood, 71 N. Y.. 
 405, 410. 
 
 5. Plaintiff' sued to recover back money paid 
 by him as surety for a defaulting tax collector,, 
 on the ground that a tax for the deficiency had 
 been re-imposed and collected. Held, that plain- 
 tiff" was not entitled to recover ; that repayment 
 of the tax would not enure to the benefit of thfr 
 defaulting collator or his sureties. — Gt. of App.,. 
 Sept., 1877. Oakley v. Mayor, &c., of New 
 York, 70 N. Y. 612 ; affirming 39 Superior 549> 
 
 6. Contribution between co-sureties. 
 The obligation of one of two co-sureties is to- 
 pay the whole debt. If he does so, he may re- 
 cover of his co-surety one-half; if he pays less 
 than the whole debt, he can only recover from> 
 the co-surety the amount which he has paid ia 
 excess of the moiety. — Ct. of App., Sept., 1877. 
 Morgan v. Smith, 70 N. Y. 537. 
 
 7. In an action between co-sureties for con- 
 tribution, the defendant cannot avail himself of 
 an indebtedness of the plaintifiT to the principal 
 as a defence. It seems, however, that if the 
 plaintiff" has received from the principal any 
 money or property as payment or security, he- 
 will be obliged to account for the same. — Ct. of 
 App., May, 1879. Davis v. Toulmin, 77 N. Y. 280> 
 
 8. As to the relative rights and liabilities of 
 co-sureties towards each other in respect to con- 
 tribution, protection of securities in favor of co- 
 sureties, &c., see Green v. Milbank, 56 How.. 
 Pr. 382. 
 
 9. Bight of creditor to be substi- 
 tuted to benefit of securities held by- 
 surety. A private arrangement between co- 
 sureties respecting their liability as between 
 themselves, comes neither within the rule allow- 
 ing the creditor to be subrogated to the rights 
 of a surety holding security, nor within the 
 principles upon which the rule is founded. — 
 Supreme Ct., {Sp. T.,) Jan., 1878. Morgan ». 
 Francklyn, 55 How. Pr. 244. 
 
 III. What will Exonerate the Surety^ 
 
 [Consult, also, Guabahty, 17-23.] 
 
 10. In general. The surety on a bondi 
 given to secure debts to become du^ from an. 
 agent is not discharged by the failure of the 
 principal to disclose previous failures of the 
 agent to account. Supreme Ct., (4tA Dept.,) Jan., 
 1879. Howe Machine Co. v. Farrington, 16- 
 Hun591. 
 
 11. A new agreement between a creditor 
 and his principal debtor will not discharge the 
 sureties when, by the new agreement, the reme- 
 dies of the creditor against the sureties are ex- 
 pressly and clearly reserved. — Ct. of App., Sept.,. 
 1877. Morgan v. Smith, 70 N. Y. 537, 645. 
 
PKINCIPAL AND SURETY, III.— PROCESS, I. 
 
 367 
 
 12. Giving farther time to principal. 
 "What is such an extension of time to the prin- 
 ■cipal debtor in a bond for the jail liberties, as 
 will release a surety thereto, having no knowl- 
 edge of, and not conseating to such extension, 
 -see McNulty v. Hui-d, 18 Hun 1. 
 
 13. Neglect to proceed against prin- 
 cipal, on request. Ordinarily, to discharge 
 a surety by reason of .a neglect to proceed 
 against a solvent principal, on request, it must 
 be shown thai the creditor was requested to en- 
 force the collection of the debt " by due pro- 
 cess of law." Nothing short of that will ex- 
 onerate the surety. — Ct. of App., June, 1878. 
 ■Goodwin v. Simonson, 74 N. Y. 133. 
 
 14. The surety's request to the creditor to 
 pursue the principal, where the creditor is a 
 •corporation, must be made to some officer or 
 agent who is authorized to act in the matter. 
 \Vho is such an officer. — Superior Ct., Nov., 1878. 
 Mutual Life Ins. Co. v. Davies, 44 Superior 172 ; 
 «. C, 56 How. Pr. 440. ' 
 
 15. Effect of release of co-surety. 
 When a co-surety has, by the conduct of the 
 creditor, been released from liability, another 
 co-surety will be held exonerated only as to so 
 much of the original debt as the one so dis- 
 charged could have been compelled to pay. — Ol. 
 •of App., Sept., 1877. Morgan v. Smith, 70 N. 
 Y. 537, 542. 
 
 16. Liability of estate of deceased 
 surety. Thai J 758 of the new code, provid- 
 ing that the death of a co-surety shall not dis- 
 charge his estate from the debt, is not retro- 
 spective and does not apply to a contract of 
 suretyship entered into before the section be- 
 -came law, see Kandall v. SacKet, 56 How. Pr. 
 225. 
 
 For the liability of the surety as fixed by 
 the terms of the Bond, see Bonds. 
 
 For the liability of sureties on OffieUd bonds, 
 .generally, see Officers, and the titles of the 
 various officers. 
 
 As to sureties of Personal representatives and 
 Trustees, and proceedings to enforce their liabil- 
 ity, see Executors and Administbatoks/ 
 134-151. 
 
 As to the rights and liabilities of sureties 
 4ipon Bills and Notes, see Blll^ of Exohanoe ; 
 PaoMissoRY Notes. 
 
 For the liability of Bail, see Baii.. 
 
 NEY and Client, IV. ; Physicians and Sur- 
 geons, 6-9 ; Witnesses, 33-35. 
 
 PRIORITY. 
 
 Assignments for Creditors, 3; Debtor 
 AND Creditor, 25 ; Deeds, 9-11 ; Execu- 
 -TiON, 12, 13 ; Judgment, 56, 57 ; Mechan- 
 jcs" Lien, 17; Mortgages, 46, 47. 
 
 PRIVATE WAYS. 
 Easements, 14-20. 
 
 PRIVILEGE. 
 
 Of persons under Disabilities, see Husband 
 ^nd Wipe, IV. 
 
 At to Privileged communications, see Attor- 
 
 PROBABLE CAUSE. 
 
 Malicious Prosecution, 4, 5. 
 
 PROBATE. 
 
 Courts, III. ; Wills, II 
 
 PROCESS. 
 
 I. In Civil Actions. 
 
 J. Sow framed and issued. 
 2. Service; and how proved. 
 II. In Criminal Proceedings. 
 
 I. In Civil Actions. 
 1. Sow framed and issued. 
 
 1. Laying the venue. A summons, in an 
 action in the Supreme Court, which fails to 
 name the county where plaintiff desires the 
 trial to be had, will be set aside on motion as 
 irregular and yoid. — Supreme Ct., (Sp. T.,) July, 
 1878. Osborn t). Mc(Joskey, 55 How. Pr. 345. 
 
 2. Misnomer, and how -waived. In 
 an action against a corporation, the summons 
 wrongly stated the name of the corporation, but 
 service was regular ; a default taken; judgment 
 entered ; execution issued and returned unsatis- 
 fied. Thereupon a petition was presented by 
 the judgment creditor, under 2 Eev. Stat. 463, 
 I 36, for the appointment of a receiver. The 
 petition was duly served on the treasurer of the 
 company ; it did not appear, but made default, 
 and an order was made sequestrating its prop- 
 erty and appointing plaintiff as receiver. In 
 an action against one of the stockholders, to 
 recover on his stock subscription, the facts in 
 relation to the judgment and execution were 
 shown on trial, and plaintiff was non-suited on 
 the ground, among others, that the judgment 
 was void, because of the misnomer. 
 
 Seld, 1. That the corporation could not' assail 
 the order collaterally ; and, it being concluded, 
 so long as the order remained unreversed, third 
 persons were concluded also. 
 
 2. That the corporation, by not appearing and 
 pleading the misnomer in abatement, waived 
 any objection on that ground to the validity of 
 the judgment (2 Bev. Stat., 459, J 14,) and the 
 judgment was, therefore, valid against the cor- 
 poration. — Ct.ofApp., Ocf., 1878. Whittlesey r. 
 Frantz, 74 N. Y. 456. 
 
 '2. Service: and how proved. 
 
 3. Sufficiency of service, generally. 
 As a general rule any service will be deemed 
 sufficient which renders it reasonably probable 
 that the party proceeded against will be ap- 
 prised of the action against him and have an 
 opportunity to defend, and so long as this gen- 
 eral rule is not violated by a mode, of service 
 
358 
 
 PROCESS, I. 
 
 prescribed by the legislature, no constitutional 
 right of the party served is invaded. — Ct of 
 Ajyp., Jime, 1877. Hiller v. Burlington, &c., 
 R-B. Co., 70 N. Y. 223,227. 
 
 4. Who may make service. Where, it 
 being alleged as error, on appeal from a justice's 
 judgment, that the constable who served the 
 summons was not a legal ofiScer, it was shown 
 by affidavits that he had long been acting and 
 recognized as a constable, and claimed to bfe a 
 legal officer and authorized to act as such — 
 Skd, that, being a de facto constable his official 
 acts, so far as the public and third persons were 
 concerned, were as valid as though he was an 
 officer dejure, and that his title and acts could 
 only be questioned in a direct proceeding. — 
 Mrnitg. Oo. Cl., Jidy, 1880. Snyder v. Schram, 
 69 How. Pr. 404. 
 
 5. Service of process in suits against 
 corporations. Who will be deemed a " man- 
 aging agent " of a corporation, upon whom ser- 
 vice of the summons may lawfully be made, in 
 an action against the corporation, within Code 
 of Civil Procedure, J 432, see Emereon v. Au- 
 burn, &c., E. E. Co., 13 Hun 150 ; Sterett v. 
 Denver, &c., E. E. Co., 17 Id. 316 ; Eeddington 
 V. Mariposa, &c., Co., 19 Hun 405. 
 
 6. The legislature has power to authorize 
 service of a summons upon an officer of a foreign 
 corporation who is temporarily in this state, 
 where the cause of action arose within this 
 state. — Cl. of App., June, 1877. Hiller v. Bur- 
 lington, &c., E. E. Co., 70 N. Y. 223. 
 
 7. Service by publication — when 
 proper. In this actiijp, brought to recover 
 damages for personal injuries alleged to have 
 been caused by the negligence of the defendant, 
 the latter was personally served with the sum- 
 mons and complaint on March 4th, 1880, at Nice, 
 in France, where she resided, in pursuance of 
 an order directing the service of the summons 
 by publication.. On April 16th, and before the 
 time for the defendant to appear and answer 
 had expired, she moved to set aside the order 
 directing the service of the summons by publi- 
 cation, on the ground that, as the action was 
 one in which an attachment could not issue, no 
 judgment could, under Code of Civil Procedure, 
 J 1217, be entered against her by default. 
 
 Held, 1. That, as the defendant's tiine to ap- 
 pear and answer had not expired When the 
 motion was made, and as no attempt to enter a 
 judgment by default had been made, the motion 
 was properly denied as premature. 
 
 2. That the order for the service of the sum- 
 mons by publication was properly granted, even 
 though the plaintiflF might not thereafter be able 
 to show such a state of facts as would authorize 
 him to enter any judgment against the defend- 
 ant in case she failed to appear or answer. — 
 Supreme Ct., (1st Depl.,) June, 1880. Clarke v. 
 Boreel, 21 Hun 595. 
 
 8. Beqtiisites of afQdavit for order to 
 publish. It is no objection to an affidavit, 
 upon which an order for service by publication 
 is granted, that some of the allegations as to 
 non-residence are stated on information and 
 belief; and these are proper to be considered 
 upon the application.— C*. of App., May, 1878. 
 Howe Machine Co. *. Pettibone, 74 N. Y. 68 ; 
 S.C., 12 Hun 657. 
 
 9. A certificate of a sheriff, that he had used 
 due diligence to find defendant^ for the purpose 
 of serving the summons upon him, but from the 
 
 best information he could obtain he learned 
 that said defendant had left the state, was at- 
 tached to and referred to in an affidavit upon 
 which an order of publication was granted. 
 Hdd, that it was proper to be considered as a. 
 source of information, and as a basis of an alle- 
 gation upon information and belief as to non- 
 residence and due diligence. lb. 
 
 10. The order to publish. An order for 
 service of summons by publication containing a 
 caption and direction to enter, is not void, buti 
 may be treated as a judge's order. — Ot. of App., 
 April, 1880. Mojarietta v. Saenz, 58 How Pr. 
 494. S. P., Phinney v. Broschell, 19 Hun llti ; 
 aflirmed 58 How Pr. 492. 
 
 11. An order desigi^ating byname two paper-? 
 in which the publication shall be made is suf- 
 ficient ; it is not necessary that it should stafe- 
 that the papers so designated are most likely to 
 give notice to defendants. — Supreme Ct., (1st 
 Dept.,) Jan., 1880. Green v. Squires, 20 Hun 15. 
 
 12. Under Code of Civil Procedure, § 440,. 
 the order must direct a publication, and must 
 also contain the alternative direction that ser- 
 vice may be made on the defendant personally 
 out of the state, at plaintiff's option, and it must 
 also, in all cases, notwithstanding personal ser- 
 vice may be made, contain a direction for mail- 
 ing copies of the summons, complaint and 
 order, or a statement that such mailing was dis- 
 pensed with, as provided, in said section. — Su- 
 preme Ct., {ith Dept.,) Jan., 1879. Kitten v.. 
 Griffith, 16 Hun 454. 
 
 13. An order simply directing that the sum- 
 mons, with a copy of the complaint and order, 
 be served upon the defendant personally, with- 
 out the state, is void lb. See, also, McCool v^ 
 Boiler, 14 Hun 73. 
 
 14. The necessary publication. Whe» 
 service by publication is commenced, within 
 the meaning of Code of Civil Procedure, ? 638, 
 see Taylor v. Troncoso, 76 N. Y. 599. 
 
 15. Mailing the papers. To complete 
 the substituted service of a summons under the- 
 code (S 135,) where the order authorizing such 
 servicejdirects the mailing of a copy of the sum- 
 mons and complaint to the person to be served,, 
 at his nlace of residence, which is specified in 
 theor(ier, a publication of the summons and a. 
 deposit in the post-office, addressed as required 
 by the order, is necessary, or, in lieu thereof, a 
 personal service out of the state. — Ct. of App., 
 my, 1877. Smith v. Wells, 69 N. Y. 600. 
 
 16. Where, therefore, in such case, a copy of 
 the summons and complaint is mailed and ad- 
 (h:ess.ed to. the defendant at a, different place 
 from that stated in the order, and there is no- 
 personal service and no appearance of the de-- 
 fendant, the court acquires no jurisdiction ; av 
 judgment against siich defendant is void ; and.ai 
 purchaser at a sale of real estate thereunder 
 cannot be compelled to complete his purchase, 
 where the defendant so defectively served has a 
 definite interest, however small, in the land- 
 soW. lb. . . ^.x. 4. * 
 
 17. Personal service out of the state. 
 Where service of a summons by publication, 
 upon a non-resident defendant is ordered, a per- 
 sonal service out of the state is equally valid to- 
 give jurisdiction as if service had been made by 
 publication and deposit in the post-office. — Of. 
 of App., April, 1878. Jenkins o. Fahey, 73" N. 
 Y. 355, 360. -.; ■ r 
 
 18. Substituted service, and its effect- 
 
PEOCESS, I., II— PEOMISSOEY NOTES, I. 
 
 359 
 
 As to the sufficiency of an affidavit, and grounds 
 upon which to obtain an order for sul^tituted 
 service, under Code of CSv. Pro., i 435, see Na- 
 gle V. Taggart, 4 Ahb. N. Cas. 144 ; McCarthy 
 V. McCarthy, 16 Hun 546 ; affirming 55 How. 
 Pr. 418. 
 
 19. A defendant served by substituted service 
 under said section, must answer within twenty 
 days from the time of such service. — Supreme 
 Ct., (1st Dept.,) Jan., 1879. Orr v. McEwen, 16 
 Hun 625. 
 
 20. Where one joint debtor has been person- 
 ally served, and the other has been served by 
 substituted service, plaintiff cannot enter judg- 
 ment until the time to answer of the defendant 
 served by substituted service, has expired, and 
 must then enter judgment against both. lb. 
 
 21. Proof of service, genera,lly. How 
 service may be proved where deputy sheriff 
 making it dies, before making such proof, see 
 Barber v. Goodell, 56 How. Pr. 364. 
 
 22. Admission of service. Proof by 
 affidavit of plaintiff of the signature of defend- 
 ant to an admission of service of summons, is not 
 incompetent. — Ct. of App., April, 1878. White 
 I). Bogart, 73 N. Y. 256. 
 
 23. What is a sufficient admission of service 
 of summons, see Maples v. Mackey, 15 Hun 533 ; 
 White V. Bogart, 73 N. Y. 256. 
 
 II. In Criminal Peooeedings. 
 
 24. Search-Tvarrant. As (o the requi- 
 sites of an affidavit to give jurisdiction to issue 
 a search-warrant, and the grounds upon such a 
 warrant may lawfully issue, see Johnson v. Com- 
 stock, 14 Hun 238. 
 
 25. A mittimus issued by a justice of the 
 peace on a conviction for petty larceny, need not 
 state jurisdictional facts. A simple statement 
 of the offence, conviction and judgment thereon, 
 is sufficient. — Supreme Ct., (Chamb.,) July, 1878. 
 Matter of Hogan, 55 How. Pr. 458. 
 
 As to Amendment of process, see Amenb- 
 
 UENT, 5, 6. 
 
 How far a Protection to officer, see CoNSTA- 
 BliES, 3 ; Ofpioees, 12, 13. 
 As to MncU process, see Execution. 
 
 PROFITS. 
 
 Eecovery for Loss of, see Damages, 4- 6. 
 When Agreement to share constitutes partner- 
 ship, see Partnership, 6, 7. 
 
 PROHIBITION, (Writ of.) 
 
 1. Wlien it lies. When the writ will be 
 granted to restrain the improper use of sum- 
 mary proceedings to dispossess a tenant, see 
 People, ex rel; Higgins, v. McAdam, 58 How. 
 Pr. 442. 
 
 2. When it will lie to review the action of 
 the mayor of the city of New York, in proceed- 
 ings to remove city officers, see People, ex rel. 
 Wheeler, v. Cooper, 57 How. Pr. 416 ; People, ex 
 rel. Mayor, &c., of New York, v. Nichols, 58 
 Id. 200. 
 
 3. "When it "will not lie. 'VYhere, on ap- 
 peal from a judgment of the General Term of 
 
 the Marine Court granting a new trial, there is 
 no stipulation for judgment absolute against ap- 
 pellant in case of affirmance, as required by the 
 act of 1874, and the Common Pleas affirms the 
 judgment and remits the case to the Marine 
 Court for a new trial, the Supreme Court will not 
 issue a writ of prohibition forbidding the Ma- 
 rine Court from proceeding further in the case. — 
 Supreme Ct., {1st Dept.,) People, ex rel. Salke, v. 
 Talcolt, 59 How. Pr. 269. 
 
 4. The relator, if aggrieved by the judgment 
 of the Common Pleas because of any irregularity 
 of form, has a plain remedy by application to 
 that tribunal for the correction of the judgment, 
 and this court should not interfere by prohibi- 
 tion while so simple and easy a remedy lies 
 open to the relator. lb. 
 
 5. As there is no lawful appeal which could 
 give the Common Pleas jurisdiction under the 
 statute, the case has remained, in legal contem- 
 plation, in the Marine Court, subject to the ordei- 
 of the General Term granting a new trial, and 
 this court will not interfere with the functions 
 of that tribunal in such a case by a writ of pro- 
 hibition, lb. 
 
 PROHIBITORY LIQUOR LAW. 
 
 Liquor-Selling, I. 
 
 PROMISSORY NOTES. 
 
 [Consult, also, Bills of Exchanob.] 
 
 I. Nature and Ebquisites, generally. 
 II. Parties. 
 
 III. Validity. 
 
 IV. Transfers; and Eights of Pur- 
 
 chasers. 
 
 1. Effect of indorsement, generally. 
 
 2. Bights of purchasers, or holders. 
 
 V. Eights and Liabilities of Indorsers. 
 
 1. Demand and notice. 
 
 2. What will excuse demand and 
 
 notice. 
 
 3. Discharge of indorsers. 
 
 VI. Non-negotiable Notes. 
 
 VII. Law of Place. 
 
 VIII. Actions upon Promissory Notes. 
 
 1. The right of action, and defences. 
 
 2. Bi/idence and burden of proof. 
 
 I. iNATURE AND EeiJUISITES, GENERALLY. 
 
 1. Form — ^note payable to order of 
 maker, or fictitious person. Under the 
 provision of the statute (1 Eev. Stat. 768, J 5,) 
 providing that promissory notes made payable 
 to the order of the maker, or of a fictitious per- 
 son, if negotiated by him, shall have the same 
 validity, as against him and " all persons having 
 knowledge of the facts, as if payable to bearer," 
 the facts of which a person must have knowl- 
 edge in order to give the note efficacy as against 
 him, as if payable to bearer, are simply that the 
 note is payable to the order of the maker or of 
 
360 
 
 PROMISSORY NOTES, I., II., III., IV. 
 
 a fictitious person. — ft. 0/ App., Jan., 1880. 
 Irving National Bank v. Alley, 79 N. Y. 536. 
 
 2. A note payable to the order of the maker, 
 therefore, as against an accommodation indorser 
 having knowledge of this fact, is to be consid- 
 ered as if payable to bearer ; and is valid, al- 
 though negotiated without the indorsement of 
 the payee. lb. 
 
 _ 3. Consideration. The settlement of a 
 litigation is a suificient consideration for notes 
 given in pursuance of, and to effect the settle- 
 ment. — Superior Ct., Nov., 1878. Feeler v. 
 Weber, 44 Superior 255. 
 
 4. When the exchange of a note for a bond 
 and mortgage furnishes a sufficient considera- 
 tion for the note to render it enforceable in the 
 hands of the holder, though the maker received 
 nothing by virtue of the mortgage, see Burhans 
 V. Carter, 13 Hun 153. 
 
 5. What is sufficient evidence of considera- 
 tion, and of delivery of the note sued on, to 
 authorize plaintiff to recover in an action against 
 the representatives of the maker, see Holliday 
 ». Lewis, 14 Hun 478. 
 
 II. Pabties 
 
 6. Joint makers. M. procured a loan of 
 money from H. on a promise that B. would 
 sign a note with him for the amount of the loan. 
 M. delivered his own note, slating that B. 
 would sign it; this B. did some two years there- 
 after. In an action upon the note — Held, that 
 B. was liable ; that her signature would be con- 
 sidered as having been placed to the note at ils 
 date, and this although B. did not know of the 
 arrangement ; that it was sufficient if she signed 
 at the request of M., who had given the assur- 
 ance. — Ct. of App., April, 1879. Harrington v. 
 Brown, 77 N. Y. 72. 
 
 7. Sureties. Where a joint and several 
 promissory note is signed by three persons as 
 makers, to the signature of the last signer the 
 word " surety" being added, the presumption is 
 that he is surety for the other two ; this pre- 
 sumption, however, is not conclusive ; it may be 
 shown that he was, in fact, surety for only one, 
 and that the other signer was also surety. — Cl. 
 0/ App., May, 187S. Sayles v. Sims, 73 N.Y. 
 551, 556. 
 
 8. A joint and several promissory note exe- 
 cuted by B. and by plaintiff was indorsed by 
 defendant and then negotiated. Sui^equently, at 
 the request of the payee, and without knowl- 
 edge that plaintiff was surety for B., defendant 
 signed the note as maker, adding to his signa- 
 ture the word "surety." Plaintiff paid the note 
 and brought this aclion for contribution, claim- 
 ing that the parties were in fact co-sureties for 
 B. Held, that it appeared both by the circum- 
 stances and the words of the contract that de- 
 fendant intended to limit his liability to that of 
 surety for both the other makers, and that the 
 action was not maintainable, lb. Compare 
 Hoyt II. Mead, 13 Han 327. 
 
 III. Validitt 
 
 9. Effect of usury on renewal note. 
 Where, upon the maturity of a promissory note 
 given for a usurious loan, for the purpose of an 
 extension, the borrower delivers to the lender a 
 new note, by its terms made payable to a third 
 person, which note is transferred by the lender 
 
 to said third person, it is tainted with the usury, 
 and is void in the hands of the payee, although 
 he received the same in good faith and without 
 knowledge of th« usury. — Ct. of App., Feb., 1879. 
 Treadwell v. Archer, 76 N. Y. 196 : reversiiig 10 
 Hun 73. . » 
 
 10. The new note being taken by the usurer 
 is equally void, as if it had been taken in his 
 own name ; and the maker . is not estopped by 
 the fact that the promise is in form made direct 
 to the holder, lb. 
 
 11. It seems that if the note had been taken, 
 under the same circumstances of innocence, di- 
 rectly from the maker by the payee, in pursu- 
 ance of an agreement to take it in discharge of 
 a debt due to him from the lender, the maker 
 would be estopped, and the payee could recover 
 upon the note. lb. 
 
 TV. Transfers ; and Eights or Purchasers. 
 
 1. Effect of indorsement, generally. 
 
 12. An accommodation indorser of 
 promissory notes discounted by a bank cannot, 
 in the absence of any special equities, require 
 the bank first to resort to a mortgage on real 
 estate held by it as collateral, before maintain- 
 ing an action upon the indorsement. The fact 
 that the avails of the note are passed to the 
 credit of the maker to take up other paper, does 
 not affect the rights of the bank in this particu- 
 lar.— C*. of App., Dee., 1877. First National 
 Bank of Buffalo v. Wood, 71 N. Y. 405, 409. 
 
 13. If the indorser desires the benefit of any 
 security held by the creditor, he must first pay 
 the paper, assert his right of subrogation, and 
 himself enforce the security. lb. 
 
 14. The fact that other parties occupy the 
 same position, and are interested with him in 
 enforcing the security, is immaterial. He is 
 only entitled to such benefit as is conferred by 
 the security as it is, and beyond this has no 
 valid claim for protection. lb. 
 
 15. Liability of one, not a party, 
 who indorses to g'ive_ maker credit 
 with payee. One who indorses before de- 
 livery to the payee intending to become surety, 
 is liable to the payee who has paid value rely- 
 ing on such security, notwithstanding the in- 
 dorsement was without consideration. — Com. 
 Pleas, June, 1877. Schwarzansky v. Averill, 7 
 Daly 254 ; Haviland v. Haviland, 14 Hun 627. 
 
 16. The form of a promissory note does not 
 preclude a recovery thereon by the payee against 
 an indorser ; it may be shown that when the 
 indorsement was made the indorser knew it was 
 intended as security for the payee.— Ct. of App., 
 Sept., 1878. Jaffray v. Brown, 74 N. Y. 393. 
 
 17. In an action upon a promissory note 
 plaintiiS' evidence tended to show that defend- 
 ant M. gave to the plaintiffs a note for goods 
 sold. They subsequently claimed that they were 
 defrauded in the sale, and threatened to reclaim 
 them unless further security was given. M. 
 took the note to defendant B. and requested her 
 to indorse it, stating that plaintiffs wanted an 
 indorser. She indorsed the note and it was re- 
 delivered by M. to plaintiffs. Held, that the 
 statement to defendant B. was sufficient to ap- 
 prbe her that the object of her indorsement was 
 to render her liable to the plaintiffs as surety 
 for tlie maker, and that there was a good con- 
 sideration for the indorsement. lb. 
 
PROMISSORY NOTES, IV. 
 
 361 
 
 18. Transfer without indorsement— 
 "the warranty implied. Where the holder 
 of a promissory note, which is tainted with 
 usury, transfers the same for a valuable consid- 
 eration without indorsement and without repre- 
 sentation as to legality, in the absence of knowl- 
 edge on his part, at the time of the transfer, of 
 the defect, no warranty against it will he im- 
 plied, and au action cannot be sustained against 
 him for loss sustained by the purchaser by rea- 
 son of the defect ; a scienter is essential to estab- 
 lish an implied warranty as to the validity of 
 tlie note. It seems that upon such a transfer, 
 ■there is only an implied warranty of title, and 
 that the instrument is genuine. — Ct. of App., 
 Feb., 1878. Littauer v. Goldman, 72 N. Y. 506 ; 
 reversing 9 Hun 231. 
 
 19. An action cannot be maintained, in such 
 case, to recover back the pii rchase money paid, 
 on the ground of a total failure of consideration. 
 lb. 
 
 2. Sights of purchasers, or holders. 
 
 20. Who is a purchaser in good 
 Taith, and for value. To constitute an in- 
 dorsee of negotiable paper a holder for value so 
 as to exclude tlie equities of antecedent parties, 
 he, must have relinquished some right, incurred 
 ■some responsibility or parted with value upon 
 the credit of the paper at the time of the trans- 
 fer. Ot. of App., May, 1880. Phenix Ins. Co. 
 1). Church, 59 How. Pr. 293 ; reversing 56 How. 
 Pr. 493. See, also. Id. 29. 
 
 21. If the indorsee, at the time of receiving a 
 ■diverted note, surrenders a past-due note held 
 by him and made by the person delivering such 
 •diverted note, he becomes a bona fide holder for 
 value and is entitled to recover, and this whether 
 the surrendered note be not due or overdue. 
 The rule, however, is technical and is not to be 
 •extended to a bank check surrendered under 
 similar circumstances. lb. 
 
 22. "Who is not. Where a note payable 
 to the order of the payee remained in his pos- 
 session, with his name written on its back, up 
 to the time of his death, and his executor trans- 
 ferred it to plaintiff after maturity, without in- 
 •dorsing it, and without receiving any considera- 
 tion for it — Seld, that the plaintiff had no title, 
 «ither legal or equitable, to the note. — Supreme 
 Ct., {1st Dept.,) April, 1878. Taylor v. Surget, 
 14 Hun 116. 
 
 23. The mere discounting of a note by a 
 bank, and giving a party credit on the books 
 for the amount thereof, does not constitute the 
 bank a holder for value. — Supreme Ct., (ls( 
 Bept.,) Sept., 1879. Central Nat. Bank v. Valen- 
 tine, 18 Hun 417. 
 
 24. When the transferee of a note delivered 
 to the payee to be discounted for benefit of 
 maker, cannot claim as a bona fide holder, de- 
 termined. — Ct. of App., May, 1878. Potts o. 
 Mayer; 74 N. Y. 594. 
 
 25. The plaintiff, in an action on a promis- 
 •sory note — Hdd, not to be a bona fide holder for 
 value, in a case depending upon peculiar and 
 unusual circumstances. — Supreme Ct., (\st Dept.,) 
 Sept., 1879. Lintz v. Howard, 18 Hun 424. 
 
 26. Taking a note as collateral se- 
 cmity. The transfer, before maturity, of 
 negotiable paper, as security for an antecedent 
 debt merely, without other circumstances — if 
 (he paper be so indorsed that the holder be- 
 
 comes a party to the instrument, although the 
 transfer is without express agreement by the 
 creditor for indulgence, is not an improper use 
 of such paper, and is as much in the usual 
 course of commercial business as its transfer in 
 payment of such debt. In either case the bona 
 fide holder is unaffected by equities or defences 
 between prior parties of which he had no 
 notice.— CT. S. Supreme Ct., Oct., 1879. Brook- 
 lyn, &c., E. B. Co. V. Nat. Bank of EepubUo, 
 22 Alb. L. J. 189. 
 
 27. Where a promissory note is made for the 
 accommodation of the payee, but without re- 
 striction as to its use, an indorsee taking it in 
 good faith as collateral security for an antece- 
 dent debt of the payee and indorser, without 
 other consideration, occupies the position of a 
 holder for value, and can recover thereon against 
 the maker. The precedent debt is a sufficient 
 consideration for the transfer, and no new con- 
 sideration need be shown. — Ct. of App., May, 
 1877. Grocers' Bank v. Penfleld, 69- N. Y. 502 ; 
 affirming 7 Hun 279. March, 1879. Freund v. 
 Importers', &c., Nat. Bank, 76 N. Y. 352, 358. 
 
 28. It is only where the note has been di- 
 verted from the purpose for which it was in- 
 tended, by the payee, or where some other 
 equity exists in favor of the maker, that it is 
 necessary that the holder should have parted 
 with value on the faith of the note, in order to 
 enforce the same. Ib.;Ib. 
 
 29. In payment of a pre-existing 
 debt. One"«fho receives a note from the payee 
 in payment of a precedent debt, surrendering 
 no security and parting with no value, is not a 
 bona fide holder, so as to cut off equities existing 
 between the original parties.^Ci. of App., Oct., 
 1873. Turner v. Treadway, 56 How. Pr. 28. 
 
 30. What is parting with value. 
 Where the holder of a past-due note surrenders 
 it to the maker in consideration of having pre- 
 viously received from him a note made by a 
 third person, payable to him, and indorsed by 
 him, which note was not due at the time of the 
 surrender, this is parting with a valuable con- 
 sideration, so as to shut out the equities between 
 the maker and indorsee of the latter note. — Su- 
 perior Ct., Jan., 1878. Nickerson v. Euger, 43 
 Superior 258 ; reversed 76 N. Y. 279. 
 
 31. Diversion of accommodation 
 paper. Plaintiff indorsed a promissory note 
 for the accommodation of the makers for a spe- 
 cial purpose; instead of being used for such 
 purpose it was transferred by the makers to de- 
 fendants in payment of an antecedent debt. 
 Defendants transferred the same before maturity 
 to a bona fide holder for value, who collected it 
 of plaintiff. In an action to recover the amount 
 paid — 
 
 Held, 1. That defendants were liable ; that 
 having no title or right to the note the transfer 
 by them was a conversion ; and that it was im- 
 material that they acted in good faith and in 
 ignorance of plaintiff's rights. 
 
 2. That the damages sustained by plaintiff 
 was the amount he had been compelled to pay. 
 — Ct. of App., April, 1878. Comstock d. Hier, 
 73 N. Y. 269. 
 
 32. The makers of the note so indorsed exe- 
 cuted to plaintiff a bond and mortgage securing 
 this and other indorsements; they were ad- 
 judged bankrupts, and an assignee in bank- 
 ruptcy appointed. Plaintiff entered into an 
 agreement with the assignee, by which it w .is 
 
362 
 
 PROMISSORY NOTES, IV, V. 
 
 agreed that plaintiff should take the mortgaged 
 property and should take care of certain paper 
 so indorsed, including the note in question, so 
 that the general estate of the bankrupt should 
 not be charged therewith, with the proviso, 
 however, that nothing contained in the agree- 
 ment should affect in any manner plaintiff's 
 right to defend against the note, or his remedies 
 against any person in respect thereto. Hdd, 
 that the agreement did not release, extinguish 
 or affect the plaintiff's right of action against 
 defendants. lb. 
 
 V. Eights and Liabilities op Indorsees. 
 
 1. Demand and notice. 
 
 33. Duties of holder, generally. The 
 holder of a promissory note owes an accommo- 
 dation indorser no active duty to secure or prd^ 
 teot his interests. — Ct. of App., June, 1879. 
 Smith V. Erwin, 77 N. Y. 466, 470. 
 
 34. Sufficiency of the demand. In 
 order to charge the indorser of a joint and 
 several note, the makers of which are not part- 
 ners, a demand must be made of each maker. — 
 Supreme Ct., {3d Bept.,) Sept., 1878. Britt v. 
 Lawson, 15 Hun 123. 
 
 35. The fact that one of the makers is the 
 principal debtor, and the others sureties, does 
 not render a demand against the principal debtor 
 alone sufficient, unless the relation of the makers 
 to each other appears on the face of the paper, 
 or the indorser is proved to have had know- 
 ledge of it. lb. 
 
 36. Service of notice by mail. In 
 what cases service of notice of protest may be 
 made by mail, and what is sufficient mailing, 
 see Wynen v. Schappert, 55 How. Pr. 156. 
 
 37. "What is using due diligence by 
 collecting bank. Plaiutiffe sent to defend- 
 ant for collection a promissory note payable at 
 its bank, made by U., one of its customers. The 
 note fell due Sunday, July 4th, 1875. On July 
 3d defendant marked the note as paid, and 
 sent to plaintiff a draft for the proceeds. U., at 
 that time, had a small balance to his credit, but 
 not sufficient to pay the note. On July 6th, 
 defendant having learned that U. had failed, 
 stopped pi^rtnent of the draft, and requested 
 plamtiffi to return it, claiming that it had re- 
 mitted for the note by mistake. Plaintiffi there- 
 upon returned the draft. Defendants, on July 
 6th, also caused the note to be noted for pro- 
 test, and mailed notice of non-payment to McE., 
 an indorser, both being dated back to July 
 3d. In an action to recover damages for 
 negligence. — Held, that as the note was made 
 payable at defendant's bank, and the funds not 
 being there to meet it wlien it fell due, a de- 
 mand for payment was not -necessary, and all 
 that was required of the defendant was to notify 
 the indorser of non-payment ;_ that notice having 
 been sent on the next business day, it was in 
 time ; and that if the mistake occurred as al- 
 leged, defendant was "hot liable ; but the pre- 
 sumption was that the note was not paid by mis- 
 take, but voluntarily on the credit of the maker, 
 in which case the payment could not be retracted ; 
 it discharged the indorser and so rendered de- 
 fendant liable.— a. of App'., May, 1879. Whiting 
 V. City Bank of Bochester, 77 N. Y. 363. 
 
 38. The only evidence to sustain the allega- 
 tion of mistake consisted of a telegram from de- 
 
 fendant's assistant cashier to plaintiffs, stating 
 defendant had remitted for the note by mistake, 
 and a letter of a similar purport with a state- 
 ment that the note had been protested and the- 
 indorser notified. Evidence was given by plain- 
 tiffs to the effect that the note was not protested, 
 or notice of non-payment mailed, until after 
 defendant had learned of the failure of U. 
 
 Held, 1. That the fact that there was a mis- 
 take was not so conclusively proved as to justify 
 the court in refusing to submit the question the- 
 jury. 
 
 2. That the form of action was proper ; that 
 an action to recover the proceeds of the note, a» 
 for money had and received, would not have 
 been appropriate. lb. 368. 
 
 2. What vjiU excuse demand and notice. 
 
 39. Waiver, after failure to make de- 
 mand and give notice. Where an in- 
 dorser of a promissory note, who has been dis- 
 charged from liability by failure of the holder 
 to make demand and give notice of non-payment,, 
 with fiill notice of the laches of the holder, un- 
 equivocally assents to continue his liability as 
 thoiigh due protest had been made, he waives 
 his right to object, and stands in the same posi- 
 tion as if the proper steps had been taken to 
 charge him. — Gt. of App., Oct., 1877. Koss v. 
 Hurd, 71 N. Y. 14, 18. 
 
 40. The assent of the indorser to be bound 
 may be established by any transaction betweeri 
 him and the holder, which clearly indicates such 
 purpose and intent ; the assent, however, must 
 be clearly established and will not be inferred 
 from doubtful or equivocal acts or language. 
 lb. 
 
 41. In an action against an indorser, who was 
 a banker, plaintiff's evidence was to the effect 
 that, prior to the maturity of the note, plaintiff 
 and defendant had some conversation in regard 
 to extension of time, but no arrangement was 
 made ; after the discharge of the defendant by - 
 failure of demand and notice, plaintiff and K., 
 the maker, went to defendant's bank to arrange 
 an extension of time. K. asked plaintiff if he 
 desired a new note. Plaintiff replied that if the 
 parties agreed he would let the note stand as it 
 was ; defendant said, " then I will waive pro- 
 test," and plaintiff thereupon agreed to an ex- 
 tension. Held, that the evidence was sufficient 
 to authorize a finding that the defendant, with 
 knowledge, assented to continue his liability ; 
 and that a non-suit was error. lb. 
 
 3. Discharge of indorsers. 
 
 42. In general. A holder of a note can- 
 not, by any agreement with the maker, without 
 the consent of the indorser, change the original 
 contract, or affect the remedies of the indorser 
 against the maker, without discharging the in- 
 dorser. — Superior Ot., Jan., 1878. Germania 
 Bank of New York v. Frost, 43 Superior 117. 
 
 43. When judgment has been confessed upon 
 a promissory note, execution issued, and levy 
 made upon property of the maker as secuiity, 
 the payee discharges the indorser by satisfying 
 such judgment without the indorser's know- 
 ledge or assent, lb. 
 
 44. When an accommodation indorser will 
 not be released by the taking of new notes, see- 
 Nat. Bank of Newburgh v. Bigler,.18 Hun 400. 
 
PROMISSORY l^OTES, V., VI., VI I., VIII. 
 
 36-5 
 
 45. Effect of delay to demand pay- 
 ment. The indorser of a note payable one 
 day after date will be discharged from all 
 liability thereon by the failure of plaintiff to 
 demand payment within a reasonable time. — 
 Suipreme Ct., (3d Dept.,) Sept., 1878. Eisenlord 
 V. Dillenback, 15 Hun 23. 
 
 46. Extensions of time to pay. S. W. 
 & Co. were engaged in the manufacturing of 
 goods, which they consigned to plaintiffs for 
 sale, with liberty to draw for a certain propor- 
 tion of their value, the drafts being sold and 
 proceeds credited to the drawers. On the 23d 
 of June, 1870, said S. W. & Co. borrowed of 
 plaintiff $5000, giving as security two notes, one 
 at four and the other of five months, indorsed 
 by defendant, for their accommodation. In 
 August, 1870, S. W. & Co. gave their note, dated 
 June 23d, for the amount of the loan, payable 
 one day from date. After the notes indorsed 
 by defendant became due, an agreement was 
 made between plaintiffs and the makers, with- 
 out defendant's consent or knowledge, that said 
 makers should draw time drafts on plaintiffs to 
 cover the loan, which plaintiffi agreed to accept 
 and sell, and thus be kept in funds to the 
 amount of the loan. In pursuance of the agree- 
 ment, drafts were drawn, accepted and sold. In 
 an action upon the notes — 
 
 Sdd, 1. That by the new agreement there 
 was a clear intention on the part of both parties 
 to extend the time ; that the agreement was for 
 a sufficient consideration, and was valid ; and 
 that thereby defendant was discharged. 
 
 2. That the loan was not made on the one-day 
 note, but that it was immaterial whether the 
 notes in suit were given for the loan or as col- 
 lateral ; in either case, u valid agreement ex- 
 tending the time of payment operated to suspend 
 the right to prosecute, and so discharged the in- 
 dorser. — Ot. of App., Sept., 1877. Pomeroy v. 
 Tanner, 70 N. Y. 547. _ 
 
 4*7. H. held a promissory note made by M. 
 for the accommodation of F., the payee and first 
 indorser. The note being past due, and H. 
 pressing for payment, plaintiff, at the request of 
 M. and in consideration of the assignment to 
 him of a bond and mortgage which had been 
 given to M.'by F. as security, agreed with H. 
 to purchase the note, and to secure the purchase 
 by his own note, payable January Ist, 1871 ; the 
 note of M., and the bond, mortgage and assign- 
 ment to remain in the hands of the attorney 
 of M. until the maturity of plaintiff's note ; if 
 that note was paid, then the papers so deposited 
 to be delivered to plaintiff; if not paid, the note 
 to be returned to H., and the bond and mort- 
 gage to M. Plaintiff gave his note, and the 
 papers specified were deposited under the agree- 
 ment. H. procured plaintiff's note to be dis- 
 counted before maturity. It was paid by plain- 
 tiff at maturity, and the papers deposited were 
 delivered to him. In an action upon the note 
 made by M—Held, that the effect of said agree- 
 ment was to extend the time of payment and 
 suspend tlie right of action thereon until the 
 ma,turity of the note given by plaintiff, and 
 that thereby defendant B., a subsequent indorser, 
 was discharged. — Ot. of App., Sept., 1878. Greene 
 V. Bates, 74 N. Y. 333. 
 
 VI. Non-negotiable Notes. 
 
 48. "What notes are non-negotiable 
 
 A note payable to a person therein named, but 
 not to his order, is not negotiable, and an as- 
 signee thereof takes the same subject to all equi- 
 ties existing between the original parties. — Su- 
 preme Ct., {2d Dept.,) May, 1878. Maule v^ 
 Crawford, 14 Hun 193. 
 
 49. Consideration. A sealed note by 
 which defendant's intestate promised at his death- 
 to pa^ A. $5000, for valued received, was given,, 
 and the money collected thereon, was to be heldi 
 and used by A. in trust, to pay over to a benefi- 
 ciary named. It appeared that no considera- 
 tion was given either by the payee or the bene- 
 ficiary. Seld, that the fact that the note was 
 sealed was only presumptive evidence of a con- 
 sideration, and that it rested upon plaintiff to- 
 show what, if any, consideration existed, and by 
 whom the same was furnished, upon his failure 
 to do which the action was properly decided 
 against him. — Supreme Ct., (2d Derpt.,) May,. 
 1878. Anthony v. Harrison, 14 Hun 198 ; af- 
 firmed 74 N. Y. 613. 
 
 50. Liability of indorsers. Where the- 
 payee of a non-negotiable note seeks to charge- 
 one who has indorsed the note prior to its de- 
 livery to him, he must allege in his complaint 
 that defendant indorsed the note with intent to- 
 become liable thereon, either as maker or guar- 
 antor. — Supreme Ct., (4<A Dept.,) Oct., 1878i- 
 Cawley v. Oostello, 15 Hun 303. 
 
 VII. Law of Place. 
 
 51. Effect of, on question of usury. 
 Where a promissory note is made in this state,- 
 by a resident thereof, bearing date here, by its 
 terms payable at some place in the state, with 
 no rate of interest specified, and no intention, 
 of the maker existing that it will be taken else- 
 where for discount, if it is first negotiated in 
 another state, at a rate of interest lawful there,, 
 but greater than that allowed by the usury laws 
 of this state, it is invalid. [Reviewing many 
 authorities.] — Ct. of App., Sept., 1879. Dickin- 
 son V. Edwards, 77 N. Y. 573; affirming 13 Hun 405. 
 
 52. A note was written in Pennsylvania by 
 the cashier of a bank there and mailed to de- 
 fendant at New York. It was dated and made- 
 payable in New York, and was signed by de- 
 fendant in that city, and mailed by him to the 
 bank in Pennsylvania with a check for discount 
 at eight per cent, to be used in renewing a note- 
 held by the bank. This was done in pursuance- 
 of a previous agreement made in Pennsylvania, 
 between the bank and defendant. Held, that 
 the defence of usury was not sustainable. — Ct.- 
 of App., Sept., ^880. Wayne Co. Savings Bank. 
 V. Low, 22 Alb. L. J. 346 ; reversing 6 Abb. N.. 
 Cas. 76. 
 
 VIII. Actions upon Pbomibsoet Notes. 
 
 1. The right of action and defences. 
 
 _ 53. "Who may sue, generally. To en- 
 title a party to maintain an action upon a prom- 
 issory note he must be the legal owner and have 
 the right of possession of the instrument ; such 
 ownership must be sufficient to protect the de- 
 fendant, upon a recovery against him, from a. 
 subsequent action thereon. — Ct. of App., Oct., 
 1878. Hays v. Hathorn, 74 N. Y. 486, 490. 
 
 54. In the absence of mala fides in a plain- 
 tiff's possession of promissory notes, indorsed in, 
 blank or specially to himself or his own order,. 
 
J64 
 
 PROMISSORY NOTES, VIII. 
 
 the legal title I8 in him, and he is legally the 
 Teal party in interest, and can maintain an action 
 •on tiie same, even though it appears that the 
 transfer is merely colorable as between the 
 mnies.— Superior a., May, 1878. Freeman v. 
 Falconer, 44 Superior 132. 
 
 55. TJie indorsee of a note indorsed to him 
 «s collateral security for a less amount than the 
 
 face of the note, may sue on the not&and recover 
 4he full amount thereof.— Com. Pleas, April, 
 
 1879. Berenbroick v. Stephens, 8 Daly 249. 
 
 56. Bight to sue for conversion of 
 note._ Where a note indorsed for the aceom- 
 inodation of the maker for a, special purpose, is 
 ■diverted and transferred by the maker in pay- 
 ment of an antecedent debt, and is transfei-red 
 by the creditor to a hona fide purchaser before 
 maturity, the indorser may, on payment of note, 
 maintain an action against the creditor for con- 
 version.— Cif. of Am., April, 1878. Comstock v. 
 Hier, 73 N. Y. 269. 
 
 57. Recovery on lost note. Indem- 
 nity. The bond required to be given by 2 
 Kev. Stat. 406, \ 76, to authorize a recovery on 
 a lost note, must bind the principal as well as 
 "the sureties ; a bond conditioned for its perform- 
 ance by the sureties alone is insufficient. — Sa- 
 preme Ct., (4(A Dept.,) Jan., 1879. Howe Ma- 
 -chine Co. v. Avery, 16 Hun 655. 
 
 58. What may be set up in defence, 
 generally. In an action by a corporation on 
 two notes discounted by it, against the makers, 
 ■one of the answers alleged an agreement between 
 the parties, for a valuable consideration, made at 
 the time the notes were discounted, for the ex- 
 tension of the time of payment for six months, 
 by giving renewal notes for those in suit ; that at 
 the maturity of the notes, defendants tendered 
 new notes as agreed, which plaintiff refused to 
 :accept. Seld, that the answer set up a good 
 defence. — Cl. of App., AprU, 1879. New York 
 Loan and Trust Co. v. Helmer, 77 N. Y. 64; 
 ■afjirmingli Him 35. 
 
 59. fe. sold a horse to defendant warranting 
 it to be sound. One-half the price was paid in 
 ■cash, and the balance in a note, which was 
 -written by plaintift, who knew of the sale and 
 warranty. The note was immediately after- 
 wards transferred to plaintiff by K., in payment 
 ■of a pre-existing debt, defendant saying that it 
 was all right. In an action by plaintiff upon 
 the note, defendant set up a breach of warranty. 
 
 Hdd, 1. That as plaintiff was not a bona fide 
 liolder for value, defendant was entitled to set 
 up this defence, without having returned the 
 horse. 
 
 2. That defendant was not estopped by :his 
 .statement that it was all right, as plaintiff had 
 parted with nothing of value in reliance upon 
 it, and as he had knowledge of all the facts. — 
 Supreme Ct., (2d Dept.,) Sept., 1878. Buhrman 
 .V. Baylis, 14 Hun 608. 
 
 60. What may not be. In a suit against 
 the maker, he cannot set up in defence failure of 
 •consideration for the transfer of the note from 
 *he payee to the plaintiff. — Supreme Cl., (4<A 
 Dmt.,) Oct., 1878. Forestville Baptist Society- 
 V. Farnham, 15 Hun 381. 
 
 61. Where a note is given in compromise and 
 settlement of a claim in suit, in the absence of 
 ■evidence of duress, or that fraud was practised 
 in bringing about the compromise, or that the 
 plaintiff knew that the claim was groundless or 
 fictitious, it is no defence to an action upon the 
 
 note, that there was a good and meritorious de- 
 fence to the original claim. — Ct. of App., Oct., 
 1879. Feeter J). Weber, 78 K Y. 334. 
 
 62. It seems that where the facts out of 
 wluch a defence to the claim arises, were known 
 to the party making the claim, and fraudulently 
 concealed from and unknown to the other party 
 at the time of the compromise, such fraud may 
 be shown. lb. 
 
 63. When an accommodation maker or in- 
 dorser has no interest in the way in which the 
 proceeds of the note are used, it is no defence to 
 him that he was told the note was to be dis- 
 counted by a bank, whereas it was in fact used 
 and intended to be used in paying an antece- 
 dent debt.— Com. Pleas, AprU, 1879. Wheeler 
 V. Allen, 59 How. Pr. 118. 
 
 64. When a defendant who has signed a 
 forged note will be estopped from denying its 
 genuineness in an action by a purchaser in good 
 faith and for value, see Mosher v. Carpenter, 13 
 Hun 602. 
 
 65. Instances. This action was upon a 
 promissory note made by defendant W. and in- 
 dorsed for his accommodation by defendant E. 
 Judgment was entered against W. by default ; 
 execution issued and delivered to the sheriff 
 with directions not to act upon it or make any 
 levy until further orders. During the life of the 
 execution, W. had in his open and visible pos- 
 session personal property sufficient to satisfy it. 
 When plaintiff directed a levy no property could 
 be found. Held, that no lien was acquired upon 
 the property of W. by the issuing of the execu- 
 tion ; that plaintiffs were under no obligation 
 to E. to secure such a lien ; and that therefore 
 the facts constituted no defence as to E. — Ct. 
 of App., June, 1879. Smith v. Erwin, 77 N. Y. 466. 
 
 66. W. transferred his personal property to 
 E., receiving therefor a mortgage upon real 
 estate ; this W. proposed that plaintiflfe should 
 take in satisfaction of the execution, paying him 
 the balance in money. Plaintiffs declined, but 
 offered to take an assignment, try and sell it, and 
 apply the proceeds, paying the balance to W. ; 
 and the mortgage was assigned to them for that 
 purpose. Plaintiffs did not try to sell, but 
 claimed to apply the mortgage upon another 
 debt against W., who refused to assent to it, and 
 upon plaintiff's refusal to re-assign executed a 
 satisfaction thereof to E. Plainti& brought suit 
 to foreclose the mortgage. E. defended, and 
 succeeded, on the ground that plaintiffi did not 
 own the mortgage. Held, that the facts furnished 
 no defence to E. in this action. lb. 471. 
 
 67. In an action upon a promissory note 
 executed in the usual form, the indorser set up 
 as a defence that the maker was a married 
 woman. Held, no defence, as it was part of the 
 contract of indorsement that the maker was 
 competent to contract in that form. — Supreme 
 Ct., (1st Dept.,) May, 1878. Archer v. Shea, 14 
 Hun 493. 
 
 68. The answer farther alleged that the note 
 was indorsed for the accommodation of the hus- 
 band of the maker, and that this fact was known 
 to plaintiff when he took the note. Hdd, that 
 this was no defence, as it was not alleged that 
 the husband was in any way restricted as to the 
 use he might make of the note. lb. 
 
 60. The complaint alleged that defendant 
 H. made his note to the order of defendant G. ; 
 that the latter indorsed and delivered it for 
 value and before maturity to plaintiff, who was 
 
PROMISSORY NOTES, VIIL 
 
 365 
 
 the owner and holder thereof. The answer, 
 without denying any allegation of the com- 
 plaint, alleged that the note was seized as the 
 property of B., in proceedings instituted against 
 him for abandoning his wife and children, and 
 " that by virtue thereof the property in the said 
 note became and continued to be vested in the 
 overseer of the poor of said town." Hdd, that 
 these facts constituted no defence, the allegation 
 of the complaint being admitted. — Supreme Gt., 
 (4«A Dept.,) Oct., 1878. Farwell v. Hibner, 15 
 Hun 280. 
 
 70. Usury as a defence. An accommo- 
 dation indorser has tlie same right as the maker 
 to the benefit of the forfeiture for usury given 
 by U. S. Rev. Stat., § 5198, by way of set-off or 
 rebatement when sued alone upon his indorse- 
 ment.— Ci!. of App., Dec., 1878. National Bank 
 of Auburn v. Lewis, 75 N. Y. 516. 
 
 71. The act of 1850 (Laws of 1850, ch. 172,) 
 prohibiting a corporation from interposing the 
 defence of usury, includes the collateral con- 
 tracts of individuals as sureties, guarantors or 
 indorsers for the corporation. Therefore an 
 accommodation indorser of a promissory note 
 made by a manufacturing corporation, and 
 negotiated for its benefit, cannot defend the same 
 on the ground of usury. — Gt.ofApp., June, 1878. 
 Stewart v. Bramhall, 74 N. Y. 85 : aMrming 11 
 Hun 139. 
 
 72. The fact that the note was discounted 
 under an arrangement between the lender and 
 the indorser, that the former would discount if 
 the latter would indorse, does not affect the legal 
 aspect of the question. lb. 
 
 73. Defendant indorsed certain notes for the 
 accommodation of D., which were discounted by 
 plaintifT. In an action upon the indorsements, 
 defendant offered to show that plaintiff' in its 
 dealings witli D. took upon discounts made for 
 him more than lawful interest. Hdd, that as 
 the offer embraced transactions with which de- 
 fendant was not connected, it was too broad, and 
 so was properly rejected. — Ct. of App., Dee., 
 1877. First Nat. Bank of Buffalo v. Wood, 71 
 N. Y. 405, 412. 
 
 74. Controverting plaintifif's title as 
 legal holder. The maker of a promissory 
 note, in an action thereon by a transferee, can- 
 not assail plaintiff''s title on the ground that the 
 transfer was made in fraud of the creditors of 
 the payee ; the transfer can only be assailed on 
 their account By the creditors or some one re- 
 presenting them. — Cl. of App., Jan., 1880. Sul- 
 livan t'. Bonesteel, 79 N. Y. 631. 
 
 75. Where plaintiff' claimed as transferee, 
 and defendant's answer denied that the note in 
 suit was ever transferred to the plaintlflf, or that 
 he was the legal owner and holder thereof, or 
 was the real party in interest ; and alleged 
 that the note was transferred to another who 
 was the owner and holder and the real party in 
 interest ; and upon the trial plaintiff' produced 
 the note indorsed in blank by the payee, where- 
 upon defendant offered to prove the allegations 
 of the a'nswer, which off'er was rejected^fleici, 
 error ; that the answer set forth a defence ; that 
 while the production of the instrument was 
 prima facie evidence of title, defendant's off'er 
 was to rebut that presumption, and this he had 
 the right to do.— CS. of App., Oct., 1878. Hays 
 V. Hathorn, 74 N. Y. 486 ; reversing 10 Hun 
 511. 
 
 76. Plea of payment. " In an action up- 
 
 on a promissory note the complaint alleged that 
 defendant made the note ; that one W. indorsed 
 it and delivered it to the paj^ee, who, before the- 
 commencement of the action, for a valuable 
 consideration, sold and delivered it to the plain- 
 tiff; who is now the owner and holder thereof. 
 The answer admitted " the making and delivery 
 of said note as averred in tlie complaint," set up 
 payment, and denied each and every allegation, 
 except those admitted. Held, that there was a. 
 sufficient denial of the transfer of the note by 
 the plaintiff to entitle defendant to prove pay- 
 ment to the payee, and that the note then be- 
 longed to suck payee.^Oi!. of App., Nov., 1871> 
 Allis V. Leonard, 22 Alb. L. J. 28. 
 
 2. Evidence and burden of proof. 
 
 77. Evidence for the plaintiff, gener- 
 ally. In an action on a promissory note, pur- 
 porting to have been made by defendant's intes- 
 tate, the defence was forgery of the deceased's- 
 signature. The note was for $1,000^ jjayable 
 with interest at sis per cent. Plaintiff was 
 permitted to prove, under objection and excep- 
 tion, statements of the deceased, made soon after 
 the date of the note, to the eff'ect that he had 
 borrowed $1000 of plaintiff, and given his note 
 for it at six per cent. Held, no error. — Ct. of 
 App., Nov., 1878. Barden v. Stevenson, 75 N. 
 Y;164. 
 
 78. Possession of the note as evi- 
 dence of title. The presumption of delivery 
 by the maker, arising from the possession and 
 production of a promissory note by the payee, 
 is much weakened, if not destroyed, where tlie 
 maker is dead and the payee is one of his- 
 executors, and such possession is not shown to 
 antedate the possession of all the maker's papers 
 and eff'ects by the payee, and where the note 
 appears to be all in the handwriting of the de- 
 cedent, and lo have been taken with a stub 
 attached, also in his handwriting, from a blank 
 book belonging to him, and where installments 
 of interest falling due in the maker's lifetime 
 were not paid, and although years elapsed after 
 they so became due before his death, there is n:> 
 proof of demand upon or of recognition of lia- 
 bility by the maker. — Gt. of App., Nov., 1873> 
 Cowee V. Cornell, 75 N. Y. 91, 96. 
 
 79. Burden of proof, ■when on plain- 
 tiff. In an action upon a promissory no'e, 
 where the makers allege and prove that the 
 note was executed for the accommodation of the 
 indorser, and was by the latter fraudulently 
 diverted from the use intended, the burden is. 
 upon the plaintiff' to show that he is a bona. 
 fide holder for value, without notice. — CJ. of 
 App., Feb., 1879. Nickerson v. Euger, 76 N. 
 Y. 279 ; reversing 43 Superior 258. 
 
 80. Evidence in defence, generally.. 
 In an action on a note made by defendant for 
 accommodation of the payee, and discounted by 
 plaintiff) defendant offered to prove that, when 
 the note was made, plaintiff''s president agreed 
 that he should not be called on to pay it. Held, 
 inadmissible, because the president had no 
 authority to piake such a promise, and because- 
 it contradicted the written instrument. — Supreme 
 a., {3d Dept.,) May, 1879. First Nat. Bank of 
 Whitehall v. Tisdale, 18 Hun 151. 
 
 81. In an action on a note made by V., de- 
 fendant's testator, payable to the order of one 
 B., the note was incomplete in form — the amount. 
 
566 
 
 PEOMISSORY NOTES, VIII.— PUNISHMENT. 
 
 fiot being luiiy filled in. The defence was that 
 it was given as a memorandum or voucher for 
 «. gold draft drawn by B. to settle a transaction 
 In which B. and VrWere interested, and that 
 ihe intention was, tliat when the cost of the gold 
 •draft was known, the amount should be filled in 
 in the note, and that the note should be dis- 
 •counted to pay the amount of such draft ; that 
 afterwards the gold draft was paid for in a dif- 
 ferent manner, and the incomplete note forgot- 
 ten until after the death of V., when it was pre- 
 ■sented by B. Hdd, that evidence of the finan- 
 cial situation of B. and V. at the time the note 
 •was made, and at its maturity, was admissible to 
 sustain defendant's version of the transaction, and 
 to show the iinprobability of the note's remain- 
 ing over-dne without a demand for payment. — 
 Supreme Ol., (4th Dept.,) Oct., 1878. Nicholls 
 V. Van Valkenburgh, 15 Hun 230. 
 
 82. V.'s son testified that he was intimately 
 connected in business with his father, and kept 
 his books, and was allowed to testify that neither 
 the note nor its proceeds entered into such busi- 
 ness. Held, proper. lb. 
 
 83. Impeaching the consideration. 
 In an action on a note, where the defence was 
 ithat the note was given without consideration 
 "when the maker was intoxicated, plaintifTs evi- 
 dence tended to show that it was given for a 
 loan. Evidence was ofiered of acts and declara- 
 tions of plaintiff two or three years before the 
 loan inconsistent with the ownership of money 
 by him. Hdd, too remote. — Ct. of App,, Jwm, 
 
 1877. Nicholson v. Waful, 70 N. Y. 604; re- 
 versing 6 Hun 655. 
 
 84. Sho-wing a fraudiilent alteration. 
 In an action upon a promissory note, the de- 
 fendant, under an answer containing merely a 
 general denial, has the right to prove that the 
 note produced by plaintiff has been altered 
 Bince its execution, by the addition of the words 
 " with interest ;" as the alteration destroys the 
 •effect of the note as evidence, and precludes any 
 recovery thereon, in the absence of sufficient 
 explanation of the alteration. — Ct. of App., Sept., 
 
 1878. Schwarz v. Oppold, 74 N. Y. 307 ; S. C, 
 56 How. Pr. 156 ; affirming 7 Daly 121. 
 
 85. Proof of payment. In an action 
 upon a promissory note indorsed by defendaht 
 for the accommodation of S. & H., defendant 
 ■offered to prove that a sum of money paid by 
 •S. to plaintiff, without direction as to applica- 
 tion, and which was applied by plaintiff upon 
 another note made by S. & H. held by him, was 
 raised by the makers upon a note indorsed by 
 <lefendant for the purpose of having the pro- 
 •ceeds applied upon the note in suit. 3M, that 
 in the absence of proof, or of an offer to prove, 
 that knowledge of this fact was communicated 
 to plaintiff, the evidence was properly excluded. 
 —a. of App., Dec., 1878. Harding v. Tifft, 75 
 N. Y. 461. 
 
 As to BUh of escehcmge, and Cheeks, see those 
 titles. 
 
 For rules governing the admissibility of Parol 
 evidence to explain or vary a promissory note, see 
 Evidence, II. 
 
 As to when taking a note will operate as Pay- 
 ment, see Debtob and Cbeditoe, 6-7 ; Pay- 
 ment, 13. 
 
 As to Premiiim notes, see Insxtrance, 104, 
 ■et seq. 
 
 As to the power of a married woman to bind 
 
 her Separate estate by a promissory note, see 
 Husband and Wife, 38-41. 
 
 PROTEST. 
 
 Of NegotMle paper, see Bills of Ezchanoe, 
 13 ; Peomissoet Notes, V. 
 
 Sufficiency and effect of Notarjfa eerUfieaie of 
 protest, see Evidence, 145 
 
 PROVISIONAL REMEDIES. 
 
 _ For decisions relative to the various provi- 
 sional remediesj provided by the Code of Proce- 
 dure, see their titles, such as Aeeest ; Attach- 
 ment j Injunction; Eeceivbbs, &o. 
 
 PUBLIC ADMINISTRATORS. 
 
 Executoes and Administbatobs, 152, 
 153. 
 
 PUBLICATION. 
 
 Of notice of Judicial sale, see Execution, 
 14. 
 
 Of City ordinance, see New Yoek City, 9, 11. 
 
 Of terms ol Limited partnership, see Fabtnee- 
 SHip, 70-'72. 
 
 Of Wills, see Wills, I. 
 
 Service of process by, see Peooess, 7-17. 
 
 PUNISHMENT. 
 
 Place of iraprisonment. The legislature 
 has power to designate, for those convicted of 
 misdemeanors, & place of imprisonment, in a 
 part of the state other than the county of the 
 offence and trial ; and although 2 Eev. Stat. 697, 
 § 40, prescribes the county jail as the jplaoe of 
 imprisonment for thoseguilty of certam misde- 
 meanors, the legislature is not restricted there- 
 by, but may provide by law another place and 
 a different institution within the state. So held 
 of the act of 1874, (Laws of 1874, ch. 209,) which 
 authorizes boards of supervisors to agree with 
 any county having a penitentiary therein, to re- 
 ceive into it and keep any person sentenced to 
 confinement for a term not less than sixty days, 
 and making it the duty of every court in a 
 county so agreeing, to sentence to such peniten- 
 tiary any person convicted of an offence not 
 punishable with imprisonment in a state prison 
 who is sentenced for a term not less than that 
 specified.— Ci!. of App., Dee., 1878. Brown v. 
 People, 75 N. Y. 437. 
 
 PUNITIVE DAMAGES. 
 Damages, 7, 8. 
 
QUESTIONS OF LAW AND FACT, I., II. 
 
 367 
 
 Q. 
 
 QUESTIONS OF LAW AND FACT. 
 
 [Consult, also, Teial, VI. ; and the titles of the 
 'various remedies and rights of action.] 
 
 I. Questions or Law fob the Court. 
 II. Questions op Fact poe the Jury. 
 III. Mixed Questions or Lxw and Fact. 
 
 I. Questions of Law for the Court. 
 
 1. Interpretation of -written instru- 
 "ments. Whether a writing in evidence is or 
 is not a discharge of a judgment is a question 
 of law for the court. — Com. Pleas, April, 1878. 
 Agate V. Sands, 8 Daly 66. See, also, Fish v. 
 Benedict, 74 N. Y. 613. 
 
 2. The interpretation of a contract between 
 3, towing company and a master and owner of a 
 boat to be towed, and what are the legal rela- 
 tions between the parties and the relative rights 
 and obligations resulting therefrom, are ques- 
 tions of law for the court; and a^ submission 
 thereof to a jury is error. — Ct. of App., May, 
 1877. Artie Fire Ins. Co. v. Austin, 69 K Y. 
 470, 477. 
 
 3. Neg-ligence and due diligence. 
 Negligence and contrib itory negligence are nec- 
 ■essarily relative as to time, place, person, and 
 surrounding circumstances. They are questions 
 of fact, and whenever either of them is to be de- 
 termined upon conflicting evidence, it should be 
 submitted to and determined by a jury. But 
 when the evidence is not only undisputed, but 
 the facts are clear and convincing, and admit 
 of but one conclusion, it is the right and duty 
 ■of the court to decide, as matter of law, whether 
 the ultimate fact involved therein, namely, the 
 ■existence of Hegligenceor contributory negligence, 
 has or has not been sufficiently proven. — Supe- 
 rior Ct., Jan., 1878. Buckley v. New York, &c., 
 B. E. Co., 43 Superior 187. See, also, De Graff 
 ■!). New York Central, &c., K. E. Co., 76 N. Y. 
 125. 
 
 4. The question as to what signal should be 
 given by a railroad company of the approach 
 
 -of a train to a crossing, is not one for the jury. — 
 a. of App., Nov., 1877. Dyer v. Erie Ry. 
 
 ■Co.,71N: Y. 228. 
 
 5. Probable cause. Upon a given state 
 ■of facts, the question as to whether there was 
 probable cause is one of law, to be decided by 
 ■the court. — Svperior &., April, 1879. Kings- 
 bury V. Garden, 45 Superior 224. 
 
 II. Questions of Fact for The Jury. 
 
 6. In general. Where special circumstan- 
 -ces are proved, calling upon the jury to deter- 
 mine whether the general principles governing 
 similar cases, as testified to by experts, are ap- 
 plicable, in the case before them, it is proper to 
 £nbmit the question to the jury. — Ot. of App,, 
 .Sept., 1878. Cornish v. Farm Buildings Fire 
 Jns. Co., 74 N. Y. 295. 
 
 7. What is sufficient evidence of agency to 
 
 make the question one of fact, see Dunn v. 
 Hornbeok, 72 N. Y. 80. 
 
 8. Instances. The following questions 
 have been held questions of fact for the deter- 
 mination of the jury, under the circumstances 
 of the particular case : 
 
 Whether new notes were received by a bank 
 in payment of prior notes held by the bank. 
 Auburn City Nat. Bank v. Hunsiker, 72 N. Y. 
 252. 
 
 Whether servant did a wrongful act with a 
 view to injure anothei: and not with a view to 
 his master's service. Cohen v. Dry Dock, &c., 
 E. E. Co., 69 N. Y. 170. 
 
 Whether there was a breach of warranty in a 
 policy of life insurance. Cushman v. U. S. Life 
 Ins. Co., 70 N. Y. 72. 
 
 Whether there was a breach of a condition in 
 a policy of fire insurance. Cornish v. Farm 
 Buildings Fire Ins. Co., 74 N. Y. 295. 
 
 'Whether transferee of note is a hona fide 
 holder. Potts v. Mayer, 74 N. Y. 594. 
 
 Whether a public highway has been estab- 
 lished by prescription. McCarthy v. Lake 
 Shore, &c., Eailway Co., 76 N. Y. 592. 
 
 Whether the use of a stream by an upper mill- 
 owner is a reasonable use. BuUard v. Saratoga 
 Victory Manuf. Co., 77 N. Y. 525, 530. 
 
 Whether the habits of life of a particular 
 person are temperate. McGinley v. U. S. Life 
 Ins. Co., 8 Daly 390. 
 
 Whether the purchase of land by a bank, 
 considering the financial condition of the bank, 
 was a reasonable exercise of the discretion 
 vested in the trustees. French v. Bedman, 13 
 Hun 502. 
 
 Whether or not a partnership existed in a par- 
 ticular case. Butler v. Finck, 21 Hnn 210. 
 
 9. Fraud. It seems that where a sale of 
 goods and chattels is not accompanied by imme- 
 diate delivery, or followed by an actual and 
 continued change of possession, the presumption 
 of fraud raised by the statute (2 Eev. Stat. 136, 
 § 5,) in such case makes that question one of 
 fact for the jury, although the evidence as to 
 good faith and absence of intent to defraud is 
 uncontradicted. — Ct. of App., June, 1879. Blaut 
 ■0. Gabler, 77 N. Y. 461 ; 8 Daly 48. 
 
 10. Intent. Whenever the degree of the 
 offence depends upon the particular intent with 
 which an act is done, the intent to be inferred 
 from the circumstances is for the jury, and every 
 fact which will throw light upon that question 
 may be given in evidence. — Ct. of App., March, 
 1877. Filkins v. People, 69 N. Y. 101, 106. 
 
 11. When evidence that a note was intended 
 as a receipt is given, the question is one of fact 
 for the jury.— Of. of App., Jan., 1879. De La- 
 vallette v. Wendt, 75 N. Y. 579. 
 
 12. Interpretation of contracts. While 
 it is the province of the courts to construe con- 
 tracts, yet where the meaning of a contract is 
 obscure and depends upon facts aliunde, in con- 
 nection with the written language, the question 
 of construction may be one of fact for the jury. 
 —Ct. of App., Bsc., 1879. First Nat. Bank of 
 Springfield v. Dana, 79 N. Y. 108. 
 
 13. Negligence and due care. In an 
 action for negligence, where the circumstances 
 
368 
 
 QUO WARRANTO. 
 
 are such that men of ordinary prudence and 
 discretion might differ as to the character of the 
 act complained of, the question of negligence is 
 one of fact. — Ct. of App., June, 1877. Hays v. 
 Miller, 70 N. Y. 112, 116. 
 
 14. In the absence of a statutory or other 
 regulation on the subject, the court cannot deter- 
 mine, as a question of law, that a particular 
 place of anchorage is unsafe and improper, but 
 it is a question of fact for the jury. — Gt. of App., 
 June, 1877. Lambert n. Staten Island R. R. 
 Co., 70 N. Y. 104, 108. 
 
 15. Where the testimony as to the negligence 
 of the warehousemen is conflicting, it is the 
 province of the jury and not of the judge to de- 
 termine whether or not a loss by theft was 
 occasioned by negligence or want of care on the 
 part of the warehousemen. — Superior Ot., April, 
 1879. Madan v. Covert, 45 Superior 245. _ 
 
 16. For an application of the rule that in an 
 action against a railroad company for a personal 
 injury, where negligence of the defendant is 
 shown, the question whether plaintiff's negli- 
 gence contributed to the injury is for the jury, 
 see Corcoran v. New York Elevated R. R. Co., 
 19 Hun 368. 
 
 17. As to the duty of a railroad company to 
 furnish a safe and convenient passageway from 
 the depot to the highway, and when the ques- 
 tion of negligence in this respect is one of fact, 
 see Hoffman v. New York Central, &c., R. R. 
 Co., 75 K Y. 605. 
 
 18. Instances. In an action to recover 
 damages for alleged negligence causing the death 
 of K., plaintiff's intestate, it appeared that the 
 death was caused by the explosion of the boiler 
 of a locomotive upon which K. was employed as 
 a fireman. Plaintiffs evidence tended to show 
 that the engine was infirm and weak, was fre- 
 quently, and from necessity, taken to the repair 
 shops for repairs; that it was unable to hold 
 water, or sustain a full head of steam. Held, 
 that the question of defendant's negligence was 
 one of fact for the jury.— CK. of App., Bee., 1879. 
 Kirkpatrick v. New York Central, &c., R. R. Co., 
 79 N. Y. 240. 
 
 19. For cases holding the question of negli- 
 gence to be one of fact, under the particular cir- 
 cumstances, and not one of law for the court, 
 see, Twomley v. Central Park, Ac, R. R. Co., 
 69 N. Y. 158 ; Briggs v. New York Central, &c., 
 R. R. Co., 72 N. Y. 26 ; Hume v. Mayor, Ac, of 
 New York, 74 N. Y. 264; Sewell v. City of 
 Cohoes, 75 N. Y. 45 ; Harris v. Ubelhoer, Id. 
 169 ; Voak v. Northern Central Ry. Co., Id. 820 ; 
 Cordell v. New York Central, &c., R. R. Co., Id. 
 331 ; Camp v. Wood, 76 N. Y. 92 ; Weed v. 
 Vaiage of Ballston Spa, Id. 329; Manmng v. 
 Hogan, 78 N. Y. 615 ; Watkins v. Atlantic Ave. 
 R. B. Co., 20 Hun 237 ; Waldele v. New 
 York Central, &o., R. R. Co., 19 Hun 69. 
 
 20. Keasonable time. When the ques- 
 tion whether delay in serving proofe of loss 
 under an insurance policy was unreasonable, is 
 one of'^fact, see O'Brien v. Phcenix Ins, Co., 76 
 N. Y. 459. 
 
 III. Mixed Questions or Law and Fact> 
 
 21. Interpretation of •written instru- 
 ments. While, as a rule, the interpretation of 
 written instruments is a question of law for the 
 court, yet, when the interpretation of a promise 
 depends upon the sense in which words are used, 
 or in which the promisor had reason to sup- 
 pose that the promisee understood them, which 
 is to be determined from the relation of the 
 parties and the surrounding circumstances, it 
 becomes a mixed question of law and fact, and 
 may be submitted, with proper instructions, to a 
 jury.— Ct. of App., May, 1878. White v. Hoyt,. 
 73 N. Y. 505, 512. 
 
 QUIETING TITLE. 
 
 Clotjd on Title, 
 
 QUO WARRANTO. 
 
 1. "When it lies. A qua warranto will only 
 lie where the party proceeded against^ is either 
 a de facto or de jure officer in possession of the 
 office, and where the facts are in dispute. — Ct. 
 of App., June, 1879. People, ex rel. Kelly, v. 
 Common Council of Brooklyn, 77 N. Y. 503, 
 510. Compare McVeany v. Mayor, &o., of New 
 York, 59 How. Pr. 106. 
 
 2. Evidence — instructions to jnry. 
 In an action of quo warranto wherein the ballot- 
 boxes were produced and the ballots received 
 in evidence to impeach the accuracy of the 
 returns of the inspectors of election, and wherein 
 it appeared that the boxes had not been sealed 
 up by the canvassers, and had been kept inse- 
 curely, so that the question whether the ballota 
 were the identical ones voted was one of fact for 
 the jury, the court instructed the jury, in sub- 
 slance, that to justify their rejection, it must 
 appear affirmatively by direct evidence, or frora 
 circumstances, that the boxes had been tampered 
 with. Held, error ; and that the error was fatal 
 to the judgment.— a. of App., Bee., 1879. Peo- 
 ple, ex rel. Dailey, v. Livmgston, 79 N. Y. 279. 
 
 3. In quo warranto the voters may be exam- 
 ined as to which person they cast their votes for. — 
 Supreme Q., {Sp. T.,) Nov., 1878. People, ex 
 rel. Hatzel, v. Board of Supervisors, 58 How. Pr. 
 141. 
 
RAILEOAD COMPANIES, I., II. 
 
 369 
 
 R. 
 
 RAILROAD COMPANIES. 
 
 I. InCOEPORATION, OKaANIZATION, AND 
 
 Powers, generally. 
 II. Acquiring Eight of Way, and Con- 
 structing THE EOAD. 
 
 1. Proceedings to condemn hnda. Lo- 
 
 cating the road. 
 
 2. Constructing the road; and IwMity 
 
 for defective construction, 
 
 3. Fences, crossings, and cattle-guards. 
 
 4. Proceedings by one road to acquire 
 
 right to cross another. 
 
 III. Eights, Powers, and Buties op Offi- 
 
 cers, Agents, and Servants. 
 
 IV. Powers, Duties, and Liabilities in 
 
 Ebspect to the Management of the 
 
 EoAD. 
 
 1. Under the contract to carry. 
 
 (a) Carriage of merchandise. 
 (6) Carriage of passengers, and 
 their baggage. 
 lAabilUy for injuries caused by negli- 
 gence. 
 
 (a) In general. 
 
 (6) Injuries to passengers. 
 
 (c) Injuries to persons crossing 
 the track. 
 
 [d) Injuries to employees. 
 
 3. Metative rights and liaMlities of con- 
 necting lines. 
 V. Horse and Street Eailroads. 
 
 1. Horse railroads. 
 
 2. Elevated railroads. 
 
 I. Incorporation, Organization, and 
 Powers, generally 
 
 1. Powers of the legislatvire over 
 raUroads. Under the power reserved to the 
 legislature by the constitution and the laws of 
 the state (Const, art. 8, 2 1 ; Eev. Stat. 600, ? 8 ; 
 Laws of 1850, ch. 140, J 8, it may impose upon 
 a railroad corporation created by it such addi- 
 tional restrictions and burdens as the public 
 good requires. — Gt. ofApp., Sept., 1877. People, 
 ex rel. Kimball, it. Boston, &c., E. E. Co., 70 N. 
 Y. 569. 
 
 2. The legislature may regulate the mode in 
 which railroad corporations may transact their 
 business, the price they may charge for the 
 transportation of freight and passengers, the 
 speed at which they may run their trains, the 
 way in which they may cross or run upon high- 
 ways or turnpikes used for public travel, and 
 may make all, appropriate regulations to orotect 
 
 24 
 
 the lives of passengers upon railroads, or upon 
 highways crossed by them, although the power 
 to amend the charters of such corporations has 
 not been reserved. lb. 
 
 3. Mortgage bonds, and liabilities of 
 trustees thereunder. Trustees for holders 
 of railroad mortgage bonds, in possession of and 
 operating the railroad, do not fall within the 
 exception to the rule respondeat superior, ac- 
 corded to an employee occupying a representa- 
 tive or official character. — Superior CM., March, 
 1879. Faulkner v. Hart, 44 Superior 471. 
 
 4. As to the duties of a trustee for mortgage 
 bondholders, and when he is personally liable 
 for a conveyance made in violation of the mort- 
 gage, see James v. Cowing, 17 Hun 256. 
 
 5. As to the power of the court to change the 
 terms of railroad mortgage bonds, see Taylor v. 
 Atlantic, &c., Ey. Co., 55 How. Pr. 275. 
 
 6. Forfeiture of franchise by non- 
 user. Under and by virtue of the provision of 
 the general railroad act (Laws of 1850, ch.l40, § 
 47, as amended by Laws of 18B7, ch. 775, g 1,) 
 which declares that if any corporation organized 
 under it shall not, within five years after its 
 articles of association are filed and recorded, 
 begin the construction of its road, etc., " its cor- 
 porate existence and powers shall cease ;" a 
 corporation failing to comply with said condi- 
 tion becomes by reason thereof extinct ; and no 
 action or judicial proceeding is needed to de- 
 clare or complete a forfeiture of its charter and 
 loss of corporate powers. — Ct. of App., Dec, 
 1878. Matter of Brooklyn, &c., E. E. Co., 75 
 N Y 335 
 
 v. The' act of 1878 (Laws of 1878, ch. 206,) 
 purporting to amend the act of 1874 (Laws of 
 1874, ch. 575,) in relation to the Brooklyn, 
 Winfleld and Newtown Eailway Company, by 
 extending the time in which said company is 
 required to finish and put in operation its road 
 to five years from the passage of the act, is vio- 
 lative of the constitutional provision prohibiting 
 the legislature from passing " a private or local 
 bill, * * * granting to any corporation 
 * * * the right to lay down railroad tracks," 
 (Const., art 3, J 18,) and is void. lb. 
 
 8. The act of 1878 was not simply a waiver 
 of a forfeiture, but inasmuch as at the time of its 
 passage the said corporation had ceased to exist, 
 because of failure to comply with said condition 
 above mentioned, it was the creation of a new 
 corporation, an attempt to grant a special char- 
 ter to construct and operate a railroad, and so 
 came within the constitutional prohibition. lb. 
 See, also, Matter of Brooklyn, &c , E. E. Co., 
 19 Hun 314. 
 
 II. AcquiHiNG Eight of Way, and Con- 
 structing THE Eoad. 
 
 1 . Proceedings to condemn lands. Locating the 
 road. 
 
 Q. Power to take lauds. The legal 
 existence of a corporation authorized to construct 
 a railroad is at the foundation of the right to 
 take property for its use, under the right of 
 eminent domain ; it is a fact which it is com- 
 
370 
 
 RAILROAD COMPANIES, II. 
 
 pelled to allege in proceedings to acquire title 
 to lands, and which may be controverted. If, 
 therefore, by the non-performance of a condition 
 of its charter the corporation has forfeited or 
 lost its corporate rights and powers, the fact may 
 be asserted by any one whose land or property 
 is sought to be appropriated, in answer to the 
 application. — Ct. of App., Jan., 1878. Matter 
 of Brooklyn, &c., E. E. Co., 72 N. Y. 245; S. 
 C, 55 How. Pr. 14. 
 
 10. When proceedings by a railroad company 
 to acquire title to land already taken and used 
 for a highway, are unauthorized under the gen- 
 eral railroad act, see Washington Cemetery v. 
 Prospect Park, &c., E. E. Co., 4 Abb. N. Cas. 
 15, 16 ; affirming 7 Hun 655 ; Matter of New 
 York, &c., E. E. Co., 20 Hun 201. 
 
 11. For •what purposes land may be 
 taken. The only limit to the power granted 
 to railroad corporations to take lands for rail- 
 road purposes is the reasonable necessity of the 
 corporation in the discharge of its duty to the 
 public. This includes the acquisition of lands 
 for depots and buildings convenient and proper 
 for the storage and keeping of cars and locomo- 
 tives when not in use, and for the receipt, stor- 
 age, safe keeping and delivery of freight and 
 property, as well as such facilities as are usually 
 required in operating its road and the success- 
 ful prosecution of its business. When the ne- 
 cessity exists and a reasonable discretion is 
 exercised the courts will not interfere. — Ct. of 
 App., May, 1879. Matter of New York Central, 
 &c., E. E. Co., 77 N. Y. 248. 
 
 12. In determining the necessity, the pro- 
 spective needs of the coiporation within a rea- 
 sonable time may be taken into consideration. 
 lb. 
 
 13. When a case is brought within the legiti- 
 mate exercise of this power, the consideration 
 that such exercise will be attended with ex- 
 treme inconvenience and hardship to indivi- 
 duals is not entitled to any weight ; where a 
 clear right to the exercise of the power is shown 
 it is the duty of the courts to authorize it. lb. 
 
 14. The papers disclosed that the land 
 sought to be condemned was for the purpose of 
 obtaining additional and increased facilities for 
 the transaction of business connected with peti- 
 tioner's railroad. Held, that the fact that the land 
 lay at the end of the route of said road and that 
 the area of, territory for tracks and other pur- 
 poses would be greatly enlarged by its acquisi- 
 sion, did not establish that the proceeding was 
 for a change of terminus of the road within the 
 meaning of the act of 1876 (ch. 77), and so that 
 the consent of two-thirds of the cmnmon council 
 of the city, as required by said act, was not 
 requisite ; but that even if such consent was 
 ^sential, it was not required to be obtained in 
 advance of proceedings against the individual 
 ■owners. 76. 
 
 15. Lands may be acquired by a railroad 
 corporation to provide a place of deposit or 
 storage for freight after its arrival, and until it 
 is taken by the consignees. 26. 
 
 16. It appeared that petitioner had entered 
 into a contract with the New York Produce 
 Exchange, by which it was agreed that peti- 
 tioner might put together "in warehouses, boats 
 or other receptacles," provided for that purpose, 
 grain of the same kind and grade, without re- 
 gard to ownership; that^he company shall 
 issue to consignees guarj«Keed certificates for 
 
 such grain, and shall deliver, on presentation of 
 a ceitificate, grain to the amount and of the 
 grade called for by it at any customary place of 
 delivery in the port of Ne\r York. 
 
 Held, 1. That the arrangement did not con- 
 template anything unauthorized on the part of 
 a railroad company in conducting the business 
 of transferring grain, but simply facilitated that 
 business. 
 
 2. That it was no objection that one object of 
 the petitioner was to make freight connections 
 with lines of steamers and vessels ; that this 
 was a legitimate purpose for which lands might 
 be condemned. lb. 
 
 17. Proceedings to acqviire title: 
 The petition. In proceedings under the 
 general railroad act to acqnire lands, the pe- 
 tition must contain such a description of the 
 land sought to be condemned as wUl show its 
 location and the boundaries thereof. A defec- 
 tive description cannot be remedied by a refer- 
 ence in the petition to a deed. In such pro- 
 ceedings, extreme accuracy is essential to pre- 
 serve the rights of all the parties. — Ct. of App., 
 June, 1877. Matter of New York Central, &c., 
 E. E. Co., 70 N. Y. 191. 
 
 18. Appointment of commissioners. 
 In proceedings by petitioner under the general 
 railroad act (Laws of 1850, ch. 140, ? 21,1 as 
 amended in 1869 (Laws of 1869, ch. 237,) to 
 acquire " for tlie purpose of its incorporation " 
 tie titles of the individual owners of a tract of 
 land in the city of New York which is inter- 
 sected by streets and avenues, without the con- 
 trol of which the plans of the petitioner could 
 not be carried out, the order appointing com- 
 missioners provided that it should not afiect any 
 rights or interests of the city corporation in the 
 streets and avenues. Held, that said provision 
 did not conflict with the right to acquire the 
 lands of the individual owners in the first in- 
 stance, as it did not prevent a future acquisi- 
 tion of a right to use and control the streets for 
 the purposes of petitioner's road, and it was to 
 be assumed that such right would be acquired ; 
 that to guard against a failure in this respect if 
 might be made a condition of the final order; 
 that this should be done before the lands be- 
 came vested in the petitioner ; that there was 
 no rule requiring, under such circumstances, 
 that the acquisition of one interest should pre- 
 cede the other, or that proceedings should be 
 had to acquire each and all at the same time. 
 lb. / ^)U/.2^ 
 
 19. The provision of the act of 1876, (Laws 
 of 1876, ch. 198, I 2,) providing for the publi- 
 cation of notice of application Ipr the appoint- 
 ment of commissioners whenever land "re- 
 quired by a railroad company for the purposes 
 of its road " forms part of any street or avenue 
 "in which the owners of adjoining lands * * 
 
 * claim a right of property or the fee there- 
 of," applies only to a case where the fee of the 
 land itself is required by the company for its 
 roadway, and is sought to be acquired as au- 
 thorized by the act of 1854, (Laws of 1854, ch. 
 282, \ 4); it does not apply to proceedings by 
 such company to accjuire land "fo^he pur- 
 poses of its incorporation " under the act of 1850 
 (g 13, el seq.); it also applies only where the ad- 
 joining owners have the fee. lb. 
 
 20. Change of proposed route-notice. 
 The notice required by Laws of 1850, ch. 140, 
 J 22, as amended by Laws of 1871, ch. 560, to 
 
RMLEOAD COMPANIES, II. 
 
 371 
 
 be given on an applioation for a change of the 
 proposed route, must be-personally served. — Su- 
 preme Gt., {ith Depl.,) Jan., 1878. People, ex 
 xel. Niagara Bridge, &o., E. E. Co., v. Lockport, 
 Ac.,E.E. Co., 13Hun211. 
 
 21. Necessity of damages to land- 
 O'wrners. What facts are insuflGieient to show 
 a consent or license by a land-owner, that a rail- 
 road be constructed across liis land; so as to do 
 away with the necessity of compensation, see 
 Murdock v. Prospect Park, &c., E. E. Co., 73 
 N. Y. 579, 584 ; reversing 10 Hun 598. 
 
 22. Evidence on question of dam- 
 ages. When evidence that the passage of 
 h«avily-laden cars jars the walls of a building 
 adjoining the track, belonging to the former 
 owner of the land taken, and that his other 
 lands near by have depreciated in value in con- 
 sequence of the noise, smoke and danger caused 
 by the running of trains, is admissible on the 
 hearing, on question of damages for land taken, 
 «ee Matter of New York Central, &c., E. E. Co., 
 15 Hun 63. 
 
 23. The proper measure of damages. 
 it seems that in proceedings by a railroad cor- 
 poration to acquire a right to lay its tracks in a 
 street or highway, the fee of which is in the 
 owner of the adjoining land, the proper .com- 
 pensation is : First. The full value of the land 
 taken. Second. A fair and adequate compen- 
 sation for all the injury the owner has sus- 
 tained and will sustain by the making of the 
 railroad over his land ; and for this purpose it 
 is proper to ascertain and determine the effect 
 the conversion of the street into a railroad tracE 
 will have upon the residue of the owner's land. 
 — Ct. of App., Nov., 1879. Henderson v. New 
 York Central E. E. Co., 78 N. Y. 423 ; affirming 
 17 Hun 344. 
 
 24. In a proceeding instituted by a company 
 to acquire title to land already taken and used 
 as a highway, the commissioners to appraise 
 damages should regard the land as still forming 
 a part of the parcels to which it had belonged, 
 but subject to the easement of a highway, and 
 should award as damages the difference between 
 the market value of the whole property from 
 which the railroad was to be severed, before the 
 taking, and its value after the taking, with the 
 railroad upon the land taken. — Supreme Ct., 
 {2dDept.,) Feb., 1878. Matter of Prospect Park, 
 .Ac, E. E. Co., 13 Hun 345. 
 
 25. A railroad company applied to acquire 
 title to a strip of land forming part of an old 
 race course, which had not been used for many 
 years ; the strip, which contained about one and 
 one-sixth acres, cut the track into two nearly equal 
 parts. The evidence tended to show that the 
 whole piece of land was worth, as a public race- 
 -course, about $25,000 ; as a training track, about 
 $7000; and that, as agricultural land, the strip 
 rtaken was worth about |500. The commissioners 
 .awarded the owner $2500 for the strip. Held, that 
 <the award was moderate and just, and should be 
 affirmed. — Suprem,e Ct., {2d jDepf.,} May, 1880. 
 Matter of New York, &c., E. E. Co., 21 Hun 
 250. 
 
 "26. Review of commlssioner'sreport. 
 Xaws of 1850, ch. 140, § 18, makes the second 
 jepoit of commissioners, appointed to appraise 
 .the damages to be paid by a railroad company 
 .to the owners of the land to be taken by it, final 
 and conclusive, and on appeal therefrom only 
 Jegal errors or irregularities in the proceedings 
 
 can be considered. The judgment of the com- 
 missioners in respect to the amount of damages 
 to be allowed cannot be reviewed. — Supreme, Gt., 
 {2d Dept.,) Feb., 1880. Matter of Prospect 
 Park, &c., E. E. Co., 20 Hun 184. 
 
 27. Proceedings not to be impeached 
 collaterally. The proceedings under Law;s of 
 1850, ch.-140, for acquiring title to land needed 
 for railroad construction, cannot be attacked 
 collaterally, except for want of jurisdiction. So 
 held where an action was brought to recover the 
 land taken, on allegations of irregularity in the 
 proceedings, plaintiff having failed to object to 
 the irregularities complained of in the proceed- 
 ings to acquire title to the land. — Supreme Ct., 
 (3d Dept.^ Sept., 1878. Allen v. Utica, &c., 
 E. E. Co., 15 Hun 80. 
 
 2. Oanstrueting the road; and UabUityfor d^ective 
 constmelion. 
 
 28. A railroad construction contract 
 construed, and the rights of the parties thereto 
 determined, with reference to their respective 
 liabilities for the wages of laborers employ©! in 
 the construction of the road, under a provision 
 relative thereto inserted in the contract. — Ct. of 
 App., Oct., 1878. Senear v. Woods, 74 N. Y. 
 615. 
 
 29. Liability to laborers employed 
 by contractor. To render a railroad com- 
 pany liable to ' laborers employed by a con- 
 tractor to construct the road, it must appear 
 that at the time the notices of lien were filed by 
 the laborers, there was something due on the 
 contract from the company to the contractor. — 
 Supreme Ct., (ith Dept.^ Jan., 1878. Sampson v. 
 Buffalo, &c., Ey. Co., 13 Hun 280. 
 
 30. Liability for damages caused by 
 defective construction. Plaintiff's horse 
 was rendered valueless by catching his hoof in a 
 space between the rail of defendant's track and 
 a plank which defendant had laid alongside of 
 it to facilitate crossing by teams. The space be- 
 tween the plank and rail was greater than was 
 necessary for the free operation of defendant's 
 car-wheels. Seld, that plaintiff was entitled to 
 recover.— Supreme Ct, (2d Dept.,) Feb. 1880. 
 Cuddebaok v. Jewett, 20 Hun 187. 
 
 3. Fences, crossings, and catik-gvards. 
 
 31. Fences. Where a railroad company 
 has acquired title to land, and partially con- 
 structed its road, and subsequently the trustees 
 under a mortgage thereon take possession of, and 
 operate the road, such trustees are bound to 
 maintain fences and construct farm crossings, as 
 required by the statute. — Supreme Ct., (2d Dept.,) 
 Dec, 1878. Jones v. Seligman, 16 Hun 230. 
 
 32. A land-owner may su«»to compel a de- 
 linquent company to construct and maintain 
 fences, and is not confined to the action for dam- 
 ages prescribed by the statute. lb. 
 
 33. The provision of the general railroad 
 act, (J 44,) requiring companies to erect and 
 maintain fences along the line of their roads, is 
 applicable where their tracks are laid in the 
 streets of cities and villages, and they are liable 
 to the owner of cattle injured by their neglect 
 to fence the vacant lots fronting thereon. — Su- 
 preme Ct., (3d Dept.,) May, 1879. Crawford t;. 
 New York Centralj(_&c., E. E. Co., 18 Hun 108. 
 
 34. Crossings. Under the provision of 
 
372 
 
 EAILROAD COMPANIES, II. 
 
 the general railroad act, (Laws of 1850, ch. 140, 
 ? 24,) authorizing a railroad corporation) when- 
 ever it^ tracks shall cross a highway, to carry 
 the highway over or under its track, " as may 
 be found most expedient," the election as to the 
 mode of crossing is, as a general rule, with the 
 corporation, and when exercised in good faith is 
 not reviewable. — Cl. of App., Sept., 1878. Peo- 
 ple V. N. Y. Central, &c., R. E. Co., 74 N. Y. 
 302 ; modifying 12 Hun 195. 
 
 Whether, however, in case it would be im- 
 practicable to restore the highway to any rea- 
 sonable degree of usefulness by a particular 
 mode of crossing, that mode would not be per- 
 mitted, see lb. 
 
 35. The court has power to compel a rail- 
 road company to' excavate under the track and 
 to make a farm crossing under its road. Jones 
 V. Seligman, supra. 
 
 4. Proceedings by one road io acquire right to cross 
 another. 
 
 36. Construction of the statute- 
 right to institute proceedings. The act, 
 ( Laws of 1850, ch.l40, 1 28,) authorizes more than 
 one crossing by a railroad company of the track 
 of another road. — Ct. of App., Nov., 1879. Mat- 
 ter of Boston, &c., Ry. Co., 79 N. Y. 64. 
 
 37. The fact that the road of the petitioning 
 company, at some points, is parallel with the 
 road sought to be crossed, does not exclude said 
 company from the provisions of the act. lb. 
 
 38. Where the mode of crossing by one rail- 
 road of the tracks of another, and the compen- 
 sation to be paid, cannot be agreed upon, the 
 petitioning company are entitled to the appoint- 
 ment of commissioners to determine these ques- 
 tions.— Supreme Ct.,{Sp. T.,) Nov., 1879. Boston, 
 Ac, E. E Co. V. Troy, &c., R. E. Co., 58 How. 
 Pr. 167. 
 
 30. When there is a valid existing agree- 
 ment between the two companies respecting the 
 intersection of their tracks, which is enforceable 
 in equity, an application by either company 
 under the act of 1850, for leave to cross the 
 track of the other at the points provided for in 
 such agreement will be denied. — Supreme Ct., 
 {4th Dqit.,) Jan., 1879. Eome, &c., R. E. Co. 
 V. Ontario Southern E. E. Co.,'16 Hun 445. 
 
 40. Parties to the proceedings. 
 Where one railroad company has leased the 
 road of another, such lessee is a necessary party 
 to a proceeding under said provision by a third 
 company, to acquire the right to cross the leased 
 road ; it may voluntarily agree with the peti- 
 tioner in respect to the crossing, and such agree- 
 ment, while not binding upon the lessor, in 
 respect to its interests as reversioner, binds the 
 interests of the lessee.— Oi!. of App., Nov., 1879. 
 Matter of Boston,^c., Ey. Co., 79 N. Y. 69. 
 
 41. In such case it is not essential that the 
 proceedings shall embrace all the parties; it 
 will only affect the parties brought in, and 
 where the lessee is alone made a party, the 
 estate in reversion will not be affected. Where, 
 therefore, such proceedings were instituted nom- 
 inally against both lessor and lessee, but the pe- 
 tition contained no allegations of an attempt to 
 agree with the lessor as to the points or manner 
 of crossing or compensation, but did contain such 
 allegations as to the lessee. Held, that an order 
 granting the prayer of the petition was proper, 
 so far as it provided for the appointment of 
 
 commissioners, as against the lessee, but wa» 
 erroneous so far as it affected the lessor. lb. 
 
 42. The petition. In proceedings under 
 thii railroad act, by one railroad corporation to- 
 acquire the right " to cross, intersect, join and 
 unite" its railroad with that of another corpora- 
 tion, the petition should state that the petitioner 
 is a corporation; that the route of its road a» 
 laid down crosses the track of the other read ; 
 that it desires to cross or intersect such road, and 
 that " the two corporations cannot agree upon the 
 amount of compensation to be made therefor, 
 or the points and manner of such crossing and 
 intersection." It is not necessary to state the 
 matters required by said act (| 14), where the 
 proceeding is to acquire title to lands. The re- 
 ference in said provision to the provisions of 
 the act in respect to acquiring title is simply to- 
 regulate the mode of appointing commissioners. 
 —Ct. of Am)., Sept., 1879. Matter of Bufla.\ 
 &c., E. E. Co., 77 N. Y. 557 ; reversing 15 Hum 
 365. 
 
 43. An attempt to agree with the other com- 
 pany as to the points and manner of crossing, 
 and as to the amount of compensation, is a con- 
 dition precedent to the authority of the court to 
 appoint _ commissioners ; and unless this i& 
 averred in the petition, there is no jurisdiction.. 
 —Ct. of App., Nov., 1879. Matter of Boston, Ac.,. 
 Ry. Co., 79 N. Y. 69. 
 
 44. In such proceedings to cross, the petitiom 
 was verified by one styling himself the consult- 
 ing engineer of the petitioning company ; it did 
 not appear that he was an officer of said com- 
 pany ; the other company answered the petition 
 on the merits, and went to a hearing on th& 
 petition and answer ; it did not appear that any 
 objection was made as to the verification. Held,. 
 that it was too late to raise the objection on ap- 
 peal to this court ; that by omitting to raise it 
 below, it was waived. — Q. of App., Nov., 1879. 
 Matter of Boston, &c., Ey. Co., 79 N. Y. 64. 
 
 45. The proofs. The petition alleged th& 
 inability of the two companies to agree upon the 
 points and manner of crossing, and the compen- 
 sation to be made therefor ; this was not denied in 
 the answer, and there was no offer to disprove it. 
 Held, that proof thereof was not required to be- 
 given by the petitioner. lb. 
 
 46. In such proceedings proof is not required 
 on the part of the petitioner as to allegations of 
 the petition not put in issue. lb. 
 
 47. Where the answer denies the allegations 
 in the petition of a failure of the two corpora- 
 tions to agree, the burden is upon the petitioner 
 of proving the facts thus put in issue ; and with- 
 out such proof the prayer of the petition cannot 
 be granted. Matter of Buffalo, &c., E. E. Co., 
 supra. 
 
 48. Objections as to points of cross- 
 ing. The points of crossing are not necessarily 
 fixed by the notice of the location of the new 
 road, and the failure of the company, whose- 
 road is sought to be crossed, to object within fif- 
 teen days. The general provisions of the stat- 
 ute in regard to such location, and the right of 
 property-owners to object, are not appliciible. — 
 Gt. of App., Nov., 1879. Matter of Boston, &o.,. 
 Ey. Co.,Y9N. Y.64. 
 
 49. Objections to the proposed points of 
 crossing, on the ground that they interfere with; 
 lands of the old company, already appropriated 
 for stations, &o., are not proper to be raised on 
 application for the appointment of commis- 
 
EAILROAD COMPANIES, II., III., IV. 
 
 373 
 
 ■sioners; they are matters to be considered by 
 the commissioners. lb. 
 
 50. Powers and duties of the com- 
 missioners. The commissioners, in deter- 
 mining the points and manner of crossing, are 
 not to confine themselves solely to the question 
 -of the points at which, and the mechanical 
 means and appliances by which the crossing is 
 to be accomplished, bnt- should determine all 
 such particulars respecting the manner of cross- 
 ing as would ordinarily be provided for by the 
 ■contract between the companies, if they had 
 heen able to agree ; and not only such as pertain 
 to the interests of the companies, but also such 
 as relate to the public safety, e. g., whether one 
 or the other train should come to a full stop be- 
 fore entering on the crossing ; whether a flagman 
 should be employed, &c. — Supreme Gt., {ilh 
 Bent.,) Oct., 1879. Matter of Lockport, &c., 
 B. K. Co., 19 Hun 38. 
 
 51. In determining the amount of 
 compensation to be awarded to the company 
 •whose track is crossed, the commissioners should 
 not confine themselves to the value of the real 
 estate actually taken and the damage occasioned 
 by cutting the rails, but should allow all actual 
 and direct damages occasioned by the taking of 
 the land for the purposes of, and resulting from 
 its being used in the manner intended by the 
 petitioner. Jb. 
 
 III. Eights, Powers and Duties op Ofpi- 
 CEKS, Agents, and Servants. 
 
 52. Amenability to mandamus. 
 While the directors of a railroad corporation, 
 ■cieateA by the laws of this state, are not public 
 ■officers, or a public body or board, within the 
 meaning of the statute relative to punishment 
 ibr disobedience by such officers of a peremptory 
 mandamwi, (2 Kev. Stat. 587, ? 60,) yet they are 
 officers of a corporation, which may be com- 
 pelled by mandamus to perform specific acts 
 enjoined by law for the benefit of the public. — 
 Ct. of App., March. \?iTi. People, ex rel. Gar- 
 butt, «, Kochester, &c.. By. Co., 76 N. Y. 294 ; 
 ■<iffirming 14 Hun 371. 
 
 53. Compensation of directors for 
 personal services. Under what circum- 
 stances a director of a railway company is en- 
 titled to compensation for his personal services 
 beyond the ordinary range of his official duties, 
 see Bailey v. Buflialo Cross-town Ey. Co., 14 
 Hun 483. 
 
 IV. Powers, Duties, and Liabilities in re- 
 spect TO the Management of the Eoad. 
 
 1. Under the contract to carry. 
 
 (a) Carriage of merchandise. 
 
 54. Duty of company as to perisha- 
 ble freight. A railroad corporation, on re- 
 ceiving perishable property for transportation 
 and payment of freight, is bound to forward it 
 immediately to its destination ; if it has not the 
 means of transportation it is its duty to refuse to 
 receive the property. (Laws of 1850, ch. 140, ? 
 -36.) In the absence of a legal excuse, therefore, 
 it is answerable for any delay beyond the time 
 ■ordinarily required for transportation over its 
 Toad. — Ct. ofApp., March, 1879. Tiemey v. New 
 
 York Central, &c., E. E. Co., 76 N. Y. 305 ; af- 
 firming 10 Hun 569. 
 
 55. Liability for damages caused by 
 delay. Plaintiif on January 6th, 1873, deliv- 
 ered to, and loaded upon one of defendant's cars, 
 at Albany, a car-load of cabbages for transpor- 
 tation to New York, and paid freight thereon. 
 On the car was placed a placard, signed by 
 defendant's general freight agent, containing the 
 following : " Perishable property ; this car must 
 ran to New York by first train." A way-bill 
 was delivered to plaintifl', showing shipment 
 from Albany January 7th. The car left Albany 
 and arrived at East Albany at 10.40 P. M. of 
 that day. At 10.50 a freight train started thence 
 for New York ; this car remained until 3.20 P. 
 M. of January 9th, when it proceeded to New 
 York. On arrival the cabbages were found to 
 be frozen. The usual time required for a freight 
 train to go from Albany to New York is from 
 ten to eleven hours. In an action to recover for 
 the loss, it appeared that if the cabbages had 
 been delivered in the ordinary course of busi- 
 ness, they would not have been frozen. De- 
 fendant's evidence tended to show that the car, 
 on its arrival at East Albany, was switched on to 
 a side track and blocked up by cars subsequently 
 arriving, so that it could not be moved until they 
 were sent forward. It did not appear that any 
 sudden emergency arose, interfering with the 
 ordinary use of the road, or that the amount of 
 freight was unusual, or exceeded the capacity of 
 defendant to remove it, or that the freight sent 
 forward after the car arrived was made up of 
 freight received before. Hdd, that the facts 
 justified a verdict for plaintifil lb. 
 
 56. The court charged, in substance, that it 
 was the duty of defendant to transport the cab- 
 bages by the first train, unless a reasonable and 
 proper excuse for the delay was shown ; unless 
 there was such a pressure of property of a simi- 
 lar kind which arrived before as to make it im- 
 possible ; that if there was a pressure of freight 
 this car should have been forwarded before for- 
 warding ordinary non-perishable property. — 
 Hdd, no error. 1 b. 
 
 See, also, as to liability for delay, Livingston 
 V. New York Central, &c., E. E. Co., 76 N. Y. 
 631. 
 
 57. — for damage to goods while in 
 company's custody. In an action against 
 a railroad company to recover for property al- 
 leged to have been delivered to defendant for 
 transportation, and to have been lost by defend- 
 ant's negligence, plaintiff's evidence was to the 
 effect that the goods lost were properly packed 
 in one of eighteen boxes, which were delivered 
 to a cartman to take to defendant's depot, and 
 that one of the parties interested in them, who 
 was dead at the time of trial, was with the 
 cartman when the boxes were delivered to de- 
 fendant. The boxes reached their destination 
 and were delivered to the consignees. The cart- 
 man who received them testified that the pack- 
 ages were in good condition as far as he knew, 
 and there was nothing broken open or in bad 
 order. Some two or three days after the deliv- 
 ery, on opening the box and discovering the loss, 
 the box was then first examined particularly, 
 and the discovery was made that it had been 
 opened and the nails re-driven. No evidence , 
 was given as to the care taken of the boxes from ' 
 the time of delivery to that of the dbcovery of 
 the loss. Held, that the evidence was sufficient 
 
374 
 
 RAILROAD COMPANIES, IV. 
 
 to authorize the submission to the jury of the 
 question as to the delivery of the lost goods to 
 defendant; but that there was no legal proof 
 upon which a finding could be based that the 
 goods were abstracted while the packages were 
 in defendant's possession ; and that a denial of 
 a motion to dismiss the complaint was error. — 
 Ot. of App., Nov., 1878. Canfleld v. Baltimore, 
 &c., E. R. Co., 75 N. Y. 144; reversing 43 Su- 
 perior 562. 
 
 (6) Carriage of passengers, and their baggage. 
 
 58. The duty- of protecting the train 
 from trespassers, and of removing them from 
 It, seems to be incident to, and within the scope 
 of such powers as belong to the person in charge 
 of It, I. e., the condactoT.—Simei-ior Ct., A-pril, 
 1878. Hoffman v. New York Central, &c., R R 
 Co., 44 Superior 1. 
 
 59. Liability for ejecting passenger 
 from oar. Where a railroad corporation runs 
 and operates two roads between two points 
 on Its through route— one a part of the through 
 route, the other a longer, more circuitous route, 
 used simply for trains passing between the two 
 points— a passenger purchasing a through ticket 
 IS only entitled to travel over the usual through 
 and most direct route; the company is not 
 bound to carry him over the circuituous route. 
 Where, therefore, the passenger leaves the 
 through train and takes one passing over the 
 way route, upon his refusal to pay the additional 
 compensation charged, the company has a right 
 to eject him from the train. — Ct. of App., May, 
 1877. Bennett v. New York Central, &o., R. R. 
 Co., 69 N. Y. 594. 
 
 60. A regulation by a railroad corporation 
 setting apart, in the first instance, one car of a 
 train for females traveling alone, or with male 
 relatives or friends, is a proper and reasonable 
 one ; and the corporation has the right tt) en- 
 force such a regulation, even to the extent of 
 forcibly removing from the car so set apart a 
 male who enters it having no female under his 
 care. — Ct. of App., Oct., 1877, Peck v. New 
 York Central, &c., R. R. Co , 70 N. Y. 587. 
 
 61. For an excess of force, however, upon the 
 part of its employees, beyond what is needful to 
 effect the result, the corporation is liabie. lb. 
 
 62. Where, therefore, a railroad corporation 
 had made such a regulation, hung out placards 
 giving notice thereof, and placed a brakeman at 
 the door of a car so set apart, with oral authority 
 to direct to another car any male attempting to 
 enter unaccompanied by a female. Hdd, that it 
 was within the scope of his employment to en- 
 force obedience to the rule ; and where, in forci- 
 bly removing plaintiff, who disobeyed the brake- 
 man's directions and entered the car, the latter 
 used excessive and unnecessary force, without 
 malice toward the person removed, and with no 
 purpose of his own, that the corporation was 
 liable. lb.; affirming 8 Hun 286. 
 
 63. Instances. Plaintiffpurchased an ex- 
 cursion ticket between two points on defendant's 
 road. A regulation of the road provided that 
 stop-over checks should not be given on excur- 
 sion tickets. Plaintiff rode one way on his 
 ticket, and, on returning, got off at a way station, 
 remained over night, and took another train the 
 next morning, from which he was ejected by the 
 conductor without unnecessary violence. Held, 
 that plaintiff was not entitled to recover. — Sur 
 
 freme Ct., (2d Dept.,) Feb., 1878. Terry v. 
 lushing, &c.; R. R. Co., 13 Hun 359. 
 64. Plaintiff took passage on one of defend- 
 ant's trains ; finding no vacant seat in the or- 
 dinary car, he went into a drawing-room car, 
 and when called upon by the porter to pay the- 
 extra charge for a seat in that car, refused to- 
 pay, for the reason that he could find no seat 
 elsewhere, but expressed a willingness to leave- 
 when he could get a seat in the other cars ; thfr 
 porter thereupon attempted to eject him, The 
 drawing-room cars were owned by one W., and 
 the porter was in his employ. The cars were 
 run under a contract between defendant and W., 
 by which the latter agreed to place the cars on 
 the road at his own cost, and to pay the em- 
 ployees, who were to have charge, free of inter- 
 ference from the conductor of the train, he being 
 entitled, however, to enter the cars for the col- 
 lection of fares, etc. It was made the duty of 
 the conductors and porters of said care to assist 
 the train conductor in enforcing order. It did 
 not appear that' there was any regulation known 
 to plaintiff prohibiting a passenger not intend- 
 ing to ride in a drawing-room car from entering: 
 it under such circumstances. In an action to- 
 recover damages for the assault— JSTeZd, that the- 
 porter was to be regarded, in respect to hi& 
 dealings with passengers, as defendant's servant, 
 and it was responsible for his acts to the same- 
 extent as if he was directly employed by it; 
 and that the facts justified a verdict for plaintiff. 
 — a. of App., March, 1879. Thorpe v. New 
 York Central, &c., R.R. Co., 76 N. Y. 402; af- 
 firming 13 Hun 70. 
 
 65. It appeared' that one or more of the seats 
 in the ordinary cars were occupied by passen- 
 gers' luggage. A number of passengers were 
 standing up in the passage-ways, and it did not 
 appear that the seats so occupied by luggage- 
 would have been sufficient for the standing pas- 
 sengers. Held, that it was not the duty of 
 plaintiff, under the circumstances, to have asked 
 the train conductor for a seat before passing into- 
 the drawing-room car. lb. 
 
 66. Liability for property forcibly- 
 taken from passenger^ Plaintiff was » 
 passenger on one of defendant's trains going to 
 New York. On arrival at Forty-second street,. 
 the cars were disconnected and drawn down by 
 horses. The car in which plaintiff was, was left 
 standing alone, without any employee of the road 
 upon it. Plaintiff stepped to the door of the 
 car, where several persons, not passengers^ 
 attacked and robbed him of a package of bond» 
 of the value of $16,000, which he had upon his- 
 person. In an action to recover such value — 
 Sdd, that the bonds were not a part of the prop- 
 erty which plaintiff could, in his ordinary rela- 
 tion as passenger, bear about his person at de- 
 fendant's risk ; and, in the absence of notice to 
 it, or knowledge on its part, that he was carry- 
 ing them, the loss of the bonds could not be 
 taken into consideration in fixing the damages- 
 with which defendant was chargeable for ai 
 breach of its duty to protect plaintiff irom vio- 
 lence.— Ci. of App., Jan., 1878, Weeks v. New 
 York, New Haven, &c,, E, R, Co., 72 N. Y. 
 50 ; affirming 9 Hun 669. 
 
 67. As to whether, where a person is robbed 
 of articles of clothing, or usual and reasonable- 
 articleS'of personal adornment, under circum- 
 stances charging the carrier with a neglect to 
 perform his duty of protecting the passenger 
 
RAILROAD COMPANIES, IV. 
 
 375 
 
 from violence, the earner is liable for the loss, 
 qwKre. 1 bi 
 
 68. The complaint alleged that three men 
 entered the car, and, with violence and great 
 force, aBsaulted plaintiff and robbed him of the 
 bonds. No injury to the person was alleged. Judg- 
 ment was asked for the amount of the bonds, 
 with interest. The inquiry upon the trial was 
 confined to the loss of the bonds ; and the court, 
 in its charge, only presented that question, di- 
 recting the jury, in case they found for plaintifij 
 to find " the value of the bonds and interest," as 
 stipulated between counsel. No suggestion or 
 request was made on the part of plaintiff that 
 the question of bodily harm should be submitted. 
 Defendant's counsel moved to dismiss the com- 
 plaint, on the ground that " the injury and griev- 
 ance is too remote to charge the defendant with 
 damages," and that, " under the circumstances 
 of the case, plaintiff has no legal ground for a 
 recovery." Hdd, that the motion sufficiently 
 presented the question that there was no evi- 
 dence upon which the court should submit to 
 the jury whether plaintiff was entitled to recover 
 for the bonds ; that this was the oniy question for 
 the jury, and that the motion should have been 
 granted. lb. 
 
 69. Liability of the company in re- 
 Bpect to baggage. In an action to recover 
 for the loss of baggage delivered to defendant a 
 railroad company, at Scranton, Pa , to be trans- 
 ported to and delivered in New York city — 
 Seld, that the contract was not controlled by a 
 statute of Pennsylvania limiting and defining 
 the liability of railroad corporations for baggage ; 
 but that the riglits of the parties were to be de- 
 termined by the laws of this state, where the de- 
 livery was to be made. — Ct. of App., June, 1878. 
 Curtis V. Delaware, &c., K. E. Co., 74 N. Y. 116. 
 
 "70. The baggage in question consisted of ar- 
 ticles which had been in use by plaintiff, his 
 wife and child. Plaintiff was not a passenger 
 by the train which took the baggage, having 
 taken another train. His wife and child, how- 
 ever, were on the train. Held, that it was not 
 necessary to a recovery that plaintiff should 
 have been upon the train ; that he was suffi- 
 ciently represented by his wife. lb. 
 
 "71. The articles "lost had most of them been 
 purchased by plaintiff as necessaries for himself, 
 his wife and child. Held, that he was entitled 
 to recover for them ; and that it was not neces- 
 sary to a recovery to show gross negligence. 
 lb. 
 
 72. The baggage arrived safely in New 
 York, and was there lost through defendant's 
 negligence. Held, that, without regard to the 
 question of defendant's liability as common car- 
 rier, it incurred the responsibility of a ware- 
 houseman, and was liable for negligence. lb. 
 
 73. Plaintiff bought a ticket of the G. T. E. 
 Co., at Montreal, from that city by railroad to 
 Troy or Albany, thence by steamboat on the 
 Hudson river to New York. His baggage was 
 checked to go by the same route, but the rail- 
 road agent at Troy delivered it to defendant, 
 who received and transported it over its rOad to 
 New York. It was placed in its baggage-room. 
 Three days thereafter, and as soon as plaintiff 
 had reason to believe that his baggage had been 
 carried by defendant, he demanded it ; a port- 
 manteau could not be found. In an action to 
 recover for the loss — Held, that the delivery of 
 the baggage to defendant was the wrongful act 
 
 of the railroad agent at Troy, who was not 
 plaintiff's agent in any sense that would enable 
 him to bind plaintiff by his acts ; that defendant 
 at least incurred the liability of a warehouse- 
 man, and was bound to exercise ordinary care, 
 to account for the baggage in some way when 
 demand was made, and to show that it had dis- 
 appeared without its fault. — Ct. of App., March, 
 1878. Fairfax v. New York Central, &c., K. E. 
 Co., 73 N. Y. 167 ; affirming 43 Superior 18. _ 
 
 "74. In the portmanteau were thirty-nine 
 English sovereigns. The court charged the 
 jury, if they found for plaintiff, that they should 
 allow the value of the sovereigns;^ if they found 
 they were a proper and reasonable amount for 
 plaintiff to carry with him for his journey ; and 
 that, in deciding this question, they should take 
 into consideration his circumstances, the length 
 and character of his journey, and the fact that 
 he was in a foreign country. To which charge 
 defendant's counsel duly excepted. Held, that 
 the charge was at least as favorable to defendant 
 as the law required; that defendant, having 
 taken the portmanteau without plaintiff's knowl- 
 edge or assent, was bound to care for it and iis 
 contents, no matter what they were. lb. 171. 
 
 75. In the portmanteau were articles of 
 clothing made for plaintiff and partly worn. 
 The court charged that plaintiff was entitled to 
 recover the full value, for use to him, of the 
 clothing, and not merely what it could be sold 
 for in money. Held, no error. lb. 172. 
 
 76. In an action to recover damages for loss 
 of baggage, plaintiff's evidence was to the effect 
 that she, with her sister, were passengers on de- 
 fendant's road. Upon arrival at her place of 
 destination the checks for their baggage were de- 
 livered to the baggage-master for the purpose of 
 getting a valise. They informed him that they 
 desired to leave their trunks there for a week or 
 two ; this he advised them they could do, "by 
 giving him the checks," and he assured them that 
 the trunks would be "just as safe without the 
 cheeky as with them.!' The checks were there- 
 upon left with him, and when plaintiff called 
 for her trunk it could not be found ; it having 
 been delivered by the baggage-master to a 
 stranger. The baggage-master was prohibited 
 by defendant from thus keeping baggage. Held, 
 that it was a question for the jury whether there 
 was a delivery of the trunk by the defendant 
 to the plaintift| and a termination of its respon- 
 sibility. — &. of App., March, 1879. Matteson v. 
 New York Central, &c., E.E. Co., 76 N. Y. 381. 
 
 2. Liability for injuries caused by negligence. 
 (a) In general. 
 
 77. Liability for flres occasioned by 
 sparks, <Sko. In an action for damages for 
 ihe burning of woodland, by a fire started by 
 sparks and coals negligently allowed by a rail- 
 road company to escape from its locomotives, 
 plaintiff is not bound to prove which one of de- 
 fendant's locomotives set the fire. — Supreme Ct., 
 (ith Dept.,) Jan., 1878. Bevier v. Delaware and 
 Hudson Canal Co., 13 Hun 254. 
 
 78. Where he is unable to identify the loco- 
 motive by name, number or otherwise) if he 
 prove either by the manner in which it was 
 operated, or by the extent to which it scattered 
 fire, that it was so far out of repair as to charge 
 the company with negligence, it is sufficient, fb. 
 
 70. Defendant's counsel requested the court 
 
376 
 
 RAILROAD COMPANIES, ly. 
 
 to charge that defendants were not bound to use 
 any other appliances than such as are known in 
 practical use. The court so charged, adding: 
 that is, the known and recognized ipeans for 
 preventing the escape of sparks from a locomo- 
 tive, and such as are best adapted fo that pur- 
 pose." Held, a proper qualiiication of the re- 
 quest to charge. lb. 
 
 80. The court charged that plaintiff was not 
 bound to use extraordinary means to exting>iii-h 
 or prevent the spread of fire. Held, proper, lb. 
 
 81. Defendant's counsel requested the court 
 to charge that, if plaintiff allowed dry limbs, 
 brush, grass and other combustible matter to lie 
 and accumulate on his premises adjacent to the 
 railroad, and if such accumulation contributed 
 to produce the fire, he was not entitled to 
 recover. Held, properly refused ; that, whether 
 or not plaintiff had been guilty of negligence 
 contributing to the injury, was a question for 
 the jury. Tb. 
 
 82. Liability for killing stock on 
 track. A railroad company which has failed 
 to construct and maintain suitable and suflScient 
 cattle-guards near the outer line of the highway, 
 is not relieved from liability for a cow killed 
 by a train, by the fact it was running at large 
 and strayed upon the track at the highway 
 CToasing.— Supreme a., (4th Dept.,) Oct., 1878. 
 White V. Utica, &c., E. E. Co., 1-5 Hun 333. 
 
 83. Upon the trial of such an action a wit- 
 ness for plaintiff was allowed to slate, against 
 defendant's objection, that the train was running 
 at the rate of fifteen miles an hour. Defend- 
 ant's counsel asked the court to charge " that, in 
 view of the facts of the case, the rate of speed 
 had nothing to do with this case. " HM, error 
 to refuse so to cliarge. lb. 
 
 84. Voluntarily turning cows into the high- 
 way, by the owner's servant, and permitting 
 them to go on to a railroad track, without any 
 person to take care of them, is such negligence 
 on the part of the servant, as will prevent the 
 owner from recovering for injuries to the cows 
 by a passing train. It brings him within the 
 principle volunii non fit injuria. — Supreme Ct., 
 {4tth Dept.,) April, 1878. Fitch v. Buffalo, &c., 
 E. E. Co., 13 Hun 668. 
 
 (i) Injuries to passengers. 
 
 85. Oare required from the company, 
 generally. That the fact that a railroad com- 
 pany has complied with the requirements of the 
 statute in the running and management of its 
 trains does not necessarily, in all cases, relieve 
 it from liability for negligence; and that the 
 care necessary to be observed is not in all cases 
 confined to the statutoiy requirements, but de- 
 pends upon circumstances, see Cl. of App., June, 
 1877. Cordell v. New York Central, &c., E. E. 
 Co., 70 N. Y. 119. 
 
 80. In an action for an injury to a passenger, 
 the court charged the jury that "the company 
 does not contract to insure the safety of ils pas- 
 sengers, but contracts to use the utmost diligence 
 and care in protecting them from injury." Held, 
 no error ; that the last clause was limited by the 
 first, and the charge was simply tliat defendant 
 was bound to use great care and diligence. — Ot. 
 of App., Bee., 1877. Taber v. Delaware, &c., E. 
 E. Co , 71 N. Y. 489, 494. 
 
 87 — as to safety of platforms at 
 stations. It is the duty of a railroad corpora- 
 
 tion to remove snow and ice from a platform 
 over which it is necessary for passengeiB to pass 
 in order to reach its cars ; or to take precautions 
 by covering it with ashes or other substance, to 
 protect passengers passing over it from danger 
 to which otherwise they would be exposed 
 Ihis duty IS not performed simply by appoint- 
 ing servants, whose duty it is to keep the plat- 
 form in a safe condition ; nor is it any excuse that 
 they neglected their duty. A passenger has a 
 right to assume that the corporation has per- 
 formed its duty, and that the platform is safe 
 His going upon it in order to reach the cars is 
 not, therefore, of itself, contributory negligence 
 —a of App., March, 1878. Weston v. Kew 
 York Elevated E. E. Co., 73 N. Y. 595. And 
 see, also, Hoffman v. New York Central, Ac, 
 E. E. Co., 13 Hun 589 ; a^naed 75 N. Y. 605. 
 88 — as to stopping train at station. 
 The running of a railroad train beyond the 
 usual stopping place at a station before coming 
 to a stand-still, is not negligence pei- se/ nor is 
 the delay after it is brought to astop for a period 
 necessary to reverse the motion so as to back it to 
 the usual stopping-place.— a. of App., Deo., 1877. 
 to Taber v. Delaware, &c., E. E. Co., 71 N. Y. 489. 
 89. Plaintiff was a passenger on defendant's 
 road ; she had a ticket for W. ; she was not 
 familiar with that station, hut knew it was the 
 - next station to C. F., and about three-fourths of 
 a mile therefrom. The night was dark, there 
 was no depot at W. or station light, or anything 
 to indicate the stopping-place to a person not 
 familiar with it. She knew when the train 
 passed C. F., and as her evidence tended to 
 show, after the proper interval to run the 
 distance to W. the train came to a full stop ; it 
 had, in fact, run by the station. Before reaching 
 it the brakeman announced the station, several 
 passengers arose to leave, plaintiff then rose 
 from her seat near the centre of the car, walked 
 out upon the platform, took hold of the rail, 
 stepped down one step and was in the act of step- 
 ping to the second, when the train with a violent 
 jerk started back, throwing her down and oil', 
 and she was injured. In an action to recover 
 damages — Held, that it was a question for the 
 jury whether, in the exercise of reasonable care 
 and prudence, defendant should not have given 
 notice, to passengers desiring to alight at the 
 station, that the train had not come to a final 
 stop but would back up ; and that the plaintiff 
 was justified, under the circumstances, in sup- 
 posing she had reached her destination and in 
 attempting to leave the car ; at least that the 
 question of contributory negligence on her part 
 was proper for the jury. 26. 
 
 90. —as to width and safety of 
 bridges. Plaintiff was a passenger in one of 
 defendant's cars ; he was seated near an open 
 window, with his elbow on the window-sill; 
 while passing over a bridge his elbow was struck 
 by some substance, and his arm broken. In an 
 action to recover damages for the injury, the 
 grounds upon which negligence was claimed to 
 be imputable to the defendant were, that the 
 bridge, which was a truss bridge of wood, with 
 the truss-work sheathed on the inside with 
 boards, was too narrow for the safe passage of 
 the car, and that it was out of repair, some of 
 , the boards lining the truss-work being warped 
 and loose. These positions were controverted 
 by defendant. It appeared that some months 
 alter the accident the bridge was removed and 
 
RAILROAD COMPANIES, IV. 
 
 377 
 
 replaced by an iron bridge, the trusses of which 
 did not come up as high as the window-sills of 
 the cars, and the change of material left more 
 space between the sides of the new bridge and 
 the track. The court charged the jury that they 
 might " take that fact into consideration in de- 
 termining whether the defendants were not 
 guilty of negligence in allowing the old bridge 
 to remain." Held, error. — C*. of App , May, 
 1878. Dale v. Delaware, &c., R. K. Co., 73 N. 
 Y. 468. 
 
 91. Company's ueglig'euce must be 
 proximate cause of accident. In an ac- 
 tion for injuries occasioned by the negligence 
 of a railroad company, the fact that the compa- 
 ny's negligence was the proximate cause of the 
 accident must be shown. — Supreme Ct., (2d Dept.,) 
 July, 1879. Barringer v. New York Central, 
 -&C., R. R. Co., 18 Hun 398. 
 
 92. Contributory nei^ligence on part 
 of person injured. The station was on the 
 north side of the track, and passengers generally 
 got off on that side. There was a ditch along 
 the south side of the track, and very close to it. 
 Plaintiff, who lived in the village, and was well 
 acquainted with the situation of the depot, at- 
 tempted to get off the train on the south side, at 
 a, point where the track was crossed at right an- 
 gles by a highway. The train had stopped or 
 was running very slowly. The conductor was 
 on the north side of the train, and not seeing 
 plaintif!^ signalled the engineer to go on, and 
 plaintiff was thrown off and injured. There 
 was evidence that when the cars stopped on the 
 highway it was not unusual for passengers to 
 alight on the south side, which was nearest to 
 the viljage. Seld, whether the attempt to 
 alight on the south side of the train did or did 
 not constitute contributory negligence, should 
 have been submitted to the jury. — Supreme CM., 
 <4(A Bept.,) April, 1878. Plopper v. New York 
 €ei)itral, &c., R. R. Co., 13 Hun 625. 
 
 (c) Injuries to persons crossing the track. 
 
 93. Duty of the company relative.to 
 <;ros8ings. It is the duty pf a railroad corpo- 
 ration, both under the statute (Laws of 1850, ch. 
 140,) and upon common law principles, to keep 
 its road at a crossing in safe condition, so that a 
 traveler npon the highway exercising ordinary 
 ■care can pass over the same in safety. — Cft. of 
 App., Jan., 1879. Gale v. New York Central, 
 <Sic., R. R. Co., 76 N. Y. b^i; 'affirming 13 
 Hun 1. 
 
 94. As to the extent of the company's lia^ 
 bility to a trespasser on its track, see McKenna 
 V. New York Central, &c., R. R. Co., 8 Daly 
 •304. 
 
 95. wnat amounts to negligence on 
 part, of the company. Plaintiff's intes- 
 tate, while crossing defendant's tracks, at their 
 Intersection with a city street, on a dark night, 
 was struck by an engine moving backwards, and 
 killed. The court, after charging that it was 
 for the jury to say whether it was the duty of 
 the company, under the circumstances, to have 
 a light upon the engine, and, as it was moving 
 backwards, npon the rear of it, and if so, what 
 kind of a light was required, said, " the com- 
 pany was bound to have so much light, and so 
 located, that . a person reasonably diligent, and 
 of natural powers of observation, might have 
 been able to discover it." 'Held, correct. — Sw- 
 jprfime Ct., (4<A Dept.,) Jan., 1879. Chenev v. 
 
 New York Central, &c., R. R. Co., 16 Hun 
 415. 
 
 96. The court also charged that it was the 
 duty of the engineer " to keep a look-out to see 
 whether he is running down foot-passengers 
 who are crossing the railroad track upon the 
 highways of the city." Held, correct. lb. 
 
 97. An engineer was backing his engine 
 across a city street, at the rate of two miles an 
 hour. Plaintiff, a boy under four years of age, 
 ran towards the engine, then turned and ran 
 alongside of and beyond it, and then turned 
 across the track in front of it, when he was 
 struck by it and injured. Held, that no negli- 
 gence on the part of defendant was shown. — 
 Supreme Ct., (3d Dept.,) Nov., 1878. Schwier v. 
 New York Central, &c., R. R. Co., 15 Hun 572. 
 
 98. Effect of obstructing view _ of 
 track. A railroad corporation has the right 
 to use] its own land for any legitimate purpose 
 in the prosecution .of its business ; such a use is 
 not unlawful or negligent, although it may ob- 
 struct the vision of those crossing its tracks. — 
 Q,. of App., June, 1877. Cordell v. New York 
 Central, &c., R. R. Co., 70 N. Y. 119. 
 
 99. The existence of obstructions preventing 
 a view of an approaching train may have a ma- 
 terial bearing, in an action against a railroad 
 company for negligence resulting in injury to 
 one crossing its track, upon the question of con- 
 tributory negligence, and also upon the question 
 of the degree of care and vigilance which the 
 defendant was bound to exercise in the running 
 and management of its trains, and in giving 
 warning of its approach, but it cannot be an 
 independent ground of recovery. lb. 
 
 100. Where a railroad company has placed 
 obstructions to the view upon its lands near a 
 farm crossing, known to be used to some extent 
 by the public, and where the place is such that 
 one lawfully using the crossing cannot see, or 
 with ordinary care otherwise discover the ap- 
 proach of a train, the company is required to 
 exercise such care as will be likely to warn of 
 its approach, or to so manage its trains as that 
 it will not be likely to injure one so using the 
 crossing. lb. 
 
 101. Duty to give signal on ap- 
 proaching crossing. It is the duty of rail- 
 road corporations to warn persons who may be 
 traveling on a highway which crosses its road, 
 by some proper signals of the approach of trains, 
 and to give such warning in time so that the 
 traveler may avoid the danger. — d. of App., 
 Nov., 1877. Dyer v. Erie Railway Co., 71 N. 
 Y.228. 
 
 102. It is not enough in all cases that the 
 statutory signals have been given, to absolve the 
 corporation from a charge of negligence ; other 
 precautions may be required under some cir- 
 cumstances, lb 230. 
 
 103. It is not, however, for a jury to deter- 
 mine what signals should have been given in a 
 particular case, and a general submission of that 
 question to them without qualification or limit- 
 ation is error. lb. 231. 
 
 104. The provision of the railroad act of 
 1854 (Laws of 1854, ch. 282, ? 7,) requiring cer- 
 tain signals to be given upon railroad trains ap- 
 proaching highway crossings, was intended not 
 only to protect persons lawfully using a high- 
 way from danger of collision at crossings, but 
 also from danger arising from the fright- of 
 horses by passing trains. — Ct. of App., Nov., 
 
378 
 
 RAILROAD COMPANIES, IV. 
 
 1878. Voak v. Northern Central Ey. Co., 75 
 N. Y. 320. 
 
 105. That the neglect of the railroad com- 
 pany to ring the bell, as required by law, 
 on approaching a crossing, will not render it 
 liable for an injury to persons attempting to 
 cross the track, where it can be plainly seen 
 that the neglect to ring the bell did not contri- 
 bute to or cause the accident, see Cosgrove v. 
 New York Central, &c , E. E. Co., 13 Hun 329. 
 
 106. Instances. Plaintiff was riding in a 
 buggy upon a highway crossed by defendant's 
 track,_she herself driving. She was accustomed 
 to drive and had a steady horse. She ap- 
 proached tlie track with great caution, looking 
 and listening for a train ; a train approached 
 the crossing without giving the statutory warn- 
 ings; in consequence of obstructions plaintiff 
 did not see its approach until she was within 
 three rods of the crossing ; she could not turn 
 around, her horse became frightened and res- 
 tive, she backed it about three rods, and at a 
 loud blast of the whistle given at the crossing it 
 turned around, and she was thrown from the 
 buggy and injured. Held, that the jury were 
 authorized to find that if the warning had been 
 given, she could and would have stopped in time 
 to escape danger, and that because it was not 
 given she was lured on, without any fault on 
 her part, to a place of danger; and that these 
 facts authorized a verdict in her favor. Voak 
 V. Northern Central Ey. Co., supra. 
 
 107. In an action against a railroad com- 
 pany to recover for injuries received at a cross- 
 ing, the statement of a witness, who was at work 
 at a distance of twenty-five rods from the cross- 
 ing, that he did not hear the bell ring on the 
 engine — Held, inadmissible. — Supreme Ot., {ilh 
 Dept.,) June, 1878. Chapman v. New York 
 Central, &c., E. E. Co., 14 Him 484. 
 
 108. Effect of negligence of flagman. 
 Where a flagman has been unifoimly stationed 
 by a railroad corporation at a street crossing, 
 the negligence of the flagman to give warning 
 and properly to discharge his duty, or in ab- 
 senting, himself from his post, is imputable to 
 the corporation. — Ct. ofApp., Nov., 1877. Dolan 
 V. Delaware and Hudson Canal Co., 71 N. Y. 
 285. ■ ^ 
 
 109. In an action to recover damages result- 
 ing from a collision at a crossing, plaintiff's 
 evidence tended to show that he and others, 
 who were riding upon a truck with him, looked 
 and listened for the usual signals and evidences 
 of danger as they approached the crossing, but 
 neither saw nor heard any ; that obstructions by 
 buildings and cars standing on tracks before 
 reaching the one on which the colliding train 
 was approaching prevented plaintiff from see- 
 ing it, and that other noises prevented hearing 
 it; that they looked for the flagman usually 
 stationed at the cros.sing, but he was absent, and 
 that no signal indicated an approaching train. 
 Held, that the vigilance which the evidence 
 tended to show plaintiff exercised was all that 
 could be required of him as matter of law ; that 
 it could not be held as matter of law that it was 
 the duty of plaintiff to liave stopped his horses 
 and gone forward to see if a train was approach- 
 ing; but this, in connection with the surround- 
 ing circumstances, presented a question of fact 
 foraiury. lb. . „ j_, ^ ■ 
 
 110 Duty to look out for the train. 
 The care which persons are required to exer- 
 
 cise at railroad crossings to avoid danger is such 
 as prudent persons conscious of the danger to 
 which they may be exposed usually exercise. 
 And this requires the vigilant use of the ear in . 
 listening, and of the eye in looking for ap- 
 proaching trains. When there is no evidence 
 tending to establish such care, it is the duty of 
 the court to non-suit. — Ct. of App., Nov., 1878. 
 • Cordell v. N. Y. Central, &c., E. E. Co., 75 N. 
 Y. 330, 332. 
 
 111. A traveler upon a highway which is in- 
 tersected by the track of a steam railway has 
 simply a right to cross such track, not to pass 
 along it. The engine and cars of the railway 
 corporation have the exclusive right to the 
 track as a whole, and the first right to its use at 
 the place of intersection ; and it is the duty of 
 the traveler, on drawing near to a crossing, to 
 look each way along the track, to listen for the 
 coming of a train, and, when sure that it is pru- 
 dent to cross, to hasten over. — Ct. ofApp., Aprils 
 1879- Adolph v. Central Park, &c., E. K. Co., 
 76 N. Y. 530, 534. 
 
 112. If by a proper use of his faculties he 
 could have discovered the approach of a train, 
 and so have escaped injury, and fails to do so 
 and is injured, he is chargeable with contribu- 
 tory negligence, and cannot maintain an action 
 against the railroad corporation. — Ct. of App., 
 Nov., 1878. Salter v. Utiea, &c., E. E. Co., 75 
 N. Y. 273 ; reversing 13 Hun 187. 
 
 113. If driving a team, the same principle 
 requires the traveler to so use his faculties in 
 managing his team as to keep out of danger. 
 lb. 
 
 114. The fact that a train is behind time does 
 not relieve the traveler of this duty of care and 
 caution ; railroad corporatioiis have the right to 
 run trains at all times, and those having occa- 
 sion to cross their tracks are entitled to no ex- 
 emption from care and vigilance because trains 
 are irregular or extra trains are put on. lb. 
 See, also. Day v. Flushing, &c., E. E. Co., 75 N. 
 Y. 610. 
 
 115. Rule does not apply to cross- 
 ings at stations. It is to be assumed that 
 a railroad corporation, in the exercise of ordi- 
 nary care, will so regulate its trains that the 
 road will be free from interruption or obstruc- 
 tions when passenger trains stop at a depot to- 
 receive and deliver passengers. The rule, 
 therefore, requiring a traveler on a highway 
 crossing a railroad track to use his eyes and 
 ears to ascertain whether a train is approaching, 
 does not apply to passengers who are crossing a 
 track at a station to get on a train.— Ct. ofApp.^ 
 Oct., 1879. Terry v. Jewett, 78 N. Y. 338. 
 
 116. Contributory negligence, and. 
 ■what amounts thereto. When a person 
 has been killed at a railroad crossing, and there 
 are no witnesses of the accident, the circum- 
 stances must be such as to show that the de- 
 ceased exercised proper care for his own safety. 
 When the circumstances point just as much to- 
 the negligence of the deceased as to its absence, 
 01- point in neither direction, theplaintiff should 
 be non-suited.-a ofApp., Nov., 1878. Cordell 
 V. N. Y. Central, &c., E. E. Co., 75 N. Y. 330, 
 
 117. Plaintiff's intestate was killed by a pas- 
 senger train while attempting to cross, on foot, 
 the tracks of defendant's road, at a farm cross- 
 ing ; he lived near the tracks and knew all the 
 surroundings; he was a man of mature age,. 
 
EAILROAD COMPANIES, IV. 
 
 sidi 
 
 possessing all his faculties ; there was no wind 
 or storm ; the track on which he was killed he 
 knew was used for trains going east, and that 
 trains were frequently behind schedule time ; no 
 signals or warnings of approaching trains were 
 customary at that point. The train was a long 
 one going east at a rapid rate of speed. There 
 was a gtavel train moving slowly west on an- 
 other track. There were obstructions west of 
 the crossing intercepting sight in that direction, 
 but it was possible to see at least forty feet west- 
 erly before getting upon the track. The only 
 witness called by plaintiff who saw the accident 
 was the engineer of the train, who testified that 
 he saw the deceased two steps from the south 
 rail of the track and saw him step twice, the 
 second step taking him just over the rail ; that 
 he then gave a signal and the engine struck the 
 deceased ; that deceased was looking easterly 
 away from the approaching train, and when 
 witness first saw him was one hundred and fifty 
 feet distant. Hdd, that the evidence not only 
 failed to show due care,' but established con- 
 tributory negligence. lb. 
 
 118. One who attempted to walk along a 
 switch track from one street to another, and 
 while so doing was struck and killed by cars 
 coming up behind him — Held, guilty of contri- 
 butory negligence in walking upon the track, 
 so as to defeat a recovery by his administrator. 
 —Supreme Ct., (3d Vept.,} Jan., 1879. McCarty 
 II. Delaware, &c., Canal Co., 17 Hun 74. 
 
 119. Where, the crossing being blocked by a 
 long freight train, plaintiff, in order to cross, 
 climbed upon the bumper of one of the cars, and 
 the train was moved, without any signal being 
 given by defendant, and the injury occasioned 
 — Sdd, that plaintiff was properly non-suited, 
 on the ground of contributory negligence. — Svr 
 preme Ct, (3d Dept.,) May, 1879. O'Mara v. 
 Delaware, &c.. Canal Co., 18 Hun 192. 
 
 120. Contributory negligence of an- 
 other, not attributed to plaintiff. Where 
 one travels in a vehicle over which he has no 
 control, but at the invitation of the owner and 
 driver, no relationship of principal and agent 
 arises between them; and although he so travels 
 voluntarily and gratuitously, he is not responsi- 
 ble for the negligence of the driver,' where he 
 himself is not chargeable with negligence, and 
 where there is no claim that the driver was not 
 competent to control and manage the team. — 
 Ct. ofApp., Nov., 1877. Dyer v. Erie Ky. Co., 
 71 N. Y. 228. 
 
 121. Contributory negligence, therefore, in 
 such case, on the part of the owner and driver, 
 is no bar to a recovery against a railroad cor- 
 poration for injuries resulting from a collision 
 at a crossing. lb. 235. 
 
 122. The mere fact that a person jumps from 
 a vehicle in which he is traveling, where there 
 is imminent danger of its coming in collision 
 with an approaching train at a crossing, does 
 not bar a recovery against the railroad corpora- 
 tion, although it appears that he made a mis- 
 take and would have escaped injury had he 
 remained quiet. lb. 
 
 123. When contributory negligence 
 is a ptuestion for the jury. It is not, as 
 matter of law, negligence for a person approach- 
 ing a railroad in a carriage, upon a highway, 
 not to stop ; his omission to do so is a fact lo be 
 submitted to the jury. — Ct. of App., Nov., 1879. 
 
 Kellogg V. N. Y. Central, &c., K. E. Co., 7^ 
 N. Y. 72. 
 
 124. The question of contributory negligence- 
 on the part of the person injured while attempt- 
 ing to cross the track — Held, a question for the- 
 consideralion of the jury under the facts of the- 
 particular case. Terry v. Jewett, 78 N. Y. 
 338 ; Casey v. New York Central, &c., E. E. Co.^ 
 Id. 518 ; affirming 8 Daly 220 ; Kellogg v. Same, 
 79 N. Y. 72; Sackus v. Same, Id. 464; Terry u. 
 Jewett, 17 Hun 395 ; Mahar v. Grand Trunk 
 Ey. Co., 19 Hun 32. 
 
 (d) Injuries to employees. 
 
 125. In general. An employee, lawfully- 
 using his employer's tracks, over which another 
 company has a right of way, has a right to pre- 
 sume that the latter company will conform to 
 the rules as to giving signals, &c., prescribed by 
 the company by whose permission it uses sucb 
 tracks.— iSttprejjie Ct., (3d Dgjt.,) Nov., 1878. 
 Eoll V. Northern Central Ey. Co., 15 Hun 496. 
 Compare Ct. of App., June, 1877. Wood v. New 
 York Central, &c., E. E. Co., 70 N. Y. 195. 
 
 126. Injuries occasioned by defective- 
 construction. It cannot be affirmed, as mat- 
 ter of law, that an engineer, while running ai> 
 engine upon a railroad, has the same opportun- 
 ity as the corporation, or whatever subordinates- 
 may represent it, whose duty it is to keep the 
 track in repair, to ascertain and know of de- 
 fects; and in case of injury to him, in conse- 
 quence of such defects, he cannot be deemed 
 guilty of contributory negligence, simply because- 
 he knew that the track was somewhat out of re- 
 pair. — C*. of App., May, 1878. Mehan i/. 
 Syracuse, &c., E. E. Co., 73 N. Y. 585. 
 
 12Y. It seems, however, that the engineer 
 knew that the track was so badly out of repair 
 that it was dangerous to run over it ; by contin- 
 uing in the employment after such knowledge, 
 he assumed the risk, and the c<>rporation is not 
 liable for the injury. lb. Compare Gage v. 
 Delaware, &e., E. E. Co., 14 Hun 446 ; Hawley- 
 V. Northern Central Ey. Co., 17 Hun 115. 
 
 128. Where deceased, in endeavoring to 
 couple cars, got his foot wedged in a ditch im 
 the track, used to drain the track, and was run 
 over, and it appeared that he had been employ- 
 ed in defendant's yards several months, during 
 all of which time the ditch had been there, 
 plainly visible— ife/d, that as the defect, if any,, 
 was a patent one, he must be regarded as having, 
 assumed the risk growing out of its existence, 
 and his administrator could not recover for in- 
 juries thereby occasioned. — Supreme Ct., (4iA 
 jDept.,) Jan., 1880. De Forrest v. Jewett, 19 
 Hun 509. 
 
 129. — by defective machinery. An 
 employee, in the service of a railroad corpora- 
 tion, assumes the risks and dangers incident to> 
 the business in which he is engaged, and while- 
 the company is bound to furnish suitable and 
 safe machinery and appliances for his nsC) hav- 
 ing done so, it is not liable for an injury result- 
 ing from their breaking or failure, unless it is 
 shown that the corporation has been guilty of 
 negligence in regard thereto. — Ct. of App., Jan., 
 1879; De Graff' v. New York Central, &c., E. E- 
 Co., 76 N. Y. 125. 
 
 130. The fact that the employee is a minor 
 does not, if he is of age sufiicient and is compe- 
 
■380 
 
 RAILROAD COMPANIES, IV., V. 
 
 tent for the service in which he is employed, 
 affect the duty or liability of the corporation in 
 this particular. The risks are an element of the 
 employment, and the employee cannot claim, on 
 account of infancy, to be relieved from the con- 
 sequence of such risks, lb. 
 
 131. A railroad corporation owes a duty to 
 one employed upon one of its engines, to see 
 that the engine is fit and proper for his use in 
 the performance of the labor he has undertaken ; 
 *his duty is not discharged simply by employ- 
 ing _ fit and competent agents to supervise the 
 ■«ngipe, and see that it is in fit condition ; any 
 negligence on the part of such agents, in the 
 performance of their duties in this respect, is the 
 negligence of the corporation.— Ci. of App., Dec., 
 1879. Kirkpatrick v. New York Central, Ac, 
 E. E. Co., 79 N. Y. 240. Compare Cone v. Del- 
 aware, Ac., E. E. Co., 15 Hun 172 ; Barringer 
 «. Delaware, &c.. Canal Co., 19 Hun 216 ; Mc- 
 •Cosker v. Long Island E. E. Co., 21 Hun 500. 
 
 132. — by act of co-servant. The rule 
 4hat no recovery can be had for an injury sus- 
 tained by an employee, occasioned by the neg- 
 ligent act of a fellow servant, applied to a case 
 where a, car repairer in the employ of defend- 
 ant, was at work in the performance of his duty 
 under a car standing on a repair track ; other 
 -cars on the same track were being drawn away 
 by an engine, when a coupling-pin broke and 
 the cars thus disconnected, ran back, struck the 
 -cars remaining and put in motion the one under 
 
 which deceased was at work, and he was run 
 ■over and killed. — Ct. of App., June, 1877. Be- 
 sel V. New York Central, &c., E. E. Co., 70 
 N. Y. 171 ; reversing 9 Hun 457. 
 
 133. It is the duty of a railroad corporation 
 to see that there are a sufficient number of brake- 
 men upon a train when it starts upon its trip ; 
 if this duty is neglected and injury to a servant 
 resulis therefrom, without contributory negli- 
 gence on his part, the company is liable, al- 
 though the immediate negligence in starting the 
 train without sufficient brakemen was that of a 
 co-servant. — Ct. of App., March. 1878. Booth v. 
 Boston and Albany E. E. Co., 73 N. Y. 38. 
 
 134. Where the negligence of an engineer of 
 a train, in running it, is contributory with that 
 of the company in not sending a sufficient num- 
 ber of brakemen, and both together cause an 
 injury to an employee, the negligence of the en- 
 gineer does not relieve the company from lia- 
 bility, lb. Compare Harvey v, N. Y. Central, 
 ■&c., E. E. Co., 19 Hun 556. 
 
 -3. SelcUive rights and liabilities of connecting lines. 
 
 135. In respect to delay in transport- 
 ing freight. Eelative rights and liabilities of 
 two connecting railroads in respect to delay in 
 transporting freight, determined, in an action 
 
 lagainst the connecting line for loss in value by 
 reason of delay in arrival, at the time of a fall- 
 ing market.— Ci. of App., April, 1879. Livings- 
 ton V. New York Central, &c., E. E. Co.j 76 
 Jir. Y. 631. 
 
 V. HoBSB AND Street Eaileoads. 
 
 1. Sorse railroads. 
 
 136. Right to use city streets. Li- 
 •censes. By the charter of defendant (Laws of 
 1860, oh. 513,) it was provided that the company 
 
 should "he subject * * to the payment to 
 the city of the same license fee, annually, for 
 each car run therein, as is now paid by other 
 city railroads in said dty." A city ordinance 
 provided that each passenger-car should pay 
 f 50 a year for a license, except one-horse pas- 
 senger-cars, which should pay |25. Two of the 
 companies then running, by -virtue of a contract 
 with the city, paid no license fee ; two others 
 paid the fee required by the ordinance ; and one, 
 by virtue of a special charter, paid a fee of only 
 $20 per ear. Held, that defendant having ac- 
 cepted its charter, could not question the valid- 
 ity of the provision in question ; and that the 
 legislature intended that the defendant should 
 pay for its license the amount specified in the 
 ordinance. — Supreme Ct, (1st Dept.,) March, 
 1879. Mayor, &c., of New York, ». Broadway, 
 Ac, E. E. Co., 17 Hun 242. 
 
 137. Liability for obstructing streets, 
 or permitting them to be out of re- 
 pair. Defendant contracted with the city of 
 New York to j>ave the streets whereon its tracks 
 were laid, "in and about the rails," and to 
 "keep the same in repair." Under a license 
 from the city, one E., who owned a lot adjoining 
 the street, dug a trench across a portion of the 
 street and under defendant's tracks, to connect 
 his lot with a sewer in the street. Defendant 
 laid down planks or joists to bridge the excava- 
 tion. Plaintiff was driving a truck along the 
 street and across this bridge, when the planks, 
 not being properly fastened, slipped, and one 
 wheel of the ti-uclc, at a point about one foot 
 outside the rails of defendant's track, went into 
 the excavation, throwing plaintiff from his 
 truck and injuring him. In an action to recov- 
 er damages — 
 
 Held, 1. That the defendant was bound under 
 its contract to keep the streets "in and about" 
 its rails safe for the passage of the public, and 
 for a failure to perform that duty was liable to 
 to the party injured ; that the fact that B. had 
 a license from the city to make the trench did 
 not absolve defendant from its obligation to pro- 
 tect the public ; that the words " in and about " 
 included so much of the street surface outside 
 the rails as was disturbed in laying the track, 
 and in the absence of evidence as to how far that 
 space extended, it was a reasonable presumption 
 that it included as mjich as one foot outside the 
 rails ; and that, therefore, defendant was liable 
 under the contract. 
 
 2. That conceding that the defendant was not 
 bound to repair, it had the right so to do to 
 make the street passable for its own vehicles, 
 and having volunteered to make the passage 
 safe over the excavation, and in attempting so • 
 to do, having left the place in reality insecure, 
 whi^le giving it the appearance of safety which 
 was' delusive and misleading, it was liable. — Ct. 
 of App., Nov., 1878. McMahon v. Second Ave. 
 E. E. Co., 75 N. Y. 231 ; affirming 11 Hun 347. 
 138. A contract between two horse railroad 
 companies, by which one assumed to make and 
 pay for a switch connecting the tracks of the two 
 roads, and the other agreed to keep the tracks in 
 repair at the point where the switch was situat- 
 ed, construed, and— BeW, that the former com- 
 pany was not liable in damages to a person in- 
 jured by reason of the sinking and _ wearing 
 away of the crosswalk adjoining the switch, thus 
 causing the flange of the switch to project and 
 form an obstruction. — Ct. of App., Jan., 1879. 
 
RAILROAD COMPANIES, V. 
 
 381 
 
 Lowery v. Brooklyn City, &o., E. R. Co., 76 N. 
 Y. 28 ; reversing 4 Abb. N. Cas. 32. 
 
 139. Relative rights of drivers of 
 oars and other vehicles. A traveler upon 
 a street on whicH is a street railway has a right 
 to drive upon and along the railway, as well as 
 to cross it at the intersection of streets ; but he 
 is bound to make way for the cars, and to be 
 ready to do this when necessary, so as to cause 
 no unnecessary hindrance. It is his duty, there- 
 fore, not only to turn off from the track when 
 called upon by a servant of the railway com- 
 pany, but to listen to whatever signal there may 
 be from an approaching car ; and he should also 
 look behind him from time to time, so that he 
 may, if a car is near, turn oS and allow it to 
 pass without hindrance or undue slackening of 
 ordinary speed. — Gt. of App., April, 1879. 
 Adolph V. Central Park, &c., R. R. Co., 76 N. 
 Y. 530, 535 ; afirming 43 Superior 199. 
 
 140. Plaintiff, while traveling in a buggy 
 along a street in the city of New York, was 
 stopped by a blockade of vehicles just as he had 
 crossed defendant's track. The rear of his bug- 
 gy was so near the track that a car could iipt 
 pass without hitting it. A car came up, the 
 driver of which, after waiting a moment or two, 
 ordered plaintiff to "get off the track." Plain- 
 tiff was unable to move either way, and so noti- 
 fied the driver, who replied with an oath that 
 he was late, and that if plaintiff did not get off 
 he would put him off, and immediately thereaf- 
 ter drove on, striking and , upsetting plaintiff's 
 buggy, and injuring him. In an action to re- 
 cover damages — Held, that the evidence did not 
 authorize a finding, as matter of law, that the 
 act of the driver was with a, view to injure 
 plaintiff, and not with a view to his master's 
 service ; but that this question was one of fact 
 for the jury, and that, therefore, a. dismissal of 
 the complaint on trial was eiror. — Ct. of App., 
 March, 1877. Cohen o. Dry Dock, &c., R. R. 
 Co., 69 N. Y. 170. 
 
 141. Lawful rate of speed. A reasona- 
 ble and lawful s^jced for a street car, in the ab- 
 sence of Btatiite or ordinance upon the subject, 
 is the average rate of carriages used to convey 
 passengers by horse power. — Ct. of App., April, 
 1879. Adolph v. Central Park, &c., R. E. Co., 
 76 N. Y. 530, 537. 
 
 142. Duty of the company towards 
 passengers. The conductor and driver of 
 street cars are the agents and servants of the 
 corporation or persons by whom they are em- 
 ployed, and to their judgment, care and skill, 
 the conveyance and safety of passengers are con- 
 fided. This duty must be discharged by them 
 with diligence, prudence and foresight-^jSttpe- 
 rior Ct., April, 1878. Hendricks v. Sixth Ave. 
 R. R. Co., 44 Superior 8. 
 
 143. The introduction of a manifestly intoxi- 
 cated, quarrelsome and indecently-attired man 
 into a street car by the employees of the com- 
 pany, is an act of negligence for the consequences 
 of which the company is liable ; and when the 
 conductor admits such a person into the car, in 
 response to a statement of the driver that such 
 person is " too full " to ride on the front plat- 
 form, the negligence is aggravated and unjusti- 
 fiable. A verdict against the company for dam- 
 ages for personal injuries sustained by apassenger 
 from an unprovoked assault by such person under 
 such circumstances, should not be set aside on the 
 ground that there is no evidence of negligence. 1 b. 
 
 144. Liability for injuries to passen- 
 gers. In an action to recover damages for neg- 
 ligence, plaintiff's evidence tended to show that 
 he signalled to the driver of one of defendant'si 
 street cars to stop. The car was an open one, 
 with a step or rail along the side. The driver 
 recognized the signal and applied the brake. 
 While the car was moving slowly, plaintiff put 
 one foot upon the rail, took hold of the end of a 
 seat, and raised himself from the ground to get 
 on, when the driver, who was looking at him, 
 without any signal or notice, let go the brake,, 
 starting the car with a jerk. Plaintiff's foot 
 slipped, went under the car, was run over and 
 crushed. Held, that a motion for a non-suit wa» 
 properly denied. — Ct. of App., April, 1877. 
 Eppendorf v. Brooklyn City, &c., R. R. Co., 69 
 N. Y. 195. 
 
 Defendant offered to show that plaintiff was- 
 in the habit of jumping on its cars when in mo- 
 tion. Held, that the evidence was properly ex- 
 cluded as having no bearing upon the case. lb, 
 
 145. Plaintiff was a passenger in one of de- 
 fendant's horse cars ; the driver recklessly and 
 carelessly drove the car upon the tracks of the- 
 N. Y. C. & H. R. R. R. Co., directly in front of 
 an approaching express train; all of the passen- 
 gers in the car, with one exception, on perceiv- 
 ing the danger, rushed to the doors of the car 
 and jumped off; plaintiff in so doing fell and was- 
 injured. The driver succeeded in getting the 
 car across tJie track just in time to escape the 
 train, the engineer thereon having reversed his- 
 engine and put on the brakes. In an action to 
 recover damages — 
 
 Held, 1. That the case was properly submitted 
 to the jury, and a verdict in plaintiff's favor was 
 justified. 
 
 2. That evidence of the action of the other 
 passengers was competent as part of the res geetce 
 and as evidence of what was deemed prudent by 
 others in the same situation. — Ct. of App., March^ 
 1877. Twomley v. Central Park, &c., R. R. Co., 
 69 N. Y. 158. 
 
 146. Contributory negligence. What 
 is sufficient evidence of the intoxication of a 
 person injured by a horse railroad company, to- 
 showsuch contributory negligenceas to preclude 
 a recovery, see Bradley v. Second Ave. R. R. 
 Co., 8 Daly 289. 
 
 2. Elevated Railroads. 
 
 147. Constitutionality of "Rapid 
 Transit Act." Section 36 of the rapid 
 transit act, so-called (Laws of 1875, ch. 606,) 
 authorizing any existing corporation, which has 
 not forfeited its charter, or failed to comply with 
 its provisions, whose route or routes coincide- 
 with those determined upon by the commission- 
 ers appointed under said act, to construct and 
 operate its railway thereon upon fulfillment of 
 the requirements of the act, is not violative of 
 the constitutional provisions (art 3, J 18,) pro- 
 hibiting the passage of a private or local bill 
 granting to any corporation the right to lay 
 down railroad tracks, or granting to it any ex- 
 clusive privilege, immunity or franchise. — Ct, 
 of App., Sept. 1877. Matter of Gilbert Elevated 
 Ry. Co., 70 N. Y. 361 ; S. C, 3 Abb. N. Cas. 434 ; 
 affirming 9 Hun 303. S. P., Matter of New York 
 Elevated R. R. Co. 70 N. Y. 327 ; S. C, 3 
 Abb. N. Cas. -401. 
 
 148. The right would not be exclusive with- 
 
382 
 
 RAILROAD COMPANIES, V. 
 
 in the meaning of the constitntion, even if but 
 ■one railroad could be built in any street, so long 
 as other routes were permitted. Matter of New 
 York Elevated E. R. Co., mpra. 
 
 149. The fact that said provision applies 
 only to existing companies does not make it pri- 
 vate or local ; nor would the fact that there was 
 •but one elevated railway in actual operation at 
 the the time of its passage. lb. 
 
 150. The rapid transit act is not subject to 
 ■the objection that it delegates legislative powers 
 to the commissioners. The manner of eier- 
 -cising a franchise by a street railroad corpora- 
 tion is not an essential element of the franchise, 
 and the legislature may authorize it to be con- 
 trolled by the people or officers of a locality 
 whose interests are especially aflfected by its exer- 
 •cise. Matter of Gilbert Elevated By. Co., mpra. 
 
 _ 151. And how construed. The provi- 
 sion of the rapid transit act (J 26], authorizing 
 companies- to construct railways in streets desig- 
 nated by the commissioners, only gives the pub- 
 lic consent without which a railway could not be 
 built in a street ; it does not authorize interfer- 
 ence with the rights of private property. Mat- 
 ter of New York Elevated R. R. Co., supra. 
 
 152. Application for appointment of 
 commissioners by the mayor. An appli- 
 •catiou to the mayor for the appointment of 
 commissioners to determine upon the necessity 
 ■of an elevated railway, and to locate the route, 
 was signed by the applicants, and an affidavit of 
 one of them was annexed, in which he alleged 
 that he saw the several petitioners sign the peti- 
 tion ; that he knew each of them, and knew 
 tlieir signatures to be genuine ; " that he has 
 read the foregoing petition and knows the con- 
 tents thereof, and that the same are true to his 
 own knowledge, except as to those matters 
 therein stated on information and belief, and as 
 to those matters he believes to be true." BM, 
 n, sufficient compliance with the provision 
 requiring the petition to be "verified." — Su- 
 preme a, {U Dept.,) Feb., 1880. Matter of 
 Kings County Elevated R. R. Co., 20 Hun 217. 
 
 153. — for appointment of Supreme 
 •Court commissioners. Tlie application for 
 the appointment of commissioners by the Gen- 
 •eral Term need not be made by the mayor's 
 commissioners; the company who desire to con- 
 struct the road may apply. — Simreme Cl., (2d 
 Dept.,) July, 1879. Matter of Kings County 
 Elevated R. R. Co., 18 Hun 378. ' 
 
 - 154. Notice of an application to the Supreme 
 •Court, under the rapid transit act (? 4), for the 
 a,ppointment of commissioners to determine 
 whether the proposed railway ought to be con- 
 structed, is not required either by said act or by 
 the constitution. Matter of New York Ele- 
 vated R. E. Co., supra. _ , 
 
 155. Powers of the commissioners, 
 generally. The provisions of the rapid-tran- 
 fit act (Laws of 1875, ch. 606,) conferring upon 
 <;ommi3sioner3 appointed as specified in the act, 
 power to determine upon the necessity of such 
 railway, to fix the routes and prescribe the plan 
 of their construction, confer no legislative pow- 
 ers upon the commissioners. Corporations or- 
 ganized under the act derive their franchises, 
 from the legislature, not from the commissioners, 
 
 who simply perform^ administrative acts in car- 
 
 onf 
 It cannot, in a 
 
 ■rvinff the law into effect and applying it. lb. 
 
 lie. The legislature has authority to confer 
 these powers upon a commission. 
 
 general law, determine the necessity of a railroad 
 in any particular locality, or its route, or the 
 amount of capital of a rJa,ilroad corporation ; but 
 it may provide the machinery for the determina- 
 tion of these matters, and what that machinery 
 shall be, depends upon its will. lb. 
 
 157. It is not necessary under J 36 that the 
 routes designated by the commissioners should 
 coincide with all the routes of an existing cor- 
 poration. If any of the routes coincide, the cor- 
 poration may build thereon. The authority is 
 co-extensive with the coincidence of th€ routes. 
 Matter of Gilbert Elevated Ry. Co., supra. 
 
 158. The commissioners have power to or- 
 ganize but a single corporation to operate all 
 the railways whose construction they may au- 
 thorize ; they cannot organize a separate cor- 
 poration to operate each of such railways. — Su- 
 preme Cl., {1st Dept.,) Jan., 1880. People, ex 
 rel. Stebbius, v. Hoe, 20 Hun 26. 
 
 159. As to the power of the commissioners 
 to give the company the option to select one of 
 several alternative routes^ and the effect of their 
 not fixing any time within which the road is to 
 be completed, see Matter of Kings County Ele- 
 vated R. R. Co., 20 Hun 217. 
 
 160. Relative powers of the two sets 
 of commissioners. Commissioners ap- 
 pointed by the mayor determined upon two 
 routes. Commissioners appointed by the Su- 
 preme Court determined that the road ought to 
 be constructed upon one of the routes desig- 
 nated, but not on the other. Held, tliat this did 
 not invalidate their action ; that they had the 
 right to determine that the road ought to be 
 constructed in some streets, and not in others, so 
 long as a complete road upon some route was 
 left. So, also, that where connections were pro- 
 posed with several ferries and depots, that they 
 might determine that some connections ought, 
 and some ought not, to be made. Matter of 
 New York Elevated E. R. Co., supi-o. 
 
 161. The commissioners appointed by the 
 mayor authorized the road to be constructed in 
 either one of several different ways ; the Supreme 
 Court, commissioners confined the construction 
 to one of the methods so authorized. Held, 
 that this was not an excess of authority; but, if 
 so, that the property-owners could not complain. 
 lb. 
 
 162. The only question for the determination 
 of the commissioners appointed by the Supreme 
 Court was, whether the road upon the route des- 
 ignated ought to be constructed and operated ; 
 it was no part o{ their duty to review the deter- 
 mination of the mayor's commissioners as to the 
 feasibility of the route ; and, therefore, a hold- 
 ing of the former commissioners that they were 
 not required or permitted to determine whether 
 the particular route selected was the best route, 
 was not error. lb. 
 
 163. The question whether the benents to 
 follow from the construction of the road were 
 sufficient to counterbalance the injury to private 
 interests resulting therefrom, was one properly 
 before both sets of commissioners, and with tlieir 
 determination this court ought not to interfere. 
 
 164. The Supreme Court commissioners were 
 not limited in their action to sixty da^rs after the 
 organization of the mayor's commi.ssioners; the 
 latter had the whole of tlie sixty days in which 
 to fix the route, and until this was done, there 
 could have been no application for the appoint- 
 
RAILROAD COMPANIES, V.— REAL PROPERTY. 
 
 383 
 
 iment of commissioners by the court; under the 
 constitution and the law, such action could be 
 taken at any time before the construction or 
 operation of the road should be commenced. 
 
 165. The hearing, notice, &c. Personal 
 notice to the property-owners of the liearing 
 before said commissioners is not required ; the 
 method of giving notice is left by the act and by 
 the constitution to be prescribed by the court. 
 Where, therefore, an order appointing commis- 
 sioners required that notice of the time and place 
 for the hearing should be given by publishing 
 the notice in six leading daily papers seven times 
 consecutively, and by posting the same in fifty 
 iplaces along the route — Hdd, that was sufScient. 
 lb. 
 
 166. Upon a hearing before said commis- 
 sioners, the property-owners demanded that the 
 ■evidence should be oral, and that the witnesses 
 should be produced and cross-examined; the 
 <;ommissioners determined that the proofs might 
 be by affidavit. Hdd, no error ; that it was for 
 ithe commissioners to determine how much time 
 they would give for the hearing ; and so long as 
 they did not abuse their discretion so as to 
 .deprive parties interested of an opportunity of 
 being heard, their action was not subject to 
 review. lb. 
 
 167. The commissioners' report, and 
 •confLrmation thereof. Where the applica- 
 tion to the mayor asks for commissioners to 
 -determine upon the necessity of a railway for the 
 transportation of passengers only, the commis- 
 sioners may report in favor of a railway for the 
 transportation of mails and freight as weU as 
 passengers. Matter of Kings County Elevated 
 R. K. Co., 20 Hun 217. 
 
 168. As to the powers and duty of the Gen- 
 ■eral Term of the Supreme Court in passing 
 upon the report of the commissioners ; when it 
 should be confirmed, and when thrown out, see 
 lb. 
 
 169. 'Appeals from orders in pro- 
 ceedings to take lands. Upon an appeal 
 from an order in an application under the rapid 
 transit act, by a street railroad company, to 
 ■condemn lands necessary for the construction of 
 -and forming part of its route, this court cannot 
 inquire whether the applicant has acquired, or 
 ■can acqi]ire, the right to build its road through 
 the other parts of its route. Matter of Gilbert 
 Elevated By. Co., mpra. 
 
 170. Special charter — ^time within 
 "Which to build road. Defendant's charter, 
 limiting the time within which one mile of its 
 road should be constructed, subject to forfeiture 
 on breach of such condition, construed ; and the 
 franchise adjudged to have been forfeited by 
 failure to comply with such limitation. — Ot. of 
 App., Nov., 1879. Brooklyn Steam Transit Co. 
 f . City of Brooklyn, 78 N. Y. 524. 
 
 For decisions applicable to railroad companies 
 Jn common with other carriers, see Caeeiees. 
 
 For decisions upon the validity of Mwnidpal 
 ■bonds in aid of railroads, issued under the Town 
 ionding laws, see Mumcipal Cobpoeations, 
 -32-58. 
 
 RATIFICATION. 
 
 Of act of Agent, see Pbincipai and Agent, 
 41, 42. 
 Of Infant's contract, see Infants, 3. 
 
 RAPE. 
 
 As to Assaults with intent to ravish, see As- 
 
 ^AtTLT, 8-10. 
 
 REAL PROPERTY. 
 
 [Embraces only general principles relative to title, 
 and the rights and liabilities of the owner in the 
 use of realty. Se6 heads referred to at end of this 
 title.] 
 
 1. Rights and liabilities of owner in 
 the use of land, generally. A party is 
 not liable for the consequences of an act done 
 upon his own land, lawful in itself, and which 
 does not infringe upon any lawful rights of 
 another, simply because he was influenced in 
 the doing of it by wrong and malicious motive. 
 The courts will not inquire into the motives 
 actuating a person in the enforcement of a legal 
 right.— Ci. of App., Jan., 1878. Phelps v. Now- 
 len, 72 N. Y. 39. 
 
 2. Upon defendant's land was a spring which 
 was surrounded by an embankment, the effect 
 of which was to raise'the water in a well upon 
 plaintiff's land. Defendant, not for his own^ 
 benefit, but simply with intent to divert the 
 water from plaintiff's well, dug a ditch through 
 the embankment, thus restoring the water to its 
 natural course, the effect of which was to lower 
 the water in the well to plaintiff's injury. In 
 an action for damages and to restrain the diver- 
 sion of water — Held, that the action was not 
 maintainable, lb. Compare Barkley v. Wil- 
 cox, 19 Hun 320. 
 
 3. The rule that where one, by excavations 
 upon his own land, without interfering with 
 any known water-courses, withdraws water from 
 his neighbor's well or spring, by percolation, is 
 not liable for the injury, does not apply wliere 
 there is a grant or covenant between the parties, 
 and the acts complained of are in derogation of 
 the grant or in violation of the covenant. — Ct. 
 of App., March, 1877. Johnstown Cheese Manuf. 
 Co. V. Veghte, 69 N. Y. 16. 
 
 4. Defendant conveyed by warranty deed to 
 plaintiff certain premises, upon which was situ- 
 ated a cheese factory, "during the time it shall 
 be used * * * for the purpose of manufac- 
 turing cheese thereon;" also the use of the 
 water for the purpose of such manufacture, as 
 then conducted from springs on other lands of 
 defendant not conveyed, with the right to enter 
 thereon to construct and repair the pipes for 
 conducting the watery and the right, in case the 
 water from the springs should prove insufficient 
 for the business at the factory, to go upon such 
 lands to dig other springs and conduct other 
 water-courses to the factory. Defendant reserved 
 the right to use water, in a specified way and 
 for a specified purpose, but it was provided that 
 he should not use it so as unnecessarily to inter- 
 fere with the use of the water at the factory. 
 After the conveyance, defendant unnecessarily 
 made excavations and constructions upon his 
 lands, which had the effect to materially dimin- 
 ish the supply of water from the springs and to 
 interrupt the business of the factory, which acts 
 were persisted in after their effect had become 
 apparent. In an action to recover damages and 
 to restrain defendant from diverting the water — 
 
384 
 
 REAL PROPERTY— RECEIPTS. 
 
 Hdd, that plaintiff was entitled to judgment ; 
 that defendant's acts were in derogation of his 
 grant ; that he was precluded thereby from doing 
 any act on his own land which should divert or 
 diminish the supply of water flowing at the time 
 of the grant from the springs to the factory, and 
 thai it was immaterial whether the supply was 
 diminished by interference with known water- 
 courses, or by excavations, which withdrew 
 water from the springs by percolation, or pre- 
 vented its reaching them. lb. 
 
 5. Bight of OTsrner to resist forcible 
 entry. The owner of land, wrongfully held 
 out of possession, may, if he can regain posses- 
 sion peacefully, maintain it, and may lawfully 
 resist an attempt by the former occupant to re- 
 take possession; there can be no wrongful de- 
 tainer by the true owner when the entry was 
 both lawful and peaceable. — Ct. of App., May, 
 1878. Bliss V. Johnson, 73 N. Y. 529, 534. 
 
 6. The right to lateral support. The 
 provision of the act of 1855, (Laws of 1855, ch. 
 6,) regulating the exercise by the owners of 
 land in the cities of New York and Brooklyn, 
 of the right of excavation upon their lands, 
 which requires such owner, when intending to 
 excavate to a depth of more than ten feet, to 
 preserve from iAJury, and to support any wall 
 upon adjoining land standing upon or near the 
 boundary line, " if afforded the necessary license 
 to enter on the adjoining land, and not other- 
 wise," does not require the owner of the adjoin- 
 ing land to tender a license in order to receive 
 the benefit of the statute; but it is incumbent 
 upon the party " causing such excavation to be 
 made " to request permission to enter and pro- 
 ceed with the excavation without supporting the 
 wall ; and if he fails to do so, he is liable for the 
 damages. — Ot. of App., Jan., 1878. Dorrity v. 
 Bapp, 72 N. Y. 307 ; S. C, 4 Abb. N. Cas. 292; 
 reversing 11 Hun 374. 
 
 7. The fact that an owner has contracted with 
 another to make an excavation upon his land 
 does not exempt him from the performance of 
 the duty imposed by the act ; he is the party 
 " causing such excavation to be made " within 
 its meaning. 16. 
 
 8. By the common law, an owner of land 
 contiguous to the land of anotlier, upon which a 
 building is erected, is not bound to protect the 
 owner of the building against injuries which 
 may result thereto from excavations on his own 
 land, in the absence of any right by prescription 
 or grant in the owner of the building to have 
 it supported by the land of the person making 
 the excavation. The natural right of support, 
 as between the owners of contiguous lands, ex- 
 ists in respect of lands only, and not in respect 
 of buildings or erections thereon. Ih. 309. 
 
 9. Liability for setting Are which 
 spreads upon another's land. Defend- 
 ant, in an unusually dry summer season, set fire 
 to various log heaps upon his fallow, adjoining 
 the woodland of H., plaintiff's intestate. The 
 fallow was covered with old logs, stumps and 
 other combustible material, extending to the 
 line of H. ; defendant's ground was also covered 
 with muck, which, at that season, was itself 
 combustible. The day before the fire was set 
 there had been a heavy shower, and at the time 
 it looked like rain ; it came off dry and hot, and 
 a wind springing up, in spite of all due exertions 
 on the part of defendant and his employees, the 
 fire extended to plaintiff's lands. In an action 
 
 to recover damages — Seld, that the evidence 
 was suflicient to sustain a finding of negligence. 
 —Cl. of App., June, 1877. Hays v. Miller, 70^ 
 N. Y. 112, 117. 
 
 10. — for acts of contractor em- 
 ployed to work on the land. One C. 
 agreed to raise a house, belonging to defendant^ 
 four feet. He dug a trench in the sidewalk 
 about two feet wide and about the same depth, 
 and threw the earth upon the sidewalk. The 
 excavation was left unguarded, and plaintiff was 
 injured by falling into it. Defendant did not 
 authorize the trench to be dug, nor know of it 
 until after the accident. The digging of the 
 trench was not necessary to the performance of 
 the contract. Held, that defendant was not lia- 
 ble.— Supreme a., (2d Bept.,) Feb., 1878. Kyder 
 V. Thomas, 13 Huri 296. 
 
 As to the capacity to Sold and Tranter title 
 to land, see Aliens, 1, et seq.; Descbnt, 4-7; 
 Devise, 1, 2 ; Husband and Wipe, VI. j In- 
 dians, 1-3 ; Infants, 1-6 ; Insane Persons, 
 
 1-5 ; MlTNIClPAi COBPOBATIONS, 11-27. 
 
 For decisions as to Sow title to land may be 
 acquired and transferred, see Adveese Posses- 
 sion; Dedication; Deeds; Eminent Do- 
 main; Pbaudtjlent Conveyances; Moet- 
 GAGEs; Partition. 
 
 As to /Succession to real property, and the 
 rights of heirs and devisees, see Descent; De- 
 vise ; Executors and Administbatoes f 
 iiusTs; Wii-iiS. 
 
 As to the Validiiy of cotUraets relating to land, 
 generally, and under the provisions of the- 
 Statute of frauds, see Contracts, 20-23; 
 Landlord and Tenant; Leases; "Vendor. 
 AND Purchaser. 
 
 For decisions relative to Bornidariai, Ease- 
 ments, Femes, Fixtures, Water-courses, see those 
 titles. 
 
 As to Wrongs relating to real properly, see 
 Nuisance; Trespass. 
 
 RE-ARGUMENT. 
 
 Appeal, 78, 79, 129. 
 
 RECEIPTS. 
 
 1. Conclusiveness, generally. One 
 who pays money on a contract of sale, and takes 
 a receipt therefor, is not concluded as to the 
 amount remaining due, by a statement in the 
 receipt that a certain sum is due. — Supreme Cl., 
 (3d Dept.,) Sept., 1879. Jones v. Ennis, 18 Hun 
 452. 
 
 2. Where a sheriff levies on property belong- 
 ing to u third person, who, to prevent a sale, 
 ^ives a receipt to the sheriff for the property, 
 upon his assurance that his rights will not be 
 prejudiced by so doing, such receipt may be ex- 
 plained by parol evidence of such assurances, in. 
 an action against the sheriff for such wrongful 
 levy.— Supreme Ct., {ith Dept.,) AprU, 1879. 
 Clark V. Weaver, 17 Hun 481. 
 
 3. —of receipt in full. A receipt pur- 
 porting to be in full, and to be an absolute bar 
 to all claims and demands, is subject to expla- 
 nation, and does not conclude the party making 
 the same, from, proof of facts and circumstance* 
 
RECEIVERS— RECOGNIZ ANCE. 
 
 385 
 
 Blowing that it was not in full, and that there 
 were existing claims and demands unpaid, al- 
 though not due at the time the receipt was 
 given. — Superior Ct., Jan., 1878. ChurchUl v. 
 Bradley, 43 Superior 170. 
 
 For decisions upon questions growing out of 
 the relation of Debtor amd creditor, and as to 
 what constitutes Payment, and its effect, see 
 Debtor and Cbeditor ; Payment. 
 
 As to the sufficiency and effect of a Bdease 
 under seal, see Belbase. 
 
 RECEIVERS. 
 
 [Oonsult, also. Banks, V. ; Corporations, VIT. ; 
 ExBCDTioN, 72-86; Insdeancb, 204-229; Maito- 
 FACToBisa CouFAHiGs, 62-65; Pabtnebshif, 63< 
 d4.] 
 
 1. Who maybe appointed. A creditor 
 may be appointed receiver of his debtor's prop- 
 erty, and can only be removed because of the 
 relation by the judge who appointed him. But 
 a non-resident, or temporary resident of the 
 state, cannot be appointed. — Qrni. Pleas, (Sp. T.,) 
 March, 1878. Chamberlain v, Greenleaf, 4 Abb. 
 N. Cas. 92. 
 
 2. Effect of appointment— rights 
 and duties of receivers, generally. The 
 regularity of the appointment of a receiver of a 
 life insurance corporation, upon petition of the 
 attorney-general, cannot be questioned collater- 
 ally by any other tribunal than the one by 
 which he was appointed. — Ct. of App., May, 
 1879. Attorney-General v. Guardian Mut. Life 
 Ins. Co., 77 N. Y. 272. 
 
 3. A decree, upon such application, dissolv- 
 ing the corporation and appointing a receiver, 
 vests in the latter all the property of the cor- 
 poration, lb. 
 
 4. As to priority between the rights of a 
 sheriff under an attachment and levy of execu- 
 tion against one of two former partners, and a 
 receiver of the estate of the other, see Hooley v. 
 Gieve, 7 Abb. N. Cas. 271. 
 
 5. As to the duty of a receiver of an insolv- 
 ent firm of brokers, in respect to redeeming 
 stook pledged by them, and the relative rights 
 of the owners of such stock and the other cred- 
 itors of the firm, see Chamberlain v. Greenleaf. 
 4 Abb. K Cas. 178. 
 
 6. The receiver's right to sue. The 
 receiver represents both the corporation and 
 creditors, and stockholders, and in his character 
 as trustee for the latter he may disaffirm and 
 maintain an action, as receiver, to set aside il- 
 legal or fraudulent transfers of the property of 
 the corporation, made by its officers or agents, 
 or to recover its funds or securities invested or 
 misapplied. Attorney-General v. Guardian Mut. 
 Life Ins. Co., 77 K Y. 272. Compare Manley 
 V. Eassiga, 13 Hun 288. 
 
 7. A receiver appointed in the place of one 
 removed may sue on the bond given by the re- 
 moved receiver ; he is the party in interest, — 
 Svuperior Ct., April, 1879. Thomson v. McGregor, 
 45 Superior 197. 
 
 8. Liabilities, generally. When an ap- 
 plication by the judgment creditors to compel 
 the receiver to pay over moneys in his hands 
 upon their judgments will be denied, on the 
 ground that the receiver, or the fund, has been 
 made liable to an unliquidated outstanding 
 
 I claim for damages for false imprisonment — a. 
 suit against the receiver therefor having been 
 threatened, see Morris v. Hiler, 57 How. Pr.. 
 322. 
 
 9. Suits against receivers. A railway 
 receiver appointed and operating a railway ia 
 another state, but having property, as such re- 
 ceiver, in his hands in this state, cannot be sued, 
 in the courts of this state, and an attachment 
 issued in such a ease will be set aside. — /Supreme 
 Ct., (Sp. T.,) AprU, 1880. Kilmer v. Hobart, 
 58 How. Pr. 452. 
 
 10. As to the jurisdiction of the courts of 
 this state over a receiver appointed in foreclos- 
 ure in this state and two other states, the ques- 
 tion being as to which suit was the principal 
 one, the others being auxiliary merely, see 
 Matter of United States Boiling Stock Co., 57 
 How. Pr. 16. 
 
 U. Costs. Where, upon application to re- 
 quire the receiver of an insolvent insurance 
 company to adjust and pay losses, which occurred 
 prior to his appointment, the holders of unex- 
 pired policies come in upon their own motion as 
 contestants to litigate the. petitioner's claim in 
 conjunction with the receiver, such intervening 
 creditors are not, as of right, entitled to costs 
 upon denial of the mption, or upon appeal, 
 either out of the fund or against the adverse 
 party. — Ct. of App., Nov., 1877. People, ex rel. 
 Att.-Gen., ■„. Security Life Ins. Co., 71 N. Y. 222, 
 226 ; S. C, 7 Abb. N. Cas. 198. 
 
 12. Removal. Where a receiver is not a 
 party to the action in which he is appointed, he 
 cannot appeal from the order for his removal. — 
 Cbm. Pleas, April, 1879. Conner v. Belden, 8 
 Daly 257. 
 
 13. Suits on receivers' bonds. In an 
 action on a receiver's bond, for the non-payment 
 by him of a "balance of trust funds in his 
 hands," pursuant to an order of the court made 
 after his removal, the surety cannot defend, 
 eitlier wholly or in part, on the ground that the 
 receiver, before the execution of the bond, had 
 disposed ot^ or since its execution had properly 
 disbursed the whole of the trust funds, or a 
 part thereof, so that the whole of the sum men- 
 tioned in the order was not at its date in his 
 hands. The order is conclusive on him. — 
 Superior Ct., AprU, 1879. Thomson v. McGre- 
 gor, 45 Superior 197. 
 
 RECOGNIZANCE. 
 
 X. The right to sue on a recogni- 
 zance. To maintain an action upon a recog- 
 nizance, given upon the conviction of a person 
 as a disorderly person for neglecting to support 
 his wife and children, it must be made to appear 
 that subsequent to the giving of the bond the 
 person had been guilty of such neglect ; the con- 
 viction is not evidence of a subsequent breach 
 of the condition of the recognizance. — Ct. of 
 App., Sept., 1878. People v. Pettit, 74 N. Y. 
 320. 
 
 2. What is a breach, and ho"w 
 proved. In such an action it appeared that, 
 at the time the recognizance was given, the hus- 
 band and wife were living separate and apart ; 
 he then offered to take his wife and children to 
 his fathei-'s house where they had formerly 
 lived, and to support them as they had formerly 
 
 25 
 
386 
 
 RECOGNIZA;i^CE— REFERENCE. 
 
 been supported, bu refused to support tbem 
 •elsewhere. They had occupied separate apart- 
 ments, and there was no evidence that the apart- 
 ments were not comfortable, and the offered 
 support proper and suitable. Defendant had no 
 ■other house, and had no property of his own. 
 She declined to go with him or to allow him to 
 take the children, giving as a reason that she 
 would not live in tJie house with his parents, as 
 it was not a suitable place, because his father 
 was intemperate and abusive. Held, that the 
 ■evidence failed to establish a breach of the re- 
 cognizance. Jb. 
 
 3. Vacating judgment on forfeited 
 recognizance. The judgment entered on a 
 forfeited recognizance will be vacated where, 
 after the forfeiture, the surety was prevented 
 from retaking and surrendering his principal 
 by the latter's death — upon payment of the costs 
 incurred in entering judgment. — Oom. Pleas, 
 Feb., 1877. People v. Wissig, 7 Daly 23. 
 
 RECORDS. 
 
 As to recording Deeds and Mortgages, see 
 Deeds,'8-15 ; Mortgages, 43-47. 
 
 As to the sufficiency of the record on Appeal 
 or Error', see Appeal, 66-70, 113-116, 215, 
 216 ; Ebbob, 10-16. 
 
 As to the admissibility and effect of records 
 As emdence, see Evidence, 136-139. 
 
 As to recording AffdavUs,in foreclosure by ad- 
 vertisemerU, see Mobtgages, 63-66. 
 
 RECOUPMENT. 
 
 Set-off. 
 
 REDEMPTION. 
 
 Bailment, 9; Chattel Mortgags, 15; 
 ExBonmoN, 30; Mobtgages, 151-155; 
 Taxes, 35-37. 
 
 REFERENCE. 
 
 1. Power of the court to order oom- 
 puisory reference. Under Code of Civ. 
 Pro., § 1013, as under the former practice, a 
 compulsory reference, even in cases triable by 
 the court, can only be ordered where the trial 
 will require the examination of a long account. 
 -Swpmne a., (3d Dept.,) Ndv., 1878. Barnes 
 v. West, 16 Hun 68. 
 
 2 Section 1013 is applicable as well to such 
 .actions as are of equitable, as to such as are of 
 legal cognizance. The only effect of the last 
 <!lanse of the said section is to authorize he 
 court to appoint a referee to decide some of the 
 issues, less than the whole, or to report findings 
 upon one or more speciiic questions of fact. Jn 
 Jo case can the court order the compulsory re- 
 ference of an action, where the trial will not re- 
 quire the examination of a long account, or will 
 require the decision of difficult questions of law. 
 
 —Supreme Ct., (2d Dept.,) May, 1880. Dane v. 
 Liverpool, &c., Ins. Co , 21 Hun 259. 
 
 3. 'Who may act as referee. A re- 
 feree, during the pendency of the proceedings 
 before him, was appointed a justice of the Su- 
 preme Court to fill a vacancy. W'liile serving 
 iis such justice he made and filed his report. 
 Upon an appeal from an order denying a motion 
 to vacate the report, on the ground that the re- 
 feree was incompetent to act as such while hold- 
 ing the office of a justice of the Supreme 
 Court — 
 
 Held, 1. That the prohibition contained in 
 art. 6, J 25, of the constitution, was absolute and 
 peremptory, and prevented any justice of the 
 Supreme Court from acting as referee. 
 
 2. That the fact that the trial of the action 
 had been commenced before he was appointed a 
 justice of the said court, and that he acted with- 
 out making any charges for his services, did not 
 relieve him from the said prohibition. That 
 the provision could not be waived hy any stipu- 
 lation or acts on the part of the defendant ; that 
 as the referee had since ceased to be a.justioe of 
 the Supreme Court, his report should be set 
 aside, and either party should be allowed to pro- 
 ceed with the reference on the evidence and 
 proceedings as they stood on the 22d day of 
 December, 1877 .—Stipi-eme &., (HhDept.,) April, 
 1880. Countryman v. Norton, 21 Hun 17. 
 
 4. When a compulsory reference 
 will be ordered. Issues in an action for 
 damages for fraud and deceit cannot be referred 
 for hearing and determination without consent 
 of parties. But whai the complaint sets forth 
 an action on a contract, and it appears that 
 the trial thereof involves the examination 
 of a long account, the defendant cannot defeat a 
 reference by a tender of an issue of fraud in the 
 transaction, and a claim for damages therein, in 
 the way of recoupment or counter-claim. — Super- 
 ior Ct., Dec., 1879. Verplanck v. Kendall, 45 
 Superior 525. Compare Matter of Crosby, 16 
 
 Hun 291. , , J . 
 
 5. That an order of reference may be had in 
 an action by an attorney, for services, see Perry 
 V. Rollins, 56 How. Pr. 242. 
 
 6. WTien it will be reflised. This ac- 
 tion was brought by plaintiff, as son and heir-at- 
 law of D., to set aside a conveyance of real and 
 personal property executed by the latter to de- 
 fendants, D. H. and J., on the grounds of mental 
 incapacity, and of fraud and undue influence. 
 Both of these issues were found against plaintiff. 
 By the terms of the conveyance the grantees 
 covenanted to pay two-thirds of the expenses of 
 the support and maintenance of D. and wife 
 during their lives respectively. The complaint 
 alleged that plaintiff had boarded and cared for 
 said D. and, wife up to their deaths, and asked 
 for an accounting and Mymetit therefor out of 
 the estate conveyed. SM, that plaintiff was 
 not entitled to a reference to ascertain the amount 
 due to him, if any, for such support and main- 
 tenance, both because it was inconsistent with 
 the main relief sought by the complainant, and 
 because the covenant was not with and for the 
 benefit of the plaintiff; and consequently he 
 could not maintain an action upon it.--a. o/ 
 Am>., June, 1879. Van Gelder v. Van Gelder, 
 77 H y 446 
 
 7 'what is a " long account," within 
 the rule When an action to recover over- 
 payments on a contract for goods sold and de- 
 
REFERENCE. 
 
 387 
 
 livered, and services rendered, is referable, as 
 involving the examination of a long account, 
 «ee People v. Peck, 57 How. Pr. 315. 
 
 8. When an action for a breach of the cove- 
 r.ants contained in a lease involves the examina- 
 tion of a long account, so as to authorize a com- 
 ipulsory reference thereof, see Brooklyn, &c., R. 
 R. Co. V. Eeid, 21 Hun 273. 
 
 9. "When a reference will be refused, 
 notwithstanding long account. Where 
 there is an important question of fact to be de- 
 termined before the account alleged to be in- 
 volved will become important,' a reference should 
 not be ordered ; nor should a reference be or- 
 dered when the issue is properly upon an agree- 
 ment and its performance, though in respect to 
 the performance plaintiff may be necessitated to 
 prove many items of expense. — Supreme Cl., (2d 
 Bept.,) Dec., 1879. Keep v. Keep, 58 How. Pr. 
 139. 
 
 10. An action by a receiver of an insolvent 
 insurance company to recover dividends alleged 
 to have been wrongfully paid to defendant, one 
 -of the stockholders in the company, at a time 
 when the corporation was insolvent, out of the 
 capital and assets of the company, and received 
 by defendant in fraud of the rights of the com- 
 pany's creditors, sounds in tort, and cannot be 
 xeferred against the objection, of either party, 
 ■even though a long account be involved. — Sii- 
 jpreme Ct., (Xst Dept.,) March, 1878. Wickham 
 V. Frazee, 13 Hun 431. 
 
 U. The referee's oath. A referee to hear 
 and determine, must take the oath prescribed by 
 Code of Civ. Pro., § 101 6, or else a waiver thereof 
 Tnust be entered in the minutes. — Supreme Ct., 
 (\st Dmt.,) Sept., 1878. Browning v. Marvin, 5 
 Abb. !N. Cas. 285. But see, to the contrary, Na- 
 son V. Luddington, 56 How. Pr. 172 ; affirming 
 55 How. Pr. 342 ; S. C. 8 Daly 149. 
 
 12. The hearing, and powers of the 
 referee, generally. Where the parties to a 
 reference agree that certain issues shall be dis- 
 posed of first, and the referee finds such issues 
 in favor of defendant, and adjourns the fiirther 
 hearing of the case, and plaintiff faUs to appear 
 -on the adjourned day, a dismissal of the com- 
 plaint by the referee is regular. — Supreme Ct., 
 (3d Z>ep(.,) Jan., 1878. WUkins v. Buck, 13 
 Hun 124. 
 
 13. In an action for the wrongful detention 
 of a piano, claimed by defendant, by virtue of a 
 sale to him by plaintiffs, which sale plaintiffs 
 •daimed was induced by defendant's fraud — Seld, 
 under the circumstances of the case, that the ref- 
 eree was not bound to find upon the evidence 
 •credited by him, as an additional fact, that the 
 sale alleged in the answer to have been made to 
 the defendant, was in fact made to defendant's 
 wife ; and that the bare fact that notwithstand- 
 ing the allegations in the answer, the defendant 
 and his wife, in certain parts of their testimony 
 given at the trial, treated the sale as having 
 been made to the wife, was not of such control- 
 ling importance as to call on the referee to dis- 
 credit their whole testimony. — Superior Ct., Feb., 
 1878. Kranich v. Eeynolds, 43 Superior 576. 
 
 14. Where all the issues are referred to a ref- 
 eree for trial, he has the same power as the court 
 in allowing costs, as between the parties. — Com. 
 Fleas, June,' 187 8. Morgan v. Stevens, 6 Abb. N. 
 •Cas, 356. 
 
 15. A referee may use a magnifying glass to 
 -examine a signatiure alleged to be forgS. — Sur 
 
 perior Ct., Dec., 1879. Frank o. Chemical Nat. 
 Bank, 45 Superior 452. 
 
 16. — in respect to allowing amend- 
 ments. A referee has no power to amend a 
 complaint on trial so as to cliange the cause of 
 action from one for equitable relief to one in 
 ejectment, — Ct. of App., Sept., 1878. Bockes v. 
 Lansing, 74 N. Y. 437. 
 
 17. A referee had power, under Code of Pro., 
 II 173, 272, on motion made at the close of the 
 evidence in a case, to allow an amendment of a 
 pleading so as to conform it to the proof, where 
 it does not substantially change the cause of 
 action or defence. Where the referee, without 
 objection on the part of the opposite party, re- 
 served his decision on motion made for such an 
 amendment, and granted it on deciding the case 
 — Sdd, proper. — Ct. ofApp., Sept., 1879. Chapin 
 V. Dobson, 78 N. Y. 74. 
 
 18. Under the provision of the Old Code, ? 
 272, giving to a referee the same power as the 
 court to allow amendments to pleadings on trial, 
 a referee had power, on an application, to amend 
 the complaint on trial, by inserting material 
 allegations as to which no proof had been given, 
 to impose as a condition to the granting of the 
 application that defendant be permitted to an- 
 swer or demur to the amended complaint. 
 Where such a condition was imposed and plain- 
 tiff availed himself of that portion of the order 
 of the referee which allowed him to amend, and 
 defendant interposed a demurrer to the amended 
 complaint — Held, that plaintiff having taken the 
 benefit of the order was precluded from ques- 
 tioning the power of the referee to authorize the 
 demurrer.— Ci. of App., Nov., 1878. Smith v. 
 Eathbun, 75 N. Y. 122 ; rmerfdng 13 Hun 47. 
 See, also, Oregon Steamship Co. v. Otis, 59 
 How. Pr. 254. 
 
 19. The report. The referee should find 
 and set forth in his report the facts upon which 
 his conclusions of law are based ; but he need 
 not set forth the means or processes by which he 
 arrived at such findings of fact. — Supreme Cl., 
 (2d Dept.,) May, 1879. Dolan v. Merritt, 18 
 Hun 27. 
 
 20. A general finding of a referee is con- 
 trolled by a special finding of fact. — Cl. of App., 
 March, 1879. Bennett v. Buchan, 76 K Y. 386. 
 
 21. Delivery and filing of report. 
 Where the referee notifies one of the parties 
 within the sixty days that his report is ready, 
 the other party cannot thereafter elect to end 
 the reference, even though the report remain in 
 the referee's hands.-jSitpreme Ct., (MDept.,) May, 
 1878. Waters v. Shepherd, 14 Hun 223. 
 
 22. What is a sufficient compliance with the 
 provision of the Code of Civ. Pro., g 1019, 
 requiring the referee's report to be filed or 
 delivered to the attorney for one of the parties 
 within sixty days from the time of the final sub- 
 mission of the cause. — Supreme Ct., {Oneida Sp. 
 T.,) April, 1878. Quackenbush v. Johnson, 55 
 How. Pr. 94. 
 
 23. Obtaining further report. Upon 
 a motion to send back a case for further findings, 
 it appeared that the referee had already passed 
 upon the questions involved by refusing to find 
 as requested, and that the party requesting the 
 findings, had in each case duly excepted to his 
 refusal so to find. Held, that the motion was 
 properly denied.-Sitprcme Ct., [IstDepl.,) March, 
 1878. People v. Bank of North America, 13 
 Hun 434. 
 
388 
 
 REFERENCE— RELEASE. 
 
 24. When, in an action involving the right 
 of an attorney to compensation, a motion to 
 compel the referee to find the reasonable and 
 actual cash value of the services rendered by 
 the attorney will be denied, because immaterial, 
 there being an agreement as to compensation 
 between the parties, and no evidence in the case 
 upon which to base such finding, see Tyng v. 
 Marsh, 43 Superior 566. 
 
 25. When an order of the Special Term is 
 proper, sending the case back to the referee for 
 him to decide whether certain of the defendants, 
 in whose favor he has reported, are entitled to 
 costs, see Parker v. Baxter, 19 Hun 410. 
 
 26. Bntryof judgment on report. On 
 a reference to hear and determine issues in an 
 action for an accounting, where the determina- 
 tion of the issues does not involve the taldng of 
 the account, the referee's duty is to hear, deter- 
 mine and report on the issues, and in case he 
 decides that plainti£f is entitled to an account- 
 ing, then to pass on the principles on which such 
 accounting should be had, so far as the same are 
 involved in the determination of the issues, and 
 to direct the entry of an interlocutory judgment 
 for an accounting in conformity with his report. 
 —Superior Ct., (Sp. T.,) Oet., 1879. Hathaway 
 V. Eussell, 45 Superior 538 ; S. C, 7 Abb. N. 
 Cas. 138. 
 
 2*7. The entry of such interlocutory judg- 
 ment is a matter of course, unless there arc al- 
 legations of irregularity, surprise, or newly-dis- 
 covered evidence, lb. 
 
 28. On a motion for such interlocutory judg- 
 ment, neither the merits nor any alleged error 
 in the admission or rejection of evidence, or in 
 the findings, can be reviewed. lb. 
 
 29. Exceptions to report. Review by 
 appeal. Objection that no demand has been 
 proved cannot be raised on filing exceptions to 
 a referee's report. — Smierior Ct., March, 1879. 
 Eurnett v. Snyder, 45 Superior 582. 
 
 30. In an actiop for services, tried before a 
 referee, the report, after finding services render- 
 ed by plaintiff to the amount of •$4566.66, found 
 further that plaintiff had received two mortgages 
 for $2000 each, in part payment, and that $2000, 
 the amount of one of the mortgages, should be 
 credited on and deducted from plaintiff's claim, 
 leaving $2565.91 due plaintiff. The conclusion 
 of law was that plaintiff was entitled to judg- 
 ment for that amount. Held, on appeal from 
 the judgment entered on the report, that it must 
 be reversed, as the facts found did not support 
 the legal conclusion.— Ci. ofApp., March, 1878. 
 Field J). Field, 73 N.Y. 588. 
 
 31. Referee's fees, and how secured. 
 A referee to hear and determine, who is unwill- 
 ing to act for the statutory fees— one of the par- 
 ties refusing to assent to a higher compensation- 
 can only refuse to proceed; he cannot go on 
 and look to the prevailing party for such higher 
 compensation.— Omi. Pleas, Feb., 1878. Devlin 
 V. Mayor, &c., of New York, 7 Daly 466. 
 
 32. A referee may refuse to give up ms re- 
 port until his fees are paid. When such fees 
 are collectible by proceedings in contempt, but- 
 ficiency of demand of payment thereof.— Com. 
 Pleas,\Gm. T.,) Nov., 1879. Fischer v, Baab, 
 58 How. Pr. 221. . 
 
 33 That, in a proper case, the court will re- 
 Quire a deposit to be made to meet the fees of a 
 Referee, before requiring him ^ Prof*!" ^'*^ 
 the reference, see Ellswortli .. Smith, 56 How. 
 
 Pr.*237 ; S. C, sui nam. Ellsworth v. Brown, 1& 
 Hunl. 
 
 34. As to referee's poundage and fees in 
 foreclosure, see Birge ii. Ainsworth, 59 How. 
 Pr. 473. 
 
 35. Agreements and stipulations for 
 compensation. An oral agreement between 
 the parties to an action on trial before a referee, 
 entered by a stenographer upon his minutes, 
 leaving it to the referee to fix his own compen- 
 sation, is not an agreement in writing by the 
 parties for another rate of compensation than 
 that prescribed, such as is authorized by the' 
 provision of the code of procedure (Old Code, J 
 313,] regulating referees' fees. If such an agree- 
 ment can be considered one in writing, it is not 
 binding, as it does not fix any rate of compensa- 
 tion.— Of. ofApp., June, 1879. First Nat. Bank 
 of Cooperstown v. Tamajo, 77 N. Y. 476. 
 
 36. The cases holding that oral agreements 
 between parties or their attorneys, made in open 
 court, in respect to matters connected with the 
 litigation, are binding and will be enforced, 
 have no application to such an agreement, as it 
 has reference to a matter wholly collateral to 
 the litigation which is regulated by statute. lb. 
 See, also. Chase v. James, 16 Hun 14. 
 
 37. The stipulation of counsel as to compen- 
 sation to be allowpd a referee ajppointed in pro- 
 ceedings under the general assignment act of 
 1877, is not binding upon the court, as it does 
 not come within the Code of Pro., i 313, which 
 refers to civil actions only ; and a greater allow- 
 ance than $5 for each sitting, and $3 for each 
 adjournment in an ordinary reference to pass aa 
 assignee's account, should be disallowed, not- 
 withstanding a stipulation allowing a larger 
 sum.— Om. Pleai, {Sept. T.,) Oci., 1878. Matter 
 ofCurries, 8Daly 119. 
 
 As to reference to Arbitratore, and effect of 
 their Award, see Abbitration and Awabd. 
 
 REFORMATION OF CONTRACTS. 
 EquiTY, 23-20. 
 
 REHEARING. 
 
 Appeax, Ta, 70. 120. 
 
 RE-INSURANCE. 
 Iksubanoe, 48-52. 
 
 RELEASE. 
 
 1. Interpretation and effect. Iti m 
 action for the alleged conversion of certain TJ. S. 
 bonds by L.,defenaant's testa,trix, defendantgav^ 
 in evidence a release executed by plaintiff, which 
 was entitled in a matter pending mthesurro- 
 Lte's court in relation to the revocation of let-- 
 ^rs testamentary which had been issued to. 
 plaintiff as executor of the husband of L. It 
 recited the revocation of the letters, and that by 
 the order of the surrogate plaintiff was directed 
 to execute a general release of any rights to the 
 
RELEASE— RELIGIOUS SOCIETIES. 
 
 389 
 
 ■office of executor, as well as any claims and de- 
 mands against the testator or nls estate, or the 
 -executrix, L. The release theu stated that, "in 
 •compliance with said order," plaintiff renounced 
 his office, and in consideration of $1 paid 
 him by L., and other considerations, he released 
 her individually and as executrix, and the es- 
 itate, of all claims and demands of every sort, 
 -whether against her individually or against the 
 deceased or his estate. Held, that the release 
 -could not, in the absence of anything appearing 
 on its face extending it beyond the scope of the 
 ■surrogate's order, be deemed to extend to mat- 
 ters having no connection with the estate ; and 
 that It did not include and release the claim in 
 ■suit.— Ci!. of App., Nov., 1879. Trow v. Shan- 
 non, 78 N. Y. 446. 
 
 2. A release by parol of one joint 
 ■debtor will not operate as a discharge to the 
 ■others, and can only be pleaded by the one to 
 whom it is given. The distinction between the 
 English rule and the rule in this country on 
 that subject pointed out. — Ct. of App., Sept., 
 1877. Morgan v. Smith, 70 N. Y. 537. 
 
 3. Action to set aside. A release ob- 
 tained by false and fraudulent representations is 
 ao bar to an action ; and where the release is 
 given without consideration, it is no defence to 
 tin action to set it aside that the property re- 
 ■ceived on the settlement upon which the release 
 was given has not been returned. — Supreme Ot., 
 {iih Dept.,) Oct., 1877. Gould v. Cayuga County 
 Sat. Bank, 56 How. Pr. 505. 
 
 What amounts to a release As between debtor 
 <md creditor, generally, see Debtoe and Cbed- 
 
 JTOB, II. 
 
 Power of Partner to release firm claims see 
 Pabtneeship, n. 
 
 RELIGIOUS SOCIETIES. 
 
 1. Incorporation and org-anization. 
 The fact that the certificate of the organization 
 ■of a religious society required by the act pro- 
 viding for the incorporation of such societies, 
 {Laws of 1813, ch. 60,) as recorded, does not ap- 
 pear to have had seals, is not necessarily fatal 
 to its validity. The holding of the meeting, 
 the election of trustees, and the execution of the 
 certificate in accordance with the statute, are the 
 .substantial requirements to create the corpora^ 
 tion. An error in recording the certificate, or 
 the accidental loss of one or more of the seals 
 .after they were legally and properly affixed, 
 will not invalidate the organization. — C*. of 
 App., April, 1878. Trustees of St. Jacob's 
 Luth. Church v. Ely, 73 N. Y. 323. 
 
 2. Certain premises were deeded to the trus- 
 tees of an unincorporated religious society, and 
 their successors in office, for church purposes, 
 .and a church edifice was-erected thereon. Dis- 
 sensions having arisen among the members, the 
 minority ceased to attend religious services at 
 the church, but held such services at the house 
 •of one of their number. There was no with- 
 .drawal of these persons from the church or con- 
 .gregation, nor were they removed therefrom. 
 The minority gave the requisite notices for a 
 meeting at the house where they were holding 
 •services to organize a corporation. The notices 
 ■were read in the church as well as at said house. 
 A meeting was held, and the necessary steps 
 
 taken, prescribed by the statute, to incorporate 
 the society. In an action of ejectment to recover 
 possession of the church property —BeW, that 
 this was the case of a society holding services 
 in two places ; that the place named for the 
 meeting being one of these places, was within 
 the provision of the statute requiring such 
 meeting to be called at " the place where they 
 statedly attend for divine worship" (? 3) ; and 
 that the corporation became, by force of said 
 statute, (2 4,) vested with all the temporalities 
 belonging to the society, including the premises 
 in question. lb. 
 
 3. The majority of the congregation subse- 
 quently called a meeting, and attempted to or- 
 ganize a corporation. Sdd, that the statute 
 only contemplated one corporation for the same 
 society ; at least, that the first became vested 
 with title to the property ; also, that although, 
 under our laws, the temporalities of a church 
 are to be controlled by a majority of the con- 
 gregation, this can only be done through and 
 by the election of trustees favorable to their 
 views. lb. . 
 
 4. Subscriptions to church fund. De- 
 fendant signed a subscription paper, by which 
 the subscribers agreed to pay the sums set, oppo- 
 site their names to a treasurer to be appointed 
 by them, for the purpose of building " a Pres- 
 byterian church edifice." ,A treasurer was duly 
 appointed, and at meetings, at which defendant 
 was present and expressed no dissent, a religious 
 society was organized, trustees elected, commit- 
 tees appointed, and the work commenced and 
 carried through, with defendant's knowledge, 
 and in reliance upon the subscriptions. In sub- 
 sequent proceedings by the members of the so- 
 ciety, under the act of 1813, (Rev. Laws of 1813, 
 ch. 60,) plaintifi" was incorporated. Held, that 
 there was a good consideration for the under- 
 taking of the defendant ; that he was liable 
 ■upon his subscription ; and that the liability 
 could be enforced by the treasurer appointed by 
 the subscribers ; but that in order to enable 
 plaintiff to enforce it, it must be made to appear 
 that when the paper was in circulation for sub- 
 scriptions, or afterward, when action was being 
 taken upon it, it was the understanding and 
 purpose that the edifice should become part of 
 the temporalities of an incorporated Presbyte- 
 rian religious society ; that the designation of 
 the church edifice as " Presbyterian " in the 
 subscription paper did not alone show such pur- 
 pose, as the edifice might be used and controlled 
 by Presbyterians without the formation of a re- 
 ligious corporation. — Cl. of App., June, 1878. 
 Presbyterian Soo. of Knoxboro v. Beach, 74 K. 
 Y. 72 ; reversing 8 Hun 644. 
 
 5. Power to take by devise or be- ' 
 quest. The provision of the act of 1870, 
 (Laws of 1870, ch. 129,) amending the act of 
 1839, (Laws of 1839, eh. 99,) incorporating the 
 Union Theological Seminary of the city of New 
 York, which limits the power of that corpora- 
 tion to take and hold by gift, grant or devise, 
 by subjecting it " to all the provisions of law 
 relating to devises and bequests by last will and 
 testament," makes applicable to said corporation 
 the provision of said act of 1848, (J 6,) which 
 declares that no devise or bequest to any corpo- 
 ration formed under it, by one leaving wife, 
 child or parent, "shall be valid in any will 
 which shall not have been made and executed 
 at least two months before the death of the tes- 
 
 liiiiBl 
 
390 
 
 RELIGIOUS SOCIETIES. 
 
 tator."— Ci. ofApp., Jan., 1880. Kerr v. Dough- 
 erty, 79 N. Y. 327. 
 
 6. The said provision of the amended charter 
 also includes the provisions of the act of 1860, 
 (Laws of 1860, ch. 360,) "relating to wills," 
 prohibiting devises or bequests to certain socie- 
 ties of more than one-half of the testator's es- 
 tate, lb. 
 
 T. The provision of the act of the legislature 
 of Pennsylvania of 1853, relating to corpora- 
 tions, &c., which 'prohibits devises or bequests 
 to any body politic, or person in trust, for reli- 
 gious or charitable uses, unless by will executed 
 at least one month before the death of the testa- 
 tor, relates to and affects the power to take as 
 well as the power to devise. A religious cor- 
 poration, therefore, of the said slate cannot take 
 a bequest to it in trust for such purposes con- 
 tained in a will executed in this state by a citi- 
 zen thereof, within one month of his death ; and 
 such a bequest is void. lb. 
 
 8. Meetings. What constitutes a legal 
 meeting of the church wardens and vestrymen, 
 under the statutes relating to religious corpora- 
 tions, see Moore v. Rector, &c., of St. Thomas, 
 4Abb. N. Cas. 51. 
 
 O. Sales and mortgages of corporate 
 property. What is a valid execution of a 
 mortgage by the officers of a religious corpora- 
 tion, see lb. 
 
 10. It seems that the jurisdiction of the court 
 under the act providing for the incorporation of 
 religious societies, (Laws of 1813, ch. 60, § 11 ; 
 3 Edm. Stat. 687,) to make an order authorizing 
 the sale by such a society of its real estate, de- 
 pends upon the facts before it when the order 
 was made ; it cannot be upheld by proof that 
 facts existed which would have justified the or- 
 der, but which were in no way placed before the 
 court, or brought to its attention at the time. — 
 Ol. of App., March, 1878. Madison Ave. Bap- 
 tist Church V. Baptist Church in Oliver Street, 
 73 N. Y. 82 ; modifying 41 Superior 369. 
 
 11. An unauthorized conveyance by a reli- 
 gious corporation, of its real estate, cannot be 
 held valid, because it has been executed and 
 delivered, the purchaser put in possession, and 
 the corporation paid the consideration therefor. 
 In such case, however, when the corporation 
 seeks to repudiate the conveyance, and to re- 
 cover possession of the property, as a condition 
 of recovery, it will be required to restore to the 
 purchaser all that he has paid upon the failh of 
 the title supposed to have been conveyed, and 
 of the possession and enjoyment of the prop- 
 erty, lb. 
 
 12. Plaintiff and defendant, both religious 
 corporations, for the purpose of effecting a 
 union, entered into an agreement in substance 
 as follows : That plaintiff should convey all of 
 its property, real and personal, to defendant, the 
 latter to assume all of the debts of the former, 
 and to take its corporate name, its corporators 
 and congregation, and plaintiff thereupon was 
 to be dissolved. Upon petition stating these 
 facts, an order was granted by the Supreme 
 Court directing the conveyance of plaintiff's 
 real estate to defendant. A conveyance was ac- 
 cordingly made. Defendant took possession of 
 the real estate, using it for the purpose of reli- 
 
 fious services, assumed and paid plaintiff's 
 ebts, most of which were liens upon the prop- 
 erty, including several mortgages thereon. De^ 
 fendant conducted regular religious services in 
 
 the church edifice upon the property so con- 
 veyed, most of plaintiff's former corporators- 
 and members attending and participating. In. 
 an action brought to recover possession of the 
 real estate — 
 
 Sdd, 1. That the facts stated in the petition 
 did not show a sale, and did not give the court 
 jurisdiction to grant the order ; that the order, 
 and the conveyance under it, were void, and 
 that plaintiff was entitled to redeem ; but that 
 as a condition of restoration of the property^ 
 plaintiff should refimd to defendant the sums 
 the latter had paid in cancellation of the in- 
 debtedness of the former. 
 
 2. That as it appeared that the costs and ex- 
 penses of maintaining religious services were 
 more than the amount received by defendant for 
 pew rent, the latter was not chargeable there- 
 with ; that for the use of the premises, defend- 
 ant should bear all the expenses while it was in 
 possession, and should also lose the interest ac- 
 cruing during that period on the sums paid by 
 it upon plaintiff's debts, lb. 
 
 13. The cause of action stated in the com- 
 plaint was simply ejectment. The answer, 
 among other things, set up payment of plain- 
 tiff's debts to an amount specified ; also a pur- 
 chase and assignment to it of a mortgage upon 
 the property, and claimed a right to retain pos- 
 session until reimbursed the sums paid ; and 
 also asked for a foreclosure of the mortgage. 
 By supplemental answer, defendant set up the 
 purchase by, and assignment to it, subsequent 
 to the- commencement of the action of another 
 mortgage, and asked a judgment of foreclosure 
 thereon. It also claimed to hold, as assignee,, 
 certain bonds of plaintiff, secured by a thirdi 
 mortgage, and alleged payment of other debts. 
 Plaintiff, by a supplemental complaint, claimed, 
 in case it should be adjudged that defendant ac- 
 quired any right of possession or foreclosure 
 under the mortgages, then that an account 
 should be taken of rents and profits, and that, 
 defendant should be charged therewith. Hdd, 
 that by the answer and subsequent proceedings, 
 the title being found in plaintiff, the action was- 
 substantially turned into one to redeem on the- 
 part of plaintiff, and on the part of the defend- 
 ant to foreclose the mortgages, and that in ad- 
 justing the equitable rights of the parties the- 
 court was not limited to the time of the com- 
 mencement of- the action, but the relief should 
 be brought down to the close of the litigation. 
 lb. 
 
 14. Sale of burial lots. As to the rights 
 of a purchaser of a burial lot from a religious 
 corporation, and when the corporation may b& 
 compelled by mandamus to permit the burial 
 therein of one entitled, see Copper's Case, T 
 Abb. N. Cas. 121 ; S. C, 58 How. Pr. 55. 
 
 15. Trustees of a religious corporation will 
 not be permitted to waive the statute of limita- 
 tions respecting claims against the corporation. 
 —Supreme Ot., (3d Dept. Sp. T.,) 1878. Matter 
 of Orthodox Congregational Church in Uniott 
 Village, 6 Abb. N. Cas. 398. 
 
 , 16. Such trustees are individually liable, if 
 they change the securities of a trust fund from 
 an authorized to an unauthorized investment, for 
 auy loss sustained thereby ; and this although 
 they act in the matter in perfect good faith. lb. 
 17. The minister. Laws of 1813, ch. 60, 
 I 8, providing how the salary of a minister is 
 to be determined, does not prohibit another 
 
RELIGIOUS SOCIETIES— REMOVAL OF CAUSES, I., II. 391 
 
 method of determining it than that prescribed 
 therein. — Supreme Cl., (Ath Dept.,) Oct., 1878. 
 Landers v. Frank Street Church, 15 Hun 340. 
 
 18. Where, at the request of the proper offi- 
 cers of the church, the minister has entered 
 upon the discharge of his duties, understanding 
 that he is to he compensated, and has performed 
 them, and is appointed by his bishop for a sec- 
 ond year, with the knowledge of the officers 
 and congregation, and performs the duties of 
 the office, a promise is implied against the cor- 
 poration to pay him therefor, upon which he 
 may sue. lb. 
 
 As to Deeises and Legacies to religious corpo- 
 rations, see Devise, 1 ; Legacies, 10. 
 
 REMAINDERS. 
 
 Devise, 9 ; Wills, 36. 
 
 REMEDIAL STATUTES. 
 
 Statutes, 17, 18. 
 
 REMOVAL OF CAUSES. 
 
 I. From one State Coubt to another. 
 n. Fbom State CotrKi to U. S. Cikcuit 
 
 COITET. 
 
 L Fbom one State Cotjbt to another. 
 
 1. From County Court to Supreme 
 Court. Where a special proceeding is pend- 
 ing in a county court, and the county judge is 
 disqualified, he cannot order it to be continued 
 before » justice of the Supreme Court, but 
 should make and file with the county clerk a 
 certificate of his disqualification, when the pro- 
 ceeding may be removed into the Supreme 
 Court.— &«reme Q., {2d Dept.,) Dec., 1879. 
 Matter of Village of Khinebeck, 19 Hun 316. 
 
 2. From the Oyer and Terminer to 
 the Supreme Court. The Supreme Court 
 may, upon application of the prosecution, issue 
 a writ of certiorari, to remove an indictment into 
 that court from the Oyer and Terminer. — O;. of 
 App., Nov., 1879. Jones v. People, 79 N. Y. 45. 
 
 3. As to whether a certiorari may be brought 
 for that purpose without the consent, and in 
 spite of the authority of the Supreme Court, 
 qiuBre. lb. 
 
 4. It is not necessary to give notice of appli- 
 cation for the writ. lb. 
 
 5. It is discretionary with the Supreme Court, 
 after having obtained jurisdiction of the case, 
 either to quash the writ upon cause shown, to 
 remand the case to the Oyer and Terminer, or 
 to proceed to its disposition as in. other cases 
 pending before it. Therefore an order of the 
 Supreme Court refusing to quash such a writ 
 is not reviewable iiere. lb. 
 
 6. From the Oyer and Terminer to 
 the Court of Sessions. Where an indict- 
 ment has been found in the Oyer and Terminer, 
 an order may be made in that court transferring 
 the case to the Court of Sessions for trial, with- 
 
 out notice to the accused. — Smreme Cl., [ith 
 Dept.,) June, 1878. Myers d. People, 14 Hun 
 416. 
 
 M.. From ^tate Cotjet to U. S. CiBcrnr 
 
 COUET. 
 
 7. Act of 1867 not repealed. The act 
 
 of congress of 1867, (oh. 196,) providing for the 
 removal of causes into the Circuit Courts, was not 
 repealed by the act of 1875. — Supreme Ct., {2d 
 Dept.,) Feb., 1880. Wickham v. Wickham, 20 
 Hun 239. 
 
 8. Grounds of removal. _ Where both 
 parties are aliens, an action pending in a state 
 court cannot be removed into the U. S. Circuit 
 Court on account of the alienage of the defend- 
 ant.— Jforine a, [Sp. T.,) Sept., 1879. Bar- 
 rowcliffe v. La Caisse G6nerale, 58 How. Pi-. 
 131. 
 
 9. Under the act of congress of March 3d, 
 1875, the defendant may remove a suit against 
 him for a balance of account, brought by an as- 
 signee who resides in a difierent state from that 
 of defendant's residence, though the plaintiff's 
 assignor resides in the same state with defend- 
 ant.— Com. Pleas, Feb., 1877. Leutze v. Butter- 
 field, 7 Daly 24. 
 
 ID. Time to apply. When proceedings 
 for removal under the act of 1876 are prema- 
 turely taken, see Shepard v. Conrad, 4 Abb. N. 
 Cas 254. 
 
 11. Right of removal as dependent 
 on amount in dispute. Where the amount 
 claimed in the complaint is less than |500, the 
 defendant cannot, by interposing a counter-claim 
 exceeding that sum, remove the action to the 
 United States court for trial, upon the ground 
 that the parties are residents of different states 
 and the matter in dispute exceeds $500. The 
 amount in dispute must be determined from the 
 complaint.— Mi?-ime Ct , (Sp. T.,) Oct., 1880. 
 Clarkson v Manson,* 59 How. Pr. 480. 
 
 12. Removal of suits by or against 
 corporations. A suit by a corporation cre- 
 ated by act of congress is a suit arising under 
 the laws of the United States, and is removable 
 under the act of 1875.— U. S. Cir. Ct., {So. Dist. 
 ofN. Y.,) March, 1880. Union Pacific E. R. Co. v. 
 McComb, 58 How. Pr. 478. But see Ulster Co. 
 Savings Inst. v. Fourth Nat. Bank, 59 Id. 482. 
 
 13. The petition for removal must state the 
 facts showing the case to be a proper one for 
 removal to the federal court under the act of 
 congress ; an attegation that it is a proper case 
 for removal is not enough. — Orni. Pleas, {Sp. 
 T.,) Dec., 1878. Lalor v. Dunning, 56 How. Pr. 
 209. 
 
 14. A petition to remove a cause from a state 
 court into the United States Circuit Court, whick 
 simply states that defendant was an alien at the 
 time of signing and verifying the petition, is 
 fatally defective ; it must appear that he was an 
 alien at the time of the commencement of the 
 action. — Ct. of App., Feb., 1879. Tugman v. 
 National Steamship Co., 76 N. Y. 207 ; affirming 
 13 Hun 332. 
 
 15. Where, after a dShial of an application 
 to remove a cause, defendant consents to the ap- 
 pointment of a referee to determine the action, 
 and proceeds to trial on the merits before him, 
 
 * Overruled in U. 9. Circuit Court. See 60 How. 
 Pr.45. 
 
392 
 
 REMOVAL OF CAUSES, II.— REPLEVIN, I., II. 
 
 as to whether this is a waiver on the part of de- 
 fendant of his right to insist that a removal has 
 been had, see lb. 
 
 16. Affidavit under act of 1867. In 
 proceedings to remove a cause into the Uffi. 
 Circuit Court, under the act of congress of 1867, 
 an objection to an affidavit taken in another 
 state, that it is not properly cerlified as required 
 by the act of 1869, (Laws of 1869, ch. 133,)— 
 providing for the taking of affidavits in another 
 state to be used in this state— should be taken 
 at the time the affidavit is read, and if not 
 then- taken, it is waived.— Ci. of App., May, 1878. 
 Mix V. Andes Ins. Co., 74 N. Y. 53. 
 
 17. Where an order denying a motion for 
 removal recites that the papers upon which the 
 motion was made, including the affidavit, were 
 read without stating such objection was made, 
 it cannot be assumed that it was made, but the 
 presumption is that it' was waived. lb. 
 
 18. An application under the act of congress 
 of March 2d, 1867, (14 U. S. Stat, at L. 558,) to 
 remove a cause from a state court into the Cir- 
 cuit Court of the United States, may be made by 
 a corporation of another state. The corporation 
 may make the affidavit, required for such pur- 
 pose, by its authorized agent. lb.; reversing 
 9 Hun 397, and oveiTiding Cook v. Slate Nat. 
 Bank, 52 N. Y. 96. 
 
 19. The bond. On an application for the re- 
 moval of a cause from a state court to tlie U. S. 
 Circuit Court, under the pi-ovisions of the act of 
 congress of 1867, it is for the court to determine 
 whether the surety tendered, as required by the 
 act, is "good and sufficient;" but it cannot ar- 
 bitrarily reject a bond tendered which is suf- 
 ficient in form, without specifying any cause. 
 Defects should be pointed out that they may be 
 remedied. Therefore, where a bond was ten- 
 dered, upon ils face a precise compliance with 
 the act — Seld, that in the absence of any speci- 
 fication to that efiect, it could not be assumed 
 that a denial of the petition for removal was on 
 account of any insufficiency in the bond. Mix 
 V. Andes Ins. Co., supra. 
 
 20. Effect of removal on further 
 proceedings in state court. Proceedings 
 in the state court, after proper action taken for 
 removal of a cause subject to removal under the 
 act of 1875, are coram non judice, and any judg- 
 ment entered in the state court thereafter will 
 be reversed on appeal by the party obtaining the 
 removal. Leutze v. Butterfield, supra. 
 
 RENT. 
 
 LANDIiORD AND TENANT, III. 
 
 REPLEVIN: CLAIM AND DELIVERY. 
 
 I. When it Lies. 
 II. Pkocedube. 
 
 III. Kemedibs upon Eepievin Bonds and 
 Undebtakings. 
 
 I. When it Lies. 
 I. In general. As to when replevin will 
 
 lie between joint owners of personal property, 
 see Hudson v. Swan, 7 Abb. N. Ca«. 324. 
 
 2. Although a warrant for the collection of a 
 tax or assessment, pursuant to a statute of this 
 state, may have been issued erroneously or ir- 
 regularly, if on its face it gives authority to the 
 officer to collect the tax or assessment, replevin 
 cannot be sustained for property taken by virtue 
 of the warrant.— a. of App., Feb., 1878. Trey, 
 &c., E. B. Co. V. Kane, 72 N. Y. 614. 
 
 3. For what property it lies. An 
 action of replevin by the maker will not lie for 
 a check, after it has been presented to and paid 
 by the drawee, and returned as a voucher to the 
 maker. — Ct. of App,, Sept., 1877. Barnett v. 
 Selling, 70 N. Y. 492 ; S. C, 3 Abb. N. Cas. 83 ; 
 modifying 9 Hun 236. 
 
 II. Pbocedubb. 
 
 4. Demand before suit. A bill of sale 
 of furniture, payable in installments, provided 
 that if default was made in any payment, that 
 then all the payments previously made should 
 be forfeited, and the furniture should be re-con- 
 veyed and forfeited to the vendor, without con- 
 sideration. Held, that after a demand of pay- 
 ment, and a refusal or neglect to pay, that a 
 demand for the furniture must be made before 
 an action for its recovery could be maintained. 
 — Superior Ct., August, 1877. Arosemena v. 
 Hinckley, 43 Superior 43. 
 
 5. In-such an action the value of the prop- 
 erty fixed by the bill of sale, less the amount of 
 the installments paid on the same by the vendee, 
 is the value to be assessed by the jury, in find- 
 ing a verdict for the plaintiff; and the interest 
 on such value from the lime of the demand, is 
 the amount of damages to be assessed for its de- 
 tention. 76. 
 
 6. The complaint. The code does not 
 require a complaint, in an action for claim and 
 delivery of personal property, to be in any spe- 
 cific form ; the only requirement in reference 
 thereto is the general one, that it shall contain 
 a plain and concise statement of the cause of 
 action. (Old Code, § 142 ; New Code, g 481.)— 
 Ct. of App., Nov., 1878. Western K. B. Co. ■„. 
 Bayne, 75 N. Y. 1. 
 
 7. In replevin, the objection that the com- 
 plaint alleges a trespass and a converaon, must 
 be taken before trial ; if not, and plaintiff shows 
 a right to possession, such allegations will be 
 treated as surplusage. — Superior Ct., (Oen. T.,) 
 Nov., 1879. Banfield v. Haeger, 7 Abb. N. Cas. 
 318. 
 
 8. A complaint alleged that plaintiff is the 
 owner of, and entitled to the immediate posses- 
 sion of certain property of a specified value ; 
 that defendant became possessed thereof wrong- 
 fully, and plaintiff demanded the delivery 
 thereof to him, which was refused, and defend- 
 ant converted the same to her own use ; and 
 prayed the delivery of the property, with a spe- 
 cified amount for damages for ,its detention. 
 Held, to present an action for claim and de- 
 livery. — Superior Ct., Dee., 1879. Banfield v. 
 Haeger, 45 Superior 428. 
 
 9. The undertaking on part of 
 plaintiff- It is not essential to the validity 
 of an undertaking given by the plaintiff, in an 
 action to recover possession of personal prop- 
 erty, in apparent conformity with the provisions 
 of the code in reference thereto (? 209), that the 
 
REPLEVIN, II., III. 
 
 393 
 
 «ndei;taking be delivered to the sheriff as re- 
 quired by said provision, or that the statutory 
 jirooeedings be taken and the undertaking used 
 to accomplish the purpose for which the statute 
 requires it to be given. — Ot. of App., April, 1877. 
 Harrison v. Wilkin, 69 N. Y. 412. 
 
 10. — on part of defendant seeking 
 ^ return of the property. Where de- 
 fendant desires a return of chattels replevied, he 
 :must serve upon the sheriff written notice that 
 he requires the return thereof; and he must file 
 an affidavit that he is the owner of the property, 
 or that he is lawfully entitled to the possession 
 thereof. These conditions are mandatory, and 
 the failure of a defendant to comply with them 
 renders his counter-bond nugatory. — Marine Ot., 
 (So. T.,) Sept., 1880. Teschner v. Deveron, 59 
 How. Pr. 467. 
 
 11. By excepting to plaintiff's sureties, de- 
 fendant waives a return of the property before 
 judgment. If they fail to satisfy, he cannot 
 have an order d,irecting the sheriff to deliver 
 the property to him. — Superior Ct., (Sp. T.,) 
 Oct., 1878. CuUen v. Miller, 5 Abb. N. Cas. 
 282. 
 
 12. Seizure of the property by the 
 sheriff. Liability for taldng property 
 of third person. A requisition to a sheriff, 
 in an action for the claim and delivery of per- 
 sonal property, only authorizes the taking of 
 the chattels specified, from the defendant named 
 in the action, or his agent ; it is no protection, 
 when he takes them from another, in an action 
 of trespass brought by the latter. — O!. of App., 
 June, 1877. Otis v. Williams, 70 N. Y. 208. 
 
 13. The facts that the owner is a married 
 woman, and that defendant is her husband and 
 agent, do not affect the legal status of such 
 
 > -owner. Nor does the fact that in the replevin 
 suit the defendant sets up title and possession in 
 ilia wife, and succeeds on that issue ; the wife is 
 not bound by the judgment therein. lb. 
 
 14. As to whether the court, wherein the 
 judgments in the replevin suit; and in the action 
 for trespass were rendered, can control action 
 thereon, so that no more than full indemnity 
 may be obtained by the owner, qimre. lb. 
 
 15. Indemnifying the sheriff. One 
 having title to and a right of possession of prop- 
 erty taken under proceedings for its claim and 
 delivery, who has presented his claim under 
 and in pursuance of Code of Pro., § 216, may 
 maintain an action against the sheriff or coroner 
 for a conversion of the property when the officer 
 has obtained indemnity as provided by said sec- 
 tion, and has delivered up the property to the 
 plaintiff in the replevin suit,— Ol!. of App., 
 March, 1878. Manning v. Keenan, 73 N. Y. 
 45, 54 ; affirming 9 Hun 686. 
 
 16. The officer is primarily bound by his pro- 
 cess to keep the property or to deliver it to the 
 plaintiff; the service of the affidavit and notice 
 of claim suspends that obligation and releases 
 him from it unless indemnity is given ; when 
 given, the obligation again attaches, and the 
 claim of the person entitled to the property is 
 valid, the officer being required to rely upon 
 the indemnity. 1 b. 
 
 17. No other demand is necessary to the 
 maintenance of the action against the officer 
 than the service of the affidavit and notice of 
 claim prescribed by said section. lb. 63. 
 
 18. The answer. Where the property 
 -. has been taken from defendant and delivered to 
 
 plaintiff, and judgment is finally entered in favor 
 of defendant, for a return of the property to him^ 
 no damages for the taking and withholding of 
 the property can be recovered by him unless he 
 has set up a claim therefor in his answer. — Su- 
 preme Gt., [itk Dept.,) June, 1878. Whitcomb 
 V. Hoffman, 14 Hun 335. 
 
 19. Evidence. In replevin, neglect to prove 
 value of goods and damages, is not ground for 
 the dismissal of the complaint, it appearing that 
 plaintiff is entitled to a return of the goods. — 
 Superior Ct., Bee., 1879. Banfield v. Haeger, 45 
 Superior 428. 
 
 20. In replevin against a sheriff, to recover 
 goods seized by him under executions issued 
 against one C, plaintiffs alleged, in their com- 
 plaint, that C. had purchased the goods from 
 them by false and fraudulent representations, 
 and with intent not to pay therefor. Upon the 
 trial a number of judgments against C. — under 
 two of which the executions had been issued — 
 were received in. evidence against defendant's 
 objection. Hdd, that they were admissible, as 
 tending to show the falsity of the representa- 
 tions and the intention not to pay for the goods. 
 Supreme Ct., IMh Dept.,) Oct., 1878. Hersey v. 
 Benedict, 15 Hun 282. 
 
 21. In such an action, evidence that the 
 debtor had made a general assignment — Held, 
 admissible, to show the intent with which he 
 made the purchase, against creditors who have 
 recovered judgments after the purchase and be- 
 fore the assignment. lb. 
 
 22. The judgment. Where, in an action 
 to recover personal property, plaintiff claimed a 
 special interest as mortgagee, defendants being 
 the general owners, with a right to redeem — 
 Held, that the proper judgment in favor of the 
 plaintiff was for a return of the property, or for 
 its value, fixing it at the amount of plaintiff's 
 interest, i c, the amount due on the mortgage, 
 not for the full value of the property, with 
 damages for the detention. — Cl. of App., Oct., 
 1877. Allen v. Judson, 71 N. Y. 77. 
 
 III. BeMEDIES TTPON EEPLETHf BoNDS AKD 
 
 Undebtakinqs. 
 
 23. Liability of sureties. As to the lia- 
 bility of the sureties, on an undertaking to pro- 
 cure the return of the property to the defendant, 
 
 fiven under Code of Pro. (old code), § 211, see ' 
 aggar v. Lalance, &c., Manuf. Co., 8 Daly 251. 
 
 24. Matters of defence. An action was 
 brought by a corporation to recover possession 
 of personal property, in which a claim for the 
 immediate delivery of the property was made> a 
 receiver of the corporation was subsequently ap- 
 pointed and was substituted as plaintiff in its 
 stead ; judgment was rendered in favor of de- 
 fendant, in the usual form for a return of the 
 property or for its value, and execution was is- 
 sued thereon, which was returned unsatisfied. 
 In an action upon the undertaking given by 
 said plaintiff upon such claim — Held, that de- 
 fendant could not object that the execution was 
 irregularly issued, it being against an officer of 
 the court, and issued without leave ; that if the 
 execution was improperly issued it could only 
 be vacated by motion made for that purpose. — 
 Ct. of App,, Oct., 1879. Harrison v. Wilkm, 78 
 N. Y. 390. 
 
 25. The defendants in the replevin suit stip- 
 ulated that the property was, at the time of the 
 
39i 
 
 EEPLEVIN III.— RIPARIAN RIGHTS. 
 
 commencement of that action, in their possess- 
 ion. Hdd, that they were not estopped thereby 
 in the action upon the undertaking. lb. 
 
 26. It is no defence to an action upon such 
 an undertaking, that the property is in such po- 
 sition that it cannot be reached ; the undertak- 
 ing can only be satisfied by a re-delivery of the 
 property or by payment of the judgment, lb. 
 
 REPLY. 
 
 Pleasino, IV. 
 
 REPORT. 
 
 M A-w mi' A frnntTun COMPANIES, 22-38; Eef- 
 EEENCE, 19-29. 
 
 REPRESENTATIONS. 
 
 I^TTD, 8-6 ; Insurance, 60, 92-108 ; 
 SaiiES^ 26-31 ; Vendob and Pukchaser, 7, 
 
 e. 
 
 RESCISSION. 
 
 CtoNTRACTS, VIII. ; Sales, 45, et seq. 
 
 RETURN. 
 
 Constables, 2, 3 ; Execution, 25 ; Sher- 
 iffs, 10-14. 
 
 REVIEW. 
 
 Appeal; Certiorari; Error; New trial. 
 
 REVIVAL. 
 
 As to revival oi Actions, generally, see Abate- 
 ment AND Revival, II. 
 
 Effect of New Promise, see Limitations op 
 AoTiONS, V. ; Promissory Notes, 39-41. 
 
 REVOCATION. 
 
 Of authority of Assiynee for creditors, see As- 
 signments, 4. 
 Of lAeense, see License, 4. 
 Of Will, see Wills, V-IO. 
 
 RIPARIAN RIGHTS. 
 
 [Consult, also, Mills; Wateb-ooubsbs.] 
 
 1. As to the right of property in- 
 'water, and in ice formed on ponds, and under 
 what circumstances trover is maintainable forcut- 
 ting ice on a pond Ij^longing to plaintiff, see 
 Myer v. Whitaker, 55 How. Pr. 376; S. C, 
 5 Abb. N. Cas. 172. 
 
 2. The natural flow of the stream,, 
 and liability for increasing it. The right 
 of a riparian proprietor to drain the surface- 
 water on his lands into a stream which flows- 
 Jthrough them, is not an absolute one under all 
 circumstances ; it does not authorize the throw- 
 ing into a small stream surface-water, by means 
 of ditches and drains, when, by so doing, the 
 stream wUl be filled beyond its natural capacity, 
 and will overflow and flood the lands of a lower 
 proprietor. — Ct. of App., Jan., 1880. Noonan 
 V. City of Albany, 79 N. Y. 470. 
 
 3. — for interrupting' it. One claiming- 
 the right to interrupt the natural flow of a water- 
 course must show that such interruption is con- 
 sistent with a reasonable exercise of his right as 
 riparian owner. — Ol. of App., Sept., 1879. Bui- 
 lard V. Saratoga Victory Manuf. Co., 77 N. Y. 
 525, 530 ; affirming 13 Hun 43. 
 
 4. Injury to another riparian proprietor is- 
 not an invariable test of the right of such use. 
 lb. 529. See, also, Gillespie v. Forrest, 18- 
 Hun 110. 
 
 RISK. 
 Insurance, 31-36, 128-130 
 
 ROCHESTER. 
 
 Municipal Corporations, 129-131. 
 
 RULES OF COURT. 
 
 CotTKTS, 9. 
 
SALES, I. 
 
 395- 
 
 S. 
 
 SABBATH-BREAKING. 
 
 Ceiminai Law, 14. 
 
 SALES. 
 
 L The Contract. VAirDiTY; Bights op 
 THE Paeties, &c. 
 
 1. What constUvies a sale; validity. 
 
 2. Requirements of the statute of. frauds. 
 
 3. Bights and liabilities of the parties; 
 
 and herein of bona fide purchasers. 
 
 U, Delivery and Payment. Accept- 
 ance. 
 
 1. In general. 
 
 2. Conditional sales. 
 
 3. When the title passes, 
 
 4. /Stoppage in transit. 
 
 TTT, Wabbanties. 
 IV. Sales by Sample. 
 V. Eemedies between BxnrEB and Seller. 
 
 I. The Contract. Validity; Eights op 
 THE Pabties, &c. 
 
 1. What constitutes a sale; validity. 
 
 1. What amoTints to a sale— ho'w dis- 
 tinguished from mortgage. Where a 
 purchaser signs and delivers to the seller an 
 agreement to buy personal property upon terms 
 specified, and the latter agrees by parol to sell 
 upon the terms stated, there is a binding con- 
 tract, which may be enforced against the pur- 
 chaser. — Ct. of App., Feb., 1878. Mason v. 
 Decker, 72 N. Y. 695, 598. 
 
 2. What is a valid sale with a right to re- 
 purchase, and not a mortgage, as against credit- 
 ors of the seller, see Mahlei- v. Schloss, 7 Daly 
 291. 
 
 3. Interpreting the contract. Plain- 
 tiff agreed to sell, and defendant to purchase, 
 twelve thousand hop-poles, at $70 per thousand. 
 Two papers were prepared, one written 'by 
 plaintiff and signed by defendant's agent, the 
 other, a printed form, filled up and signed by 
 plaintiff. The agreement was stated substanti- 
 ally alike in each, with this exception : the 
 former contained this clause, "no objection to 
 any kind of cedar ;" while the latter required 
 "said poles to be of yellow cedar, first growth." 
 Held, that the referee was justified in holding 
 that the written paper was binding ; and that 
 evidence of conversations between the parties, 
 at the time, was competent upon the question aS 
 to which was intended as tlie contract. — Ct. of 
 App., Jan., 1879. Hill c. Miller, 76 N. Y. 32. 
 
 2. Requirements of the statute of frauds. 
 
 4. Satisfying the statute by delivery 
 and acceptance of goods sold. In an 
 action for the price of a marble mantel, defend- 
 
 ant obtained judgment, on the ground that the 
 contract was oral, and so void under the statute 
 of frauds. On appeal the court — Held, revers- 
 ing the judgment, that'the undisputed evidence 
 showed a delivery and acceptance, and so, that 
 the contract, if one of sale, thus became com- 
 plete and binding.— C«. of App, Nov., 1878^ 
 Fitzsimmons v. Woodruff, 74 N. 1. 621. 
 
 5. For a full collation of the authorities upoi*. 
 what is a sufficient receipt and acceptance of 
 goods sold by the buyer to take the sale out of 
 •the statute-of frauds, see United States Eeflector 
 Co. V. Eushton, 7 Daly 410. See, also, Heer- 
 mance v. Taylor, 14 Hun 149. 
 
 6. Plaintiff and defendant while standing 
 near to two hay stacks belonging to plaintiff,, 
 and in sight of one of them, entered into att 
 oral contract for the sale of the hay, defendant 
 agreeing to pay plaintiff $190 therefor and |10' 
 more if he should do well with^ it. Plaintiff 
 then said "the hay is yours," and defendant 
 said " yes." Hdd, not a sufficient delivery or 
 acceptance of the hay to take the sale out of the- 
 statute of frauds. — Supreme Ct., [Zd Dept.,) 
 April, 1880. Hallenbeck v. Cochran, 20 Hun 
 416. ' 
 
 7. — by part payment. Subsequently 
 plaintiff called on defendant for payment on 
 " that hay," and the latter promised to obtain 
 money from B. with which to make payment. The- 
 next day defendant met plaintiff and handed 
 him $25, saying that he had not seen B., but 
 had learned that he was not at home ; that if 
 hay did not do better he should have a pretty 
 tough bargain, &c. Nothing further was said 
 as to the previous bargain. Held, that the pay- 
 ment was not made at the time of entering into 
 the contract as required by the statute of frauds^ 
 and did not render valid the prior oral agree- 
 ment, lb. 
 
 3. Rights and- liabilities of the parties; and herein- 
 of bona fide purchasers. 
 
 8. Of the seller ; and herein of his. 
 lien. Plaintiffs sold carpets to M. &. Co., un- 
 der an agreement that M. & Co. should give- 
 back a chattel mortgage on the carpets as secur- 
 ity for their notes given for the price. The- 
 notes were given and the carpets delivered, but 
 plaintiffs neglected to demand the mortgage- 
 until after the firm of M. & Co. had dissolved 
 partnership, and defendant had been appointed 
 receiver in an action to wind up the aiiairs of 
 the firm. They then demanded the mortgage,, 
 which was given, but was drawn in the indi- 
 vidual name of one of the firm of M. & Co.. 
 with a recital in it that it was given to secure 
 the indebtedness of M. & Co. for the carpets. 
 Defendant, as receiver, subsequently sold the 
 carpets as the property of M. & Co., pursuant to- 
 an order of the court. On the day of sale 
 plaintiffs attended and publicly demanded the- 
 carpets, but defendant sold them. In an action 
 to recover damages for the alleged conversion, 
 of the carpels — 
 
 Held, 1. That the facts justified a finding- 
 that there was an absolute delivery of the goods,, 
 without insisting upon delivery of the chattel 
 
396 
 
 SALES, I., II. 
 
 mortgage or otherwise making the delivery 
 •conditional, and that the title thereupon became 
 vested in M. & Co., and was so vested at the 
 
 ■ time of the appointment of the receiver ; but 
 -that plaintiffs had an equitable lien upon them, 
 which was not affected by the omission to de- 
 jnand the mortgage at the time of delivery, or 
 to make the delivery conditional. 
 
 2. That the mortgage was not in itself suffi- 
 cient to create a legal lien, as it was not exe- 
 ■cuted in the firm name, and as the firm was 
 then dissolved, but taken in connection with the 
 ■previous agreement and the recitals in the 
 mortgage, it appeared that it was given in 
 attempted performance of the agreement, and 
 plaintiffs' equitable lien was still preserved. 
 
 3. That the present action, however, could not 
 be maintained, as it was an action at law based 
 ■upon the allegation that legal title to the prop- 
 ■erty had never passed out of plaintiff, and no 
 -equitable relief was sought; also as no facts 
 ■were alleged or found entitling plaintiffs to 
 -such relief or to recover damages for depriving 
 plaintiflfe of their equitable lien, it not appear- 
 ing that the property was sold in hostility to 
 
 -such lien, or that it was scattered or dissipated, 
 or sold to bona fide purchasers having no notice 
 ■of the lien.— Ci!. of App., Nov., 1878. Husted 
 ■V. Ingrahara, 75 N. Y. 251. 
 
 9. That plaintiflfe could have applied to the 
 •court to restrain the sale, or to cause it to be 
 -made subject to their lien, or to have the pro- 
 ceeds first applied to the payment thereof, or 
 could have demanded the application of the pro- 
 ceeds, if remaining in tlie hands of the receiver, 
 to the payment of the lien, see lb. 
 
 10. Wlio are deemed bona flde pur- 
 •cbasers, and how far protected. Where 
 goods are sold to be paid for on delivery, if de- 
 .iivery is made without requiring payment, 
 although with the condition attached that the 
 
 ■ delivery shall not be considered complete so as 
 .to pass the title until payment is made, a bona fide 
 purchaser from the vendee, without notice, ob- 
 tains a good title discharged of the lien for the 
 purchase money. — Ct. of App., May, 1879. 
 Comer v. Cunningham, 77 N. Y. 391. 
 
 11. Plaintiff delivered a number of wagons to 
 -H., not for his own use, but that he might sell 
 ithem and receive the price thereof, it being 
 agreed, however, that the title to the wagons 
 ^should not pass to H. until lie had paid the 
 ■plaintiff therefor. Held, that the title of a bona 
 
 fide purchaser who had paid full value for the 
 wagons, and who was ignorant of the secret 
 agreement between the plaintiff and H., was not 
 .affected by such agreement. — Supreme Ct., (3d 
 Dept.,) Nw., 1879. Fitzgerald v. Fuller, 1 9 Hun 
 180. 
 
 12. The rights of third persons claiming to be 
 .■6o»a fide purchasers for value, determined in 
 ■cases depending upon particular facts. Dows v. 
 
 Kidder, 45 Superior 639 ; Parker v. Baxter, 19 
 JSun 410. 
 
 13. Purchasers from one having no 
 "title, or from a thief. The rule that a 
 thief cannot convey a good title to stolen prop- 
 ■erty has an exception in case of money or nego- 
 iiable securities transferable by delivery, which 
 have been put into circulation and have come to 
 the hands of bona fide holders. The right of the 
 •owner to pursue and reclaim the money and se- 
 •curities there ends, and the holder is protected 
 
 in his title. — Ct. of App., March, 1877. Newton 
 V. Porter, 69 N. Y. 133, 137. 
 
 14. Purchasers in good faith from one who 
 had fraudulently procured a quantity of cotton 
 to be intrvisted to him to be weighed and ship- 
 ped to pretended purchasers, but who was not 
 authorized to otherwise dispose of it — SM, not 
 to have acquired any title to the cotton, as 
 against the owner, in a case depending upon 
 particular facts. — Supreme Ct., [2d Dept.,) Feb., 
 1880. Collins v. Ealli, 20 Hun 246. 
 
 II. Demvery and Payment. Acceptance. 
 
 1. Jn general. 
 
 15. Time of delivery. An acceptance of 
 goods after the agreed time for delivery, with- 
 out objection on the part of the buyer, is a 
 waiver of damages for delay in delivery. — Com. 
 Fleas, Dec., 1878. Bock v. Healy, 8 Daly 156. 
 
 16. What is a sufficient delivery. In 
 an action to recover the alleged contract price 
 for a quantity of lumber sold to defendant, 
 plaintiff's evidence tended to show that defend- 
 ant contracted to purchase of plaintiff all the 
 lumber which the latter should deliver at a 
 place designated on the D. river, before the first 
 rafting freshet in the spring ; the lumber to be 
 paid for at a price specified for the good and for 
 the culled. Defendant to furnish a man to cull 
 and pile, and the lumber to be counted on the 
 bank, or estimated in the raft. Plaintiff com- 
 menced drawing lumber to the place designated, ^ 
 an employee of defendant assisting in culling; 
 and piling, but before the lumber so drawn had 
 been counted or estimated, a portion of it was 
 swept away by a flood. Seld, that the evidence ' 
 was sufficient to sustain a finding of a valid de- 
 livery and acceptance, and to sustain a recovery ; 
 that the contract was not an entirety, and a de- 
 livery of the whole amount contracted for was 
 not necessary in order to pass title. — &. of App., 
 Nov., 1877. Burrows v. Whitaker, 71 N. Y. 
 291 ; affirming 8 Hun 260. 
 
 V7. Delivery to carrier, or other third 
 person. A delivery of goods by a vendor to 
 a carrier, pursuant to the directions of the pur- 
 chaser, is a good delivery to the latter. — Ct. of 
 App., Jan., 1878. Wilcox Silver Plate Co. v. 
 Green, 72 N. Y. 17. 
 
 18. On a sale of personal property, a delivery 
 to a third person by direction of the buyer, is a 
 good delivery to the latter. Suprme Ct., {2d 
 Dept.,) Sept., 1878. Pierson v. Werhan, 14 Hun 
 626. 
 
 2. Conditional sales. 
 
 19. When a sale is conditional. H., 
 who had been publishing a newspaper, styled the 
 Watertoium Be-unUm, contracted to sell to W. the 
 " Watertown Be-union establishment, including 
 the presses, machinery, type," etc., the purchase 
 price, save a payment made at the time, to be 
 paid in annual installments ; W. to have full 
 ownership upon performance by him of the con- 
 ditions and stipulations of the agreement, and 
 meanwhile to take possession, hold and use the 
 same as "tenant or bailee." Provision was 
 made that in case of non-performance, H. could 
 take possession. It was agreed that the prop- 
 erty should not be sold, save certain specified 
 articles, and in case of sale, other similar prop- 
 
SALES II., III. 
 
 39T 
 
 erty was to be substituted, to be subject to the 
 same conditions. Held, that the transaction was 
 a conditional sale, and tne title did not vest in 
 the vendee until payment of the consideration ; 
 that the good-will of the establishment was em- 
 braced in the sale, including the subscription 
 list, name of paper, and other advantages inci- 
 dent to, the property ; that the good-will of such 
 an establishment was property, although incor- 
 poreal in its nature, and the condition as to 
 vesting of title applied thereto. — Ct. of App., 
 Sept., 1877. Boon v. Moss, 70 N. Y. 465. 
 
 20. Rights of the parties. In an action 
 between B. and M., who succeeded to the in- 
 terest W. acquired under said contract, and who, 
 as partners, had been publishing said newspaper, 
 in which action a receiver of the partnership 
 property had been appointed, an order was 
 granted directing the receiver to deliver to F., 
 as assignee of H., certain specified property 
 which was in the establishment at the time of 
 the sale, and to sell the residue, retaining the 
 proceeds, subject to the order of the court. EJdd, 
 that the order was not an adjudication against 
 the right of F. to the value of the good-will, and 
 that he was entitled to such value, or sufficient 
 thereof to pay his debt. 76. 
 
 3. When the title passes, 
 
 21._ In general, and as between the 
 parties. Where it appears that there has been 
 a complete and full delivery of property, in ac- 
 cordance with the terms of a contract of sale, the 
 title passes, although there remains something 
 to be done in order to ascertain the total value 
 at the rates agreed upon. — Ct. of App., Nov., 
 1877. Burrows v. Whitaker, 71 N. Y. 291 ; 
 affirming 8 Hun 260. 
 
 252. The parties may determine when the 
 title is to vest under a contract of sale. — Gt. of 
 App., Dec., 1878. Hurd v. Cook, 75 N. Y. 454. 
 
 23. — as respects creditors of the 
 parties. What is such a sale as will pass the 
 title to the purchaser, so that the sheriflf may 
 hold the goods on an execution against the pur- 
 chaser, as against the' seller's claim that the 
 transaction was merely the creation of an agency 
 in the execution debtor to sell the goods on 
 commission, see, Ct. of App., Oct., 1878. 
 Fish V. Benedict, 74 N. Y. 613. 
 
 24. Plaintiffs entered into a contract with S. 
 & G., by which the former agreed to malt for the 
 latter twenty-five thousand bushels of barley from 
 October 1st, 1875,to June 1st, 1876,'at a price speci- 
 fied. PJaintifife were to purchase the barley, and 
 ship the malt when directed by S. & Gr., who were 
 to have the increase. S. & G. agreed to accept 
 plaintiffs' drafts " in payment for the purchase 
 of the barley," or to furnish satisfactory notes. 
 At the close Of each month plaintiffs were to 
 furnish a statement of the amount malted, and 
 (in presentation S. & G. agreed to pay the price 
 for malting. S. & G. also agreed to pay interest, 
 exchange and insurance on the barley and malt 
 from the time the barley was paid for by plain- 
 tiffs until the malt was delivered. Plaintiffs 
 were authorized to retain and hold as security, 
 after June 1st, a sufficient amount of the malt to 
 pay any notes or drafts then unpaid. In an 
 action for malt manufactured under the contract, 
 but not delivered or paid for, which had been 
 levied upon by, defendant as sheriff, under and 
 by virtue of an execution against S. & G. — Held, 
 
 that the legal title in the malt was in the plain- 
 tiffs until paid for, and that S. & G. had no levi- 
 able interest therein. — Ct. of App., Dee., 1879, 
 Tuthill V. Bogart, 79 N. Y. 215 ; affirming 14 
 Hun 487. 
 
 4. Stoppage in ira/nsit. 
 
 25. Effect of stoppage on note given 
 for price. When a note is given for the pur- 
 chase price of goods, and the goods while in 
 transitu are stopped by the vendor, who takes- 
 possession thereof and sells them, the considerar 
 tion for the note fails, and, as between the origi- 
 nal parties, the maker is discharged from all 
 liability thereon, and on account of the pur- 
 chase. — Superior Gt., Nov., 1878. Babcock v. 
 Bounell, 44 Superior 568. 
 
 III. Waeeajtties. 
 
 26. Implied warranty of genuine- 
 ness. Where a vendor of goods represents- 
 them at the time of sale to be an article known 
 in the market by a particular name, and the- 
 vendee purchases, relying upon the statements,, 
 without having an opportunity to examine, or 
 where an examination would not enable him to- 
 discover whether the goods agreed with the rep- 
 resentation, a warranty is implied that the goods^ 
 are of the kind, character and description repre- 
 sented.— ft. of App., March, 1877. Van Wyck 
 V. Allen, 69 N. Y. 61. Nov., 1877. White v.. 
 Miller, 71 N. Y. 118. Compare People's Bank 
 V. Bogart, 16 Hun 270. 
 
 27. So, also, where a vendee desires an arti- 
 cle for a certain purpose, and the vendor fur- 
 nishes an article knowing that the vendee relies- 
 upon his complying with such desire, the law 
 implies that the article is delivered with a, 
 warranty that it accords with the desire. Van. 
 Wyck V. Allen, supra. 
 
 28. — of merchantable quality, 
 soundness, &c. Upon the sale of seeds by 
 the grower, a warranty is implied that they ar& 
 free from any latent defect arising -from im- 
 proper cultivation. — Ct. of App., Nov- 1877. 
 White V. Miller, 71 N. Y. 118, 131. 
 
 29. Plaintiffs, who were market gardeners, 
 in 1867 purchased of defendants, who were- 
 growers of seed for the market, cabbage seed of a 
 variety known as "Large Bristol Cabbage,"" 
 which produced cabbage of that variety. In. 
 the fall of that year plaintiff was advised by M.,. 
 one of defendants' trustees, that they had raised 
 a quantity of the same kind of seed and solicited 
 plaintiffi to purchase. Plaintiffs went to de- 
 fendants' store to purchase seed, and were shown 
 a catalogue. Among others on the list wa» 
 "Large Bristol Cabbage," of which plaintiffs- 
 ordered a quantity. The required quantity of 
 seed was sent them. In the accompanying bill 
 of parcels, the seed was described as in the cata- 
 logue. The seed in question was raised on 
 Bristol cabbage stocks, which were planted in 
 the vicinity of stocks of, other varieties, and in 
 consequence of the crossings of varieties, th& 
 seed in question became impure and not genu- 
 ine Bristol cabbage seed, and the plants raised 
 therefrom were worthless. In an action to re- 
 cover damages. — 
 
 Held, 1. That the sale was with warranty 
 that the seed sold was Bristol cabbage seed; 
 also that there was an implied warranty that 
 
398 
 
 SALES, III., IV., Y. 
 
 such seed was free from any latent defect arising 
 from the mode of cultivation ; that whether the 
 seed was Bristol cabbage seed within the warranty 
 depended upon the fact whether it would pro- 
 ■duCe, under proper cultivation, Bristol cabbage, 
 ■not upon the origin of the stocks upon which it 
 .grew ; but if this were not so, there- was still a 
 hreach of the implied warranty. 
 
 2. That the fact that M. was named in 
 the bill of parcels as the vendor, did not pre- 
 clude plaintiffs from treating the transaction as 
 .a sale by defendants. 
 
 3. That the proper measure of damages was 
 the difference in value between the crop raised 
 from the defective seed and a crop of Bristol 
 <abbage, such as would ordinarily have been 
 produced that year. lb. 
 
 30. In an executed contract of sale of arti- 
 cles of food, when the seller knows the quality 
 aiii condition of the articles sold, and the buyer 
 does not, and knows that the buyer intends to 
 use the articles for food, or to sell them to others 
 to be so used, the law implies a warranty that 
 ■the articles are sound, wholesome, and fit to be 
 aised as food. — Supreme Ct., (3d Dept.,) Nov., 
 1878. Burch v. Spencer, 15 Hun 504. 
 
 31. In an action for the price of certain steel 
 «old to be used in the manufacture of edged 
 tools, the defence was that the steel was defec- 
 tive and of poor quality. It was conceded that 
 the quality of the steel could not be ascertained 
 "without " working it up," and that an inspec- 
 tion and examination of it would not reveal its 
 defects. Hdd, that in order to take advantage 
 of the implied warranty that it was fit for the 
 purpose for which it was sold the buyer was not 
 bound to test it at once and give notice of the 
 .defests, but that he was entitled to deduct the 
 <lamages sustained by reason of such defects 
 from the price. — Supreme Ct., {1st Dept.,) March, 
 1878. Gautier v. Douglass Manuf. Co., 13 Hun 
 -514. 
 
 IV. Sales by Sample. 
 
 32. "WTiat constitutes-a sale by sam- 
 ple. The defence that a contract for the sale 
 of barley was a sale by sample, and that the bar- 
 ley was inferior to the sample, overruled in a 
 oase depending upon peculiar circumstances. — 
 O. of App., May, 1879. Ames v. Jones, 77 N. 
 Y. 614. 
 
 V. Eemedies between Btjyeb and Selleb. 
 
 33. Rights of seller— Election of 
 Temedies. Where there is a valid executory 
 •contract of sale, the seller may, upon tender of 
 performance upon his part and demand of pay- 
 ment, and upon refusal of the piirchaser to per- 
 form, treat the property as belonging to the pur- 
 chaser, and may sue for and recover the price 
 agreed to be paid.— a. of App., Fa., 1878. 
 Mason v. Decker, 72 N. Y. 595, 599. 
 
 34. He has the election either so to do or to 
 sell the property as agent of the purchaser, ap- 
 ply the proceeds upon the purchase price and 
 recover the balance, if any, or he may retain the 
 property, and recover as damages the difference 
 between the contract price and the market 
 price. lb. Compare Quick v. Wheeler, 78 N. 
 Y. 300. 
 
 35. The plaintiff having applied for a dis- 
 charge in bankruptcy, entered into a composi- 
 
 tion with his creditors by which he paid fifty- 
 five per cent, of his debts, and procured a dis- 
 charge. In negotiating with the defendants, to 
 whom he was then indebted, he asserted a claim 
 for certain zinc of the value of $132.07, which 
 he claimed to have sold to them, which claim 
 they disputed. It was finally agreed that this 
 claim should be withdrawn from the comprom- 
 ise, the defendants stipulating that in case the 
 plaintiff proved, to the satisfaction of G.'s sons, 
 that the zinc was received by them, they would 
 pay to him fifty-five per cent, of the $132.07. 
 This action was brought to recover for goods, 
 wares, &c., consisting of the said zinc, claimed 
 to have been sold by the plaintiff to the de- 
 fendants. 
 
 Seld, 1. That the action should, in any event, 
 have been brought upon the agreement, and not 
 for the goods sold. 
 
 2. That to recover upon the agreement the 
 plaintiff should have shown that he had 
 proved the delivery of the zinc to the satisfiaotion 
 of G.'s sons, or at least that Ke had produced 
 evidence which should have been satisfactory to 
 them, and that, not having done so, he could 
 not recover. — Supreme Ct., {1st Dept.,) June, 
 1880. Wilson v. Gould, 21 Hun 447. 
 
 36. Seller's action for the price. 
 Kight of action. A., having contracted with 
 defendants to build for them certain machinery, 
 applied to ©., plaintiff's assignor, to purchase 
 the timber necessary therefor. D. declined to sell 
 to A., but expressed a willingness to sell to defend- 
 ants. A. and D. thereupon went to defendants, 
 where this statement was repeated, and it was 
 agreed that A. should build the machinery and 
 pay $2500 toward the timber, and when it was 
 all delivered should give D. an order on defend- 
 ants for the balance, payable out of what was 
 due A. on the contract. A. made the payment, 
 and gave the order as agreed ; and upon presen- 
 tation of the order, defendants admitted that 
 they owed A. more than the amount thereof. 
 Held, that an action for goods sold and delivered 
 was not maintainable against defendants; that 
 D. simply took an equitable assignment from A. 
 of so much of the money to become due the 
 latter from defendants, as was sufficient to pay 
 the balance due for the timber; and that the 
 action should have been upon the order. — Ct. of 
 App., May, 1879. Southard v. WaUh, 77 N. Y. 
 301. 
 
 37. Matters of defence, generally. A 
 party who has a contract for the sale of an ar- 
 ticle of property at the market value, cannot be 
 prevented from recovering the actual value, be- 
 cause the price has been raised by a combination 
 and conspiracy of strangers, to which he is not 
 it party. He is entitled to the real value with- 
 out regard to any consideration, and the alleged, 
 conspiracy or combination is too remote to affect 
 such right, so long as he has no association or 
 connection with the conspirators. — Ct. of App., 
 Oct., 1877. Ganson v. Tiffit, .71 N. Y. 48, 57. 
 
 38. It is no defence to an action brought to 
 recover the price of property sold, that the 
 vendor knew it was bought for an illegal pur- 
 pose ; provided that it is not made a part of the 
 contract that it shall be used for that purpose, 
 and that the vendor has done nothing in aid or 
 furtherance of the unlawful design. lb. 
 
 39. Plaintiffs sued for a balance due for 
 goods sold. Defendant set up a composition 
 agreement wherein plaintiffs agreed to take and 
 
SALES, V. 
 
 399 
 
 1 ad received fifty per cent, as full payment for 
 the goods. Hdd, that plaintiffs might show 
 that the composition agreement was fraudulently 
 procured by defendants. — Com. Pleas, June, 1877. 
 Smith V. Salomon, 7 Daly 216. 
 
 40. Recoupment of damages for 
 breach of ■warranty. The rule that the 
 acceptance and retention of the goods by the 
 buyer without complaint of defects, after a rea- 
 sonable time and opportunity for examination 
 has elapsed, is a waiver of all objections to 
 ■quality, and estops him from recovering dama- 
 ges for defects, applies only to cases of executory 
 ■contracts without warranty. In case of a war- 
 ranty, his right to recoup the damages arising 
 from a breach of the warranty survives the 
 acceptance. — Svperior Ct., Jan. 1879. Walling 
 t). Schwartzkopf, 44 Superior 576 ; Marcus v. 
 Thornton, Id. 411. 
 
 But the surety for the buyer cannot recoup 
 damages for a breach of warranty, or set up that 
 the contract was procured through fraud ; such 
 ■defences are personal to the buyer. — Sv/preme Ct., 
 (2dDq)t.,)Feb., 1879. Henry ij. Daley, 17 Hun 210. 
 
 41. Evidence of market value. The 
 market price of a marketable commodity may 
 be determined as well by offers to sell, made by 
 <iealers in the ordinary course of business, as by 
 actual sales ; and statements of dealers in an- 
 swer to inquiries as to price are competent evi- 
 dence. — Gl. of App., Feb., 1878. Harrison v. 
 plover, 72 N. Y. 451. 
 
 42. Seller's action for buyer's refusal 
 "to complete purobase. Defendants con- 
 tracted to purchase of plaintiffs one hundred and 
 seventy-tons, more or less, of " No. 1 wrought scrap 
 iron," one hundred tons to arrive by ship 
 " Christopher ; " one hundred and three tons of 
 iron arrived by ship "St. Christopher;" about 
 eight tons were of a quality different from that 
 stated in the contract. Defendants refused to 
 receive the iron when tendered, the only objec- 
 tion raised being that they had purchased no 
 iron on the "St. Chiistopher." In an action 
 upon the contract — Held, that the objection 
 raised was untenable; and that defendants 
 •could not avail themselves of the objection that, 
 of the iron on the vessel, there were eight tons 
 which they were not bound to accept, as, if the 
 refusal had been based upon that ground, the 
 ■eight tons could have been separated, and a ten- 
 der of the balance made, which would have 
 heen a substantial performance of the agree- 
 ment. — &. of App., May, 1877. Smith i>. Pettee, 
 70N.Y. 13. 
 
 43. Buyer's action for seller's fail- 
 "ure to deliver. In an action by the buyer 
 .for damages for non-delivery, it is a good de- 
 fence that the buyer and a confederate were en- 
 gaged in the attempt to obtain the goods in 
 -exchange for promissory notes of a third person, 
 known to them to be worthless, although the 
 seller, who discovered the fraud during the at- 
 tempt, allowed the sale but not the delivery to 
 be consummated, and witii the intent only of 
 securing possession of the notes as au evidence 
 ■of attempted fraud. But the seller must tender 
 back the worthless notes at the trial. — Com. 
 Pleas, March, 1877. Eoyce v. Watrous, 7 Daly 
 87 ; o#med 73 N. Y. 597. 
 
 44. — for defect in quality. As to the 
 necessity of returning or offering to return to 
 the seller, goods delivered which are inferior in 
 <liia]ity to those contracted for, in order to claim 
 
 damages on account of such inferiority, see Hey- 
 decker v. Lombard, 7 Daly 19. 
 
 45. The right to rescind, generally. 
 It is not necessary, to autliorize the rescinding 
 of a contract of sale, that the sale should have 
 been made solely in reliance upon the false rep- 
 resentations. — Supreme Ct., {^th Dept.,) X)ct., 1878. 
 Hersey v. Benedict, 15 Hun 282. 
 
 46. When the seller may rescind. 
 Where, in an action brought to set aside a sale 
 of good§, on the ground that the defendant was, 
 at the time of the purchase, insolvent, and that 
 he bought them with an intent not to pay for 
 them, it is shown that the defendant was in fact 
 insolvent at the time of the purchase, and that, 
 before the expiration of the credit upon which 
 they were sold, he made a general assignment, 
 it is competent for the defendant to show that a 
 large portion of his debts were held by personal 
 friends, that none of his creditors were pressing 
 him, and that other friends had promised to 
 loan him money, as these facts tend to rebut the 
 presumption of fraud, and to show that he had 
 reasonable grounds for hoping that he might re- 
 trieve his condition and tide over his embarrass- 
 ments.— iSitpr-eme Ct., (\st JDept.,) June, 1880. 
 Schufeldt V. Schnitzler, 21 Hun 462. 
 
 47. A trader who is hopelessly insolvent, 
 and knows that he cannot pay his debts, and 
 that he must fail in business, and thus disap- 
 point his creditors, cannot honestly take advan- 
 tage of a credit induced by his apparent pros- 
 perity, and purchase property which he has 
 every reason to believe he can never pay for ; 
 and the intent to cheat may properly be inferred 
 by the jury, from the fact of a purchase having 
 been made under such circumstances. 76. 
 
 48. For evidence held sufficient to justify a 
 finding that the sale of a quantity of cheese was 
 for cash, and that the seller of the cheese did 
 not intend to part with the title until the pur- 
 chase price was paid ; that the delivery of the 
 cheese was obtained by fraud, and so that the 
 seller was entitled to rescind and reclaim the 
 property, see Kinsey v. Legget, 71 N. Y. 387. 
 
 49. Reclaiming, the goods in hands 
 of third person. Where a sale of goods has 
 been induced by fraud on the part of the vendee, 
 the vendor may reclaim and retake them from 
 the possession of any one, except a transferee in 
 good faith, and for a valuable consideration paid 
 at the time of the transfer. — Ct. of App., Dec., 
 1879. Stevens v. Breman, 79 N. Y. 254. 
 
 50. A transfer by the fraudulent purchaser, 
 as security for or in payment of a precedent 
 debt, does not make the transferee a bona fide 
 purchaser within the rule, so as to enable him 
 to hold the goods against the original vendor. 1 b. 
 
 51. In a suit by such vendor to recover the 
 goods from one claiming title under the fraudu- 
 lent vendee, the burden is upon the latter to 
 show that he is a purchaser in good, faith 
 and for value. lb. 
 
 62. Where the third person receives the 
 goods with guilty knowledge of the fraud by, 
 which they were obtained, no notice of recession 
 need be given him ; a simple demand for the 
 goods is sufficient, and an action for their wrong- 
 ful detention, or for their value, will lie against 
 him, although he may have jiarted with the 
 goods before suit brought. — Cam. Pleas, Jan., 
 1878. Meacham v. CoUignon, 7 Daly 402. 
 
 53. "When the buyer may rescind. 
 Where a purchaser has received and accepted, 
 
400 
 
 SALES, v.— SCHOOLS. 
 
 under a contract of sale, a portion of the goods 
 contracted for, the fact that the goods so accept- 
 ed were of a quality inferior to that called for 
 by the contr^t does not authorize him to repu- 
 diate the contract altogether, and to refuse to 
 accept the residue : be may demand goods of the 
 stipulated quality, and if the balance when of- 
 fered prove to be of an inferior quality, may re- 
 fuse to accept ; but if such as the contract calls 
 for, he is bound to receive them. — Ol. of App., 
 April, 1S77. Cahenj). Piatt, 69 N.Y. 348. 
 
 54. Seller's right to sell agaiik, and 
 claim deficiency. Upon refusal by the 
 vendee to accept goods sold, when properly ten- 
 dered, under and in pursuance of the contract 
 of sale, the vendor has, at his election, the right 
 to sell the goods on account of the vendee, and 
 to hold him liable for the difference between the 
 contract price and the price realized for the 
 goods.— a. of App., May, 1877. Smith v. Pettee, 
 70Iir.Y. 13. 
 
 55. Having so elected, and having notified 
 the vendee, the vendor becomes the agent of the 
 former for the purpose of the sale, and is bound 
 to the exercise of good faith and reasonable dil- 
 igence to effect a sale at the best price ; and, it 
 seems, is bound to obey any instructions given 
 him by the vendee as to the time and manner 
 of sale, which he can follow without sacrificing 
 his lien under the contract ; in the absence of 
 such instruction, he has the right to exercise his 
 ovfu discretion within reasonable bounds. lb. 
 
 66. What will be deemed a reasonable time 
 within which to effect such re-sale, see lb. 
 
 57. A vendor of chattels may re-sell, without 
 notifying the purchaser in default, of the time 
 and place of the re-sale ; and the re-sale need not 
 be made at the place of delivery designated in 
 the contract. — Supreme Ct., (ZdDept.,) May, 1879. 
 McGibboff V. Schlessinger, 18 Hun 225. 
 
 As to sales of Land, see Vkndob and Puk- 
 
 CHASEB. 
 
 As to Judicial sales, see that title ; also, ExE- 
 cnrioN, 14-22 ; Moetoages, 109-123. 
 
 SALVAGE. 
 
 wnat subject of. Inchoate or partly- 
 earned freight is the subject of salvage. — Cl. of 
 App., Sept., 1878. Hubbell v. Great Western 
 Ins. Co- 74 N.Y. 246. 
 
 SARATOGA SPRINGS. 
 
 MUHICIFAL COBPOBATIONS, 132-135. 
 
 SATISFACTION. 
 
 Of Qmtractt, generally, see CoNTEAcia, VI. 
 Of Execution, see E?;ecution, III. 
 Of Mortgage, see MoETOAaES, VIII. 
 
 SAVINGS BANKS. 
 
 Banks, VI. 
 
 SCHOOLS. 
 
 1. Altering and dividing school dis- 
 tricts. A school commissioner has power to 
 alter or divide a union free school district;, 
 but this he cannot order to be done without giv- 
 ing to the trustees of the district a week's no- 
 tice that at a time and place specified he will 
 hear their objections to the proposed altera- 
 tion. — Supreme Ct., (Ath Dept.,) April, 1878.. 
 People, ex rel. Board of Education, v. Hooper, 
 13 Hun 639. 
 
 2. Taxes for school purposes, and 
 hO'W levied. A school collector levied upon 
 and sold certain property belonging to plain- 
 tiff's assignor, for an unpaid tax, without hav- 
 ing posted the notice required by statute, and 
 the purchaser, upon being threatened by plain- 
 tiff with an action, sold the property to him for 
 the amount of his bid. In an action by plaintiff 
 against the collector — Seld, that the failure to- 
 post the notice rendered the sale void and the 
 collector liable as a trespasser ; but that plain- 
 tiff could only recover the amount paid by him 
 to regain the property. — Supreme Ct., [ith Dept.,y 
 April, 1879. Bedell v'. Barnes, 17 Hiin 353. 
 
 3. Bond of treasurer of union free 
 school district, and liability of siure- 
 ties. Where the board of education of a union 
 free school, in/iorporated under the common, 
 school act of 1864, (Laws of 1864, ch. 565,) by 
 mistake and in good faith, instead of taking a 
 bond from one elected as its treasurer, as re- 
 quired by said act, (§ 7,) accepted a writing in 
 the form of a bond, but not under seal — SM, that, 
 the same was valid and enforceable against the 
 sureties tliereto. — Ct. of App., May, 1879. Board 
 of Education of Fairport v. Fonda, 77 N. Y. 
 350. 
 
 4. The fact that, by the said act, (_§ 7,) the 
 giving of a bond is made a prerequisite to the 
 entering upon the duties of the office, and that 
 the office is declared vacant in case of failure to 
 give the bond, does not invalidate an instrument 
 so given where the person elected as treasurer 
 enters upon and discharges the duties of tha 
 office ; as he comes into the office by color of 
 title, he is an officer de faxio, and his acts are 
 valid when they concern the public or the rights, 
 of third persons having an interest therein, lb.. 
 356. 
 
 5. Plaintiff, under legislative authority, (Laws 
 of 1872, ch. 24,) had collected money by tax to 
 pay bonds issued by it for the purpose of build- 
 ing a school-house, which moneys were paid 
 over to defendant W., its treasurer. Held, that 
 the building of a school-house and the raising 
 of money to pay therefor were "school pur- 
 poses" within the mining of said act of 1864; 
 that the money came properly to the hands of 
 W. as treasurer; and that for a failure upon 
 his part to pay over and account for the same, 
 the sureties upon his official undertaking wer& 
 liable. Ih. 
 
 The fact that the authority to raise the money 
 was given by a private act did not affect such 
 liability. lb. 
 
 6. For a portion of the money which so came: 
 
SCHOOLS— SEDUCTION. 
 
 40t 
 
 into the hands of W., he gave a sight draft on a 
 bank in New York, payable to B., one of plain- 
 tiff's trustees, who indorsed and delivered it to 
 S , another trustee, who indorsed it over to a 
 holder of one of plaintiff's bonds. The bond 
 was marked "paid" and delivered up to plain- 
 tiff; payment of the draft was refused ; plaintiff 
 thereupon returned the bond, and the word 
 "paid" was erased. Hdd, that in the absence 
 of an agreement or express understanding, the 
 receipt of the draft was not a payment of the 
 bond ; that the taking of the draft as a means of 
 getting payment of the debt, and the unavailing 
 use of it for that purpose without laches, worked 
 no suspension of remedy against W., and did not 
 discharge his sureties. Ih. 362. 
 
 7. Board of education of union free 
 Bcbool district to be sued in corporate 
 name. Under Laws of 1864, oh. 555, author- 
 izing the formation of union free school districts, 
 the board of education of such a district is cre- 
 ated a body corporate, having not only the 
 powers given expressly to the board by statute, 
 but such other powers as are necessary to its 
 life and well-being ; it must act, also, and can 
 act only in the mode and by the means appro- 
 priate to a corporation. The liabiliiy for a neg- 
 lect to perform a duty imposed upon it rests 
 upon the corporate body, and the members of 
 the board are not individually liable to third 
 persons for injuries received by reason of such 
 neglect. So held in the case of a school-teacher 
 who, having sustained injury by reason of a de- 
 fective floor in the school-house, sued the mem- 
 bers of the board in their individual names, 
 charging them as public officers, &c. Hdd, that 
 the suit would not lie, and that the complaint 
 could not be amended by striking out the names 
 of the defendants and inserting that of the cor- 
 poration, as the corporation ^lad not been 
 brought into court, and the court had no juris- 
 diction of it. — Ct. of App., Nov., 1878. Bassett 
 V. Fish, 75 N. Y. 303; reversing 12 Hun 209. 
 
 8. Whether, however, if one of the members 
 of the board had been duly charged by the cor- 
 poration as its agent or servant, distinct from 
 his relation as a corporator, with a duty the 
 neglect of which brings damage to another, he 
 is liable as an individual therefor, see lb. 
 
 9. Appeals to superintendent of 
 public instruction. As to the powers of 
 the superintendent of public instruction on an 
 appeal to him by a teacher from the refusal of 
 the trustee of a school district to pay him his 
 wages; the finality and conclusiveness of his 
 decision ; and the propriety of his direction to 
 the trustee to issue a tax list and warrant to 
 collect money with which to pay such wages, 
 see People, ex rel. Yale, v. Eckler, 19 Hun 609. 
 
 SEAL 
 
 As to the necessity and effect of a seal upon 
 any PariieiUar instrument, see the title of the in- 
 strument in question. 
 
 SECURITY 
 
 As to bonds on Appeal, see Appeal, 64, 65, 
 111, 112, 265, 278, 286-298. 
 
 As to the security required on granting either 
 of the Prodsionai remedies, see Abebst, 30-32 ; 
 Attachment, 18, 25-27, 47 ; Injunction, 
 IV.; Eecbivebs, 13; Replevin, 9-11, 23- 
 26. 
 
 As to Offieicd bonds, see Officbks, 14, 15, 
 and the titles of the various officers. 
 
 As to Security for costs, see Costs, III. 
 
 SEARCH WARRANTS. 
 
 Pbooess, 24, 
 
 SEDUCTION. 
 
 1. Corroboration of prosecuting wit- 
 ness. Under the provision of Laws of 1878, 
 ch. Ill, declaring that a conviction for criminal 
 seduction shall not be had upon the testimony 
 of the female seduced, unsupported by other 
 evidence, supporting evidence is only required 
 as to the promise of marriage and the carnal 
 connection. — Ct. of App., June, 1877. Arm- 
 strong V. People, 70 N. Y. 38, 43. _ 
 
 2. As to the promise of marriage, the pro- 
 vision is satisfied by proof of circumstances 
 which usually attend an engagement of mar- 
 riage; as to the illicit intercourse, and the im- 
 mediate persuasions and inducements which led 
 the female to consent, evidence of opportunities 
 more or less frequent and continued, and that 
 the relations of the parties were such as indi- 
 cated that confidence in and affection for the 
 accused, on the part of the female, which ren- 
 dered it probable that the act may have been 
 done, are sufficient. lb. 
 
 3. The fact that the prosecutrix in her testi- 
 mony limits the carnal connection to a single 
 act, and specifies the time, does not require that 
 the supporting evidence shall be confined to 
 that particular time ; if it covers a period in- 
 cluding the specified time it is sufficient to meet 
 the requirements of the statute, although there 
 is no corroborative evidence as to the particu- 
 lar act testified to. lb. 
 
 4. Defences. The fact that the promise of 
 marriage was made some time prior to the illicit 
 intercourse does not take the case out of the 
 statute punishing seduction under promise of 
 marriage. lb. 53. 
 
 5. Instructions to the jury. The pros- 
 ecutrix testified to but one act of illicit inter- 
 course, and fixed the, time and place ; the ac- 
 cused gave evidence tending to show that he 
 was not at the place specified at the time stated. 
 The court, after referring in its charge to this 
 testimony for the defence, and after stating that 
 if it satisfied the jury that the accused was not 
 there at the lime specified by the prosecutrix, 
 this disposed of her evidence, added : " That it 
 made no matter when it [the illicit intercourse] 
 did take place, provided it was after the promise 
 of marriage, and the consent on her part was in 
 consequence of the promise." Held, no error ; 
 that it was not a direction to the jury to inquire 
 whether there was an illicit connection at some 
 other 'time after the promise of marriage, but 
 was rather a limitation, to the effect that if the 
 jury should find there was illicit intercourse, 
 they must find it was after a promise and in con- 
 sequence of it. lb. 45. 
 
 26 
 
402 
 
 SERVICES. 
 
 SEPARATE ESTATE. 
 
 Husband and Wife, V. 
 
 SEPARATION. 
 
 Agreements for, between husband and wife, see 
 Husband and Wipe, YO. 
 
 SERVANTS. 
 
 Master and Seevant; Bailboad Com- 
 PABDS, 125-134 ; Seevices. 
 
 SERVICE OF PROCESS. 
 Peocess, 3-23. 
 
 SERVICES. 
 
 1. When a contract to pay for ser- 
 vices will be implied. The rule of law 
 that, from a request to perform services, an im- 
 plied promise arises to pay what the services 
 are worth, does not apply where the services are 
 rendered by one in the employ of the person 
 making the request ; in such case the implica- 
 tion is that the services were rendered under the 
 contract of employment, particularly if the ser- 
 vices are of the same character as those em- 
 braced in that contract. — Ct. of App., Nov., 1879. 
 Boss D. Hardin, 79 N. Y. 81 
 
 2. Where it appeared, and was found, that 
 the parties were in the habit of rendering mu- 
 tual services to each other without any agree- 
 ment as to payment, and that although, during 
 the time, they had pecuniary transactions to a 
 considerable amount, their services were not 
 brought, or intended to be brought, into their 
 accoimts, a promise to pay cannot be implied, 
 and the services will be regarded as matters of 
 mutual accommodation, for which neither party 
 intended to make any charge against the other ; 
 and this, although it is found that they did not 
 suppose one service was equal to, or was to be 
 set-off against the other. — Ot. of App., Jan., 1879. 
 Potter V. Carpenter, 76 N. Y. 157. See, also, 
 Carpenter v. Weller, 15 Hun 134. 
 
 3. As to the right of one brought up as a 
 member of a family to recover for his services 
 rendered to the head thereof, see Lind v. SuUes- 
 tadt, 21 Hun 364. 
 
 4. Interpretation and effect of ex- 
 press contracts for services. One who 
 agrees verbally to work for another for a num- 
 ber of years ■ for a certain compensation, to be 
 paid at the end of the period of service, and 
 fully performs the contract on his part, cannot 
 repudiate it on the ground that it was void under 
 the statute of frauds as a contract not to be per- 
 formed within a year, and maintain an action to 
 recover the value of the services rendered ; he 
 can only recover the compensation agreed upon. 
 —Supreme a., (ZdDept.,) Sept., 1878. Vari Valk- 
 enburg v. Croffut, 15 Hun 147. 
 
 5. Plaintiff, prior to the death of H., defend- 
 ant's intestate, had been in his employ as con- 
 fidential clerk, at a salary of $60 per month. H. 
 
 owned a large amount of stocks, bonds, securi- 
 ties and money, which were kept in a box de- 
 posited in a bank. Plaintiff frequently had 
 charge of them ; he brought the Dox to the 
 house of H. at his request. Two days before 
 his death, H. told plaintiff to take charge of the 
 box, and put it in the Safe Deposit Company ; 
 this he did. Eight days after the death of H., 
 and upon the appointment of defendants as ad- 
 ministrators, plaintiff delivered the box to them. 
 In an action to recover the value of the services 
 so rendered, plaintiff was nonsuited. Seld, that 
 conceding the employment valid, and the estate 
 liable, plaintiff was entitled to recover only at 
 the same rate of compensation he received 
 during the life of H., and the non-suit was not 
 strictly correct ; but as this claim was not made 
 upon the trial or in this court, plaintiff claim- 
 ing to be entitled to compensation as upon a 
 quantum meruit, the maxim "de minimis nan 
 earai lei," would be applied; judgment, there- 
 fore, affirmed. Ross v. Hardin, supra. 
 
 6. Liability of married woman's sep- 
 arate estate for services. In order to 
 charge the separate estate of a married woman 
 for services not rendered for the benefit of said 
 estate, an agreement so to charge must be in- 
 cluded in the original contract of hiring; an 
 agreement by her to charge the value of past 
 services upon her estate is insufficient. — Cl. of 
 App., Oct., 1877. Eisenlord v. Snyder, 71 N. Y. 
 45. Consult Husband and Wife, V. 
 
 7. Breach by employer, and its effect. 
 When a mechanic, employed at weekly wages 
 and a commission on the results of his labor, 
 payable at stated intervals of not over six 
 months, may recover the commissions, in case 
 of his wrongful discharge, notwithstanding a 
 former recovery by him of the weekly wages, 
 see Perry v. Dickerson, 7 Abb. N. Cas. 466. 
 
 8. — by employee. Plaintiff agreed to 
 work for defendant for eight months, for $20 per 
 month and the use of an acre of land upon 
 which to plant potatoes. Plaintiff worked under 
 the contract four months, when he left defend- 
 ant's service without just cause, having planted 
 potatoes on the acre of land. Held, that by 
 leaving defendant's service without cause, he 
 forfeited all right to the use of the land, and 
 that defendant was entitled to the crop. — Sur 
 preme Ot., {4th Dept.,) April, 1879. Butler v. 
 Bice, 17 Hun 406. 
 
 9. Actions for services— time within 
 which to sue. Plaintiff resided with his 
 father as one of his family, and rendered ser- 
 vices to him for four years, in pursuance of an 
 alleged oral agreement by which his father was 
 to pay him for said services by a devise or Ije- 
 quest in his will. At the end of the four years 
 the father discharged plaintiff from his service, 
 ordering him to leave the house, saying, " You 
 have got all you ever need to expect here." 
 The father died more than six years thereafter, 
 and plaintiff then presented his claim for the 
 services so rendered. Hdd, that the act of the 
 father in driving plaintiff from his house was a 
 breach of the contract, and gave to plaintiff an 
 immediate right to sue for the value of the ser- 
 vices rendered, and that the action was, there- 
 fore, barred by the statute of limitations. — Su- 
 preme Gt., (3i Dept.,) April, 1880. Bonesteel v. 
 Van Etten, 20 Hun 468. 
 
 10. Matter of defence. In an action for 
 services, the defence that the action of plaintiff 
 
SERVICES— SET-OFF. 
 
 403 
 
 ■was simply as a friend, and in mutual inter- 
 «hange of friendly services, is proper. — Cl. of 
 App., Feb., 1878. 'Young v. Hunt, 72 N. Y. 604. 
 
 11. The fact that an architect has rendered a 
 WU for preparing plans and specifications for a 
 building, does not prevent him from recovering, 
 although exceeding the amount specified in the 
 UW.— Supreme Ct.Jlst Dept.,) July, 1879. Harri- 
 son V. Ay res, 18 Hun 336. 
 
 12. Pleading and evidence. Where, 
 in an action for wages, the answer is a general 
 denial, and the evidence is conflicting as to the 
 xate of wages, it is error for the court tojnstruct 
 the jury that the burden of proof is upon de- 
 fendant, and that a debt is admitted. — Com. 
 Pleas, Dec., 1878. McEteere v. Little, 8 Daly 
 167. 
 
 13. In an action for work and labor, defend- 
 ;ant pleaded accord and satisfaction, and pro- 
 duced receipted bills. Plaintiff gave evidence 
 that he receipted the bills at defendant's request, 
 he stating that he wanted to nse them in settle- 
 inent with K., a partner. Defendant thereupon 
 testified he had no partner. He was asked, 
 upon cross-examination, if K. did not claim to 
 be a partner and had not sued him for an ac- 
 •counting. This was objected to, and objection 
 •overruled. Held, no error ; that the evidence 
 called for was competent. — Of. of App., Sept., 
 1877. Hickler v. Leighton, 70 N. Y. 610. 
 
 14. Defendant claimed that the work was not 
 properly done, and that he had sustained dam- 
 -age. Plaintiff gave evidence that the work was 
 being done by defendant under contract with a 
 third party, and that defendant claimed and re- 
 ■ceived a large sum in excess of the contract 
 price. Held, competent. lb. 
 
 15. Instructions to the jury. On the 
 trial of an action for damages for unlawful dis- 
 
 , -charge, the defendant requested the court to 
 ■charge, as affecting the question whether there 
 was a hiring for a year, that the jury should 
 look at all " the probabilities of the case, and in 
 -so doing consider the absence of any protest on 
 the part of the plaintiff when he was dis- 
 charged." The court so instructed, adding, 
 " You will also consider that that was not made 
 a, point of by the defendants at the time." Seld, 
 that the addition did not constitute error ; if it 
 was fair to look at plaintiff's failure to insist on 
 his rights under the contract, aa he claimed it 
 was, it was equally fair to consider the defend- 
 ant's attitude by silence or otherwise. — Superior 
 Ct., June, 1879. De Leon v. Echeverria, 45 Su- 
 perior 610. 
 
 16. Damages recoverable. Plaintiff 
 having been unwarrantably discharged, his 
 damages are, prima jade, " the amount of wages 
 for the full term." It. 
 
 As to the Damages recoverable in actions upon 
 ■contracts for services,, see Damages 18. 
 
 For Airther decisions illustrating the above 
 ^principles, see Mastee and Servant, 1-3. 
 
 SETOFF: COUNTERCLAIM. 
 
 1. What demands may be set off, 
 ^generally. Joint claims in favor of two, out 
 •of a number of defendants, cannot be set off, 
 when the action is such that a joint judgment 
 cannot be rendered against such two, separately 
 from the others. — Superior Ct., Jime, 1877. 
 ^ockover v. Harris, 43 Superior 548. 
 
 2. When an unliquiditcd claim will be al- 
 lowed, in equity, to be set off against a judgment 
 which has been collected under execution ; and 
 how far the attorney's lien for costs will be pro- 
 tected in such a case, see Davidson v. Alfaro, 16 
 Hun 353. 
 
 3. — in action against municipal 
 corporation. The act of 1875, (Laws of 
 1875, ch. 49,) authorizing actions to be brought 
 by and in the name of the people of the state, to 
 recover back moneys unlawfully obtained, be- 
 longing to a municipal corporation, does not de- 
 prive a municipality of the right to set off, in an 
 action against it, a claim against the plaintiff, 
 although it may arise out of a transaction which 
 might, under said act, be the subject of a suit 
 in behalf of the people.— Cl!. of App., May, 1878. 
 Wood V. Mayor, &c., of New York, 73 N. Y. 
 556. 
 
 4. In an action against a municipal corpora- 
 tion, to recover the salary of a municipal officer, 
 brought by an assignee, a claim against the 
 officer for moneys of the corporation unlawfully 
 paid to and received by him is a proper set-off. 
 lb. 
 
 See, also, as to what is a proper set-off in an 
 action against the city of New York, on a con- 
 tract for public printing, Taylor v. Mayor, &c., 
 of New York, 20 Hun 292. 
 
 5. — in suit instituted by the state. 
 Independent of statutory authority, the courts 
 cannot render an affirmative judgment against 
 the state, even by way of set-off in a suit insti- 
 tuted by the state. — Supreme Ct., (3d Dept.,) 
 Sept., 1880. People v. Denison, 8 Abb. N.'Oas. 
 128; S. C, 59 How. Pr. 157. 
 
 6. "Who may interpose a counter- 
 claim. A party to a foreclosure suit, against 
 whom feither a personal judgment is sought, or 
 one which may operate to transfer his estate in 
 the land, is entitled to set up a counter-claim as 
 a defence to the action. — Supreme Ct., (id Dept.,) 
 May, 1878. Seligman v. Dudley, 14 Hun 186. 
 
 7. What may be interposed as a 
 counter-claim. In an action by the plain- 
 tiff, to recover for services rendered to the de- 
 fendant, the latter set up, as a counter-claim, 
 that the plaintiff was a trustee of a manufactur- 
 ing corporation, and that by reason of his fail- 
 ure to file the annual report required by law, he 
 had become personally liable for the debts of 
 the company, some of which were held by the 
 defendant at the time of his default, which debts 
 he sought to set off against the plaintiff's claim 
 herein. Sdd, that the counter-claim was not 
 based upon a contract, as required by Code of 
 Civ. Pro., § 501, ahd that it should be stricken 
 OMt.— Supreme Ct., (2c! Dept.,) May, 1880. Clapii 
 V. Wright 21 Hun 240. 
 
 8. HoTW a counter-claim should be 
 pleaded. As a distinction exists between a 
 defence and a counter-claim, when the defence 
 is intended as a counter-claim it should be ex- 
 plicitly stated in the answer, so as to advise the 
 opposite party, and in the absence of such an 
 allegation, especially when the party defines and 
 characterizes his answer as a defence, and it is 
 uncertain whether a counter-claim is intended, 
 such party is not in a position to insist that he 
 has actually set up a counter-claim, and the 
 answer should be construed and considered as a 
 defence.— Ci!. of App., Dee., 1878. Equitable 
 Life Assurance Soc. v. Cuyler, 75 N. Y. 511, 
 514. 
 
404 
 
 SET-OFF— SHERIFFS, I., II. 
 
 9. Mode of trial ■when a counter- 
 claim is pleaded. It seems that the Code 
 of Civ. Pro., § 974, in reference to the mode 
 of trial when defendant interposes a counter- 
 claim, and demands an affirmative judgment, 
 and an issue of fact is joined thereon, applies 
 only when the counter-claim sets up matter for 
 which a separate action might be maintained. — 
 Ct. of App., Jan., 1880. Cook v. Jenkins, 79 N. 
 y. 575. 
 
 10. In an action for a dissolution of a co-part- 
 nership, and for an accounting between the part- 
 ners, the answer alleged a violation on the part 
 of plaintiff of a provision in the articles of co- 
 partnership, providing for a sale of the good- 
 will of the business to such of the partners as 
 should bid the highest price, by his appropriat- 
 ing to himself the good-will, and that the same 
 wa£ worth, as an asset, $200,000, which he asked 
 to counter-claim against any sum found due the 
 plaintiff. As a further counter-claim, the 
 answer alleged a fraudulent misappropriation 
 by plaintiff of partnership funds. JETeM, that 
 the matters so set up did not present a counter- 
 claim, of a separate and distinct cause of action, 
 within the meaning of said section ; that the 
 matters set up were proper items to be proved 
 upon an accounting ; and that defendant 'was 
 not entitled to a trial by jury thereon. 76. 
 
 As to what may be set off against the Attor- 
 ney's lien for costs, see Attobney and Cubnt, 
 32. 
 
 SETTLEMENT. 
 
 Of (hse, on appeal, see Appeal, 66-69, 216. 
 01 Bill of exceptions, see Exceptions, 18. 
 Of Clergyman, see Belioiotts Societies, 17, 
 18. 
 
 SHAM PLEADINGS. 
 Fleadino, 62. 
 
 SHERIFFS. 
 
 I. BlGBIS, POWEBS AND DUTIES. 
 
 n. Liabilities. 
 
 I. Bights, Powers and Duties. 
 
 1. Bights of out-going sheriff. Com- 
 pleting unfinished business. December 
 18th, 1878, a decree in foreclosure was deliv- 
 ered to D., the sheriff of Kings county, with 
 directions to execute it under the statute. His 
 term of office expired December 31st, 1878. 
 On receiving the decree he advertised the prop- 
 erty to be sold January 10th, 1879, and sold it 
 on that day in pursuance of such advertisement. 
 Held, that the advertisement of the property 
 was a " seizure " within Code of CSv. Pro., i 
 184, snbd. 4, and that under ? 186 he was 
 authorized to sell, notwithstanding his term of 
 ofBce had expired before the day of sale. — Su- 
 preme Ct., {2d Dept.,) Dee., 1879. Union Dime 
 Savings Institution v. Andariese, 19 Hun 310. 
 
 2. Bonds of indemnity, and rights 
 thereunder. A third person having claimed 
 property levied upon under an execution, the 
 
 judgment creditors executed to the sheriff » 
 bond of indemnity, providing that, in case any 
 suit should be brought against the sheriff, they 
 should be notified and permitted to defend it. 
 An action having been brought, the sheriff noti- 
 fied the indemnitors, who requested him to send 
 the papers to a certain attorney and allow him 
 to defend. This he failed to do, but appeared 
 in the action by an attorney of his own selec- 
 tion, who informed defendants that there could 
 be but one attorney, but that if they chose they 
 might employ special counsel. The sheriff waS' 
 unsuccessful, and sued on the bond. Held, that 
 as'he had not allowed defendants to appoint aa 
 attorney to conduct the action, he had failed to- 
 comply with the terms of the indemnity bond 
 and could not recover.— ^/Sapreme Ct., (3d Dept.,) 
 Jan., 1879. Preston v. Yates, 17 Hun 92. 
 
 3. Bonds for jail limits. What is a 
 good defence in an action by a sheriff against 
 the sureties on a bond for the jail limits, for aa 
 escape of the principal in the bond, see Wemple 
 V. Glavin, 57 How. Pr. 109. 
 
 4. Bight to fees, and ho'w enforced, 
 generally. A justice, at special term, may 
 determine an application by a sheriff for com- 
 pensation " for his trouble and expense in tak- 
 ing possession of and preserving" property 
 attached upon affidavits ; where the facts are 
 disputed he may order a reference to determine 
 them, but is not bound so to do. — Ct. of App., 
 May, 1878. German Amer. Bank v. Morris 
 Bun Coal Co., 74 N. Y. 58; S. C, 9 Hun 205. 
 
 6. Fees and poundage on execution. 
 The statutory fees and poundage allowed to a 
 sheriff are in full compensation for his services 
 and expenses in executing the writ. He is not 
 entitled to charge for the services of a keeper, 
 in charge of the property levied upon. — ^Su- 
 perior Ct., Dec, 1879. Townsend v. Boss, 45 
 Superior 447. And see Benedict v. Wright, 19 
 Hun 27. 
 
 II. LlABIUTIBS. 
 
 6. For ■wrongful levy. The act of a- 
 sheriff in levying an execution upon the prop- 
 erty of the wife, to collect the husband's debt, 
 is such an exercise of dominion over it as will' 
 sustain an action for its conversion or one of re- 
 plevin, although there was no actual removal 
 of the property. His liability in such case is^ 
 not affected by the fact that he claims to levy 
 upon, and advertises for sale the interest of the 
 husband only, the husband having, in fact, no- 
 interest therein. — Supreme Ct., {M Dept.,) Jam,.f 
 1878. Alvord d. Haynes, 13 Hun 26. 
 
 7. The liability incurred by a sheriff in the- 
 taking and detention of property cannot be dis- 
 charged by any act of his own, without the as- 
 sent of the owner of the property. A return 
 of the property, without such assent, will not 
 release the sheriff, nor will a subsequent levy 
 and sale under process in favor of the sheriff 
 afford him any protection as against the first 
 unlawful taking. But, as an exception to the 
 above general rule, it is equally well-settled 
 that if the property he taken again from the 
 trespasser, without his agency or connivance, 
 and by the act of a third person and the opera- 
 tion of law, and applied to the owner's use, 
 although without the latter's consent, the jury;, 
 in estimating the damages of the owner, may 
 take into consideration, as in mitigation of the- 
 same, such a taking of the property and its ap- 
 
SHERIFFS, II. 
 
 405 
 
 plication to the owner's use and benefit. Such 
 application is held to be equivalent to a return 
 of the property, and its acceptance by the 
 •owner. — Superior Ct., Jan., 1879. Parker i;. 
 Conner, 44 Superior 416. 
 
 8. It is not the fact of the subsequent seizure 
 that gives this defence, but that it has been 
 -seized under such circumstances that the owner 
 has had or could have the benefit of it. It mat- 
 ters not whether such mitigating circumstances 
 ■occurred before or after the commencement of 
 plaintiff's action, s lb. 
 
 O.For moneys collected. Where a 
 sheriff retains and uses moneys in his hands 
 during the pendency of an action to determine 
 conflicting claims thereto, in disobedience of an 
 order of court, entered upon stipulation of the 
 iparties directing a deposit thereof, he is properly 
 chargeable with interest thereon. — Q. of App., 
 May, 1878. Thompson v. Sweet, 73 N. Y. 622. 
 
 10. For failure to return execution. 
 In an action against a sheriff for failure to re- 
 turn an execution, it may be proved, in mitiga- 
 tion of damages, that prior to the return day 
 Ibe plaintiff's interest in the judgment was 
 levied upon by virtue of an attachment, and 
 ■was liable to be applied thereon. — Ct. of App., 
 May, 1877. Wehle v. Connor, 69 N. Y. 546. 
 
 11. In such an action tlie sheriff must show a 
 Talid judgment upon which the execution was 
 issued ; but the sheriff cannot, however, take 
 advantage of a mere irregularity in the judg- 
 ment, rendering it voidable but not void. — Su- 
 preme Ct., [(4(A Bept.,) Oct., 1878. Forsyth v. 
 Campbell, 15 Hun 234. 
 
 12. To prove the existence of the judgment, 
 plaintiff produced a certified copy of an order 
 for judgment, made by the county court, direct- 
 ing the reversal of a justice's judgment, and di- 
 recting judgment for the defendant (the present 
 plaintiff^ for his costs, $27.26, the amount of the 
 a,lleged judgment. Seld-, that this was not suf- 
 ficient proof of the existence of a valid judgment. 
 
 13. For false return. In an action 
 against a sheriff for alleged false returns to sev- 
 «raj executions, "the mere issuing of a prior exe- 
 cution is no defence in itself; nor can the sheriff 
 stultify his own return so as to justify under' 
 another execution which he has also returned 
 unsatisfied. — Supreme Ct., {f^. T.,) July, 1880. 
 Johnson v. Eeilly, 59 How. jPr. 354. 
 
 14. The complaint, in an action against a 
 ■sheriff for a false return, of "not found" to an 
 ■execution against the person, alleged that the 
 action in which the execution issued was one in 
 which an execution against the person would 
 lawfully issue, and that an order of arrest had 
 been issued therein ; these allegations were met 
 -by adenial of any knowledge orinformation suffi- 
 cient to form a belief as to whether the execution 
 iad any force or vitality in law. Hdd, that the 
 burden was on the plaintiff to show tiiat a valid 
 •execution against the person was issued. — Com. 
 Fleas, Feb., 3878. Josuez v. Conner, 7 Daly 448. 
 
 15. For improper surrender of prop- 
 erty levied on to U. S. marshal. Where 
 a sheriff after a levy, under an execution, upon 
 property of the judgment debtor sufficient to 
 satisfy the execution, returns it unsatisfied, he is 
 prima fade liable to the plaintiff to the amount 
 
 of the judgment.— a of App., Sept., 1878. An- 
 «onia Brass, &c., Co. v. Babbitt, 74 N. Y. 395. 
 
 16. The fact that the property was taken by 
 
 a U. S. marshal, under a warrant in bankruptcy 
 proceedings, instituted against the judgment 
 debtor subsequent to the levy, and was by said 
 marshal turned over to the assignee in bank- 
 ruptcy, does not exonerate the sheriff, although 
 such taking was without his consent and against 
 his protest, as the lien of the execution was 
 paramount to the right of the marshal or 
 assignee. lb. 
 
 17. Where an order to show cause was made 
 by the U. S. District Court, on filing of the 
 petition in bankruptcy restraining the sheriff, 
 who had made such a levy, from making any 
 transfer or disposition of the property, or from 
 any interference therewith, except for its secur- 
 ity, until furthesr order of the court — Meld, that 
 the order did not justify the surrender of posses- 
 sion, or a failure to recover ; that it was in no 
 proper sense a yielding to a vis major. lb. 
 
 18. In an action against the sheriff, it ap- 
 peared that he advised the attorney of the 
 plaintiff in the execution of the order restrain- 
 ing his proceedings, and requested instructions 
 as to return of execution ; the attorney author- 
 ized him to " retain the execution until re- 
 quested to make a return." Sdd, that this did 
 not relieve the sheriff from the duty of holding 
 his levy and retaining possession of the prop- 
 erty; nor was he relieved from this duty, or 
 justified in allowing the property to be taken 
 by the marshal by his ignorance of his legal 
 rights. lb. 
 
 19. It appeared, however, that subsequent to 
 the taking of the property by the marshal, and 
 the turning of it over to the assignee, the plain- 
 tiff proved his debt before the register in bank- 
 ruptcy as a debt arising upon judgment, without 
 reference to or disclosing the lien by virtue of 
 the execution ; the claim was allowed and a 
 dividend declared thereon. Thereafter plain- 
 tiff gave the sheriff directions to return the exe- 
 cution immediately, which he did, making a 
 special return setting forth the facts, and that 
 nothing had been collected on the execution. 
 Hdi, that plaintiff by proving his debt without 
 disclosing his security, released his lien, the 
 property passed to the assignee freed therefrom, 
 and the sheriff was authorized to return the ex- 
 ecution unsatisfied, and having returned it pur- 
 suant to the peremptory directions of plaintiff, 
 he was exonerated ; that plaintiff submitted hLs 
 claim to the jurisdiction of the court of bank- 
 ruptcy, which had power to relieve him, by 
 allowing him to withdraw or amend his proofs 
 so as to preserve his lien, and his remecfy was 
 in that court. lb. 
 
 20. For acts of deputy. In December, 
 1875, plaintiff delivered an execution to one P., 
 defendant's deputy. Defendant's term of office 
 expired on the 31st of the same month. The 
 execution not being paid within sixty days, it 
 was held by P., with the knowledge and consent 
 of plaintiff and the sheriff, in the expectation 
 that the debtor would pay it later, which he 
 thereafter did do, P. receiving the money, and 
 returning the execution satisfied, in the name of 
 defendant, as late sheriff, but did not pay over 
 the money either to plaintiff or the sheriff. 
 Sdd, tliat the sheriff was liable to plaintiff for 
 the amount so received by his deputy.-— fifaprerne 
 a, (4(A Dept.,) Jan., 1880. Boss v. Campbell, 
 19 Hun 615. 
 
 21. For escape of prisoner. In an 
 action against a sheriff for the escape of one 
 
406 
 
 SHERIFFS, II.— SHIPPING, I., II. 
 
 held by him by virtue of a precept or mandate 
 issued by a surrogate, upon a decree entered 
 upon a final accounting rendered by such per- 
 son-after letters of administration issued to him 
 had been revoked, the sheriff cannot avail him- 
 self of any error in the decree, or in the process 
 upon which the arrest was made, unless it be 
 such as to render the latter absolutely void. — 
 Supreme Ot., {4th Dept.,) June, 1880. Dunford v. 
 Weaver, 21 Hun 349. 
 
 22. In such an action the plaintiff, if success- 
 ful, is entitled to recover as damages, under 
 ? 158 of the code of civil procedure, the 
 amount named in the warrant of commitment, 
 with interest thereon, if it so provides. IB. 
 
 23. Evidence to show that the person arrested 
 was insolvent^ is not admissible, in such an 
 action, in mitigation of damages. Ih. 
 
 For decisions relating to Constables and Mar- 
 shah, equally applicable to sheriffl, see Con- 
 stables; Marshals. 
 
 SHIPPING. 
 
 I. The Title and Ownership of Ves- 
 sels. 
 
 H. Employment. 
 
 III. The Master. 
 
 IV. Enforcement of Liens upon Vessels. 
 V. Liability for Collisions. 
 
 L The Title and Ownership of Vessels. 
 
 L Relative rights of joint O'wners. 
 "Where two or more of several joint owners of 
 a vessel wrongfully seize it, thereby interrupt- 
 ing a voyage for which she is then under charter, 
 an action at law is maintainable against them 
 by one or more of the other owners to recover 
 the damages occasioned by such wrongful act. 
 — Supreme Cl., {\st Dept.,) May, 1879. Kellum 
 V. Knechdt, 17 Hun 583. 
 
 2. Plaintiffs were pait owners of a brig ; one 
 O. was also part owner, was in possession, man- 
 aging her business, and was ship's husband. 
 The owners authorized C. to sell the brig 
 through defendant as broker. They executed 
 and delivered to C. a bill of sale, with the name 
 of the purchaser in blank, to be, and which was, 
 delivered to defendant, who made a valid con- 
 tract for a sale to A. & Co. In anticipation of 
 the completion of the sale, defendant, in good 
 faith, but with knowledge of plaintiffi' interests, 
 paid two drails drawn upon him by C, with in- 
 tent that they should apply on and be deducted 
 from the purchase price when received; this 
 was subsequently paid by A. & Co. C, soon 
 after he obtained the money on the drafts, ab- 
 sconded, without accounting to plaintiffs. In 
 an action to recover plaintiffs' share of the pur- 
 chase money — Held, that C, as part owner or as 
 ship's husband, had no authority to sell plain- 
 tiffs' interests ; that while C, as plaintiffs' agent 
 to sell, had authority to receive the purchase 
 money when paid, he had no authority to an- 
 ticipate the payment or to receive money on the 
 security of the brig, and defendant had no right 
 to make such advances to C. upon the credit of 
 the owners or the brig ; that the payment to C. 
 was, in law, a loan to him, for which plaintiffs 
 
 were not liable, and that they were entitled to- 
 recover. — Ct. of App., June, 1878. Whiton v. 
 Spring, 74 N. Y. 169. 
 
 3. The complaint alleged the facts of the- 
 joint ownershipof the brig, the employment of 
 defendant, the sale and that defendant had set- 
 tled with the other owners, but had declined to- 
 account with or pay the piaintiffi for their share 
 of the purchase money, deducting commissions, 
 &c. The relief asked was for an accounting and 
 payment of the amount found due, or for further 
 relief. The case was moved for trial as aiv 
 equity cause ; defendant claimed a jury trial, 
 which was denied. Held, no error ; that the- 
 matter was one of equitable cognizance. lb. 
 
 4. It appeared that defendant paid, at the re- 
 quest of C, on account of the brig, after she 
 was placed in his possession for sale, sundry 
 items for wharfage, towing, insurance, &c., and 
 for expenses of sale, which the court refused to 
 allow to him. Held, error. lb. 
 
 5. At the time of making the contract of sale, 
 A. & Co., the purchasers, paid down to defend- 
 ant $500. Subsequently A. & Co. declined to- 
 complete the sale, because of alleged defect in 
 the title, and defendant paid back to them the 
 $500; but A. & Co. thereafter completed the 
 purchase, paying to defendant the whole pur- 
 chase price. Held, that defendant had the right 
 to pay over to C. the $500, and it was just lo. 
 consider that he had paid it over; and that he 
 was entitled to be credited therewith. Jb. 
 
 6. A chattel mortgfag'e on a vessel 
 duly reQorded in the office of the collector of 
 the port where the vessel is registered, as re 
 quired by the act of congress, is valid, although 
 the formalities required by the state laws, as to- 
 the execution and recording of such instruments,, 
 have not been complied with. — Supreme Ct., {ilh 
 Dept.,) Jan., 1879. Folger v. Weber, 16 Hun 
 512. 
 
 7. The fact that by the laws of the state 
 where the parties reside or the vessel is regis- 
 tered, a failure of the mortgagee to take posses- 
 sion within a specified period after default has- 
 been made, renders the mortgage fraudulent per 
 se, does not affect the validity of such mortgage- 
 lb. 
 
 8. Pledge of vessel. What constitutes a 
 written pledge of a vessel as distingaished from, 
 a chattel mortgage, see Ct. of App., June, 1877. 
 Wilson V. Knapp, 70 N. Y. 596. 
 
 9. That tlie owner of a vessel who has- 
 pledged it to secure a debt may maintain an. 
 action to recover damages for a negligent injury- 
 thereto, see lb. 
 
 II. Employment. 
 
 10. Liability for repairs and supplies.. 
 
 Lawful possession of a vessel by those ordering 
 the repairs and supplies, at the time of the fur- 
 nishing thereof, is essential to support a libel iit 
 admiralty against the vessel for repairs and sup- 
 plies. — Superior Cl., Nov., 1877. Harris v. Bur- 
 dett, 43 Superior 47 ; affirmed 76 N. Y. 582. 
 
 11. One who holds freight money payable to- 
 the libellant, by the terms of a charter-party,, 
 made by those claimed to be in lawful posses- 
 sion of the vessel, stands in privity to the libel- 
 lant. lb. 
 
 12. Right to freight, and how en- 
 forced. Defendant contracted with 'plaintiff to- 
 carry one thousand tons of freight from New York 
 
SHIPPING, II., III. 
 
 407 
 
 to Liverpool, at a specified price per ton._ The 
 contract was without any condition or limitation 
 as to the shipper. Plaintiff shipped sixty-five 
 tons In his own name, and sold to other parties 
 the right to ship the residue called for by the 
 contract, subject to charges. Defendant received 
 and transported the goods, and collected from 
 the consignees for so much thereof as was not 
 shipped in the name of plaintifl^ the current 
 rates, which were in excess of the contract 
 price. Held, that plaintiff was entitled, under 
 the contract, to the amount of freight named, 
 whether belonging to or shipped by him, or by 
 other parties; that he could assign the whole 
 contract, or any interest therein; and that plain- 
 tiff was entitled to recover, as for money had 
 and received, the amount received by defendant 
 over and above the contract price. — Ct. of App., 
 Feb., 1879. Tugman v. National Steamship 
 Co., 76 N. Y. 207 ; affirming 13 Hun 332. 
 
 13. Th" complaint, after alleging the con- 
 tract and the execution thereof, averred that 
 plaintiff wrongfully and fraudulently collected 
 the money from the consignees and converted 
 to its use the sum belonging to plaintiff. Held, 
 that these allegations were unnecessary ; and as 
 the complaint alleged, and the proof established, 
 facts constituting a cause of action on contract, 
 it was sufficient to authorize a recovery, lb. 
 
 14. Charter-parties. "Who deemed 
 owner for the voyage. The general 
 owners of a vessel chartered for a voyage will 
 be deemed to be the owners for the voyage, 
 and their rights and authority as owners to con- 
 tinue, unless there be some clear and determi- 
 nate transfer of them. The presumption is 
 against such a transfer. — Ot. of App., Sept., 1879. 
 Hager v. Clark, 78 N. Y. 45. S. P., Robinson v. 
 Chittenden, 69 N. Y. 525. 
 
 15. The entire command and possession of 
 the vessel, and consequent control over its navi- 
 gation, must be surrendered to the charterer 
 before he can be held as special owner for the 
 voyage. Hager v. Clark, supra. 
 
 16. Liability of o-wner. Where, by the 
 charter-party, the charterer is entitled to the 
 whole stowage capacity of the vessel, and the 
 owner of the goods delivers them to the char- 
 terer, from whom the master receives them, and 
 there is nothing to notify the latter, or to charge 
 him with knowledge or put him on inquiry as to 
 the ownership, or that they are to be delivered 
 in any other or different way than the balance 
 of the cargo, the owner of the vessel has the 
 right to make delivery at the -port of destination 
 to the consignee of the charterer, and, upon 
 such delivery, he is absolved from further lia- 
 bility. Kubinson v. Chittenden, supra. 
 
 17. The fact that the goods were, by inadver- 
 tence, not entered upon the vessel's papers, does 
 not afiect such liability; nor does the fact that 
 the owner of the goods delivered to his own 
 agent the receipt received from the charterer, and 
 that such agent called for delivery of the goods ; 
 in the absence of evidence that such agent made 
 known to the master, who was the owner of the 
 goods, and that such agent was specially author- 
 ized to receive them. lb. 
 
 18. — of charterer, executing sub- 
 charter-party. As to the liability of one 
 who, not the owner of the vessel, but a char- 
 terer only, executes another charter-party, for 
 breach of covenants contained therein, see Swift 
 V. Tross, 55 How Pr. 255. 
 
 10. Freight and demurrage. Eelative 
 rights of owners, charterers and consignees in 
 respect to demurrage and freight money earned 
 by the vessel under charter-party, detei-mined in 
 cases depending on particular circumstances. — 
 Ct. of App., Jan., 1879. Harris v. Burdett, 76 
 N. Y. 5M ; affirming 43 Superior 57. May, 1879. 
 Elwell V. Skiddy, 77 N. Y. 282. 
 
 20. Setting aside for mistake. When 
 a charterer will be relieved from his contract on 
 the ground of mutual mistake of the parties as 
 to the time the vessel was to sail, see Funch v. 
 Abenheim, 20 Hun 1. 
 
 21. Contracts for towage; and rights 
 and liabilities arising thereunder. 
 Where a ship or boat is being towed astern of 
 the towing vessel, and is only attached by a 
 hawser, if her helm can be made available, it is 
 the duty of the owner of the vessel in tow to 
 liave a competent man at the helm, and a com- 
 petent watch or outlook on deck, and when 
 necessary to indicate and warn other vessels of 
 her position, to have a proper light displayed. — 
 Ct. of App., May, 1877. Arctic Fire Ins. Co. v. 
 Austin, 69 N. Y. 470, 480. 
 
 22. The captain of a steam tug having a 
 canal boat in tow, under a contract by which the 
 boat is to be towed at the risk of its master and 
 owner, is not the master of the boat in tow, and he 
 has not such entire charge and control thereof 
 that the master and crew of said boat can be 
 deemed for the trip and service the servants and 
 agents of the owner of the tug, so as to make 
 such owner chargeable with negligence, because 
 of an omission to take proper precautions for 
 safe navigation, such as putting out lights upon 
 the boat, etc. Ih. 
 
 23. Nor does such a contract constitute the 
 owner of the tug a common carrier or make him 
 liable for the wrongful or negligent acts of those 
 in charge of the boat. The master of the boat 
 is still under obligations to use every necessary 
 precaution, and to do whatever is necessary and 
 customary upon his boat to guard against the 
 perils of navigation ; and if in the course of the 
 service called for by the contract the boat re- 
 ceives an injury caused in part by the neglect of 
 those in charge of the tug, but to which the 
 neglect of the master of the boat to take such 
 precautions has contributed, no recovery can be 
 had against the owner of the tug. lb, 
 
 III. The Masteb. 
 
 24. His powers and duties. The de- 
 fendants chartered to the plaintiff a bark owned 
 by them, for a voyage from Charleston, S. C, to 
 Liverpool, for a sum named in the charter-party, 
 agreeing that if there should be any excess in 
 the freight on the cargo procured bjr the plain- 
 tiff over the amount so specified, it should be 
 settled at Charleston before the vessel sailed, by 
 the master giving his draft for such excess, paya- 
 ble ten days after the vessel's arrival at Liver- 
 pool. A dispute having arisen as to the amount 
 of such excess, and the manner of computing 
 the freight on the cargo, the plaintiff, who was 
 also the agent of the owners at Charleston, re- 
 fused to allow the vessel to clear from the port 
 unless the master would give a draft for the ex- 
 cess, as computed by him, and sign an agree- 
 ment that the question involved should abide 
 the decision of the United States Court in 
 Charleston, in a case then pending, and which 
 
408 
 
 SHIPPING, III., ly., Y. 
 
 was claimed to involve the same question. The 
 master having given the draft and signed the 
 agreement as required, and the United States 
 Court having decided the case referred to in 
 accordance with the plaintiff's claim, the latter 
 brought this action to recover the amount due 
 upon the draft. 
 
 Sdd, 1. That the master had, under the cir- 
 cumstances, power to make the said agreement.' 
 
 2. That he did not sign the same under du- 
 ress. 
 
 3. That the plaintiff was entitled to recover. 
 —Supreme Ct., (1st Dept.,) June, 1880. Mc- 
 Pherson v. Cox, 21 Hun 493. 
 
 IV. Enpobcement op Liens Upon Vessels. 
 
 25. Validity of statutes ; and -what 
 vessels are subject to lien. Admiralty 
 jurisdiction does not extend to contracts relating 
 to vessels wholly engaged in the internal com- 
 merce of a slate, and no maritime lien or claim 
 can be founded on such contracts; therefore, 
 Laws of 1862, ch. 482, providing for the collec- 
 tion of demands against ships and vessels is, so 
 far as it relates to such vessels, constitutional and 
 valid. A canal boat is a " vessel " within the 
 meaning of the said statute. — Sapreme Ct., (4tA 
 Dept.,) April, 1878. Fralick u. Betts, 13 Hun 
 632. S. P., Ct. of App., Dec, 1877. King v. 
 Greenway, 71 N. Y. 413. 
 
 26. Who may claim a lien, and for 
 ■what services. One engaged in repairing 
 and putting new machinery into a steam canal 
 boat is a builder within the meaning of the act 
 providing for the collection of demands against 
 ships and vessels (Laws of 1862, ch. 482, amend- 
 ed by Laws of 1863, ch. 422,) and a lien is 
 created imder said act in favor of one furnishing 
 materials to such builder for the work. King 
 
 V. Greenway, supra, 
 
 27. The facts that the materials were fur- 
 nished, and the work done on the credit of the 
 builder, that action was brought against Iiim, 
 judgment recovered, execution issued, and sup- 
 plementary proceedings instituted, do not affect 
 the lien. lb. 
 
 28. The fact that the boat is a steamboat, 
 and that it is proceeded against by its name, 
 does not necessarily make the case one of ad- 
 miralty jurisdiction; it is the character of the 
 claim as a maritime contract which determines 
 this. lb. Compare Fralick v. Betts 13 Hun 
 632. 
 
 29. Where, after a vessel has been launched 
 prior to completion, and while she is lying in 
 tide-waters, a contract is made for furnishing 
 her with sails, the party making such contract 
 may obtain and enforce a lien upon the vessel 
 for the amount due thereon, by proceedings un- 
 der the act of 1862.— Ssipreme Ct., {2d Dept.,) 
 May, 1879. Wilson v. Lawrence, 18 Hun 56. 
 
 SO. Termination of the lien. A lien 
 created by the act of 1862 ceases when the ves- 
 sel leaves the port where the debt was contract- 
 ed, unless /the person claiming the lien files 
 specifications thereof as prescribed by the act 
 (^ 2), within twelve days after such depart- 
 parture, save when the vessel is one "navigating 
 the western and northwestern lakes, or either or 
 any of them," (Laws of 1863, ch. 422, J 2,) in 
 which case the claimant has until the first Tues- 
 day of February next succeeding the contract- 
 
 ing of the debt, to file specifications. King v. 
 Greenway, swpra. 
 
 31. A steam canal boat was constructed with 
 a view to her running upon Lake Ontario. She 
 never did run anywhere except upon the canal, 
 Oswego river and Seneca lake. In an action 
 upon a bond given to release the boat from a war- 
 rant issued under the act of 1862— J2eW, that 
 the exception in the act as to vessels navigating 
 the lakes mentioned, did not. include vessels 
 navigating the canal and tributaries to the lakes, 
 and that as specifications were not filed within 
 twelve days after her leaving the port where the 
 debt was contracted, that the lien ceased, the pro- 
 ceedings were invalid, and the defendants were 
 not liable, lb. 
 
 32. "Waiver, by taking master's note. 
 Plaintiff's intestate made repairs upon a canal 
 boat owned by defendant, in pursuance of orders 
 received from the captain thereof Subsequent- 
 ly the captain paid to plaintiff a portion of the 
 bill and gave his note for the balance. HM, 
 that the acceptance of the note without explana- 
 tion, was sufficient to show that the credit was 
 given to him, and not to the owner, and that 
 plaintiff could not recover. — Supreme Ct., (ith 
 Dept.,) AprU, 1878. Warner v. Miller, 13 Hun 
 654. 
 
 V. Liability for Collisions. 
 
 33. In general — contributory negli- 
 gence. The anchoring of a vessel in an un- 
 safe and improper place is a negligent act, and 
 if she is run into and injured by another vessel, 
 or if persons in charge -of her are injured, and 
 the improper anchorage was a proximate cause 
 of the injury, no action lies against the owner of 
 the colliding vessel. — Ct. of Atpp., June, 1877. 
 Lambert v. Stateu Island B. R. Co., 70 N. Y. 
 104, 108. 
 
 34. The possession of the carrier is that of 
 the owner of the freight, and whatever is done 
 by the former in the course of his service and 
 bailment, he does as the agent and representa- 
 tive of the latter. If, therefore, loss or damage 
 results to the cargo, to which the carrier by his 
 wrongful or negligent acts has contributed, the 
 owner is deprived of any remedy over against 
 a third person ; he can only recover upon proof 
 that the loss was occasioned solely by the 
 wrongful acts or negligence of such third person. 
 Therefore, where a canal boat in tow was run 
 into and sunk by another tug owned by the 
 same line which owned the towing tug — Held, 
 that the owner of the cargo could not recover 
 for its loss, it appearing that the omission to dis- 
 play proper lights upon the canal boat contrib- 
 uted to the injury. — Ct. of App., May, 1877. 
 Arctic Fire Ins. Co. v. Austin, 69 N. Y. 470, 
 482 ; reversing 3 Hun 195. 
 
 35. Rules for avoiding collisions. 
 Although the observance of the general rule of 
 navigation requiring vessels meeting "head on " 
 to turn to the right, is presumptively proper 
 and throws the onus of proving that it was neg- 
 ligence upon whoever challenges its propriety 
 in a particular case, yet if the surrounding cir- 
 cumstances are such as to render it impractica- 
 ble and unsafe, and those circumstances are 
 known to those in charge of the vessels, or by 
 proper care might have been known to them, neg- 
 ligence may be imputed, unless the general rule 
 is departed from. — Ct. of App., Nov., 1878 
 
SHIPPING, V.-SLANDER, I., II. 
 
 409 
 
 ■Cooper V. Eastern Transportation Co., 75 N. Y. 
 
 116. ,„ , , 
 
 36. Although a ski£f or scow propelled by 
 -oars is within the act of congress which requires 
 a good white light to be carried by every water 
 craft navigating by hand to be placed as pre- 
 scribed by the board of supervising inspectors, 
 yet until the board mentioned has prescribed 
 the manner the injunction to carry the light is 
 inoperative.— 0!. of App., Nov., 1878. Harris r. 
 Uebelhoer, 75 IST. Y. 169. 
 
 37. Evidence. In an action for collision, 
 evidence on the part of thedefendantthatplain- 
 tiiS" was insured and has received the amount of 
 his loss from the insurer, is incompetent ; as is 
 also evidence showing an agreement between 
 plaintiff and the insurer as to maintaining an 
 action.— Ci. of App., Jan., 1878. Carpenter v. 
 Eastern Transportation Co., 71 N. Y. 574. 
 
 38. That a non-compliance by a vessel at 
 the time of a collision with statutory or other 
 regulations prescribed by competent authority 
 intended to prevent collisions, is prima fade evi- 
 dence of negligence, and that it is a reasonable 
 presumption that it was a contributory cause of 
 the disaster, see Lambert v. Staten Island B. B. 
 Co., 70 N. Y. 104, 109. 
 
 39. Damages. The admiralty rule which 
 divides the whole loss or damage, both to ships 
 iind cargo, between two vessels by whose concur- 
 rent negligence the loss or damage has been oc- 
 casioned, has no application in common law 
 courts. Arctic Fire Ins. Co. v. Austin, supra. 
 
 As to Bills of Lading, see that title. 
 For further decisions as to the liability of 
 «hii)-owners as Carriers, see Cakkiees. 
 
 SIDEWALKS. 
 
 MusioiPAi. CoBPOBATioNS, 74-94; New. 
 York City, 139-142. 
 
 SIGNALS. 
 
 liability of Bailroad company for failure to 
 jitie, see Baiusoas Companies, 101-109. 
 
 SLANDER. 
 
 I. What Words are Actionable. 
 XL Procedure. 
 
 I. What Words are Actionable. 
 
 1. Charges of crime. Where words al- 
 leged to be slanderous in charging larceny are 
 accompanied by such an explanation as makes it 
 clear that they referred to an innocent transac- 
 tion, or to one which in law could not have con- 
 stituted the crime charged, an action for slander 
 is not maintainable. So, if it appears that all 
 the persons present at the time of the speaking 
 of the words understood from facts in their 
 knowledge, or which they had otherwise 
 learned, that the words referred to a transaction 
 which could not in law constitute larceny, the 
 cause of action is not made out. Where, how- 
 ever, the language employed imputes the crime. 
 
 the ordinary meaning is to be given to the 
 words, unless they are accompanied by an ex- 
 planation giving to them a different meaning, 
 or unless all the hearers understand that they 
 refer to a transaction which cannot constitute 
 the crime charged.— CS!. of App., Feb., 1878. 
 Hayes v. Ball, 72 N. Y. 418. 
 
 II. Procedtire. 
 
 2. The complaint. Where the words are 
 actionable per se it is not necessary to allege 
 malice in the complaint. — Supreme (%., {Sp. T.,) 
 Jan., 1875. Eobinson ». Hatch, 55 How. Pr. 55. 
 
 3. Bill of particulars. This action was 
 brought by the plaintiff to recover the damages 
 occasioned by an alleged slander. The com- 
 plaint charged that the defendant " did, some- 
 time during the month of September, 1879, at 
 the city of New York, falsely, wrongfully and 
 maliciously speak, utter and publish the follow- 
 ing false, defamatory and actionable words of 
 and concerning the plaintiff, in the German 
 language, in the presence and hearing of divers 
 persons, all of whom understood the same ;" it 
 then set forth the language in German and Eng- 
 lish, and alleged that by reason of the speaking 
 of such words the plaintiff "was greatly injured 
 in his fame, reputation and good name asa phy- 
 sician, and in his earnings, profits and income 
 as such," and that he had sustained great dam- 
 ages. Upon an application by the defendant 
 for a bill of particulars — 
 
 Hdd, 1. That the plaintiff should be required 
 to furnish a bill of particulars specifying at 
 what place or places, and in the presence of 
 what person or persons, the words were claimed 
 to hare been spoken. 
 
 2. That as the allegations as to the injury to 
 the earnings, profits and income of the plaintiff 
 as a physician, were not sufficient to allow him 
 to prove special damages in particular instan- 
 ces, upon the trial, it was unnecessary to order i 
 a bill of particulars in those respects. — Supreme 
 Ct., {1st Dept.,) June, 1880. Stiebeling v. Lock- 
 haus, 21 Hun 457. 
 
 4. The answer. In an action for slander, 
 circumstances in mitigation must be set up in 
 the answer in order to make evidence thereof 
 admissible. — Ct. of App., Jan., 1878. Willover 
 V. Hill, 72 N. Y. 36. 
 
 5. An answer which merely alleges that the 
 words spoken by defendant concerning the 
 plaintiff were true, is bad as a plea of justifica- 
 tion ; the particulars should be alleged. Bob- 
 inson v. Hatch, mpra. 
 
 6. Evidence in aggravation — repeti- 
 tion of slanderous words. In an action 
 brought under the statute "providing redress 
 for words imputing unchastity to a female," 
 (Laws of 1871, ch. 219,) plaintiff is not con- 
 fined to proof of the charge set forth in the 
 complaint ; but evidence is competent of words 
 spoken by defendant at any time before the com- 
 mencement of the action, repeating substanti- 
 ally the same charge. — Ct.of App., March, 1877. 
 Distin V. Eose, 69 N. Y. 122, 125. 
 
 7. In an action for slander or libel, evidence 
 of the repetition by defendant of the slanderous 
 or libelous matter, after the commencement of 
 the action, is incompetent. But error in the re- 
 ception of such evidence cannot be based upon 
 a general objection thereto. The specific objec- 
 tion should be made, presenting the fact upon 
 
410 SLANDER, II.— SOCIETIES AND ASSOCIATIONS. 
 
 which the rule is based, i. e., that the repetition 
 was after the action was begun. — Ct. of App., 
 April, 1879. Daly v. Byrne, 77 N. Y. 182, 187 ; 
 affirming 43 Superior 261. 
 
 8. Evidence in defence, generally. 
 In an action for slander, in imputing to plain- 
 tiff the crime of larceny, the words proved 
 were : " When he' [plaintiff] was highway com- 
 missioner he stole one thousand dollars from 
 the town.'' Defendant attempted to show that 
 he referred only to the fact that plaintiff, when 
 he held the ofSce of highway commissioner, 
 u^on an acconnting before the town auditors, 
 failed to produce vouchers for the sum of $1000 
 which came to his hands. None of plaintiff's 
 witnesses testified that defendant made any ex- 
 planation of the words so spoken, and only one 
 of them testified that he understood the trans- 
 action referred to related to money which came 
 to plaintiff's hands as commissioner. HM, that 
 the ordinary import of the words used imported 
 larcenjr ; that plaintiff might have stolen money 
 belonging to the town while he was highway 
 commissioner, which did not come into his 
 hands as such officer, and it was not impossible 
 for him to commit the crime of larceny in re- 
 spect to money which did so come to his hands ; 
 that it was a question for the jury to determine 
 in what sense the words were uttered ; and that, 
 therefore, a refusal to non-suit was not error. — 
 a. of App., Feb., 1878. Hayes v. Ball, 72 N. 
 Y. 418. 
 
 9. In an action for slander — for words al- 
 leged to have been spoken by defendant M. — 
 the slanderous words were proved by S. to have 
 been spoken in a certain coversation, which said 
 witness testified was the first occasion when the 
 plaintiff was the subject of conversation be- 
 tween her and M. M., as a witness in her own 
 behalf, after being examined as to the alleged 
 conversation, and as to subsequent conversa- 
 tions with S., was asked if S., at any of these 
 conversations, brought reports to her as to what 
 people had said about plaintiff and" M.'s hus- 
 band. This was objected to and excluded. 
 Held, no error ; that the evidence could only be 
 available, if at all, in mitigation of damages, by 
 showing provocation, and that M. was merely 
 repeating a slander she had heard ; that it could 
 only be thus available by showing that these 
 reports were brought to M. before she uttered 
 the words charged, and the question should 
 have been confined to a period preceding the 
 slander ; also, that it was incompetent because 
 not set up in the answer. Willover v. Hill, 
 supra. 
 
 10. Evidence in justification, or in 
 mitigiation of damages. Defendant may 
 set up in his answer, and prove on the trial, 
 facts and circumstances tending to establish the 
 truth of the defamatory words, by way of miti- 
 gation, with a view to disprove malice ; but it 
 must be made to appear that he knew or had 
 information of these facts and circumstances 
 when he uttered the words, and that he spoke 
 them under a belief in thc-ir tralh.^Supreme Ct., 
 (3d Dept.,) Jan., 1879. Hatfield v. Lasher, 17 
 Hun 23 ; S. C, 57 How. Pr. 258. 
 
 11. Such facts might be so notorious as to 
 create a fair presumption that they had come to 
 defendant's knowledge, althougli he could not 
 prove this by direct evidence. lb. 
 
 12. Notwithstanding the change effected by 
 the code in allowing facts adduced for the pur- 
 
 poses of justification, although insnfficient for 
 that purpose, to be used in mitigation of dam- 
 ages, still, where there is an entire failure of 
 proof to sustain the charge contained in the al- 
 leged slanderous words, and the circumstances- 
 evince that the reiteration of the slander in the 
 answer was done maliciously, and without prob- 
 able cause for believing it true, it may be con- 
 sidered by the jury upon the question of dam- 
 ages. This rule, however, should be confined to- 
 cases of bad faith in incorporating the justifica- 
 tion in the pleadings.— CC. of App., March, 1877> 
 Dietin v. Eose, 69 N. Y. 122, 127. 
 
 13. Defendant may prove in mitigation of 
 damages that the slanderous words were spoksm 
 in the heat of passion caused by recent provoca- 
 tion on the part of*the plaintiff. — Oom. Pleas,. 
 Feb., 1877. Palmer v. Lang, 7 Daly 33. 
 
 14. The slanderous words charged illicit in- 
 tercourse between plaintiff and defendant H.^ 
 M.'s husband, while the former was in the em- 
 ploy of the latter as a servant. No justification, 
 was pleaded. Defendants offered to prove that,, 
 after plaintiff left their employ, and after she 
 was aware that reports of such intimacy were in 
 circulation, she was seen in the store of H. alone- 
 with him at ten P. M.; also, that prior to the ut- 
 tering of the alleged slander, these reports were- 
 in circulation ; this was rejected. Seld, n» 
 error ; that the evidence was not competent in 
 mitigation, as no offer was made to show that 
 the fact of the meeting at the store was commu - 
 nicated to M. before she uttered the alleged 
 slander ; and that it was incompetent, either ins 
 justification or mitigation not having been 
 pleaded. Willover v. Hill, supra. 
 
 15. Instructions to the jury. In an ac- 
 tion for slander, after the court had charged,, 
 upon request, that " the burden of proof is on 
 the plaintiff to prove the charge alleged," it 
 refused to add the words, " and over and beyond 
 the evidence given on the part of the defendant." 
 Sdd, no error ; that the refusal to charge might 
 be justified on the ground of uncertainty as to 
 the meaning of the request ; but that the charge 
 as made covered the whole case. — Gt. of App., 
 March, 1877. Distin v. Eose, 69 N. Y. 122, 126. 
 
 16. Where an answer in an action for slander 
 alleges, in justification, the truth of the words^ 
 spoken, it is not error for the court to refuse 
 to charge, as matter of law, that the answer can- 
 not be considered by the jury to enhance the 
 damages. lb. 
 
 For the law of Uhel, see Libel. 
 
 For further decisions as to PrivUeged commit- . 
 nications, see Attorney and Client, IV.; Ev- 
 idence, 74 ; Physicians and Sitegeoms, 6-0 ; 
 Witnesses, 33-35. 
 
 SOCIAL CLUBS. 
 
 Societies and Associations, 5. 
 
 SOCIETIES AND ASSOCIATIONS. 
 
 [Includes only deciaions applicable to unincorpor- 
 ated associations and charitable societies : for other 
 cases, CoitPORATiONS, and the respective titles of the- 
 various distinctive corporate bodies, should be con- 
 sulted.] 
 
SPECIFIC PERFOEMANCE, I. 
 
 411 
 
 1. Voluntary associations, generally. 
 That unincorporated societies cannot take by 
 bequest, see Belts v. Betts, 4 Abb. N. Cas. 317 ; 
 McKeon v. Kearney, 57 How. Pr. 350. See, 
 also, Id. 355, n. 
 
 2. Under what circumstances a voluntary as- 
 sociation will be judicially dissolved at the suit 
 of one or more of its members, on the ground of 
 violent dissentions and irreconcilable differences 
 between its members, see Fischer v. Baab, 57 
 How. Pr. 87. Compare Laford v. Deems, 8 
 Abb. N. Cas. 344. 
 
 3. Benevolent societies. Under the 
 statute providing for the incorporation of be- 
 nevolent societies, the terms of office of the 
 trustees terminate upon the expiration of the 
 year for which they are elected, and in the ab- 
 sence of a special provision in the constitution 
 or by-htws, they do not hold over until thefr 
 successors are elected. — Supreme Ct., {1st Dept.,) 
 Sept., 1879. People v. Twaddle, 18 Hun 427. 
 
 4. A provision in the constitution of a be- 
 nevolent society that upon the death of a mem- 
 ber the survivors shall each pay into the treas- 
 ury $1, to make up a fund to go to the widow 
 or minor children of the deceased member, may 
 lawfully be changed so as to make such fund 
 payable, on the death of a member, to any per- 
 son designated by him in his lifetime. — Com. 
 Pleas, April, 1877. Durian v. Central Verein of 
 the Hermann's Sohnne, 7 Daly 168. 
 
 5. Social clubs. That a social club con- 
 sisting of more than seven members, though 
 not having a formal constitution or by-laws, 
 may be held liable, in an action under the stat- 
 ute, as a joint stock company, see Ebbinghousen 
 II. Worth Club, 4 Abb. N. Cas. 300. 
 
 SPECIAL PROCEEDINGS. 
 
 1. wnat are, in respect to allo'wrance 
 of costs. The Supreme Court has jurisdiction 
 of proceedings to compel a special guardian ap- 
 pointed to sell the real estate of an infant to 
 account for and pay over moneys received by 
 him as such guardian. Such a proceeding is 
 not a motion within the meaning of | 271 of the 
 code of procedure, (New Code, § 1015,) but a 
 special proceeding under J 311. Where, there- 
 fore, a question of fact in the proceedings is re- 
 ferred, the fees of the referee may be allowed as 
 costs.— a. of App., Sept., 1878. Matter of Spel- 
 man v. Terry, 74 N. Y. 448. 
 
 2. Proceedings by certiorari to review an as- 
 sessment made by commissioners of taxes and 
 assessments for the city and county of New 
 York are special proceedings. — Ct. of App., Jan., 
 1879. People, ex rel. Manhattan Fire Ins. Co., 
 V. Com'rs, &c., 76 N. Y. 64. 
 
 3. An application to enforce the liability im- 
 posed by the statute, (2 Rev. Stat. 619, ? 44,) 
 declaring an assignee of the cause of action, or 
 one beneficially interested in the recovery, liable 
 for the costs of an action brought by him in the 
 name of another, is a special proceeding ; and 
 under the provisions of the act of 1854, (Laws 
 of 1854, ch. 270, ^ 3,) in reference to such pro- 
 ceedings, costs are allowable therein. — Ct. of 
 App., Nov., 1879. Marvin v. Marvin, 78 N. Y. 
 541. 
 
 4. Where costs were denied by the court be- 
 low, on the sole ground of want of power to 
 
 grant them — the court recognizing the right of 
 the applicant to such costs — on appeal to thi& 
 court — Hdd, that the order be reversed and th& 
 application granted. 76. 
 
 5. WTiat are not. A petition, under Laws 
 of 1858, ch. 338, to vacate an assessment in the 
 city of New York, is not a special proceeding 
 within the meaning of Laws of 1854, ch. 270, 
 relating to costs, and no costs can be allowed, 
 except costs of motion and disbursements. — 
 Supreme Ct., Cist Bept.,) April, 1878. Matter of 
 Jetter, 14 Hiin 93 ; S. C, 55 How. Pr. 67. 
 
 For decisions relating to any special proceed- 
 ing having a distinct name, see the title of the 
 proceeding, such as Bastabdt ; Contempt ; 
 Discoveey; Habeas Cobpus; Mandamus; 
 Mechanics' Lien ; Pbohlbition ; Qxro Wae- 
 
 BANTO. 
 
 For proceedings to Determine conflicting claims 
 in real property, see Ejectment, 12, 13. 
 
 For proceedings to obtain the Comdemnaivm 
 of land to public use, see Eminent Domain ;. 
 Highways; MtrNicrpAL Cobporations; Kail- 
 BOAD Companies. 
 
 For Summary proceedings to recover leased 
 premises, see Landlord and Tenant, IV. 
 
 Por proceedings Supplementary to execution, see- 
 EXECXJTION, V. 
 
 SPECIAL VERDICTS. 
 
 Tbial, 65. 
 
 ^ SPECIFIC PERFORMANCE. 
 
 I. When Specific Pebpobmance will be. 
 Adjudged. 
 
 II. Suits fob Specific Pebformance. 
 
 I. When Specific Pebformance wilIi be- 
 Adjudged. 
 
 1. What contracts may oe enforced, 
 generally. A court of equity has jurisdiction, 
 to compel the observance of a covenant restrict- 
 ing the use of urban property to purposes stated 
 therein, betvfeen several land-owners, and will 
 enforce a specific performance, in the absence 
 of evidence that there has been any change in. 
 the character of the locality which has ren- 
 dered it inexpedient to observe the covenant, or- 
 has made a disregard of it indispensable to the- 
 practical and profitable use and occupation of 
 the premises.— Ci!. of App., Sept., 1877. Trustees 
 of Columbia College v. Lynch, 70 N. Y. 440. 
 448. 
 
 2. Whether or not such a covenant is one 
 running^ with the land, binding the grantees 
 and subjecting them to a personal liability, is 
 immaterial, as affecting the jurisdiction of a 
 court of equity or the right of the owners of one 
 of the parcels of land to relief as against the- 
 owner of the other, upon a disturbance of the- 
 easement. lb. 449. 
 
 3. The distinction between the binding obli- 
 gation at law of covenants not running with the- 
 land, and the equitable rights recognized and 
 enforced in such cases, pointed out. lb. 
 
 4. What is such an affirmance of a contract. 
 
412 
 
 SPECIFIC PERFORMANCE, I., II.— STATE, I. 
 
 induced by fraudulent representations, by the 
 farty defrauded, after knowledge of the fraud, 
 ■as will enable the other party to maintain an 
 action for specific performance of the contract, 
 •determined.— /Sitpreme Gt., (Sp. T.,) Jan., 1878. 
 Balheimer v. Kelohardt, 55 How. Pr. 414. 
 
 5. Contracts for sale of land. A court 
 ■of equity will not compel specific performance 
 of a contract to convey land, where the grantor's 
 wife, not a party to the contract, refuses to join 
 in the deed. The vendee, in such a case, must 
 -either take the title subject to the claim of the 
 wife, and pay the stipulated price, or resort to 
 iis legal remedy for the damages sustained by 
 the vendor's breach of the contract. — Supreme 
 ■Ct., (4<A Dept.,) Jan., 1879. Dixon v. Eice, 16 
 Hun 422. 
 
 6. Plaintiflf, as administrator with the will 
 .annexed, brought an action to compel the 
 specific performance of a contract made by his 
 intestate in her lifetime, for the sale of certain 
 Jand owned by her. The vendees had made all 
 necessary payments, except the one required to 
 be made on the delivery of the deed, which the 
 heiiB refused to execute. The heirs and ven- 
 dees were all made defendants. Held, that the 
 .action could be maintained, and that as the 
 heirs refused to execute a deed, plaintiff was not 
 obliged to tender one to the vendees before 
 -commencing the suit.— Supreme Ct., (3d Dept.,) 
 -Jan., 1880. Wheeler v. Crosby, 20 Hun 140. 
 
 7. Contract by vendee to pay mort- 
 gage. The plaintiff, a married woman, owned 
 •certain real estate subject to a purchase money 
 mortgage for $22,000, executed by her. She 
 -entered into a contract with defendant to sell 
 and convey the same, and defendant covenanted 
 and agreed to pay this mortgage as a part of the 
 jurohase money. Plaintiff executed the con- 
 tract on her part by conveying the property to 
 a third person, as requested by defendant, sub- 
 ject to the lien of the mortgage, but without any 
 covenant of the grantee to pay the mortgage. 
 The mortgage not being paid according to its 
 (terms, the mortgagee commenced an action to 
 foreclose the same, making plaintiff a party de- 
 fendant, to answer for any deficiency on the 
 sale. The plaintiff commenced this action 
 against defendant for the specific performance 
 of his contract to pay the mortgage. Hdd, that 
 the contifact could not be enforced specifically 
 until it was established, with definiteness and 
 -certainty, 1st. That there would be a deficiency 
 •on the sale of said real estate. 2d. The amount 
 of that deficiency. — Superior Cl., May, 1878. 
 ;Slauson v. Watkins, 44 Superior 73. 
 
 8. Contracts for sale of personal 
 property. When specific performance will 
 jiot be decreed, to compel the sale of stock, 
 under a contract by which plaintiff has an 
 interest in the proceeds, see Jones o. Kent, 45 
 Superior 66. 
 
 9. The necessary certainty of the 
 contract. A contract will not be specifically 
 .enforced unless it is certain in its terms, or can 
 ie made certain by reference to such extrinsic 
 facts as may, within the rules of law, be referred 
 sto for the purpose of ascertaining its meaning. — 
 Ct. of Arm., Feb.. 1878. Shakespeare v. Mark- 
 iam, 72 H. Y. 400, 406. 
 
 II. Suits fob Specific Pekfobmancb. 
 
 10. Matters of defence. After a contract 
 
 of purchase and sale of a lease, and of the de- 
 mised premises for the unexpired term, the key 
 of the house on the premises was delivered to 
 the vendee, who held on to it until he had ob- 
 tained the fee from the owner thereof, when he 
 took visible possession. HM, that he was not 
 estopped from setting up, in an action by the 
 vendor for the specific performance of the con- 
 tract, that the lease was invalid and void. — 
 Superior Ct., Nov., 1878. Bensel v. Gray, 44 
 Superior 372. 
 
 U. Damages in lieu of specific per- 
 formance. When — a specific performance be- 
 ing denied on the grounds of inadequacy of 
 consideration and want of equity — plaintiffs 
 may have damages for breach of the contract on 
 the part of defendants ; and how such damages 
 should be measured, see Stanton v. Miller, 14 
 Hun 383 ; affirmed 79 N. Y. 620. 
 
 STALE DEMANDS. 
 EftuiTT, 5, 6. ' 
 
 STATUTE OF FRAUDS. 
 
 CONTBACra, III. ; GtTAEAlfTY, 11. ; SALB8, 
 
 4-7 ; Vendoe and Pubchaseb^ L 
 
 STATE. 
 
 I. JjENEEAL PbTNCIPLES. 
 II. CONTEACTS WITH THE STATE, 
 
 I. Genebai, Peinciples. 
 
 1. Jurisdiction over domestic vessel 
 on high seas. In respect to matters not com- 
 mitted by the constitution exclusively to the 
 federal government, or legislated upon by con- 
 gress, but which are entirely regulated by state 
 laws, a state to which a vessel belongs may be 
 regarded as the sovereignty whose laws follow 
 her until she comes within the jurisdiction of 
 some other government. — Ct.ofApp., Sept., 1879. 
 McDonald v. Mallory, 77 N. Y. 546. 
 
 2. Civil rights of action, therefore, for mat- 
 ters occurring at sea, on board of a vessel 
 belonging to one of the states, must depend upon 
 the laws of that state, unless they arise out of 
 some matter over which jurisdiction has been 
 vested in and exercised by the government of 
 the United States. Jb. 553. 
 
 3. The provisions of the Revised Statutes, de- 
 fining the boundaries of the state, and declaring 
 that its sovereignty and jurisdiction extend to 
 all places within such boundaries (1 Bev. Stat, 
 62, I 1 ; Id. 65, § 1,) were not intended, and do 
 not operate as a restriction upon subsequent 
 legislation, or as a renunciation or abrogation 
 of any effect which might, on general principles 
 of law, be given to' its statutes on board of ves- 
 sels on the high seas. Therefore — Held, that 
 under the statute giving a right of action for 
 causing death by a wrongful act or neglect, an 
 action was maintainable for causing the death 
 
STATE, I., IL^STATUTES, I. 
 
 415 
 
 of a citizen of this state on the high seas, on 
 board of a vessel hailing from and registered in 
 a port within the state ; the vessel being at the 
 time employed by the owners in their own 
 business, and their negligence having caused 
 the death. lb. 
 
 4. State board of charities. As to the 
 visitorial powers of the board of state commis- 
 sioners of public charities, see N. Y. Juvenal 
 Guardian Soe. v. Eoosevelt, 7 Daly 188. 
 
 5. What actions raay be brought in 
 the name of the people. An action may 
 be maintained in the name of the people for the 
 conversion of drafts belonging to the state. — 
 Ol. of App., Jan., 1879. People v. Bank of North 
 America, 75 N. Y. 547. _ 
 
 Q. The rule condemning, as unlawful, combi- 
 nations to prevent bidding at auction sales, is 
 applicable to proposals for government work in 
 response to a call therefor with a view to a con- 
 tract with the lowest bidder, and a combination 
 of contractors under and by which the privilege 
 of bidding for the work is secured by one, with- 
 out competition, is against public policy and 
 illegal, and, if it results in a letting at unreasona- 
 ble prices, authorizes a rejection of the proposal 
 or a repudiation of the contract. — Ct. of App., 
 Jan., 1878. People v. Stephens, 71 N. Y. 527. 
 
 7. Where, however, the contracting board 
 having full power to act for the state, and to re- 
 ject proposals in case they deem them disad- 
 vantageous to the state, with full knowledge of 
 all the facts, adjudges a proposal not excessive 
 in price or disadvantageous to the state, accepts 
 it, and enters into a contract in pursuance of it, 
 in the absence of any evidence that the board 
 acted corruptly or mala fide, the state is bound, 
 and cannot maintain an action to recover dam- 
 ages for the illegal combination. lb. 
 
 8. Po-wer of legislature to release 
 claim of the state. The legislature has 
 power to relinquish a claim of the state, or to 
 waive its remedies for a fraud. lb. 
 
 9. In an action by the attorney-general, on 
 behalf of the state, upon a claim against a citi- 
 zen, it is not necessary for the defence to show a 
 technical release ; it is sufficient to show that 
 the legislature has, in some form, expressed an 
 intention that the action shall not be prosecuted. 
 lb. 
 
 10. Where the state comes into court as a 
 party in a controversy with an individual, the 
 intent of the legislature, in any action it may 
 have taken in respect to ihe controversy, may 
 be ascertained, and may be construed in the 
 light of surrounding circumstances. lb. 
 
 11. Enforcement of claims against 
 the state. Even prior to the act of 1876, es- 
 tablishing a state board of audit, there was no 
 authority either by a suit against the state, or in 
 one instituted by it, to enforce a claim against 
 it. Since that act it matters not whether a suit 
 is brought against the state, to recover a sup- 
 posed debt, or whether it is set up in an action 
 Drought by the state, by way of set-ofTor counter- 
 claim, that supposed debt is within the broad 
 words of the act, " all private claims and accounts 
 against the slate," and must, therefore, be sub- 
 mitted to the special tribunal created by it. — 
 Swareme Q., (AW. Sp. T.,) May, 1880, People 
 V. UenisoQ, 59 How. Pr. 157. 
 
 II. CONTEACTS WITH THE StATB. 
 
 12. How construed, generally. The- 
 state, in its contracts with individuals, must he- 
 judged and must abide by the same rules which 
 govern in similar cases between individuals; 
 and whenever such a contract comes before the 
 courts, the rights and obligations of the con- 
 tracting parties will be adjusted upon the same 
 principles as if both contracting parties were 
 private persons. — Ct. of App., Jan., 1878. Peo- 
 ple V. Stephens, 71N. Y. 5 27 ; S. C, 8 Abb. N> 
 Cas. 128. 
 
 13. Advertising for bids. Where a stat- 
 ute requires a public officer to advertise for bids- 
 for work to be performed, he cannot, in such 
 advertisement, fix an arbitrary price to be paid 
 for certain specified kinds of work included in 
 that for which the bids are asked. — Supreme Ct., 
 (lat Hept.,) March, 1880. Matter of Mahan,* 
 20 Hun 301. 
 
 14. Contracts for work on state Capi- 
 tol. Laws of 1875, ch. 634, relating to the 
 awarding of contracts for work on the state capi- 
 tol, construed ; and who is meant by the words 
 " lowest bma fide responsible bidder or bidders," 
 determined. — Supreme Ct., (Sp. T.,) April, 1878. 
 People, ex rel. Martin, v. Dorsheimer, 55 How. 
 Pr. 118. And see, also. Weed v. Beach, 56 Id. 470. 
 
 15. Contract for publishing law re- 
 ports. The state officers may give third per- 
 sons a right of action against the publisher for 
 a failure to comply with the contrsfct to publish 
 the state reports. — Supreme Ct., (Sd Dept,,) Jan., 
 1880. Little v. Banks, 20 Hun 143. 
 
 STATUTES. 
 
 I. Constitutionality. Validity. 
 II. Interpretation and Effect. 
 III. Repeal x and its Effect. 
 
 I. Constitutionality. Validity. 
 
 1. Constitutionality, generally. The- 
 fact that a statute impairs the value of property 
 does not make it unconstitutional. All property- 
 is held subject to the power of the state to regu- 
 late or control its use, to secure the general safety 
 and the public welfare. — Ct. of App., Nov., 1878.. 
 Bertholf I). O'Eeilly, 74 N. Y. 509, 521. 
 
 2. Laws of 1873, ch. 119, authorizing the is- 
 sue of a writ of mandamus to compel the board 
 of supervisors of a county to ascertain and de- 
 termine the amount which one whose real es- 
 tate is assessed in two towns, owing to a dispute 
 as to boundary, is entitled to receive back, and 
 from which of the towns, is not repugnant to any 
 provision of the federal or state constitutions. — 
 Ct. of App., June, 1877. People, ex rel. With- 
 erbee, v. Supervisors of Essex Co., 70 N. Y. 228, 
 233. 
 
 3. _— of retrospective laws.* As to the 
 constitutionality of acts ratifying proceedings 
 for town bonding taken prior to their passage, see 
 Hardeubergh v. Van Keuren, 4 Abb. N. Cas. 43. 
 
 _ 4. — statutes in derogation of vested 
 rights. Assessments for local improvements 
 can be justified only upon the theory that the 
 
 •Affirmed, it seems, April 13th, 1880. 
 
414 
 
 STATUTES, I., II., III. 
 
 lands upon which thejr are laid are specially 
 ibenefited by the improvements for which they 
 ■are laid, and hence ought to bear the burden 
 rather than property generally; and if a law 
 should authorize such assessments to be laid, 
 without reference to benefits, it would either 
 take properly for the public good, without com- 
 pensation, or it would take property from one 
 person for the direct benefit of another ; and in 
 ■either aspect it would be unconstitutional. — 
 €t. of App., June, 1874. Stuart v. Palmer, 74 
 N. Y. 183, 189. 
 
 5. — statutes impairing the obliga- 
 tion of contracts. A statute which so affects 
 the remedy existing at the time the contract 
 ■was entered into as to substantially impair and 
 lessen the value of the contract, impairs the ob- 
 ligation of the contract, and is forbidden by the 
 constitution, and is therefore void. — Snpei-ior 
 Ct., Nov., 1878. Jessup v. Carnegie, 44 Superior 
 260. 
 
 6. The obligation of contracts can no more 
 be impaired by subsequent judicial decisions on 
 the construction of a statute, than by subsequent 
 legislation. lb. 
 
 7. — local statutes embracing more 
 ■than one subject, or subjects not ex- 
 pressed in the title. Laws of 1870, ch. 382, 
 ^ 9, which provides for the appointment and re- 
 moval of attendants upon courts in the city and 
 county of New York, is nugatory and void, 
 because in conflict with the prohibition con- 
 tained in article 3, J 16, of the constitu- 
 tion, which provides, that "no private or local 
 bills, which may be passed by the legislature, 
 sbali embrace more than one subject, and that 
 «hall be expressed in the title." — Superior Ct., 
 Jan., 1878. Murray v. Mayor, &c., of New 
 York, 43 Superior 164. 
 
 8. It seems that the act of 1868, {Laws of 
 1868, ch. 855,) entitled "An act supplementary 
 to chapter 489 of the Laws of 1867, and to pro- 
 vide for the collection and application of revenue 
 in the county of New York, in certain cases," 
 is violative of said constitutional provision. — 
 ■Ct. of App., Sept., 1877. Matter of New York 
 Elevated K. K. Co., 70 N. Y. 327 ; S. C, 3 Abb. 
 N. Cas. 401. 
 
 9. The act providing for the construction of 
 elevated and underground railroads, known as 
 the rapid transit act (Laws of 1875, ch. 606,) 
 is not violative of said constitutional provision ; 
 it is not a local or private bill within the mean- 
 ing of the constitution, but is a general act. 
 lb. 
 
 IL Intebpeetation and Effect. 
 
 10. General rules of constniction. 
 In construing a statute effect must be given, if 
 practicable, to all of the language employed,_and 
 inconsistent expressions are to be harmonized, 
 if possible, to reach the real intent of the legis- 
 lature.— Ci!. of App., Feb., 1878. Matter of New 
 York and Brooklyn Bridge, 72 N. Y. 526, 530._ 
 
 11. The title of. an act of the legislature is 
 proper to be considered as bearing upon the 
 meaning and purpose of the act. — Ot. of App., 
 Dec., 1877. People, ex rel. Cook, v. Wood, 71 
 N. Y. 371. 
 
 12. Effect given to contemporaneous 
 construction. To render the construction 
 given to a statute by public oflScers admissible 
 as evidence of its true meaning, the usage must 
 have been general, continued and unquestioned. 
 
 Supreme Ct., {1st Dept.,) March, 1879. Fellows 
 V. Mayor, &c., of New York, 17 Hun 249. 
 
 13. Construing two or more provi- 
 sions together. In construing any particu- 
 lar section of either of the codes, or of any stat- 
 utes forming a part of the system of practice, if 
 it be intricate, obscure or doubtful, its meaning 
 is to be ascertained by comparing it with the 
 other sections or parts in the light of the gen- 
 eral legislative intent disclosed by the whole 
 system with respect to the section or part ques- 
 tioned. — Superior Ct., Nov., 1878. Levy v. Loeb, 
 44 Superior 291 ; affirmed 75 N. Y. 609. 
 
 14. Construction of retrospective 
 laws. A legislative enactment will not be 
 held to be a ratification of illegal acts in the 
 performance of work authorized by a prior act, 
 unless the intention so to ratify is apparent and 
 beyond question. — Ct. of App., Sept., 1879. 
 Kingsley v. City of Brooklyn, 78 N. Y. 200. 
 
 15. The occasion of the enacting of a law may 
 be looked to, to assist in determining its charac- 
 ter as retroactive or prospective. — Ct. of App., 
 June, 1877. People, ex rel. Witherbee, v. Super- 
 visors of Essex Co., 70 N. Y. 228, 236. 
 
 16. The Kevised Statutes. A mere 
 change in phraseology or in the arrangement 
 or division of the sections of an antecedent law, 
 incorporated in the Revised Statutes, will not 
 be construed as a change in the law, unless the 
 alteration is such as evidently purports a legis- 
 lative intent to work such a change. — Ct. of 
 App., Nov., 1878. Davis v. Davis, 75 N. Y. 
 221. 
 
 17. Interpretation of penal statutes. 
 A penalty cannot be raised by implication, but 
 must be expressly created and imposed by 
 statute.— C*. of App., Sept., 1877. Health Dept. 
 of New York v. Knoll, 70 N. Y. 580, 536. 
 
 18. When a prohibitory statute points out 
 the consequences of its violation, and it appears 
 to have been the legislative intentto exclude any 
 other penalty or forfeiture than such as is de- 
 clared in the statute, no othei* will be enforced ; 
 and an action may be maintained upon the 
 transaction of which the prohibited act was a 
 part, if it can be done without sanctioning the 
 illegalitv.— C*. of App., Jan., 1880. Pratt v. 
 Short, 79 N. Y. 437. 
 
 19. Pleading a statute. One who pleads 
 a remedial statute must bring himself within its 
 terms by clear, distinct, affirmative allegations. 
 —Supreme «., (%. T.,) Oct., 1878. Stewart v. 
 Munroe,56 How. Pr. 193. 
 
 HI. Eepeal; Aim) rra Effect. 
 
 20. Express repeal. Laws of 1873, ch. 
 327, providing, among other things, that any 
 appeal to the state assessors, " the determination 
 of which is not made and filed with the derk of 
 the said board of supervisors, on or before the 
 commencement of the next succeeding annual 
 session thereof, shall be null and void, and the 
 same shall be deemed as dismissed," was not re- 
 pealed by Laws of 1876, ch. 49, ? 3, but is still 
 in full force and effect. — Supreme Ct, (4(A Dept.,) 
 April, 1879. People, ex rel. Eobison, v. Super- 
 visors, 17 Hun 501. 
 
 21. Implied repeal. Where two statutes 
 are enacted upon the same general subject, the 
 latter may abrogate the former or a portion 
 thereof, although not entirely repugnant, if it is 
 apparent that the legislature intended the last 
 
STATUTES, III.— SUNDAY. 
 
 415 
 
 ■enactment to he a substitute for the former, in 
 whole or in part. — Ct. of -A.pp., March, 1877. 
 People, ex rel. Koss, v. City of Brooklyn, 69 N. 
 Y. 605. 
 
 22. Where a different process is given in 
 the two statutes to accomplish the same end, 
 each being adapted to the end, and the piocess 
 under the later statute renders the other clearly 
 supererogatory, the former will be considered 
 abrogated, lb. S. P., Heckmann v. Pinkney, 
 6 Abb. N. Gas. 371 ; S. C, 8 Daly 466. 
 
 23. The purpose and intention of the legis- 
 lature, as to "the repeal of an act, may be ob- 
 tained from its dealing with that act by legisla- 
 tion affecting it, had subsequent to the statute 
 by which it is claimed to have been repealed. — 
 Ct. of App., March, 1877. People v. Smith, 69 
 N.Y. 17^186. 
 
 24. A general law will not, in the absence 
 of an intent clearly manifested by its terms, be 
 held to abrogate or change the provisions of a 
 special law passed for particular cases and con- 
 stituting a class for which the general laws of 
 the state do not profess to provide. — Ct. of App., 
 April, 1877. Matter of Delaware and Hudson 
 Canal Co., 69 N. Y. 209. 
 
 STAY OF PROCEEDINGS. 
 
 [Includes only Qenerai rules, respecting; the obtain- 
 ing and effect of a stay, in an action or special pro- 
 •ceeding:. For rules applicable to any particular Action 
 or proceeding, see its title. As to Stay of execution, 
 see ExECDTioN, 61, S2. Consult also Bqdity, 4: 
 ijrjuMcnoN, 6-8.] 
 
 1. When proper. A stay of proceedings will 
 be granted to enable a party to review an order 
 •denying an application to make a pleading more 
 definite and certain.— Supreme Ct., (latDept.,Sp. 
 T.,) May, 1880. Brinkerhoff v. Perry, 59 How. 
 Pr. 155. 
 
 2. Plaintiff recovered a judgment against 
 ■the defendants for damages caused by the un- 
 lawful taking, &c., of plaintiff's property, under 
 An attachment issued in an action brought by 
 the defendants, in the Supreme Court, in which 
 action the complaint was dismissed and an ap- 
 peal taken. Pending this appeal the present 
 action in this court was commenced, resulting 
 in the judgment above mentioned, firom which 
 the_defen<knts have appealed, and stayed exe- 
 cution by an undertaking. Since such judg- 
 iu this court, the Supreme Court at General Term 
 ias reversed the judgment at Circuit, and order- 
 ■ed a new trial, thus restoring the attachment. 
 Held, a proper case for an order staying plain- 
 tiff's proceedings in the action in this court, un- 
 til final judgment in the action in the Supreme 
 Court—Superior Ct., Jan., 1878. Franklin v. 
 •Catlin, 43 Superior 138. 
 
 3. When a stay is proper in an action in the 
 Supreme Court to await the determination of an 
 appeal in another action to the Supreme Court 
 of the United States, on the ground that the 
 
 judgment of the latter count will be binding on 
 the former, see Dederick v. Fisk, 59 How. Pr. 73. 
 
 4. Power to vacate. The Special Term 
 a,t chambers has power to vacate a stay granted 
 hy a judge out of cowct.—Swmeine Ct., {Sp. T.,) 
 ^t., 1879. People, ex rel. Nichols, v. Cooper, 57 
 jHow. Pr. 463. 
 
 As to stay upon Appeal, see Appeal, 111, 
 112. 
 
 As to staying proceedings for Non-payment ef 
 costs, see Costs, 65, 66. 
 
 STENOGRAPHERS. 
 
 Liability of Attorneys for fees of, see Attok- 
 KEY AND Client, 3. 
 
 STILWELL ACT. 
 Abbest, 1-3. 
 
 STOCK. 
 
 Bakes, 6, 7; Cobpobations, II.; Manupao- 
 TUBrtfo Companies, 9. 
 
 STOPPAGE IN TRANSIT. 
 
 Sales, 25. 
 
 SUBMISSION OF CONTROVERSY. 
 
 Pbactice, 11-13. 
 
 SUBROGATION. 
 
 Insubance, 76-81; Peincipal and Sitee- 
 TT, 4, 5. 
 
 SUBSTITUTED SERVICE. 
 Peocess, 7-20. 
 
 SUICIDE. 
 
 Insubance, 119-121. 
 
 SUMMARY PROCEEDINGS. 
 
 Landlobd and Tenant, IV. 
 
 SUMMONS. 
 Pbocess, 1, 2. 
 
 SUNDAY. 
 
 1. Constitutionality of statute re- 
 specting observation of. Where the title 
 of a local act expresses the subject embodied 
 therein, the fact that such title does not in terms 
 express a limitation to the locality affected, but 
 is general enough to include the whole state, 
 does not render it Repugnant to the constitu- 
 
416 
 
 tional provision (art. 3, ? 16,) declaring that no 
 local bill shall embrace more than one subject, 
 which must be expressed in the title. There- 
 fore, the title to the act entitled " An act to pre- 
 serve the public peace and order on the first day 
 of the week, commonly called Sunday," (Laws 
 of 1860, ch. 501,) the operation of which act is, 
 by its terms, limited to the city of New York, 
 was not a violation of that constitutional provi- 
 sion. — Ct. of Am., May, 1877. Neuendorff v. 
 Duryea, 69 N. Y. 557.* 
 
 2. That title includes the subject of the act, 
 {, e., the prohibition of dramatic performances 
 upon Sunday in the city of New York, as the 
 cessation of such entertainments is one of the 
 particulars going to make up "the public peace 
 and order." lb. -> 
 
 3. It was not essential that the title should 
 declare the particular subject in order to meet 
 the constitutional requirements ; it was sufficient 
 that the general subject therein expressed in- 
 cluded it. lb. 
 
 4. The act does not infringe upon the right 
 to "the free exercise and enjoyment of religious 
 profession and worship" preserved by the con- 
 stitution (art. 1, § 3.) lb. 
 
 5. "What work is lawful on Sunday. 
 Labor performed on Sunday is not ipso facto 
 illegal. The statute excepts works of necessity 
 and charity (2 Kev. Stat. 675, § 70.)— iSaperfor 
 Ct., May, 1878. Sun, &c., Assoc v. Tribune 
 Assoc., ii Superior 136. 
 
 SUNDAY— TAXES. 
 
 SUPPLEMENTAL PLEADINGS. 
 Pleading, 67-61 
 
 SUPERIOR COURT; 
 
 COUBTS, 12. 
 
 SUPERVISORS. 
 CoxnrnEs, 1, 2. 
 
 SUPPLEMENTARY PROCEEDINGS. 
 
 ExEcxmoN, V. 
 
 SUPREME COURT. 
 
 C0TJET8,11. 
 
 SURETIES. 
 
 Pbincifle and SxiBETr. 
 
 SURROGATES' COURTS. 
 
 COTTBUB, IIL 
 
 SUSPENSION OF POWER OF ALIENA- 
 TION. 
 
 Wills, 23-25. 
 
 SYRACUSE. 
 
 MmnCIFAL COKFORATIONS, 130-139. 
 
 T. 
 
 TAXATION OF COSTS. 
 Costs, V. 
 
 TAXES. 
 
 I, The Povtbr to Impose Taxes. 
 n. Who mat be Taxed, and fob what 
 Peopebtt. Exemptions. 
 
 III. Assessment And Collection. 
 
 IV. Sale op Land fob Non-payment. Tax 
 
 Titles. 
 Y. Beuedies fob Illegal Taxation. 
 
 *See dissenting opinion of Church, C. J., in which a 
 contrary conclusion is reached — Kd. 
 
 I. The Powpi to Impose Taxes. 
 
 n. Who may be Taxed, and fob what 
 Pbopebty. Exemptions. 
 
 1. Personal representatives. The rule- 
 that an executor is not liable to be assessed as 
 such unless he has property of the estate in his- 
 possession or under his control, applied to the 
 facts of the particular case. — Supreme Ci., March, 
 1879. People, ex rel. Caswell, v. Commission- 
 ers of Taxes, 17 Hun 293. 
 
 2. Oorporatioiis, generally. A corpora- 
 tion may be assessed, although no statement, 
 such as is required by the statute (Bev. Stat, 
 414, i 3,) has been made by it. The statement 
 so required is not conclusive upon the assessors. 
 — a. of App., Jan., 1879. People, ex rel. Man- 
 hattan Fire Ins. Co., v. Commissioners of Taxes. 
 76 N. Y. 64. 
 
TAXES, II. 
 
 417 
 
 3. Fire insurance companies. The 
 provision of the insurance law (Laws of 1853, 
 eh. 466, § 12, as amended by Laws of 1854, ch. 
 563, and Laws of 1865, ch. 199,) declaring, in 
 effect, that moneys received for premiums, upon 
 iinexpired fire insurance policies, shall not be 
 deemed surplus profits, but shall be considered 
 as " unearned premiums" in making dividend.?, 
 does not affect the statm of such receipts, as 
 property, for the purposes of taxation, and in 
 no way interferes with or affects the statute in 
 relation to taxation. lb, 
 
 4. Under the provision, therefore, of the 
 statute (1 Kev. Stat. 415, | 6,) providing that 
 moneyed corporations shall be liable to taxation, 
 on a valuation equal to the amount of their 
 capital stock paid in, and their surplus earnings 
 (less ten per cent.,) so much of said premiums as 
 is in excess of a sum sufficisnt to cover the con- 
 tingent, liability of a fire insurance company up- 
 on its unexpired risks, may be estimated as 
 surplus earnings, for the purposes of taxation. 
 lb. 
 
 5. Defendants, in assessing the personal 
 property of the relator, estimated as surplus 
 earnings fifty percent, of the premiums received 
 upon unexpired policies. In arriving at this 
 result, defendants adopted the estimate of rela- 
 tor as to the amount required to discharge its 
 liability upon such policies, and the one recog- 
 nized by the insurance statute. In proceedings 
 by certiorari, to review the assessment — HM, 
 that the estimate and assessment were proper; 
 that the sworn statements of the relator to the 
 insurance department were competent evidence 
 for the consideration of defendants ; and that 
 they were not bound to notify relator or to give 
 it any hearing in respect thereto. lb, 
 
 Q. G-as-liglit companies. The relator, 
 having an accumulation of surplus profits 
 which it had invested in real estate and in 
 mains, issued to its stockholders certificates, 
 each to the effect that the stockholders named 
 therein had an interest in its property to an 
 amount specified, upon which the company 
 agreed to pay interest, reserving the riglit to re- 
 deem the certificate upon ten days' notice, by 
 paying the amount in money or in stock. Held, 
 that the issuing of the certificates did not affect 
 the status of the accumulation as surplus profits ; 
 that, at most, they were but agreements to di- 
 vide at some indefinite time ; and that whatever 
 surplus existed remained in the hands of the 
 company, and, as such, was liable to assessment 
 and taxation.— Oi!. of App., Feb., 1879. People, 
 ex rel. Williamsburg Gas Light Co., v. Board 
 of Assessors, 76 N. Y. 202 : affirming 16 Hun 
 196. 
 
 T. The certificates could not be considered as 
 creating indebtedness, and so, to be allowed as a 
 deduction from the value of the surplus profits. 
 Concedingthey were valid obligations, enforcea- 
 ble according to their terms, they were not evi- 
 dences of indebtedness, as a holder could not 
 demand and have from the company a sum of 
 money thereon ; if it elected to redeem them 
 by the issue of stock, the property would still 
 remain in the control of the company, and sub- 
 ject to taxation. lb. 
 
 8. Toll-bridge companies. Under 1 
 Rev. Stat. 389, 2 6, providing for the assessment 
 for the purposes of taxation of the property of 
 corporations, the real estate of toll-bridge com- 
 panies is assessable in the town or ward in 
 
 which it lies ; the qualification in respect to 
 such corporations in the last clause of said sec- 
 tion directing that they "shall be assessed in the 
 town or ward in which the tolls are collected,"^ 
 applies to their personal estate only. Therefore^ 
 the real estate of such a corporation, situate in 
 a school district,"is properly assessed and taxed 
 in said district. A toll-bridge over a navigable 
 river is properly assessed and taxed as real 
 estate.— d. of App., Sq>t,, 1878. Hudson River 
 Bridge Co. v. Patterson, 74 N. Y. 365 ; affirming 
 11 Hun 525. 
 
 9. Elevated railroad companies. 
 Foundations for piers or columns placed in a 
 public street, by an elevated railroM, by legis- 
 lative authority, whether standing alone, or with 
 columns and a superstructure thereon, are prop- 
 erly taxable as real estate, — Supreme Gt,, (\st 
 Dept,,) Dee., 1879. People, ex rel. New York 
 Elevated R. R. Co., v. Commissioners, 19 Hun 
 460. 
 
 10. In assessing such foundations and super- 
 structures the assessors are not to be confined to 
 the consideration of the land covered thereby, 
 but may consider their position and its incidents, 
 and the business and profits to be derived there- 
 from, lb. 
 
 11. Foreign corporations. Since the 
 enactment of Laws of 1855, ch. 37, the prop- 
 erty of a foreign corporation, doing business in 
 this state, can no longer be assessed to the agent 
 or trustee in whose possession it may be found, 
 but must be assessed to the corporation itself, in 
 the town or ward where the principal ofiSce or 
 place for transacting its financial business is 
 situated.— (Simreme Ot,, {2d I)ept,,) Feb,, 1879. 
 People, ex rel. Bay State Shoe and Leather Co., 
 V. McLean,* 17 Hun 204 ; affirming 5 Abb. N. 
 Cas. 137. « 
 
 12. "What personal property is subject 
 to assessment, and effect of non-residence of the 
 party assessed therefor, see People, ex rel. 
 Bijnge V. Board of Tax Commissioners of New 
 York, 17 Hun 596. 
 
 13. Shares in national banks. The 
 provision of the state statute, requiring shares 
 in national hanks to be assessed in the town or 
 ward where the bank is located, is valid. This 
 species of property may be separated from the 
 person of the owner and a situs given it for the 
 purpose of taxation. — Gt. of App., Nov., 1878. 
 Williams v. Weaver, 75 N. Y. 30. 
 
 14. Under the act of congress, shares of the 
 stock of national banks may be taxed, irrespec- 
 tive of the fact that the capital of the bank is 
 invested in Unitied States securities. 76. 
 
 15. The assessment of bank shares is not 
 subject to a deduction for the debts of the owner, 
 and a refusal to allow such deduction is not a 
 violation of said provision of the act of con- 
 gress as to the rate of taxation, lb. 
 
 16. United States bonds. The pro- 
 vision of the act of congress exempting United 
 States bonds, &c., from taxation, under state 
 authority, is complied with by exempting the 
 bonds as issued; and a deduction of their par 
 value, instead of their market value, from the 
 personal estate, is proper. — Gt. of App,, Jan., 
 1879. People, ex rel. Manhattan Fire Ins. Co., 
 V, Commissioners of Taxes, 76 N. Y. 64. 
 
 17. Oity bonds. Bonds issued by the city 
 of New York, and held by a corporation liable 
 
 27 
 
 • Affirmed, U teemt, February 24th, 1880. 
 
-^18 
 
 TAXES, II., II r., IV. 
 
 to taxation in that city, are not exempt from 
 taxation. lb. 
 
 18. What property is exempt, gen- 
 erally. Exemptions of property from taxation 
 are not favored, and must be clearly established ; 
 they cannot be established by doubtful implica- 
 tion, lb. 
 
 19. Exemptions in favor of munici- 
 pal corporations. Kev. Stat. 387, § 1, de- 
 claring tliat all lands and personal estate, 
 whether owned by individuals or corporations, 
 shall be liable to taxation, does not include 
 municipal corpora,tions. Therefore, where a 
 municipal corporation, in carrying out a system 
 of works for a water supply, built a reservoir in 
 the town of R — Held, that the town could not 
 assess the reservoir and impose ordinary taxes 
 thereon.— /Supreme Ct., {4th Dept.,) Oct., 1878. 
 City of Kochester v. Town of Bush, 15 Hun 
 239. 
 
 20. —of religious corporations. That 
 where a church society enters into the posses- 
 sion of a lot of land and begins to erect a 
 church edifice thereon, the land becomes ex- 
 empt from taxation, notwithstanding the title is 
 not obtained until after initiatory steps have 
 been taken to impose a tax thereon, see Wash- 
 ington Heights M. E. Church v. Mayor, &c. of 
 New York, 20 Hun 297. 
 
 III. Assessment and Collection. 
 
 2L Liabilities of assessors. Assessors, 
 having jurisdiction both of the person taxed 
 and of the subject matter, are not individually 
 liable for an erroneous assessment, at least 
 where tliey act ju good faith. To establish a 
 personal liability it must be made to appear 
 that they acted without jurisdiction. Williams 
 t). Weaver, supra. 
 
 22. The proper form of assessing 
 land, owned by a non-resident, on which is a 
 hotel, with stores underneath occupied by ten- 
 ants, considered. — Supreme Ct., (3d Dept,,) Nov., 
 1879. Stewart v. Fonda, 19 Hun 191. 
 
 23. The valuation. The provision of the 
 national banking act (U. S. Eev. Stat., § 5219) 
 — providing that the t^ixation of shares of stock 
 of national banks "shall not be at a greater 
 rate than is assessed upon other moneyed capi- 
 tal in the hands of individual citizens" — re- 
 quires that no greater percentage of tax on the 
 valuation of shares shall be levied ; it does not 
 apply to an over-valuation. Williams v. Weaver, 
 eupra. 
 
 24. The fact that, in making up their assess- 
 ■uent-roll, the assessors place the valuation of 
 bank shares in a separate item in the column in 
 which personal property is placed, does not in- 
 validate the assessment; this is a substantial 
 ■compliance with the provision of said act 
 (I 5219), which authorizes such shares to be " in- 
 cluded in the valuation of the personal property" 
 of the owner, and with the provision of the state 
 statute (Laws of 1S66, ch. 761, § 1,) requiring 
 this to be done. lb. 
 
 25. Deductions. In assessing bank stock 
 under said act, it is the duty of the assessor to 
 deduct, from the actual value of each share, a 
 aum bearing the same proportion thereto as the 
 assessed value of the real estate of the bank 
 lears to the actual value of all the capital stock ; 
 the words " whole amount of the capital stock," 
 
 as used in said act, have reference to its value, 
 not to the nominal amount of capital. — Ot. of 
 App., March, 1877. People, ex rel. Tradesmen's 
 Bank, v Commissioners of Taxes, 69 N. Y. 91 ■ 
 reversing 9 Hun 650. 
 
 26. Laws- of 1870, ch. 80, ? 253, entitling 
 members of the national guard to a deduction of 
 $1000 from the assessed valuation of their real and 
 personal property, was repealed by Laws of 
 1875, ch. 223, § 59, which latter act is applica- 
 ble to those who had enlisted prior to its pas- 
 sage, but whose terms of service had not then 
 expired.— Supreme Ol., {2d Dept.,) July, 1879. 
 People, ex rel. Sears, v. Board of Assessors, 18 
 Hun 386. 
 
 27. Payment, generally. The provision 
 of the act of 1855fin relation to the collection 
 of taxes, etc., (Laws of 1855, ch. 327, title 1, j 3,) 
 providing that payment of the state tax by a 
 county treasurer " may also be made by deposit- 
 ing such money to the credit of the treasurer of 
 this state," etc., does not limit such payment to 
 the mode specified ; any mode which brings the 
 money to the official custody 6f the state 
 treasurer, is lawful and proper. — Ot. of App., 
 Feb., 1878. Phelps v. People, 72 N. Y. 334, 
 356; affirming 6 Hun 401. 
 
 28. What may be taken in payment. 
 A tax receiver can receive nothing in payment ' 
 of taxes but money. An agreement by him to 
 receive and hold the taxpayer's check until he 
 shall be able to pay it, is void ; and an entry 
 upon his roll that the taxes are paid, and de- 
 livery of a. receipt therefor to such person, is 
 not a payment or satisfaction of the tax. — Su- 
 preme Ct., {4th Dept.,) June, 1879. McLanahan v. 
 City of Syracuse, 18 Hun 259. 
 
 IV. Sale of Land foe Non-Payment. Tax 
 Titles. 
 
 29. Publication of notice, and fees 
 therefor. Publication of notice in a German 
 newspaper, as one of the ten required by the 
 statute, will not invalidate notice in tax sale. 
 — Superior Ct., May, 1879. Donahue v. CConor, 
 45 Superior 278. 
 
 30. Laws of 1878, ch. 226, ? 21, relating to 
 sales of lands in Queens county for unpaid taxes, 
 provides that " the county treasurer shall be al- 
 lowed, in case the proceedings be discontinued 
 before the sale, in accordance with the pro- 
 visions of this act, the amount actually paid by 
 him for publication in newspapers as aforesaid, 
 and for his own fees upon the same, the sum of 
 one dollar for every lot, plot or parcel so as- 
 sessed." Seld, that he was entitled to his fees 
 whenever a tax was sought to be paid, after he 
 had completed and delivered to the printer the 
 list and notice of sale, though before the time 
 of its first publication. — Supreme Ct., {2d Dept.,) 
 Dec., 1879. People, ex rel. Weekes, v. Baldwin, 
 19 Hun 308. 
 
 31. Bights of the purchaser. Tax 
 titles. The purchaser of a tax lease, is not the 
 " tenant of real property owned by the judg- 
 ment debtor" (Code of Pro., ^ 376,) and cannot 
 be summoned in proceedings to enforce pay- 
 ment of a judgment against the deceased owner 
 of the land sold for taxes. — Supreme Ct., {Trial 
 T.,) June, 1878. Leonard v. Leonard, 56 How. 
 Pr. 97. 
 
 32. When a person seeks, by a purchase of 
 valuable property for a trifling sum at a tax 
 
TAXES, IV., V. 
 
 419 
 
 sale, to cut off the title of the owner, it behooves 
 him to see to it that the proceedings have all 
 been in substantial accordance with the re- 
 ■quirements of law.— Ct. of App., March, 1877. 
 Hilton V. Bender, 69 N. Y. 75, 83. 
 
 33. When a purchaser at a tax sale has 
 taken possession under his deed, and continued 
 lundisturbed, for a long period, in the peaceable 
 •enjoyment of the property, claiming by virtue 
 tliereof, and the owner is in a position to contest 
 the title, and especially if he his chargeable 
 -with knowfedge of the claim, the presumption 
 is very strong, and as to some facts after thirty 
 years may be conclusive, in favor of regularity. 
 But if the purchaser should lie by, before taking 
 possession, until his deed was very old, he 
 would come with a poor grace into court to ask 
 for a presumption to supply facts which he did 
 not venture to put himself in a position to es- 
 tablish when it was practicable, if they existed, 
 to prove them. lb. 
 
 34. Where one traces a clear paper title from 
 a conceded owner, and is in possession, it is un- 
 necessary for him, as against one whose only 
 claim is under a lease made by a municipal cor- 
 poration on sale for taxes, to show a possession 
 prior to his by the conceded owner, or any sub- 
 sequent grantee deriving title from such con- 
 ceded owner. This although he who claims 
 under the tax lease had been in actual posses- 
 sion over twenty years, and the one claiming 
 the fee had but recently entered upon the premi- 
 ses and obtained possession by putting the 
 holder of the tax lease off his guard. — Superior 
 €t., Nov., 1878. Bensel v. Gray, 44 Superior 372. 
 
 35. Notice to redeem. The six months' 
 notice to redeem, which the statute requires to 
 be given to the occupant of any lot sold by the 
 comptroller for non-payment of taxes, must be 
 -given when any portion of the entire lot is occu- 
 pied at the time of the giving of the deed by the 
 ■comptroller. The fact that the land was not oc- 
 •cupied when the two years allowed by the stat- 
 ute for redemption had expired, and the pur- 
 
 ■ chaser became entitled to a deed, does not do 
 away with the necessity of notice. — Supreme Ot., 
 (4«A Dept.,) Oct., 1879. Lucas v. McEnerna, 19 
 Hun 14. 
 
 36. The power given to the state comptroller 
 hy the act of 1855, (Laws of 1855, ch. 427, § 62,) 
 in case two newspapers were not published in a 
 county, to cause notices for the redemption of 
 .lands sold for taxes to be published " in the two 
 newspapers which the comptroller shall believe 
 to be most generally circulated in such county," 
 "Was superseded, so far as the county of Hamil- 
 itbn is concerned, by the act of 1866 (Laws of 
 1866, eh. 690,) providing for the publication of 
 legal notices in said county. — Ct. of App., April, 
 1878. People, ex rel. Thompson, v. Supervisors 
 
 ■of Hamilton County, 73 N. Y. 604 ; reversing 9 
 Hun 60. 
 
 37. That act left the comptroller no power 
 iin any case to designate the paper unless both 
 •of the papers named in the act should refuse to 
 'publish, in which case he could cause it to be 
 published ia any newspaper in Fulton coimty ; 
 unless both the designated papers were willing 
 ;to publish, a publication in one was sufficient. lb. 
 
 W. Eemedibs fob Illeoaii Taxation. 
 
 38. Appeals to board of state as- 
 '.sessors. When an appeal is taken from a 
 
 board of supervisors, as to the equalization of 
 assessments, to the board of state assessors, a 
 member of the latter board, who was not present 
 at the hearing, may nevertheless join in the de- 
 cision of such appeal and act upon the proofe 
 taken before his colleagues in his absence. — Su- 
 preme Ot., (2d Dept,) May, 1878. People, ex 
 rel. Supervisors, v. Hadley, 14 Hun 188. 
 
 39. A certiorari to review the decision of the 
 board of state assessors upon such an appeal 
 must be applied for by the towns, or the tax- 
 payers thereof who are injured thereby ; it can- 
 not be issued upon the application of the board 
 of supervisors. lb. 
 
 40. Under the act of 1876 (Laws of 1876, oh. 
 49,) "in relation to the equalization of assess- 
 ments," the state assessors are authorized, and 
 it is their duty, upon appeal by. a town, to deter- 
 mine: 1st. Whether the town appealing has 
 suffered injustice, as compared with other towns 
 in the county; 2d. Whether such town shall 
 have a deduction from its valuation, and 'the 
 amount thereof; 3d. Upon what other town or 
 towns such deduction shall be placed, and the 
 portion thereof which shall be placed on each. 
 The comparison is not between the town appeal- 
 ing and the residue of the county as an entirety, 
 but between it and the other towns as distinct 
 and separate organizations. — Gt. of App., March, 
 1879. People, ex rel. Supervisors of^ Westches- 
 ter, V. Hadley, 76 If. Y. 337 ; reversing 16 Hun 
 113. 
 
 41. For the purpose of performing this duty, 
 it is essential that said assessors shall take into 
 consideration the valuation of all the towns of the 
 county separately, and if they find injustice has 
 been done to the appealing town by an exces- 
 sive valuation, as compared with some of the 
 towns, they may remedy it by thus placing the 
 excess upon those towns; and this, although 
 other towns which have not appealed, have suf- 
 fered a like injustice : for the purpose of cor- 
 recting the injustice complained of, these towns 
 cannot be regarded. lb. 
 
 42. It is no objection to a decision made by 
 said assessors in pursuance of the statute that it 
 does not purport to be certified to the board of 
 supervisors of the county, lb, 
 
 43. Nor is it an available objection, where 
 the decision was forwarded by mail in due sea- 
 son, that it was not filed with the clerk of said 
 board before the beginning of the next annual 
 meeting. lb. 
 
 44. The state assessors are not required upon 
 such an appeal to take testimony as to the 
 amount and value of the personal property in 
 the towns ; as a board of supervisors in making 
 equalization, are confined to the valuation of 
 real estate, the state assessors have no authority 
 beyond this. 76. 
 
 45. The legislative intent in passing the act 
 was simply to regulate appeals, not to enlarge 
 the jurisdiction of the state assessors. lb. 
 
 46. An action to set aside and cancel a 
 tax, as illegal and a cloud upon plaintiff's title, 
 cannot be maintained where the sole ground of 
 illegality alleged is that the law under which the 
 tax was imposed is unconstitutional ; as, if the 
 tax be invalid, upon the ground claimed, its 
 invalidity will always appear. — Ct. of App., Sept., 
 1879. Townsend v. Mayor, &c., of New York 
 77N.Y.542. 
 
 47. Remedy by injunotion. In what 
 cases a court of equity will restrain by injunc- 
 
420 
 
 TAXES, v.— TELEGRAPH COMPANIES. 
 
 tion the sale of lands for non-payment of taxes, 
 see Beach v. Haj;e3, 58 How. Pr. 17. 
 
 48. Correction of errors by county 
 court. The provision of the act to "extend 
 the powers of boards of supervisors," etc., (Laws 
 of 1869, ch. 855, § 5,) which authorizes boards 
 of supervisors, on the recommendation of the 
 county court, "to correct any manifest, clerical, 
 or other errors in any assessments or returns," 
 was not intended to, and does not, subject all as- 
 sessments to review or permit a correction of all 
 errors, but simply of those which are "mani- 
 fest " — i. e., apparent by an examination of the 
 assessment-roll or return, needing no extrinsic 
 evidence to make them clear, and which are 
 also " clerical or other errors in the assessments 
 or returns " — i. e., some error of form in the as- 
 sessment-roll, not an error of the assessors in 
 making the assessment, nor any substantial er- 
 ror of judgment or of law. — Cl. of App., Dec., 
 1877. Matter of Hermance, 71 N. Y. 481. 
 
 49. The provision of the amendatory act of 
 1871 (Laws of 1871, ch. 695,) directing the re- 
 funding of any tax "illegally or improperly as- 
 sessed or levied," did not enlarge, or in any 
 manner affect the power to correct errors con- 
 ferred by the original act. Therefore — Hdd, 
 that a county court had no power under the 
 amendatory act to order a board of supervisors 
 to refund a tax paid by the applicants, alleged 
 to have been illegally assessed. lb. S. P., WU- 
 liams V. Supervisors of' Wayne Co., 14 Hun 343; 
 affirmed 78 N. Y. 561. 
 
 50. The application to the county court may 
 be made when the assessors have no jurisdiction 
 over the property assessed. — Supreme CL, {Sd 
 Dept.,) April, 1880. Matter of Ulster County 
 Savings Bank, 20 Hun 481. 
 
 51. Refunding by order of county 
 OOlui;. The determination of assessors as to 
 a fact upon which their jurisdiction depends, is 
 not conclusive. If the jurisdictional fact does 
 not exist, the determination of the assessors that 
 it does exist does not establish jurisdiction in 
 them.— Cl!. of App., May, 1879. Matter of New 
 York Catholic Proteotory,_ 77 N. Y. 342. 
 
 52. Under the provision of the act above 
 mentioned as amended by Laws of 1871, ch. 
 695, which requires the board of supervisors of 
 a county (except New York and Kings,) upon 
 the order of the county court made on applica- 
 tion and notice as specified, to refund to a party 
 aggrieved "the amount collected from him of 
 any tax illegally or improperly assessed or lev- 
 ied," where a tax is clearly illegal, and has been 
 collected, the county court has power to order 
 the board of supervisors to refund the amount 
 so collected. It is not essential to the exercise 
 of this power that the assessment'shall first have 
 been adjudged illegal by some competent tribu- 
 nal, lb. ; affirming 8 Hun 91. 
 
 53. Certain real estate belonging to the pe- 
 titioner was assessed, a tax imposed thereon 
 and collected. By its charter (Laws of 1866, 
 ch. 647, I 3,) its property "used for the charita- 
 ble purposes of said association" is exempted 
 from taxation. Upon application to the county 
 court under said act for an order requiring the 
 board of supervisors to refund said tax, the pe- 
 tition alleged thai the land upon which the tax 
 was imposed belonged to the petitioners, and 
 was used for such charitable purposes. This 
 was not controverted in any manner. Hdd, that 
 the order was properly granted, lb. 
 
 54. An assessment upon propertji which is 
 by law exempt from taxation is illegal ; and, in 
 such case, a county court has power under the 
 act of 1869 (Laws of 1869, ch. 855, J 5,) extend- 
 ing the power of boards of supervisors, etc.,. 
 to order such board to refund the amount 
 of a tax so illegally assessed. — Gl. of App., Nov., 
 1879. Williams v. Board of Supervisors, 78 N. 
 Y. 561. 
 
 55. Under the provisions of the statute (I 
 Kev. Stat. 389, § 5,) exempting agents of 
 moneyed corporations or capitalists from taxa- 
 tion " for any moneys in their possession, or 
 under their control, transmitted to them for the 
 purposes of investment, or otherwise," and ex- 
 empting demands belonging to non-residents of 
 the state sent to or 'deposited in this state for 
 collection (1 Rev. Stat. 419, § 3,) foreign capi- 
 tal sent here for investment is protected from 
 taxation^ whether invested or uninvested, and 
 whether the securities received therefor are 
 taken away or remain here for collection. lb. 
 
 56. Upon application to a county court for 
 an order, under said act of 1869, directing the 
 board of supervisors to refund a tax upon per- 
 sonal property assessed to petitioner as agent, 
 the proof was to the eflect that the property, so 
 assessed consisted of bonds and mortgages, some 
 of which had been sent to him for collection by 
 a non-resident of the state, the residue had 
 been taken by him on re-investments, and had 
 been left or deposited with him for collection. 
 
 Held, 1. That such property was exempt from 
 taxation; and the assessors . having refused Uy 
 deduct it from the agent's assessment, on due 
 application being made, and a tax having been 
 imposed thereon and paid by him under pro- 
 test, that the county court properly ordered the 
 refunding of such tax. 
 
 2. That the aot of 1855 (Laws of 1855, ch. 
 37,) which subjects to taxation the capital of 
 non-residents, invested in business in this state, 
 was not in conflict with the statutory provisions 
 above referred to. lb. 
 
 As to Municipal taxes, see BKOOKLyir, 16, 
 17. 
 
 As to Assessments for local improvements, see 
 MtWICIPAI. CORPOBATIONS, 11-27 ; Nevs" 
 
 YoKK City, 25-81. 
 
 TEACHERS. 
 Schools, 7-9. 
 
 TELEGRAPH COMPANIES. 
 
 1. Bight to erect poles. LawsoflSSS^ 
 ch. 471, § 2, authorizing telegraph companies 
 " to erect and construct, from time to time, the 
 necessary fixtures for such lines of telegraph,, 
 upon, over or under any of the public roads, 
 streets and highways, and through, across or 
 under any of the waters within the limits of 
 this state," does not authoiize them to erect 
 poles or fixtures upon and along tlie roadway of 
 a railroad company. — Supreme Ot., (2<i Dept.,) 
 May, 1880. New York &c., K. R. Co. v. Cen- 
 tral, &c.. Telegraph Co., 21 Hun 261. 
 
 2. Liability for _ failure to deliver 
 message. In an action to recover damages- 
 
TELEGRAPH COMPANIES— TENANTS IN COiVIMON. 
 
 421 
 
 for the non-delivery of the following telegraph 
 dispatch, " Can close Valkyria and Othere, 22, 20 
 net, Montreal. Ans. immediately" — Hdd, that 
 commissions which the sender wbuld have 
 earned as a broker in effecting a charter of two 
 vessels named Valkyria and Othere, if the mes- 
 sage had been duly transmitted, were not dam- 
 ages either actually contemplated, or to be 
 fairly supposed to have been contemplated by 
 the defendant, and therefore not recoverable — 
 Superior Ct., March, 1879. McCall v. Western 
 Union Telegraph Co., 44 Superior 487 ; S. C, 
 7 Abb. N. Cas. 151 ; 57 How. Pr. 154, n. 
 
 3. Regulations as to repeating mes- 
 fiages, half rates, &c. Defendant sent 
 messages at a regular rate, requiring the sender, 
 if he wished to insure accuracy, to have the mes- 
 sage repeated. It also sent messages, at night, 
 at half-rates, on condition that it should not be 
 liable for errors or delay, from whatever cause 
 occurring, beyond the amount of the money 
 paid. Plaintiff wrote a message on a blank 
 'Containing the foregoing terms and conditions, 
 under the words : " Send the following message, 
 •subject to the above terms, which are agreed 
 to." In an action to recover for the failure of 
 defendant to transmit the message — Held, that 
 the terms imposed were reasonable, and that 
 plaintiff' having agreed to them, could only re- 
 cover the amount paid by him for sending the 
 message. — Supreme Ct., (3d Dept.,) May, 1879. 
 Schwartz v. Atlantic, &c.. Telegraph Co., 18 
 Hun 157. 
 
 4. Liability for injuries occasioned 
 by falling poles. A telegraph company, 
 iaving the right to place its line in the streets 
 of a city, is not liable for an injury resulting 
 from the breaking of one of the posts support- 
 ing the line, save upon proof of culpable negli- 
 gence on its part. The company is bound to 
 use reasonable^ care in the construction and 
 maintenance of its line, and if it appear that 
 the post was originally not reasonably sufficient 
 •or that it was carelessly permitted to become in- 
 sufficient by decay, then responsibility attaches ; 
 but the company is not absolutely bound to have 
 its posts in the streets so strong and secure 
 that they cannot be blown down or broken by 
 any storm, nor is it bound to insure the safety 
 of passengers in the streets from injuries result- 
 ing from the falling thereof. — Ct. of App., Oct., 
 1877. Ward i/. Atlantic, &c., Tfelegraph Co., 
 71 N. Y. 81. 
 
 5. In an action against a telegraph company 
 to recover for injuries sustained by the falling of 
 one of its posts, the evidence tended to show 
 that the accident was occasioned by a snowstorm 
 of unusual severity ; there was evidence also 
 from which the jury could have found that the 
 line, as originally constructed, was sufficient for 
 such storms as could have reasonably been ex- 
 pected. The court was requested, but refused, to 
 charge that the defendant was not bound so to 
 make or manage its line as to guard against 
 fltorms of unusual severity, the occurrence of 
 which could not be reasonably expected, ffdd, 
 «rror. lb. 
 
 6. Where a telegraph company has placed 
 its poles at a sufficient distance from the travel- 
 ed portion of a highway to be safe from collision 
 with vehicles passing along it under ordinary 
 -circumstances, it is not liable for the damages 
 resulting from an accident arising from the 
 jjreaking and fall of one of the poles, where the 
 
 proximate cause of the breaking and fall there- 
 of was a collision with a run away team of horses 
 and the wagon to which they were attached. — 
 Supreme Ct., {4«A Dept.,) April, 1880. Allen v. 
 Atlantic, &c.. Telegraph Co., 21 Hun 22. 
 
 7. If the collision was the proximate cause 
 of the breaking of the pole the defendant can- 
 not be held liable on account of an original de- 
 ficiency in the strength of the pole to withstand 
 such a collision. Ih. 
 
 TENANTS. 
 
 For Life, see Estates, 1-4. 
 
 For Yean, see Landiobd and Tenant j 
 Leases. 
 
 By the Curtesy or in Dower, see Cubtesy ; 
 Dower. 
 
 TENANTS IN COMMON. 
 
 1. 'Wlio are tenants in common. Dev- 
 isees under a will take as tenants in common 
 under the statute unless there is an express 
 direction in the will that they shall take as 
 joint tenants. — Supreme Ct., {Sp. T.,) Nov. 1879. 
 "Wright V. Wright, 59 How. Pr. 176. 
 
 2. Where the widow occupies lands held by 
 her husband at his decease under a contract of 
 sale, receives the rents and profits, and pays up 
 the amount due on the contract, or where she 
 pays a mortgage upon the land, the presumption, 
 in the absence of other evidence, is that she pays 
 from the rents and profits ; also, in case of a 
 mortgage, the presumption is, that upon pay- 
 ment it became extinguished, and could beonly 
 available to the widow upon an accounting. — 
 Ct. of App., Dec., 1877. KqoUs v. Batuhart, 71 
 N. Y. 474 ; affirming 9 Hun 443. 
 
 3. The possession, in such case, of the widow 
 of an intestate, as dowress and as guardian in 
 socage of minor heirs, is as tenant in common 
 with all the heirs, and she occupies a fiduciary 
 relation toward them, which prevents her pur- 
 chasing an outstanding title in, or a mortgage 
 upon the lands for her individual benefit. lb. 
 
 4. Where, in such case, the widow paid a 
 mortgage, took an assignment to herself, subse- 
 quently foreclosed and bid in the premises in 
 her own name, and then conveyed them to one 
 of the heirs who was in occupation of the prem- 
 ises with her — Seld, that the interests of the 
 other heirs were not thereby cut off; also, 
 that the title acquired by the widow was not 
 strengthened by the transfer. lb. 
 
 5. Adverse possession bet-ween ten- 
 ants in common. That an ouster of a co- 
 tenant will be presumed from an adverse posses- 
 sion of forty years, see Woolsey v. Morss, 19 
 Hun 273. 
 
 6. When possession for many years by one 
 tenant in common will not be deemed to be ad- 
 verse to his co-tenant, see Kathan v. Bockwell, 
 16 Hun 90. 
 
 7. Accounting bet^ween tenants in 
 common. One tenant in common who enters 
 into possession of a farm, doing nothing to pre- 
 vent his co-tenants from occupying the same 
 with him, is not liablie to account for the 
 
422 
 
 TENANTS IN COMMON— TOWNS. 
 
 Talue of the rents and profits, nor for what he 
 takes therefrom, but only for what he actually 
 receiyes over and above his- just proportion. — 
 Supreme Ct., {ith Bept.,) Oct., 1878. Boseboom 
 V. Roseboom, 15 Hun 309. 
 
 8. Suits between tenants in coznmon. 
 Where tenants in common sell and convey prop- 
 erty and one receives the entire purchase money, 
 the other can maintain an action for money had 
 and received to recover his proportion of the 
 price. So he can to recover his share of the 
 rents received by the co-tenant, but that will not 
 bar his remedy for an equitable adjustment and 
 Uen.— Supreme Gl., (Utica So. T.,) Nov., 1879. 
 Wright V. Wright, 59 How. Pr. 176. 
 
 O. As to property separable in respect to 
 quantity and quality by weight or measure, a 
 tenant in common may demand of his co-tenant 
 having possession of the whole, his share ; and, 
 upon a refusal or a conversion by such co-ten- 
 ant, may sue in his own name without joining 
 all the other co-tenants. — Gt. of App., April, 
 1879. Stall V. Wilbur, 77 N. Y. 158, 164. 
 
 TENDER. 
 
 1. What will excuse a tender. An 
 absolute refusal of the party on one side to per- 
 form and fulfill a contract is sufficient excuse to 
 the other side for not making a tender, when a 
 tender is necessary ; but the complaint must al- 
 lege and show the fact that there was such a re- 
 fBsal, and that the omission to tender was occa- 
 sioned thereby. — Supreme Gt., April, 1879. 
 Marie v. Garrison, 45 Superior 157. 
 
 2. In case of refusal that excuses a tender, 
 still there can be no recovery unless it appears 
 by the pleading that the party so excused was 
 ready and able to tender, lb. 
 
 3. Keeping the tender good. For an 
 instance where a tender was held to be of no 
 avail because not kept good up to and at the 
 time of trial, see Dodge v. Fearey, 19 Hun 277. 
 
 TERMS. 
 
 Of tenant under Lease, see Landlokd and 
 Tenant, I. 
 
 Orders granted on terms, see Amendment, 
 
 18 ; Costs, 18, 19. 
 
 As to terms of Offiee, see Officers ; and the 
 titles of the various particular officers. 
 
 TESTAMENTARY CAPACITY. 
 
 Wills, I. 
 
 4 
 t 
 
 THEFT. 
 
 Labcent. 
 
 TIME. 
 
 L Rule for computing time. The rule 
 
 of interpretation which, in computing time, ex- 
 cludes the first and includes the last day, has no' 
 application to a statutory provision which is 
 clear and explicit; and can only be invoked 
 where the act is to be done m(Ai?i a certain num- 
 ber of days or a specified period of time. When, 
 the statute says ajter the expiration of a time 
 named, that time must fully expire. — Gt. of App.^ 
 Nov., 1878. Marvin v. Marvin, 75 N. Y. 240. 
 
 2. Fractions of a day, when disre- 
 garded. The law does not regard fractions- 
 of a day except where the hour itself is iuaterial,, 
 as where the priority of judgments is in ques- 
 tion, lb. 
 
 When reasonable time is a Question offacly 
 see Questions op Law and Fact, 20. 
 
 When time is of„the Essence of a eonlra^, see- 
 Contkacts, 48. 
 
 TITLE. 
 
 To JRecU property, see Keal Pkopertt; also 
 Descent ; Devise ; Ejectment; Mobtgages. 
 
 To Personal property, see Chattel Mobt- 
 gages; Eeplevin; Sales; Teoveb. 
 
 As to Covenants of title, see Covenants, II. ^ 
 Estoppel, III. 
 
 As to Plea of title in justices' courts, see Jus- 
 tice op the Peace, 3, 4. 
 
 As to acquiring title by Adverse possession, see 
 that title. 
 
 For rules governing Proceedings to try title to- 
 office, see Oppicees, 5 ; Quo Waeeanto. 
 
 As to proceedings to acquire title by exercise- 
 of the right of Eminent domain, see Eminent- 
 Domain ; also Canals, 1-3 ; Highways, I. y 
 Eailboad Companies, II. 
 
 TORTS- 
 
 Assault ; Conspiracy ; Damages, 27-39 ; 
 False Impbisonment ; Fbaud ; Libel ; Ma- 
 licious Pbosecution; Negligence; Nui- 
 sance ; Seduction ; Shipping, V. ; Sla-ndeb j. 
 Teespass; Teoveb. 
 
 TOTAL LOSS. 
 
 Insueance, 134-138. 
 
 TOW BOATS. 
 Shipping, 21-23. 
 
 TOWNS. 
 
 1. Actions by towns. _ An action cannot 
 be maintained by the supervisor of a town in 
 his name of office against his predecessor, for 
 omitting in his last accounting to render an 
 account of town moneys and securities in his 
 hands, and converting the same to his own use. 
 For these causes an action is expressly given by 
 the statute to the town in its corporate capacity, 
 (1 Eev. Stat. 349, ? 5, as amended by Laws of 
 1866, ch. 534,) and must be brought in that 
 
TOWNS— TRADEMARKS. 
 
 423 
 
 name. — Ct. of App., Feb., 1878. Hagadorn v. 
 Baux, 72N. Y.583. 
 
 2. Although the language of the statute is in 
 form permissive, yet it being for the protection 
 of the public interests) the word " may " therein 
 is the equivalent of " must," and the statute is 
 mandatory on the town auditors to bring an 
 action in the name of the town. lb. 
 
 3. Town officers having no power to make 
 a contract cannot ratify or waive an irregularity 
 so as to bind the town. — Ct. of App., Jan., 1878. 
 Horton v. Town of Thompson, 71 N. Y., 513. 
 
 4. Audit of claims against towns. 
 Where a claim, consisting of separate items, is 
 presented to a board of town auditors it is their 
 duty to examine each of the items separately, and 
 allow or disallow it accordingly as it shall be 
 found correct or incorrect. — Supreme Ct., {Sd 
 Dept.,) Jan., 1880. People, ex rel. Thurston, o. 
 Auditors, 20 Hun 150. 
 
 5. It is error for the board to deduct a gross 
 sum &om the amount of the claim, without 
 passing upon or specifically altering any of the 
 items of which it is composed. lb. 
 
 6. No corporate duty is imposed upon towns 
 in respect to the care, superintendence or regu- 
 lation of highways within their limits. — Ct. of 
 App., Sept., 1878. People, ex rel. Van Keuren, 
 V. Town Auditors, 74 N. Y. 310. 
 
 7. Neither an overseer of highways, nor a 
 commissioner of highways under whose di- 
 rections he acts, are agents of the town, 
 and the latter is not chargeable for their non- 
 feasance or misfeasance, for their official acts or 
 delinquencies. lb. S. P., Nov., 1878. People, 
 ex rel. Loomis, v. Town Auditors, 75 N. Y. 316, 
 319. 
 
 TRADEMARKS. 
 
 1. Right to adopt a trademark. Eveiy 
 manufacturer and every person for whom goods 
 are manufactured, has a right to distinguish the 
 goods he manufactures, or sells, by a peculiar 
 mark or device, that they may be known as his 
 in the market, and he is entitled to protection 
 of the same, irrespective of the fact that similar 
 goods are manufactured or sold by others, and 
 this right extends to a, vendor who merely 
 sells, and has no direct relation to the manti- 
 faoturers. — Superior Ct., Jan., 1879. Godillot v. 
 Hazard, 44 Superior 427. 
 
 2. WTiat may be appropriated as a 
 trademark. A trademark may consist of 
 anything not already appropriated ; marks, 
 forms, symbols, which designate the true origin 
 or ownership of the article ; this, although the 
 words adopted are in common use. It cannot, 
 however, consist of anything which merely de- 
 notes the name or quality. There can be no 
 right to the use of mere generic words. lb. 
 
 3. Instances. The words "Established 
 1780" or "Established A. D. 1780"— BeH a 
 valid trademark, where they had been con- 
 spicuously displayed and iised for a long time, 
 in signs, labels, and bill-heads. — Supreme Ct., 
 (Sp. T.,) Sept., 1878. Hazard v. Caswell, 57 
 How. Pr. 1. 
 
 4. The figures " 35 " may be adopted as a 
 trademark, though unaccompanied with the 
 manufacturer's name, or other words denoting 
 origin or ownership. — Supreme Gt. let Dent. 
 
 Sp. T,) Oct., 1879. Collins v. Eeynolds Card 
 Manuf. Co., 7 Abb, N. Cas. 17. 
 
 5. The word " Royal " — Held a valid trade- 
 mark, where the claimants were the first to u«e 
 it as such, and had so used it for a long time. 
 Supreme Ct., {Sp. T.,) Jan., 1880. Eoyal Baking 
 Powder Co. v. Sherrill, 59 How. Pr. 7. 
 
 6. What may not be. As to the extent 
 of the right of a person to use his own name as 
 a trademark, and when he may be enjoined 
 from so doing, see England v. New York Pub- 
 lishing Co., 8 Daly 375. 
 
 I. The exclusive use of the words "Cherry 
 Pectoral " cannot be claimed as a trademark. — 
 Com. Pleaa, Feb., 1877. Ayer v. Eushton, 7 
 Daly 9. 
 
 8. What constitutes an inftinge- 
 ment. Where a party has established a rigli t 
 to the use of " a name, symbol, letter, form or 
 device," as a trademark to distinguish goods 
 manufactured and sold by him from those of 
 other manufacturei-s, it is an infraction of that 
 right for another to print or manufacture, or put" 
 on the market for sale, for use upon articles of 
 merchandise of the same kind, any device or 
 symbol which, by its resemblance to uch trade- 
 mark, will be liable to deceive the public. It is 
 not necessary that the symbol or device com- 
 plained of should be a fac simile of the genuine 
 trademark, or so close an imitation as to be dis- 
 tinguished only by an expert, or upon critical 
 examination by one familiar with the original ; 
 if the resemblance is such as to deceive a pur- 
 chaser of ordinary caution, or if it be calculated to 
 deceive the careless and unwary, and thus to 
 injure the sale of" the goods of the proprietor of 
 the trademark, it is a violation of his properly 
 rights tlierein, and he may m.aintain an action 
 to restrain such violation and to recover dam- 
 ages therefor.— Ci!. of App., Oct., 1877. Colmau 
 V. Crump, 70 N. Y. 573. 
 
 9. To sustain such an action it is not neces- 
 sary to establish a guilty knowledge, or fraudu- 
 lent intent on the part of defendant. It is suffi- 
 cient to show the proprietary right of the plain- 
 tiff, and its actual infringement. lb. 
 
 10. The fact tliat the same device is used upon 
 other articles of merchandise, does not take 
 from the plaintiff the exclusive right to its use 
 upon the article manufactured by him. lb. 
 
 II. The words "tempest" and "hurricane" 
 are not so similar as to warrant the conclusion 
 that the public is liable to be misled into be- 
 lieving that lanterns to which these words are 
 respectively applied are of the same manufac- 
 ture.— /Supreme a., {Sp. T.,) Sept., 1878. Hurri- 
 cane Patent Lantern Co. v. Miller, 56 How. Pr. 
 234. 
 
 12. WHen an injunction will be 
 granted. Plaintiffs published a book called 
 " Paysbu, Dunton & Scribner's National System 
 of Penmanship," which was widely known as 
 the "National System of Penmanship." De- 
 fendants subsequently published a book similar 
 in size and contents, imder the title "Indepen- 
 dent National System of Penmanship," such 
 words being printed in the same manner, and 
 the letters being of the same size and form, and 
 occupying the same position as they did upon 
 the cover of the plaintiff's book. Hdd, a proper 
 case for an injunction.^&preme Ct., (Ut Dept.,) 
 June, 1880. Potter v. McPherson, 21 Hun 559. 
 
 13. The injunction was properly issued if it 
 appeared that persons desiring to purchase the 
 
424 
 
 TRADEMARKS— TRIAL, I. 
 
 plaintiff' publication, might well accept that of 
 the defendants, supposing and believing it to be 
 the plaintiffi', even though persons engaged in 
 the trade of buying the books, with an intention 
 to re-sell them, might not be misled hj the re- 
 semblance, and though the difference could be 
 readily detected by a comparison of one book 
 with lie other. 76. See, also, Electro-Silicon 
 Co. V. Trask, 59 How. Pr. 189 ; India Rubber 
 Co. V. Rubber Comb, &c., Co., 45 Superior 258. 
 
 14. For a statement of the law governing the 
 granting of injunctions for infringement of 
 trademarks, see Enoch Morgan's Sons' Co. v. 
 Troxdl, 57 How. Pr. 121. 
 
 15. Ki^hts of licensee of trademark. 
 The principles of law applying to patents, and 
 contracts of license of the same, and the pay- 
 ments of royalties thereupon, should be applied 
 to registered trademarks, and therefore the de- 
 fyndant, as liceusee of a r^fistered trademark, is 
 not in a position, whUe he holds the license and 
 uses the trademark, to set np and maintain, in 
 an action to recover .the royalty or fees provided 
 for in the license, the defence that the trade- 
 mark is invalid. However, if he was induced 
 to enter into the contract hy frandulent repre- 
 sentations, he has a right to interpose that as a 
 defence. — Superior Gt., April, 1878. BBlsen v. 
 Libby, 44 Superior 12. 
 
 TREASURER. 
 
 Counties, 6-11 ; Maitdauds, 14 ; New Yoek 
 City, 95. 
 
 TREATIES. 
 
 "With Wtirtemberg. As to the right of 
 an alien claimant by descent, under the treaty 
 between the United States and the kingdom of 
 Wurtemberg, allowing citizens of either party, 
 to whom land would have descended under the 
 laws of the other but for alienage, to sell the 
 same and withdraw the proceeds under certain 
 restrictions, see Renner v. Miiller, 44 Superior 
 535. 
 
 TRESPASS. 
 
 L Jurisdiction. An action will not lie in 
 this state for trespass committed on lands in an- 
 other state. — Supreme Ct., (1st DepU,) April, 
 1880. De Courcy v. Stewart, 20 Hun 561. 
 
 2. Who may maintain trespass. One 
 in possession under a contract to purchase land, 
 who had faUed to make the payments required 
 by the contract — Held, not to have the right to 
 maintain trespass against his vendor, who, after 
 notifying him to quit, which he refused to do, 
 tore down his fences and took forcible posses- 
 sion.— Supreme Ct., (2rf Dept.,) May, 1878. Pa- 
 gan V. Scott, 14 Hun 162. 
 
 3. "What title or possession -will sup- 
 port the action. In an action to recover for 
 an injury to the freehold, plaintiff must show 
 such title as entitles him to damages, not to the 
 possession merely, but to the freehold. Where 
 the land has not been occupied, improved, or 
 
 inclosed, and reliance is placed solely upon a 
 paper title, the proof must be of a chain of title 
 from the original patentee or donee. A deed 
 from a person not in possession, or not shown to 
 be the owner, establishes no title. — Ct. of Am., 
 Dec., 1877. Miller v. Long Island R. R. Co., 
 71 N. Y. 380 ; reversing 9 Hun 194. 
 
 4. The possession unaccompanied by paper 
 title, requisite to furnish the presumption of 
 ownership sufficient to maintain trespass, must 
 be actual. lb. 
 
 5. In case of land unoccupied, unimproved 
 and unindosed, such possession may be made 
 out by showing that the lot is kept as, and is a, 
 wood-lot of suitable size for an improved &rm, 
 and that the owner of the farm has habitually 
 for some years cbt thereon his firewood, saw- 
 logs, fencing and building timber. Evidence 
 of merely occasional entries at long intervals 
 upon the lot, where it is not parcel of an im- 
 proved farm, or connected with one, is not 
 sufficient to establish the requisite possession. 
 So, also, payment of taxes on the lot is no evi- 
 dence of possession. lb. 
 
 6. Rvldence. In an action of trespass, 
 where the question in controversy was as to the 
 location of the line between the parties — Seld, 
 that it was competent to prove by a surveyor 
 that the line claimed by plaintiff was necessary 
 to give the quantity of land called for by his 
 deed.— Ci!. of App., Sept., 1878. Pope v. Han- 
 mer, 74 N. Y. 240. 
 
 TRIAL. 
 
 I. Mode of Tbiaii. Whether by Juey 
 
 OE BY COUBT. 
 
 n. Place of Tbiai ; aot) how Changed 
 HL BEmGiNG ON the TbiaIu The Caj> 
 
 ENDAE. 
 
 rv. Impaneling the Juey. 
 V. Conducting the Tbiai.. 
 
 1. In general. 
 
 2. Putting in the evidence, 
 
 3. Objections and exertions. 
 
 4. Naa-suU. Dismissal of complaint. 
 
 VI. Insteuctions to the Juey. 
 
 1. What imlructions are proper. 
 
 2. The prayer far instructions. 
 
 3. Directing a verdict. 
 
 VIL The Veedict oe Finding. 
 Vm. Tut AT. nr CEisnNAi. Cases. 
 
 I. Mode of Tbiax. Whetheb by Juey os 
 BY Court. 
 
 L Bight to jury trial. The joinder of an 
 equitable cause of action with others purely 
 legal does not deprive the defendant of the 
 right of trial by jury. — <X cf App., Oct., 1878. 
 Wheelock v. Lee, 74 N. Y. 495 ; S. C, 5 Abb. 
 N. Cas. 72. ■ 
 
 2. When such an action is brought to trial 
 at Special Term, and the defendant demands a 
 jury trial, if any of the grounds upon which a 
 recovery is sought are such as were, at the time 
 
TRIAL, I., II., III. 
 
 425 
 
 ■of the adoption of the constitution, redressed hy 
 an action at law, tlie court should direct the 
 cause to be tried by a jury at the circuit, or at 
 least should refuse to try without a jury. lb. 
 
 3. Where the complaint is framed solely for 
 equitable relief, and the action is tried as one in 
 ■equity, the court, on finding that plaintiff is not 
 entitled to equitable relief, but that the facts 
 -would warrant an action for damages, cannot 
 order judgment therefor; defendant is entitled 
 to an opportunity to claim a trial by jury on 
 that ground of action. lb. 
 
 4. An action to restrain the continuance of a 
 nuisance, and for damages occasioned by it, 
 should be tried by a jury, and unless the parties 
 consent, cannot be tried by the court, especially 
 where the court refuses to restrain the further 
 continuance of the alleged nuisance and only 
 maintains the action for the purpose of protect- 
 ing plaintiff's remedy for damages. — Supreme 
 Gt., {4th Dept.,) June, 1879. Dorr v. Dansville 
 Gas Light Co., 18 Hun 275. 
 
 5. "What is a waiver of right to jury 
 trial. The constitutional right to a jury trial 
 in civil cases' may be waived, and the waiver 
 may be adjudged upon any evidence which 
 ■would be sufficient to constitute a waiver of 
 rights in other cases. — Ct. of Avp., Sept., 1878. 
 Baird v. Mayor, &o., of New York, 74 N. Y. 
 -382. 
 
 6. The clause in the constitution, that the 
 right to a jury trial in civil cases may be waived, 
 in the manner to be prescribed by law, has not 
 been regarded as precluding courls from hold- 
 ing parties to have waived by Iheir conduct or 
 silence, the right to a jury trial, upon general 
 principles of law applicable to the subject, al- 
 though the case is not provided for by any stat- 
 ute, lb. 
 
 T. To constitute a waiver of the right of trial 
 by jury, there must be some unequivocal act or 
 consent showing an intention to abandon it. 
 Wheelock v. Lee, supra. 
 
 8. A defendant does not waive his right to a 
 trial by jury by consenting that the case be 
 placed on the calendar for trial at the Special 
 Term, and noticing it'for trial there. lb. 
 
 9. The bringing of an action of a distinctly 
 ■equitable character is a waiver, so far as the 
 plaintiff is concerned, of the right of trial by 
 jury, although upon the facts he may be enti- 
 tled to either legal or equitable relief ; and in 
 determining the mode of trial, the court may, as 
 to him, be governed by the nature of the action, 
 as stated in the complaint. — Ct. of App., Dec., 
 1877. Davison v. Associates of the Jersey C!o., 
 71 N. Y. 383, 340. 
 
 10. A party by not appealing from an order 
 ■of reference, and by proceeding with the trial of 
 the reference without objection, will be deemed 
 to have acquiesced in that mode of trial, and 
 thereby waives any objection to the order : he 
 cannot thereafter raise a question as to the power 
 or jurisdiction of the referee, or claim that he 
 was entitled to a jury trial. Baird v. Mayor, &c., 
 of New York, mpra. 
 
 11. When trial by the court -without 
 a jury is proper. Where the allegations con- 
 tained in the complaint make out an action in 
 equity for equitable relief, and certain of the 
 allegations make out, as to some of the defend- 
 ants, an action at law for legal relief, the issues 
 of fact joined as to the allegations making out 
 the equitable cause of action are to be tried and 
 
 disposed of at theSpecial Terra by the court with- 
 out a jury ; and if the equitable cause of action 
 fails, and so leaves the issues joined on the alle- 
 gations making out an action at law, as to some 
 of the defendants, to be disposed of, those issues 
 should be tried by a jury.— /SWenor Ct., Feb., 
 1878. Hennequin v. Butterfleld, 43 Superior 
 411 ; affirmed 76 N. Y. 698. 
 
 12. The judge at Special Term, having upon 
 the proofs dismissed the complaint as to those 
 defendants as to whom the allegation of the com- 
 plaint made oat a cause of action in equity, 
 found as a conclusion of law, that as to the de- 
 fendants with respect to whom certain of the 
 allegations (upon which issue was joined), made 
 out an action at law, the issues should be tried 
 by jury. Upon the findings, judgment was en- 
 tered dismissing the complaint as to the first set 
 of defendants, and ordering that the judgment 
 should be without prejudice to the right of plain- 
 tiffs to a trial by jury of the issues raised by the 
 latter setof defendants, ifrfd, correct. lb. Com- 
 pare Cushman v. Thayer Manuf., &c., Co., 76 N. 
 Y. 365. 
 
 13. An action to set aside a judgment for 
 fraud may be properly tried without a jury. — 
 Ct. of App., May, 1878. Whittlesey v. Delaney, 
 -N.Y.5r ■" 
 
 73 
 
 , 571, 579. 
 
 II. Place of Trial ; and so-w Changed. 
 
 14. The proper place of trial. Two of 
 the causes of action described in the complaint, 
 related to land situated in Kings' county, the 
 other ciiiises of action related to personal prop- 
 erty. Held, that the proper place of trial was 
 in Kings county. — Supreme Ct., [Sp. T.,) Oct., 
 1879. Fletcher v. Cooper, 59 How. Pr. 373. 
 
 15. "Who may move to change the 
 venue. Necessity of previous demand. 
 A motion to change the venue, on the ground 
 that neither of the parties residps in the county 
 where the venue is laid, cannot be made until 
 after a demand therefor has been made by an 
 attorney who has appeared in the action in one 
 of the ways provided for by Code of Civ. Pro., 
 § 421.— Supreme Ct., {2d Dept.,) July, 1879. Van 
 Dyck I). McQuade, 18 Hun 376. 
 
 16. Opposing the motion. Under Code 
 of Civ. Pro., § 986, a motion made before issue, 
 by defendant, to change the venue, cannot be 
 opposed by plaintiff on the ground of conveni- 
 ence of witnesses. — Supreme Ct., {2d Dept.,) Dee., 
 1879. Gifford v. Town of Gravesend, 8 Abb. N. 
 Cas. 246. 
 
 IIL 
 
 Bbinging on the Tblil. 
 Calendar. 
 
 The 
 
 17. Preferred causes. An action on a 
 policy of life insurance, instituted after the death 
 of the insured and after the time given by the 
 terms of the policy to the company within 
 which to pay it has expired, is an action against 
 a corporation, founded upon an " evidence of 
 debt, for the absolute payment of money," with- 
 in Code of Civ. Pro., | 791, subd. 8, and is enti- 
 tled to a preference upon the calendar. — Su/preme 
 Ct., (ls« Dept,,) Nov., 1879. Stud well v. Charter 
 Oak Ins. Co., 19 Hun 127. 
 
 18. Where plaintiff fails to file a note of issue 
 in the form prescribed by General Eule No. 36, 
 he waives his right to have the case treated as 
 preferred, on the ground that the property of 
 defendant is held under an attachment. lb. 
 
426 
 
 TRIAL, IV., V. 
 
 IV. iMPANELrNG THE JtJRY. 
 
 19. Struck jury. Where irregularities have 
 occurred in the procurement of a struck jury, 
 the court may order the jury to be discharged, 
 and a new jury to be struck.— jSuprem* Ct., (3d 
 Dept.,) Jan., 1879. People, ex rel. Kirtland, v. 
 Dillon, 17 Hun 1. 
 
 V. CONDUCTIITG THE TbIAL. 
 1. In 
 
 20. The right to open and close. The 
 
 right of the plaintiff to open and close is a strict 
 legal right, and its denial is ground for reversal 
 of the judgment ; nor is the error as to denying 
 him the opening address cured by allowing 
 him the closing argument. — Cam. Pleas., April, 
 1878. Penhryn Slate Co. «. Meyer, 8 Daly 
 61. 
 
 21._ When the defendant, in an action upon a 
 promissory note, has the right to open and close 
 on the ground that there is nothing for the 
 plaintiff to prove in the first instance, see Svr 
 preme Ct., (3d Dept.,) Jan., 1878. De Graff v. 
 Carmichael, 13 Hun 129. 
 
 2. Putting in the evidence. 
 
 21 a. Presenting the case to the Jury, 
 generally. A party should not be allowed to 
 go to the jury in such form as that, in event of 
 one claim distinclly interposed by him and sus- 
 tained by liis evidence being rejected by them, 
 he may fall back upon another position, upon 
 which to rest a verdict wholly irreconcilable 
 ■with the one disallowed, without sufficient evi- 
 dence to support it. — Supreme Ct., March, 1879. 
 Hazewell v. Coursen, 45 Superior 22. 
 
 216. When counsel at the trial limits him- 
 self to a distinct position with reference to his 
 client's rights, there is no error in confining 
 him to such position. lb. 
 
 22. Where part of a conversation 
 with a party to the action, or his agent, has been 
 given in evidence by the opposite party, any 
 other or further part of the conversation, which 
 will, in any way, explain or qualify that given, 
 may be proved in reply ; but portions of the 
 conversation not thus connected with that proved, 
 are not made admissible. — Ct. ofApp., Sept., 1879. 
 Plainer v. Platner, 78 N. Y. 90, 103. 
 
 23. Opening cause after parties have 
 rested. This action was brought to recover a 
 balance due on an account for caps sold and de- 
 livered by the plaintiff to the defendants. The 
 answer was a general denial. Upon the trial, 
 the plaintiffs having proved the manufacture 
 and shipment of the caps, pursuant to a con- 
 tract, -and rested, the defendants proved that the 
 caps were imperfect, in that the crowns were not 
 properly stitched to them, and came off, thereby 
 rendering them unsalable, and that they had for 
 that reason returned them to the plaintiffs. The 
 plaintiffs then offered to disprove the statement 
 made by the defendants as to the alleged defect 
 in the cap.s ; but the evidence was excluded, on 
 the ground that they should have offered the 
 testimony before closing their case. 
 
 Held, 1. That it was error to exclude the evi- 
 dence. 
 
 2. That the plaintiffs were justified m resting 
 their case upon proof of the manufacture and 
 
 delivery of the goods, and were not obliged to- 
 prove that paiticular defects therein, which the 
 defendants might set up as a defence, did not in 
 fact exist. — Supreme Ct, (lit Dept.,) June, 1880.- 
 Bancroft v. Sheehan, 21 Hun 551. 
 
 3. Objectimix and exceptiom. 
 
 24. Generally. The objection that an an- 
 swer hds not been properly verified is not a 
 proper one to be raised on trial. — Ct. of App., 
 Sept., 1878. Schwarz v. Oppold, 74 N. Y. 307. 
 _ 2.5. That an exception to the refusal of the 
 judge to permit the case to go to the jury, no re- 
 quest being made, raises no question of fact on 
 appeal, see Hammond v. Schultze, 45 Superior 
 611. 
 
 26. General and specific objections. 
 A general objection to a question can only be 
 considered as applying to the competency or 
 materiality of the point sought to be proved, and. 
 not to the competency of the witness to testify 
 upon the subject. — Ct. of App., Dec., 1879. 
 Stevens v. Brennan, 79' N. Y. 23*1. 
 
 27. Above the signature of a married woman, 
 as indorser of a promissoiy note, appeared a 
 special indorsement charging her separate es- 
 tate. Upon the trial of an action upon the in- 
 dorsement, she was asked as a witness in her own 
 behalf whether this writing was there when she- 
 signed. This was objected to generally. The 
 objection was overruled. Jleld, no error; that 
 if it was intended to raise any question as to its 
 admissibility under her answer the objection 
 should have been specifically taken. — Ct.ofApp.,. 
 Sept., 1878. Schwarz v. Oppold, 74 N. Y. 307. 
 
 28. In an action for slander in charging a 
 female with unohastily, it appeared that plaintiff,, 
 at the time of the speaking of the alleged slander- 
 ous words, was engaged as a school teacher. 
 After a witness had stated on the trial that an 
 appeal had been taken to the state superintend- 
 ent of public instruction from a decision of the 
 school commissioner in proceedings to remove 
 the plaintiff, her counsel asked whether the 
 commissioner or superintendent decided to re- 
 move her ; this was objected to and excluded. 
 Counsel then asked whether plaintiff remained 
 teaching after such decision ; this was objected 
 to generally, and objection overruled. Hdd^ 
 no error ; that the objection did not present or 
 call for a decision as to the form of the question ;. 
 and that the fact proved was not rendered in- 
 competent, because inferentially it might tend to- 
 establish what the decision was. — Ct. of App., 
 March, 1877. Distin v. Rose, 69 N. Y. 122, 
 125. 
 
 29. The requisite deflniteness and 
 certainty in objections. Where specific- 
 objection is made to evidence offered, every 
 ground of objection not specified which is capa- 
 ble of being obviated by evidence, is waived^ — 
 Ct. of App., Api-il, 1877. Marston v. Gk)uld, 69- 
 N. Y. 220. 
 
 30. The following objection : " I desire to 
 except to your HonoPs statement to the jury of 
 evidence, or supposed evidence, connected with 
 the accident or causing it," — Hdd, too general 
 and vague to be available on appeal. — Supreme 
 Ct., (3d Dept.,) Nov., 1879. Minick v. City of 
 Troy, 19 Hun 253. 
 
 31. "Waiver of objections. Where, upon 
 atrial, an objection has once been distinctly 
 raised and overruled, it need not be repeated to 
 
TRIAL, v., VI. 
 
 427 
 
 the same class of evidence ; and an omission to 
 repeat it is not a waiver. — Ct. of App., Apnl, 
 1877. Dilleber v. Home Life Ins. Co , 69 'S. Y. 
 256, 260. 
 
 32. Where a question is waived after an ob- 
 jection thereto has been overruled, and is subse- 
 quently renewed and allowed to be answered 
 without objection, the failure to object again is a - 
 waiver of the former objection. — Ot. of App., 
 'April, 1879. Wagner v. Jones, 77 N. Y. 590. 
 
 33. How exceptions should be taken. 
 In the absence of any motion or act on the part 
 of defendant, upon the trial of an action, from 
 which an assent to a decision of the case by the 
 court, and a waiver of the right to go to the jury 
 may be implied, an exception to a direction of 
 a verdict for plaintiff is sufiBcient to present the 
 point on appeal that there were questions of fact 
 for the jury ; it is not necessary to request the 
 submission of any such fact. — Ct. of App., Dee., 
 1879. First Nat. Bault of Springfield ij. Dana, 
 79 N.Y. 108. 
 
 34. As to how exceptions should be taken to 
 the judge's charge to the jury, and to his refusal 
 to charge certain requests submitted to him, see 
 O'DoDuell V. New York, &c., B. B. Co., 8 Daly 
 409. 
 
 4. Non-SMit. Dismissal of complaint. 
 
 35. "Wlien a non-suit Is proper. The 
 court is not called upon to non-suit the plaintiff 
 unless there is no evidence in law which, if be- 
 lieved, will sustain a verdict. — Supreme Ct., 
 {1st Dept.,) March, 1877. Bickett v. Taylor, 55 
 How. Pr. 126. 
 
 36. Effect of denial of motion for 
 non-suit. Where a defendant has asked the 
 court to determine the questions in a case as 
 matters of law in his favor on a motion for a non- 
 suit, if he afterwards desires any questions to be 
 submitted to a jury as questions of fact, it is his 
 duty to specify the questions.— Ct. of App., 
 April, 1878. Muller d. McKesson, 7 3 N. Y. 1 95. 
 
 37. Dismissal for defect in com- 
 plaint. A suit does not now fail, as it did for- 
 merly, because the plaintiff has made a mistake 
 as to the form of the remedy, but, if the case he 
 states entitles him to any remedy, either legal or 
 equitable, his complaint is not to be dismissed 
 because he has prayed for a judgment to which 
 he is not entitled. — Supreme Ct., {ist Dept.,) Sept., 
 1879. Jones v. Jones, 18 Hun 438. 
 
 38. Where the complaint in an action docs 
 not state facts suihcient to constitute a cause of 
 action, the objection is available on trial upon 
 motion to dismiss the complaint. — Ct. of App., 
 March, 1879. looker v. Arnoux, 76 N. Y. 397. 
 
 39. Where a complaint in an action on the 
 equity side of the court contains no allegations 
 giving a right to legal redress, and also fails to 
 
 ' allege matters entilling plaintiff to equitable re- 
 lief, the complaint should be dismissed. — Sur 
 preme Ct., (Ist Dept. Sp. T.,) Nov., 1877. De 
 Bussierre v. Holladay, 4 Abb. N. Cas. Ill ; S. 
 C, 55 How. Pi-. 210. 
 
 40. — for insuflaoiency of plaintiff's 
 evidence. Where plaintiff does not state in 
 his complaint his true cause of action, and fails 
 on the trial to prove the one alleged, it is a fail- 
 ure of proof and not a variance, and the com- 
 plaint may be pioperly dismissed. — Superior Ct., 
 Jan., 1879. Volkening v. De Graaf, 44 Superior 
 424. 
 
 41. Where the motion for dismissal is mad& 
 upon the ground that no cause of action is- 
 proven, a defence established by conceded or un- 
 disputed -facts, which shows that the claimed 
 cause of action never existed, e. </., res adnudicala 
 against plaintiff on his claimed cause of action, 
 may be urged in support thereof — Superior Ct.,. 
 March, 1879. Durant v. Abendroth, 44 Superior 
 463. 
 
 42. Time to move to dismiss. The 
 code reserves the right to the defendant to take- 
 advantage of the insufSoiency of the complaint, 
 after the time to demur or answer has passed ; 
 and if the motion to dismiss the complaint, for- 
 that reason, is made at the earliest practicable 
 stage of the trial, the defendant does not lose- 
 the right.— CJ. of App., Feb., 1879. Cohn d- 
 Goldman, 76 N. Y. 284, 286. 
 
 43. Setting aside dismissal. The judge 
 presiding at a jury trial has power, since the 
 amendment to the code of 1851, to set aside a 
 dismissal of the complaint made by him. — Com. 
 Pleas, Jan., 1878. Van De Wiele v. Callanan^ 
 7 Daly 886. 
 
 VI. Instbtjctions to the Jtjby. 
 
 1. What instructions are proper. 
 
 44. Relative functions of court and. 
 jury. When the defence is that the wrongful 
 act was not within the general scope of the ser- 
 vant's employment, and so, not within the ex- 
 press or implied authorization of the master, it 
 is for the court to pass upon the competency of 
 evidence and for the jury to give effect to it. — 
 Ct. of App., May, 1878. Mott v. Consumers' Ice- 
 Co., 73 N. Y. 543, 550. 
 
 45. It is the province of a jury, not only to 
 pass upon conflicting evidence, but where dif- 
 ferent inferences may be drawn from evidence- 
 or from the conduct of parties, to draw the in- 
 ferences. — Ct. of App., Oct., \?!T1. Powell v. 
 Powell, 71 N. Y. 71. S. P., Wygant v. Nat. 
 Burglar, &c., Ins. Co., 45 Superior 107. 
 
 46. 'The perception of a jury may ascertain 
 from the character and make-up of a fiction, 
 what real event the fiction was meant to hide. — - 
 Superior Ct., March, 1879. Branch v. Levy, 44- 
 Superior 507. 
 
 4*7. In an action against a railroad company 
 for personal injuries, where the sole question, 
 presented on appeal was whether the place 
 where the accident happened had become a pub- 
 lic highway by dedication or prescription — Held^. 
 that whether it was so or not was a question of 
 fact for the jury. — Ct. of App., Jan., 1879.. Mc- 
 Carthy V. Lake Shore, &c., B. B. Co., 76 N. Y. 
 592. 
 
 48. What instructions are improper. 
 On the trial of an action against a railroad com- 
 pany to recover for goods alleged to have been, 
 abstracted from a box delivered to them for 
 transportation, an instruction to the jury that al- • 
 though there was no positive proof tha* "the- 
 missing goods were actually in the box at the 
 time it was placed in their possession, or that 
 they did not deliver the box in the exact condi- 
 tion In which they received it, it is for you to- 
 say, as business men, with all the facts before you, 
 many of you no doubt being acquainted with the- 
 custom as to shipping goods, whether the de- 
 fendants are responsible for the loss of the- 
 goods," is erroneous, and misleading. — Ct. of 
 
428 
 
 TEIAL, VI. 
 
 App., Nov., 1878. Canfield v. Baltimore, &c., 
 E. B. Co., 75 N. Y. 144, 149; reiieraing 43 Su- 
 perior 562. 
 
 2. The prayer for instrufitions. 
 
 49. Form and sufficiency. It is not 
 strictly proper to refer to the testimony of a wit- 
 ness, and ask the court to charge that if the jury 
 Jbelieve the witness they must find in a certain 
 way, or that a certain conclusion follows, as it 
 prevents the jury from determining what facts 
 are established by the witness' evidenoe.^0!. of 
 App., Nov., 1877. Dolan v. Delaware and Hud- 
 «on Canal Co., 71 N. Y. 285, 289. 
 
 50. It is the duty of counsel, if the court 
 misapprehend his meaning, in a request to 
 charge, to call its attention to the fact ; other- 
 wise he is concluded by the interpretation put 
 upon his request by the court. — Ci. of App., 
 March, 1878. Booth v. Boston and Albany R. 
 M. Co., 73 N. Y. 38, 44. 
 
 51. The written statement of facts deemed es- 
 tablished by the evidence, and the rulings of 
 law desired thereon, which, under Code of Civ. 
 Pro., § 1023, a party may submit to the judge at 
 the trial, must, to be considered, be in the form 
 
 of distinct propositions of law or of fact, or of 
 both, separately stated ; and in the same propo- 
 sitions should not be mingled indiscriminately 
 ■stateHients of fact with conclusions of law. They 
 must be prepared in such form that the court 
 may conveniently pass upon them. — Superior Ot., 
 March, 1879. Sniffen v. Koechling, 45 Superior 
 ^1. 
 
 52. WTiat prayers should be grant- 
 >ed. Upon the trial of an action against a rail- 
 road company for negligently killing plaintiff's 
 intestate at a crossing, defendant's counsel re- 
 quested the court to charge that it was not neg- 
 ligence on the part of the deceased, if he ap- 
 proached the crossing at such speed as to be 
 unable to stop or turn his horses aside before 
 actually going on the track. The court so 
 charged, with the qualification that he was neg- 
 ligent if he so approached without making an 
 .effort to apprehend the approach of the train. 
 Sdd, error ; that under the circumstances as 
 ■disclosed by the evidence, defendant was en- 
 titled to the charge as requested, without any 
 qualification. — Ct. of App., Nov., 1878. Salter 
 ». Utica, &c., E. E. Co., 75 N. Y. 273 ; reversing 
 13 Hun 187. 
 
 53. In an action for a breach of an oral agree- 
 ment to lease certain premises to plaintiffs, de- 
 fendant claimed that, in the conversation re- 
 -ferred to, certain conditions of the proposed 
 lease, particularly as to tlie time it should com- 
 mence, had not been definitely agreed to. His 
 counsel requested the court to charge "that 
 there was no agreement to give a lease if there 
 were any essential matters affecting the rights 
 ■of the parties left open for further considera- 
 tion." add, a proper request, and that the 
 
 -court erred in refusing to charge it. — Supreme 
 Ct., (ilh Dept.,) April, 1879. Sourwine v. Trus- 
 -cott, 17 Hun 432. 
 
 54. "What requests to charge may 
 be properly refused. The court is not 
 bound to accept the words of a counsel, and so 
 .*o charge when it has in other and appropriate 
 j.anguage given to the jury the true rule by 
 which they are to be governed.— Oi!. of App., 
 <Oel., 1877. Morehouse v. Yeager, 71 N. Y. 594. 
 
 S. P., Carr v. Mayor, &c., of New York, 43 Su- 
 perior 158. 
 
 55. Where a judge has made a full and fair 
 charge, laying down the general propositions of 
 law controlling the case, it is within his discre- 
 tion and he may orditiarily refuse to go fiirther ; 
 he is not bound to charge, upon request of coun- 
 sel, how the jury shall find, if they find one way 
 or the other, as to pjirticular facts in the case. — 
 Ct. of App., April, 1878. Eexter v. Starin, 73 N. 
 Y. 601. S. P., De Wolfs. Williams, 69 N. Y. 621. 
 
 56. Where the evidence of a witness for the 
 defence, in an action for negligence, is not bo 
 specific and certain as necessarily to establish, 
 as matter of law, negligence — either that de- 
 fendant was not, or that plaintiff was guilty of 
 negligence— a refusal of the court to charge that 
 if they believe the testimony of the witness they 
 must find for defendant, is not error.— .Cf. of App., 
 Nov., 1877. Dolan v. Delaware and Hudson 
 Canal Co., 71 N. Y. 285. 
 
 4. Directing a verdict. 
 
 ST. In general. The practice of directing 
 a pro forma verdict at the circuit, and reserving 
 the cause for further argument and considera- 
 tion on a motion to be made on the judge's min- 
 utes to set aside the verdict, and on the hearing 
 of such motion directing judgment in favor of 
 the party entitled, approved. — Supreme Cl., (2d 
 Dept.,) Feb., 1878. Hall v. Hall, 13 Hun 306. 
 
 58. Effect of moving to direct ver- 
 dict. Where, at the close of plaintiff's case, 
 defendant requests the court to direct a verdict 
 in his favor, without having cross-examined 
 plaintiff's only witness, or offered any evidence i 
 in defence, he thereby admits the facts sworn to 
 by such, witness and all inferences which may 
 be reasonably drawn therefrom. — Com. Pleas, 
 Jan., 1878. United States Eeflector Co. v. Eush- 
 ton, 7 Daly 410. 
 
 59. The right of a party to go to the jury on 
 a particular question, is waived by requesting 
 the court to direct the jury to find on other 
 questions which concede the particular one. — 
 Supreme Ct., (3d D^t.,) May, 1878. Merritt v. 
 Cole, 14 Hun 324. 
 
 60. Where, at the close of the evidence upon 
 a jury trial, both parlies ask the court to direct 
 a verdict in their favor respectively, it will be 
 assumed that they intend to waive the right of 
 submission to the jury and consent that the 
 court shall decide the questions of law and fact 
 involved. But this presumption is repelled 
 when the party whose request is denied, there- 
 upon asks to go to the jury upon the questions 
 of fact.— Cl!. of App., Sept., 1879. Koehler v. 
 Adler, 78 N. Y. 287. S. P., Thomson v. Liver- 
 pool, &c., Steamship Co., 44 Superior 407. 
 
 61. Instances of erroneous direction 
 of verdicts. A refusal to submit to the jury, 
 in an action on a promissory note, the question 
 whether plaintiff was a bona fide holder, and the 
 direction of a verdict in his favor — Held, error, 
 in a case in which there was a conflict of evi- 
 dence. — Cl. of App., May, 1878. Potts v. Mayer, 
 74 N. Y. 594 ; reversing 43 Superior 544. 
 
 62. This action was brought to recover the 
 amount of a loan alleged to have been made by 
 plaintiff to A., defendant's intestate. Plaintiff 
 produced a check made by himself, payable to 
 the order of A., and indorsed by A. and an- 
 other ; two witnesses called by plaintiff testified 
 
TRIAL, VI., VII. 
 
 42^ 
 
 to acts and admissions of A. to the effect that 
 the check was given for a loan as alleged ; their 
 testimony was not directly disputed. It was 
 shown, however, on the part of defendant, that 
 plaintiff and A. were trustees of a corporation, 
 the former also heing treasurer and the latter 
 president ; that plaintiff paid out the corporate 
 funds in his individual name ; that plaintiff 
 commenced an action against the corporation 
 for advances made, and in the bill of particu- 
 lars therein, which was an abstract of his cash- 
 book as treasurer, appeared an item under the 
 same date as the check, and for the same amount, 
 stated as paid to A. ; that by an arrangement 
 between plaintiff and A. the former took judg- 
 ment, and for a good consideration A. was re- 
 leased from all personal liability ; that plaintiff 
 stated that this settled all matters between 
 them' ; that the claim in suit was not then men- 
 tioned, nor at any time until nearly three year? 
 after A.'s death, and after expiration of notice 
 to creditors to produce their claims. Held, that 
 the case presented a question for the jury, and 
 tliat the court erred in directing a verdict for 
 plaintiff.— Ct. of App., Sept., 1878. Koehler v. 
 Adler, 78 N. Y. 287. 
 
 63. Defendant was the editor of a newspaper 
 owned by a corporation, a portion of the stock 
 of which he held. W., who was plaintiff's pres- 
 ident, owning a majority of its stock, was also a 
 stockholder in said corporation. Defendant was 
 advised by the publisher of the paper, who had 
 been to see W. atnd other stockholders, that they 
 had concluded to levy an assessment upon the 
 stock, and that they had agreed to furnish the 
 money for his share upon pledge of his stock. 
 It was represented to defendant that W. had 
 paid his subscription to the stock in full, that 
 there was to be an additional assessment upon 
 all the stock, and that W. was to pay his share. 
 The note in suit was thereupon made, and de- 
 livered to the publisher. W. had not paid his 
 assessment, nor had he paid in full for his stock. 
 At a subsequent meeting of the stockholders of 
 the newspaper company, it was agreed that de- 
 fendant should withdraw from it and give up 
 his stock, the stockholders agreeing to assume 
 payment of the note ; and defendant thereupon 
 surrendered his stock. Upon being advised 
 that a claim was made against him, defendant 
 wrote to plaintiff, stating the facts, and that if 
 sued he would be obliged to sue the company 
 and its stockholders. Plaintiff's cashier there- 
 after wrote defendant, proposing that if defend- 
 ant would sue the newspaper company for the 
 performance of the contract to pay the note, it 
 would pay one-half the cost, adding that if the 
 proposition suits it will avoid the necessity of a 
 suit upon the note. An agreement was entered 
 into upon the basis of this letter. Defendant 
 brought an action against said company, obtain- 
 ed judgment, and upon return of execution un- 
 satisfied brought suit against the stockholders, 
 which was pending when this action was com- 
 menced. The court directed a verdict for plain- 
 tiff. Hdd, error ; that if the letter of plaintiff's 
 cashier stood alone, it was a question whether 
 the contract was not satisfied by bringing the 
 action and obtaining the judgment against the 
 company ; if all the letters were to be considered 
 it was not clear that a suit against the stock- 
 holders was not a part of the arrangement ; and 
 that this was a question for the jury. — Ct. of 
 
 App., Dee., 1879. First Nat. Bank of Spring- 
 field V. Dana, 79 N. Y. 108. 
 
 VII. The Verdict or Finding. 
 
 64. Reception of verdict — sending- 
 back the jury. After the jury had come 
 into court and rendered their verdict (the form 
 of which showed an intent on their part to add 
 interest to the damages awarded), the court sent 
 them back to calculate the interest. Hdd, no 
 erioT.— Supreme Gt., (Sp. T.,) March, 1878.. 
 Mark v. Hudson Biver Bridge Co., 56 How. Pr. 
 108. 
 
 65. A special verdict must contain all 
 the facts necessary to sustain the judgment. — 
 Supreme Ct., (Sd Dept.,) Sept., 1878. Casey »> 
 Dwyre, 15 Hun 153. 
 
 66. Verdict subject to opinion of 
 General Term, -when proper. To render 
 the direction of a verdict subject to the opinion, 
 of the court at General Term, proper, all th& 
 facts necessary to enable the court to render a 
 final judgment must be conceded or established 
 beyond controversy. — Ct. of App., AprU, 1878. 
 Matson v. Farm Buildings Ins. Co., 73 N. Y.. 
 310, 314. 
 
 67. A case stated that the trial court directed 
 a verdict for plaintiff and reserved the cause for 
 further consideration; that plaintiff's counsel 
 moved at Special Term for judgment on the 
 verdict, and defendant's counsel moved for judg- 
 ment in his favor on the evidence, which last 
 motion was granted. In the minutes and opin- 
 ion it was stated that the verdict was ordered 
 subject to the opinion of the court. There were 
 exceptions to evidence, and a material fact was^ 
 not found or admitted. Held, that the case was. 
 not one for a verdict subject to the opinion of 
 the court at Special Term, that a verdict so- 
 taken is subject to the opinion of General Term ;. 
 that as no exception was taken to the manner of 
 disposing of the case, it was to be inferred that 
 the parties intended that the court should de- 
 termine the whole issue, and that the proceed- 
 ings might be regarded as a motion for a new 
 trial on the miniltes, the parties consenting that 
 judgment should be ordered absolutely, and a 
 new trial waived. — Ct. of App., May, 1878. 
 Sayles v. Sims, 73 N. Y. 551. 
 
 68. Ordering exceptions to be heard 
 in first instance at General Term. 
 Under Code of Civ. Pro., g 1000, when ex- 
 ceptions are ordered to be heard in the first in- 
 stance at General Term, a formal order to that 
 effect must be entered. — Supreme Ct., {4th 
 Dept.,) April, 1879. Webster v. Cole, 17 Hun 
 507. 
 
 69. Where a verdict is ordered subject ta 
 the opinion of the court at General Term, with- 
 out qualification, exceptions cannot be heard,^ 
 and the only question for the General Term i& 
 which party is entitled to final judgoiient on the 
 uncontroverted facts; no new trial can be 
 granted, but final judgment must be rendered 
 for one party or the other without regard to 
 which party had the verdict. Such a direction 
 is therefore improper where exceptions have 
 been taken upon the trial, or where the facts 
 are controverted. — Ct. of App., March, 1877. 
 Durant v. Abendroth, 69 N. Y. 148. Compare 
 Fire Dept. of Whitesboro v. Thomas, 16 Hun 474. 
 
 TO. Where such an order also directed ex- 
 
430 
 
 TRIAL, VII., VIII. 
 
 «eptions to he heard at first instance at General 
 Term— BeH, that the use of the words, "Sub- 
 ject to the opinion of the court at General 
 Term," did not deprive the unsuccessful party 
 of the benefit of his exceptions ; but that said 
 words were mere surplusage. lb. 
 
 71. In such a case findings of fact by the 
 ■General Term are unauthorized and cannot be 
 regarded ; but being mere surplusage they do 
 not vitiate a judgment. lb. 
 
 72. Grounds for setting aside ver- 
 dict. Where, under a complaint, a case may 
 be submitted in several aspects, and is so sub- 
 mitted, a verdict for plaintifi" will be set aside 
 if there are errors against defendant in the 
 ■charge as to one of the aspects.— &tperw 01., 
 April, 1879. Kingsbury v. Garden, 45 Superior 
 225. 
 
 73. After the adjournment of the court, one 
 of the- jurors, who lived at a distance from the 
 •court-house, asked the plaintiff to let him ride 
 home with him. The juror rode with plaintiff 
 about ten miles, in a three-seated sleigh, plain- 
 tiff and the driver sitting on the front seat, two 
 other persons on the middle seat and the juror 
 and another on the back seat. Notliing was 
 said about the trial. Afterwards, and before the 
 testimony was closed, defendant's counsel having 
 learned these facts, plaintiff's counsel offered to 
 allow the juror to be excused, if defendant so 
 desired. Defendant's counsel said he was will- 
 ing to leave it to the juror's sense of propriety 
 whether he should remain in the jury box or 
 not. Held, that even if the irregularity would, 
 in any event, have justified the setting aside of 
 the verdict, it was waived "by the acts and state- 
 ments of defendant's counsel. — Supreme Ct., {3d 
 JDept.,) Jan., 1878. Gale v. New York Central, 
 Ac, E. E. Co., 13 Hun 1 ; agii-med 76 N. Y. 594. 
 
 74. After the jury had been charged, and the 
 ■court adjourned for the day, the jury occupied 
 the court-room, and found there the minutes of 
 the presiding justice. Some of the jurors read 
 and commented on portions of the minutes, and 
 others attempted, but were unable to read them. 
 Held, that the verdict was properly set aside for 
 this irregularity. — Supreme Ct., {ith Dept.,) 
 June, 1878. Mitchell v. Carter, 14 Hun 448. 
 
 75. Impeachment by juror's affl- 
 •da'vit. An affidavit of one of the jurors who 
 tried the case, that the jury, under a mistaken 
 view of the facts of the case, made an error in 
 computing the amount of the verdict — Hdd, in- 
 sufficient to authorize the setting aside of the 
 verdict. — Com. Pleas, April, 1878. Kelly v- 
 Sheehy, 8 Daly 29. 
 
 76. Findings on trial by the court. 
 Findings of fact and conclusions of law, in 
 courts of record having canity jurisdiction, must 
 be signed by the justice before whom the case 
 was tried. — Supreme Ct., (IsJ Dept.,) Dec., 1876. 
 McNaughton v. Chave, 5 Abb. N. Cas. 225. 
 
 77. When an action is tried before the court 
 without a jury, upon an admission that the alle- 
 gations of the complaint are true, and no evi- 
 dence is given by either party, the findings of 
 the court should not deviate from the allegations 
 of the complaint, either affirmatively or neg- 
 atively. — Supreme Ct., {\st Dept.,) May, 1880. 
 Bonn J). Steiger, 21 Hun 219. 
 
 VIII. Trial in Cbiminal Cases. 
 
 78. Mode of trial. Whether by jury 
 
 or by court. The provision of the constitu- 
 tion, (art. 1, § 2,) giving the right to trial by 
 jury "in all cases in which it has been hereto- 
 fore used," means a common law jury of twelve 
 men, and does not apply to the petty offences 
 triable in a Court of Special Sessions. — Ct. of 
 App., Sept., 1878. People, ex rel. Murray, v. 
 Justices of Special Sessions, 74 N. Y. 406. 
 
 79. A person charged -with an offence, triable, 
 by the Court of Special Sessions in the city of 
 New York, is not compelled to be tried there. 
 He may be tried in the Court of General Sessions 
 and by a jury ; but if he elect to be tried in the 
 Special Sessions, it must be without a jury, except 
 in counties other than New York. In such 
 other counties he may have the statutory jury 
 of six men. lb. 
 
 80. The fact that a prisoner gives bail to 
 appear before a Court of Special Sessions in' the 
 city of New York for trial does not oust the 
 Special Sessions of jurisdiction or transfer the 
 case to the Q«neral Sessions. lb. 
 
 81. Where one charged with petit larceny 
 elects to be tried by a Court of Special Sessions, 
 it is not essential to the validity of a conviction 
 thatall the magistrates should concur therein; 
 the judgment of the majority is the judgment of 
 the conrt.— Supreme Ct., (1st Dept.,) June, 1880. 
 People, ex rel. Sammons, v. Wandell, 21 Hun 515. 
 
 82. An infant accused of petit larceny may 
 waive his right to a trial by jury, and elect to be 
 tried by a Court of Special Sessions. lb. 
 
 83. Separate trials. Either one of two 
 or more defendants jointly indicted for a felony, 
 is absolutely entitled to a separate trial if he de- 
 mands it.— Supreme Ct., (4(A Dept.,) Oct., 1878. 
 Babcock v. People, 15 Hun 347. 
 
 84. Where, in such case, an order for a sep- 
 arate trial of one of the defendants, is made after 
 the jury has been impaneled and a witness 
 sworn, the jury and witness must be re-sworn. 
 lb. 
 
 85. Postponements. No exception lies 
 to a refusal to postpone a criminal trial by 
 reason of the absence of witnesses. — Ct of App., 
 Jan., 1880. _ Eighmy v. People, 79 N. Y. 546. 
 
 86. An indictment charged perjury in testi- 
 mony given by the accused before a referee, in 
 a case where a reference was ordered on default, 
 a decision had, and judgment rendered. The 
 testimony was in reference to the loss of a will ; 
 there was no question as to its execution. The 
 accused moved to postpone, upon aflSdavit, that 
 two material witnesses were absent; one of 
 whom was a subscribing witness to the will ; the 
 other, it was alleged, was acquainted with a wit- 
 ness for the people. It was not alleged that a 
 subpoena had been taken out, or any effort made 
 to secure their attendance. The motion was 
 denied. 
 
 Sdd, 1. That if the question as to the refusal 
 to postpone was reviewable here, there was no 
 error. 
 
 2. That the accused was not entitled to a 
 postponement on the ground that a civil action 
 was pending, involving the facts in reference t;o 
 which the alleged perjury was committed. lb. 
 
 87. Challenge to the array. Upon the 
 trial of an indictment for murder, the prisoner 
 challenged the array of jurors, on the ground 
 
 ■ that, an order having been granted requiring 
 the drawing of additional jurors, one of the 
 boxes required to be kept by the clerk,-i. e., that 
 containing the names of jurors who had attended 
 
TRIAL, VIII. 
 
 431 
 
 a term of tlie court, and served, had not been 
 kept, and was not brought into court as required 
 by the Code of Civil Procedure, § 1059. The 
 challenge was sustained; the prisoner there- 
 upon withdrew it; a jury was impaneled, and 
 the trial proceeded. Held, that the prisoner 
 could withdraw his challenge, and that he 
 thereby waived the irregularity. — Ct. of App., 
 Jan., 1880. Pierson v. People, 79 N. Y. 424; 
 affirming 18 Hun 239. Compare Cox v. People, 
 19 Hun 430. 
 
 88. What opinion disqualifies a juror. 
 Where one called as a juror upon a criminal 
 trial, on challenge for principal cause, testifies 
 that he has formed and expressed an opinion, 
 but that he believes he can render an impartial 
 verdict according to the evidence, unbiased and 
 uninfluenced by the previously-formed opinion, 
 he is competent as a juror, under the law in re- 
 lation to challenges of jurors. (Laws of 1872, 
 •ch. 475 ; Laws of 1873, ch. 427.)— Ci!. of App.. 
 Feb., 1878. Phelps v. People, 72 N. Y. 334, 
 563 ; affimdng 6 Hun 401. Compare Pender v. 
 People, 18 Hun 560; Balbo v. People,* 19 Hun 
 424 ; Cox v. People,* Id. 430 ; Manke v. People, 
 17 Hun 410 ; affirmed 78 N. Y. 611. 
 
 89. One who has formed an opinion or im- 
 pression, from the reading of a report, partial or 
 complete, of the testimony against a prisoner on 
 a former trial, however strong his belief and 
 purpose that he will decide the case on the evi- 
 dence to be adduced, and will give an impartial 
 verdict thereon, unbiased by that impression, 
 cannot be readily received as a juror indifierent 
 toward the prisoner and wholly uncommitted. — 
 Ct. of App., Sept., 1878. Greenfield v. People, 
 74 N. Y. 277 ; S. C, 6 Abb. N. Cas. 1 ; revering 
 13 Hun 242. 
 
 90. Upon a challenge for favor, on the trial 
 of an indictment for murder, the proposed juror 
 testified that he had read in a newspaper the 
 account of the evidence for the prosecution upon 
 a former trial of the prisoner under the same 
 indictment, whereon the jury had failed to agree, 
 and had heard others talk about that trial a good 
 ideal ; that he had never expressed an opinion, 
 but had an impression, from what he had heard 
 and read, which led him to that opinion as to 
 
 . the prisoner's guilt, so that at the time he had 
 an impression, opinion or belief which would 
 take evidence to remove; that he believed that 
 lie could render a fair and impartial verdict 
 upon the evidence, meaning by that that he 
 -would endeavor to weigh the evidence impar- 
 tially, and render a verdict accordingly ; that he 
 ■would enter upon the discharge of his duties as 
 juryman with an impression as to the guilt of 
 the prisoner, which it would take evidence to 
 remove, but he thought his previously-formed 
 opinion or impression would not bias or influ- 
 ■ence his verdict at all, and that he could decide 
 the case fairly, according to the testimony, with- 
 out reference to any previous opinion ; that his 
 ■opinion or impression was formed on the suppo- 
 ■sition that the evidence which he had read was 
 true ; that he still entertained the same, and had 
 never had cause to change or' doubt the truth of 
 it, and that he supposed he had an opinion 
 against the prisoner as to his character as a man. 
 The challenge was overruled. Held, error. lb. 
 
 91. Another juror challenged for favor gave 
 similar testimony, save that he did not directly 
 
 ^Affirmed, it seems, April 6th, 1880. 
 
 answer the question whether it would take evi 
 dence to remove his impression. He testified 
 that he thought he had expressed his impres- 
 sion, which he still had, but thought he could 
 remove it, and would do it- if sworn as a juror. 
 Held, that the challenge was improperly over- 
 ruled, lb. 
 
 92. Hearing and trying the chal- 
 lenge. Where, upon a crimi:nal trial, the court 
 is the trier of a challenge for principal cause, 
 and also of a challenge for favor, the latter im- 
 mediately succeeding the former, in the determi- 
 nation of the latter thecourt may take into consid- 
 eration the testimony of the proposed jnror given 
 upon the former challenge ; as may, also, an ap- 
 pellate court, having power to review the hold- 
 ing, lb. 
 
 93. Compelling election bet-ween 
 counts. Where but one and the same offence 
 is charged in several counts of an indictment, 
 the denial of a motion to compel the people to 
 elect on which count they will rely is not error. 
 — Ct. of Amp., Jane, 1877. Armstrong v. People, 
 70 N. Y. 38, 42. 
 
 94. Wliat evidence is admissible. 
 On a trial for felony, evidence tending to prove 
 the existence of a motive, is not inadmissible be- 
 cause it may incidentally show the accused to 
 have been guilty of a separate and distinct fel- 
 ony, or because it relates to the acts of the ac- 
 cused, done subsequent to the felony. — Supreme 
 Ct., {4th Dept.,) June, 1879. Pierson v. People, 
 18 Hun 239 ; affirmed 79 N. Y. 424. 
 
 95. The acts and declarations of accomplices 
 or confederates, though occurring in the absence 
 of the principal, are admissible against him if 
 there be sufficient evidence to establish, prima 
 faeie, a combination among them to commit the 
 offence with which the principal is charged.^ 
 Supreme Ct., {1st Dept.,) June, 1880. Farrell v. 
 People, 21 Hun 485. 
 
 96. Upon the trial of the plaintiff in error 
 for an assault alleged to have been committed 
 upon one John G. Hoster, with a deadly weapon, 
 with an intent to kill him, the prosecution was 
 allowed, against the objection and exception of 
 the plaintiff in error, to show that he had, 
 shortly before the alleged assault, forged the 
 name of the said Hoster to two promissory notes, 
 which notes he had in his possession up to the 
 time of committing the assault. 
 
 Held, 1. That the evidence was properly re- 
 ceived. 
 
 2. That it tended to establish a motive for the 
 commission of the offence, and was not rendered 
 inadmissible by the fact that it also tended to 
 show the commission of a distinct offence other 
 than that charged in the indictment. — Supreme 
 Ct., {ith Bept.^ June, 1880. Pontius v. People, 
 21 Hun 328. *^ ' 
 
 97. The prosecution put in evidence, with- 
 out objection, a promissory note, bearing the 
 genuine indorsement of the said Hoster, and 
 also an account-book, kept by the plaintiff in 
 error, in which he had written the said Hester's 
 name. Subsequently witnesses called by the 
 prosecution were allowed to compare the signa- 
 tures alleged to have been forged with the genu- 
 ine signature and the one written in the account- 
 book. Held, no error. lb. 
 
 98. The plaintiff in error claimed that the 
 notes were given to him by Hoster in consid- 
 eration of an indebtedness due to him for bor- 
 rowed money, exceeding in amount that of the 
 
432 
 
 TRIAL, VIII.— TROVER, I. 
 
 two notes. Beld, that evidence tending to show 
 that the defendant was at tliat time embarrassed 
 in his pecuniary circumstances, and pressed by 
 numerous creditors whom he was unable to pay, 
 was admissible, as tending to show that he then 
 had no money to lend. Ih. 
 
 99. Hearsay. The defendant was tried 
 and convicted of administering poison to the 
 wife and children of oneTaft, with intent to kill 
 them. On the evening of January 26th, 1879, 
 a woman delivered at Taft's house a letter pur- 
 porting to come from him, inclosing several 
 small packages, of what purported to be medi- 
 cine, but was, in fact, poison, and instructed her 
 to administer the contents thereof to herself and 
 children. The letter was delivered a few min- 
 utes before seven, of a dark evening, and the 
 woman could only be identified by Jier voice, 
 which was heard by Taft's eldest son, who 
 opened the door, and by Taft's wife, who was in 
 the house. Mrs. Taft having testified that she 
 recognized the voice to be that of the accused, 
 was asked, on her cross-examination, if she did 
 not ask the son, when he came back into the 
 room, who it was that brought the letter, and 
 answered that she did. She was then asked by 
 the prosecution, " What was said between Willie 
 and yon, about who it was that brought the 
 medicine?" and was allowed, against the ac- 
 cused's objection and exception to testify that 
 Willie said it was Ann Cox, the accused. Held, 
 that the declaration of the son to his mother 
 was mere hearsay, and that, as there was nothing 
 in the testimony which made his answer com- 
 petent by way of qualification or explanation, 
 the court erred in admitting it. — Supreme CS., 
 {ith Dept.,) April, 1880. People v. Cox, 21 
 Hun 47. 
 
 100. Burden of proof. When the ac- 
 cused is proven to have done the act charged in 
 the indictment, the burden is upon him to sat- 
 isfy the jury that he did it honestly, and with- 
 out any criminal intent.~(S!ij)reme Of., (ls( Dept.,) 
 June, 1880. Cowley v. People, 8 Abb. N. Gas. 
 1 ; S. C, 21 Hun 415. 
 
 101. Presumption against party with- 
 holding evidence. Where the accused has 
 evidence at hand, by which he could prove a 
 fact material to lus defence, and does not pro- 
 duce such evidence, it is for the jury, in decid- 
 ing upon their verdict, to say whether this 
 omission should be considered against him. — 
 Supreme Cl., {2d Dept.,) Dee., 1878. Brulo v. 
 People, 16 Hun 119. 
 
 102. When it is not incompetent for the 
 prosecuting attorney to state, in summing up, his 
 reason for not producing evidence promised in 
 the opening, see Blake v. People, 73 N. Y. 586. 
 
 103. "Withdrawing a juror. During the 
 trial of an indictment for libel, the court has 
 power, at the request of the defendant, to with- 
 draw a juror, and allow the case to go over the 
 ieim.— Supreme &., (2d Dept.,) July, 1879. Mc- 
 Fall V. People, 18 Hun 382. 
 
 104. Reception of the verdict. After 
 the j'jry liad retired to consider their verdict in 
 a trial for felony before a Court of General Ses- 
 sions, both of the justices sitting with the county 
 judge left the court-room, and one of them left 
 the building. The jurycamein during their ab- 
 sence, and the county judge received their ver- 
 dict of guilty. Held, that the county judge had 
 no power to receive the verdict, and that the 
 conviction and sentence must be set aside, not- 
 
 withstanding no objection was made by the pris- 
 oner's counsel to the irregularity in receiving 
 the verdict.— &tpre«ie Ct., {i.th Dept.,) Jan., 
 1878. Hinman v. People, 13 Hun 266. 
 
 105. Motion in arrest of judgment. 
 The objection that an indictment iias no caption, 
 or that it does not show in what court it was 
 presented or found, cannot be raised after a con- 
 viction by a motion in arrest of judgment. — 
 Swpreme Cl., {lit Dept.,) May, 1880. Gray v. 
 People, 21 Hun 140. 
 
 106. The sentence. Where, under proper 
 instructions, a general verdict of guilty under 
 the whole indictment is rendered, a sentence for 
 the highest ofifence charged is proper. — Ct. of 
 App., Dec., 1878. Hawker v. People, 75 N. Y. 
 
 As to trials before Arhiiratorg, see Arbi- 
 tration AND Award, I. Before Referees, see 
 Ebference, 12-18. 
 
 In Jiisticei^ courts, see Justice of the 
 Peace, II. 
 
 As to the hearing of an Equity came, see 
 Equity, 9-11. 
 
 For rules governing the Examination of wit- 
 nesses, see Witnesses, IV. 
 
 TROVER. 
 
 T. When it Libs. 
 II. Procedure. 
 
 I. When it Lies. 
 
 1. When trover -wiil lie, generally. 
 Plaintiff held a promissory note for $1000, made 
 by defendant, payable in ten years, without in- 
 terest. Defendant owned a stock of goods esti- 
 mated to be worth $4000, which he agreed to 
 sell his son, plaintiff's husband, for $3000, if.he 
 would procure and surrender the note. Plaintiff,, 
 with knowledge of the purpose for which it wa* 
 required, gave the note to her husband who de- 
 livered It to defendant ; the latter immediately 
 tore his name from the note, repudiated the 
 agreement, and required' plaintiff's husband to 
 pay $4000 for the goods. In an action for a con- 
 version of the note, the court charged the jury, 
 that if they were satisfied defendant obtained the 
 note from the plaintiff fraudulently, they should 
 find in her favor. Seld, no error ; that the cir- 
 cumstances authorized an inference that defend- 
 ant obtained the note with the preconceived 
 design to destroy it, without using it for the pur- 
 pose for which plaintiff parted with it ; and if 
 so, the action was maintainable ; that no demand 
 was necessary ; and that plaintiff was entitled to 
 recover the present value of the note. — Cl. of 
 App., Oct., 1877. Powell v. Powell, 71 N. Y. 
 71 ; reversing 3 Hun 413. 
 
 2. Who may maintain trover. Th& 
 necessary title or possession. . In an ac- 
 tion for conversion , of cotton it appeared that 
 plaintiff's title to the cotton was based upon an 
 agreement to furnish arms to the Confederate 
 States during the late war, the cotton to be taken 
 in exchange. Held that as the contract was 
 void as against public policy, plaintiff's title 
 was insufficient to sustain the action. — Supreme^ 
 Ct, {1st Dept.,) April, 1878. Clements d. Ytur- 
 ria,14 Hun 151 ._ 
 
 3. Plaintiff discounted the note of N. upon, 
 transfer to it, as security, of the bill of lamng 
 
TEOVER, I. 
 
 433 
 
 of a cargo of wheat, shipped at Chicago, owned 
 by and consigned to N. at Bufialo ; while the 
 wheat was in transit to Buffalo defendants ac- 
 cepted and paid drafts of N. upon transfer of 
 false bills of lading of wheat, purporting to h?,ve 
 been shipped by S. at Buffalo on board of cer- 
 tain canal boats named, consigned to defendants 
 at New York, no wheat in fact having been 
 shipped. Upon arrival of the wheat at Buffalo, 
 N., without consent or knowledge of plaintiff 
 caused it to be shipped on board of the canal 
 boats named in the false bills of lading, and to 
 be transported and delivered to defendants at 
 New York, who refused to deliver the same to 
 plaintiff on demand, and afterwards sold it. In 
 an action for conversion — 
 
 Held, 1. That defendants were liable; that 
 plaintiff was special owner and in possession of 
 the wheat by virtue of the transfer of the bill 
 of lading ; that the general owner had no right 
 to the possession, disposal or control of the 
 wheat, any possession obtained or dominion ex- 
 ercised by him, without plaintiff's assent, was 
 tortious, and he could transfer no title ; that as 
 plaintiff had not clothed N. or the pretended 
 canal carriers with the apparent title to, or au- 
 thority to dispose of the wheat, or in any way 
 aided or facilitated in the fraud perpetrated 
 upon defendants, it was not estopped from re- 
 claiming its property. 
 
 2. That the fact that there was a small quan- 
 tity of wheat upon the canal boats to which the' 
 plaintiff was not entitled, and that the demand 
 was for the whole, did not defeat its right to re- 
 cover^ as the refiisal was upon the ground that 
 no part of the wheat belonged to plaintiff, and 
 as there was an actual conversion by a sale. — 
 Ct. ofApp., Dec., 1877. Marine Bank of Buffalo 
 V. Fisk, 71 N. Y. 353 ; affirming 9 Hun 363. 
 
 4. Sufficiency of the evidence of plaintiff's 
 title, in ah action against a sheriff for, the con- 
 version of household furniture belonging to 
 plaintiff, by levying thereon an attachment 
 against plaintiff's husband, determined. — Ct. 
 of App., April, 1877. De Wolf!). Williams, 69 
 N. Y. 621. 
 
 5. "When the state may sue. The state 
 has such a title of interest in a draft indorsed 
 to the state treasurer and delivered into 
 his office by a county treasurer for the pay- 
 ment of taxes due the state, that an action may 
 be maintained in the name of the people for a 
 conversion thereof. — Gt. of App., Jan., 1879. 
 People V. Bank of North America, 75 N, Y. 
 547. 
 
 6. Who is liable. P., a clerk in the office 
 of the state treasurer, without authority, indorsed 
 a number of such drafts and negotiated them. 
 Defendant took them from the indorsers, col- 
 lected the money from and surrendered them to 
 the drawees. Held, that the defendant was 
 liable to the state for a conversion of the drafts ; 
 that it could not claim an exemption on the 
 ground it took them in good faith, solely as 
 agent, in the course of a public employment. 
 lb. 
 
 T. The drafts, after payment by the drawees, 
 were returned to the drawers, and, thereafter, 
 were returned to the state treasurer, at his re- 
 quest, to enable him to ascertain the extent of 
 the defalcation of P., and as evidence, not with 
 any intent on the part of the treasurer to use or 
 enforce them as existing obligations, except by 
 bringing actions against parlies who had con- 
 
 28 
 
 verted them. Held, that the fact that they came 
 again into the possession of the treasurer did 
 not, under the circumstances, go in mitigation of 
 damages ; also that it was immaterial that before- 
 the commencement of the action plaintiffs de- 
 manded the drafts of defendant, it having re- 
 fused to deliver. Ih. 
 
 8. Two drafts which came into the treasurer's- 
 office in the same manner as the others were in- 
 dorsed in blank by the deputy treasurer, who- 
 had authority, and were delivered to P. for de- 
 posit in one of the legally-designated deposit 
 banks. P. filled up the blanks in the indorse- 
 ments with the name of the cashier of a firm of 
 private bankers and delivered them to that firm, 
 and defendant took and collected them. Held,\hsX 
 defendant was not liable for conversion of them ; 
 that the drafts were not received and were not 
 to be regarded as money in the hands of the 
 treasurer, and he was not bound to place them 
 in the'deposit banks, but could collect them in 
 any manner he chose; and that, therefore, the 
 fact that they were in the hands of private 
 bankers was not such notice to defendant that 
 they had been wrongfully diverted as to charge 
 it with bad faith in dealing with them. Ih. 
 
 9. Where possession of property is obtained 
 by a trustee, as such, and he refuses to deliver 
 up the same on demand to the cestui que trust, 
 who is entitled to possession, the trustee is 
 liable in an action for conversion. — Ot. of App., 
 June, 1877. Smith v. Frost, 70 N. Y. 65, 70. 
 
 10. W. & J. were the owners of ten bonds of 
 the P. & O. E. E. Co., which were pledged to 
 C. as collateral to a loan. C wrongfully pledged 
 them to another, and when the loan to W. & J. 
 was paid, could not return them. The mortgage 
 given to secure the bonds of said company was 
 foreclosed, defendant being one of the trustees 
 for the bondholders. The road was sold and a 
 new company organized, of which defendant 
 was for a time president. The owners of said 
 ten bonds were entitled, upon surrender and 
 upon payment of certain assessments, to sixteen 
 bonds of the new company. W. & J. paid the 
 assessments, and the sixteen bonds were agreed 
 to be held in escrow, awaiting the return and 
 cancellation of the old bonds, and defendant 
 agreed to take the new bonds and hold them in 
 trust for the owners, repaying the interest to the 
 owners as received. Defendant subsequently 
 purchased the old bonds of the pledgee, and re- 
 ceived the new bonds on surrender thereof. 
 Plaintiff, who succeeded to the interests of W. 
 & J., tendered to defendant the amount paid by 
 him for the old bonds, and demanded the new 
 ones, which he refused to surrender. In an ac- 
 tion for the conversion thereof — 
 
 Held, 1. That defendant occupied the position 
 of agent or trustee, and was estopped from 
 claiming a benefit from the purchase, and that 
 his refusal to surrender the new bonds was tor- 
 tious, rendering him liable for a conversion. 
 
 2. That the feet that the new bonds were not 
 in fact issued until after the surrender of the 
 old bonds was immaterial. lb. 
 
 11. For what property it lies. A con- 
 tract for the sale of land may be the subject of 
 trover.— /Superior Ct., March, 1879. Hazewell v, 
 Coursen, 45 Superior 22. 
 
 12. Necessity of demand before suit. 
 When a demand is unnecessary in trover, be- 
 cause defendant was notified of plaintiff's title 
 before taking possession of the property eon- 
 
434 
 
 TROA^ER, I., II.— TRUSTS, I. 
 
 verted, see Hallett v. Carter, 19 Hun 629. Com- 
 pare Powell V. Powell, 71 N. Y. 71. 
 
 13. What evidence is sufficient to establish 
 the conversion by defendant of household fur- 
 niture held by him subject to a chattel mort- 
 gage given by him to plaintiff, to secure a note 
 given in part payment of the price, so as to dis- 
 pense with a demand and authorize an order of 
 arrest, after default in payment of the mortgage, 
 see Woodbridge v. Nelson, 13 Hun 390. Com- 
 pare Osborn v. Schenck, 18 Hun 202. 
 
 14. The rule that where the possession of the 
 defendant is lawful, mere neglect or omission to 
 return the goods is not a conversion, or equiva- 
 lent to a conversion, so as to dispense with the 
 necessity of a demand before bringing trover, 
 applied to the facts of the particular case. — 
 Su/preme Ct., (2d Dept.,) Feb., 1878. Ryerson v. 
 Kauffield, 13 Hun 387. 
 
 15. Suflaciency of the demand. 
 ■When refusal is not evidence of con- 
 version. When a mere demand and refusal to 
 deliver, without proof either of possession or 
 control over the property claimed to have been 
 converted, is not sufficient to make the defend- 
 ant liable in trover, though the refusal was 
 based upon the claim of a lien, see Hammond 
 V. Schultze, 45 Superior 611. 
 
 n. PROCEDimE. 
 
 16. Matters of defence, or in mitiga- 
 tion of damages. One sued for conversion 
 of property, who appears in the case as a mere 
 trespasser, cannot raise the objection that a 
 transfer, under which plaintiff claims, was in 
 fraud of the rights of a third person. — Ct. of 
 App., Dec., 1878. Hurd v. Cook, 75 N. Y. 454. 
 
 r7. The defendant, in an action for the con- 
 version of property, can only claim a mitigation 
 of damages, because of a return of the property, 
 where the owner has accepted its return or has 
 resumed dominion over it as owner. People v. 
 Bank of North America, supra. 
 
 18. Evidence of value of property 
 converted. To prove the value of second- 
 hand furniture claimed to have been converted 
 by defendant, the testimony of plaintiff, who is 
 not shown to be an expert, as to what he bought 
 the furniture for, and his sworn opinion as to 
 its present value, is insufficient evidence. — 
 Com. Pleas, Feb., 1877. Imhorst v. Burke, 7 
 Daly 54. 
 
 19. In an action for conversion of plaintiff's 
 property, for the purpose of proving value, 
 plaintiff was alloiyed to testify, under objection 
 and exception, as to what she gave for the prop- 
 erty. Seld, no error. — Ot. of App., Jan., 1879. 
 Hoffman v. Conner, 76 N. Y. 121v 
 
 20. Amount of recovery. Plaintiff 
 sued her brother for the conversion of a note 
 given by him to her for borrowed money. It 
 appeared that more than six years after the ma- 
 turity of the note, defendant asked plaintiff to 
 let him see it, promising to return it. Having 
 obtained possession of it, he threw the note in 
 the fire and burned it. With reference to the 
 amount of damages, the court charged the juiy 
 that plaintiff was entitled to recover the face of 
 the note, with interest ; that, though outlawed, 
 it constituted a sufficient moral obligation to up- 
 hold a new promise, and that while defendant 
 could have pleaded the statute of limitations to 
 an action upon the note, yet being a wrong-doer 
 
 he was entitled to no presumptions in his favor. 
 Held, correct— Sitjweme Ct., {4th Dept.,) Jan., 
 1878. Outhouse v. Outhouse, 13 Hun 130. 
 
 As to conversion by Pledgee, see Batlment, 
 o, 0. 
 
 By Carrier, see Caebiees, 22. 
 
 By Agent, see Pbincipai and Agent, 36- 
 39. 
 
 By Trustee, see Trusts, 4:G-4&. 
 
 TROY. 
 
 Municipal Coepoeations, 140-144. 
 
 TRUSTS. 
 
 I. Ceeation and Dueation. Intebpee- 
 TATioN, Validity, &o. 
 
 1. In general. 
 
 2. Sequirements of the statute of uses 
 
 and trusts. • 
 
 II. The Teustee. 
 
 1. Mights, powers amd duties of trustees. 
 
 2. I/whiliHes of trustees. 
 
 3. Resignation, removal amd snibstitation. 
 
 III. Eights and Remedies op Cestui que 
 Teust. 
 
 I. Ceeation and Duration. Inteepeeta- 
 TiON, Validity, &c. 
 
 1. In general, 
 
 1. How created, and validity, gener- 
 ally. In order to sustain a trust, a complete 
 and valid delivery of the subject thereof must 
 be shown to have been made, with no power left 
 in the donor to revoke or annul such delivery, 
 or to defeat its effect by making any other or 
 different disposition of the subject matter of the 
 trust.— Supreme Gt., (1st Dept.,) Oct., 1878. 
 Meiggs V. Meiggs, 15 Hun 453. 
 
 2. When a deposit by a father, in a savings 
 bank, as trustee for his children, will be held 
 not to create a trust, because of the absence of 
 an intention on his part to part with the own- 
 ership, or right of control of the money de- 
 posited, see Weber v. Weber, 58 How. Pr. 255. 
 
 3. The fact that more than two cestuis que 
 trust might enjoy the benefits of a trust of per- 
 sonal property for life, and that one of the des- 
 ignated beneficiaries was not in being at the 
 time of the creation of the trust, does not invali- 
 date it where, by the terms of the instrument 
 creating the-trust, it can in no event extend be- 
 yond the life of its creator. — S'wpreme Ct., (j§). 
 T.,) Nov., 1877. De Peyster v. Beekman, 65 
 How. Pr. 90. 
 
 4. Construction of deeds creating 
 trusts. In the year 1811, one L. conveyed 
 certain lands to two persons named in the deed, 
 " upon the trusts, and for the intents and pur- 
 poses, * * * to the use and behoof of the 
 said [grantor] and his assigns, for and during 
 his natural life," and after his death to the use 
 of the parties of the second part, reserving 
 certain rents ; " and for the further use and 
 trust for Margaret Race, of the same place, and 
 
TRUSTS, .1. 
 
 435 
 
 the heirs of her body lawfully begotten, from 
 and after the decease of the said [grantor], to 
 enter in and upon the said farms and premises 
 with all and singular the appurtenances, and 
 the same to have and enjoy as her and their es- 
 tate, subject to the rent herein reserved as afore- 
 said. And in case of the death of the said 
 Margaret Race without heirs of her body law- 
 fully begotten, for the use and in trust for Mary 
 Livingston, the daughter of the said [grantor], 
 Jier heirs and assigns forever." 
 
 Se!d, 1. That the deed gave to the grantor 
 Jiimself a life estate, and that, under the rule in 
 Shelley's Case, then prevailing, and independ- 
 ent of Laws of 1786, ch. 12, Margaret Race 
 would have taken an estate in fee tail general. 
 
 2. That, by said last-mentioned statute, abol- 
 ishing entails, such estate was converted into a 
 fee simple absolute. 
 
 3. That under the law of the state as it existed 
 prior to 1 Rev. Stat. 724, ? 22, the limitation 
 over in favor of Mary Livingston was upon an 
 indefinite failure of the issue of Margaret, and 
 therefore void. — Supreme Ct., {Zd Dept.,) Nov., 
 1878. Seaman v. Harvey, 16 Hun 71. 
 
 5. F. executed an instrument in writing un- 
 der seal, which, by its terms, purported to con- 
 vey to plaintiff, as trustee, certain real and per- 
 sonal estate, with power to sell the lands granted, 
 and to convey with covenants of warranty, bind- 
 ing on the grantor's heirs ; and until sold, to 
 rent such as could be rented, to collect all debts 
 ■owing to the grantor, and to execute deeds for 
 all lands then under contract of sale, " on pay- 
 ment of the debis owing on them respectively," 
 ^nd to dispose of the avails of such estate as fol- 
 lows : First. To defray the expense of the trust. 
 Second. To pay over to the grantee during his 
 life the residue of all moneys received, or to ap- 
 propriate them to his use, under his direction. 
 Third, after his death, and after the payment of 
 his just and legal debts and the expenses of the 
 trust, to distribute the residue as directed in a 
 asupplomentary writing to be thereafter executed ; 
 if no such writing should be executed, then to 
 distribute said residue among the heirs of the 
 grantor. In an action of ejectment, brought, so 
 far as appears, during the lifetime of P., to re- 
 cover possession of a portion of the lands speci- 
 fied in the instrument — Hdd, that the instru- 
 iment did not create any express trust authorized 
 hy the statute, (1 Rev. Stat. 728, § 55,) and con- 
 sequently did not vest the legal title to the land 
 in plaintiff; that it did not create a trust to sell 
 for the benefit of creditors, as that was not the 
 purpose of the instrument, and as it simply 
 recognized the legal right of the creditors to 
 payment before any distribution, in no manner 
 adding to their rights or security, also, as no 
 trust to sell for the payment of debts could arise 
 until the death of F. ; that the conveyance 
 could not be sustained as creating a trust to re- 
 ceive the rents and profits of the lands and ap- 
 j)ly them to the use of the grantee during life, 
 as the main object was to sell and pay over the 
 proceeds to the grantee during his life, and to 
 ills appointees after his decease, the direction to 
 «-ent being merely incidental to this purpose. — 
 Ct. of App., Sept., 1879. Heermans v. Burt, 78 
 N. Y. 259. 
 
 6. That where a deed of trust directs in plain 
 terms the particular investment of the trust fund 
 4o be made, and how the same shall be held un- 
 iil so invested, the court cannot order a differ- 
 
 ent investment to je made, at least without the 
 consent of the beneficiaries of the trust, see Clark 
 V. St. Louis, &c., R. R. Co., 58 How. Pr. 21. 
 , 1. — of declarations of trust. 8. de- 
 posited in a savings bank a sum of money be- 
 longing to her, declsring at the time that she 
 wanted the account to be in trust for plaintiff. 
 The account was so entered, and a pass-book 
 given to S. containing an entry, in substance, 
 that the account was with her in trust for plain- 
 tiff. A deposit was made in the same manner 
 in trust for K. Plaintiff and K. were sisters, 
 and distant relations of S. S. retained posses- 
 sion of tlie pass-books, and the money remained 
 in the bank, with its accumulated interest — ex- 
 cept that she drew out one year's interest — 
 until her death. Plaintiff and K. were ignorant 
 of the deposits until after that event. In an 
 action to obtain possession of the pass-books — 
 Hdd, that the transaction was a valid and suf- 
 ficient declaration of trust, and passed the title 
 to the deposits, S. constituting herself a trustee ; 
 that the retention of the pass-books, wliich were 
 simply the vouchers for the property, must be 
 deemed to have been as trustee, and was not in- 
 consistent with the completeness of the gift, nor 
 was notice to the cestuis que trmt necessary. — 
 Ct. of App., Nov., 1878. Martin v. Funk, 75 N. 
 Y. 134. 
 
 8. The declaration in question was substan- 
 tially that the premises conveyed to the grantee 
 were held by him in trust, to sell for the hene- 
 fit of the grantoi-'s creditors, and out of the pro- 
 ceeds — First. To pay to the grantor's wife certain 
 sums in lieu of dower. " Second. To pay such 
 liens and incumbrances upon the premises sold 
 as are not assumed by the buyers thereof." 
 Third. To pay, &c., grantor's creditors gener- 
 ally, &c. Upon consideration of the scope and 
 intent of the declaration — 
 
 Hdd, 1. That the second subdivision shoulil 
 be construed as meaning that the liens must be 
 paid out of the net proceeds of the lands upon 
 which they existed, and not out of the net pro- 
 ceeds of other lands sold under the trust. 
 
 2. That the subdivision must mean a payment 
 of liens out of proceeds of a sale made by the 
 trustee under the trust. 
 
 3. That such a sale was referred to as would 
 permit an assumption of the incumbrance, 
 rather than one made by virtue of the incum- 
 brance, and which merged or canceled it, so far 
 as the buyer was concerned. — Superior Ct., Nov., 
 1879. Lea v. Fabbri, 45 Siiperior 861. 
 
 9. When a, transaction intended for but not 
 constituting a valid gift cannot be sustained in 
 equity as a declaration of trust, see Curry r. 
 Powers, 70 N. Y. 212. 
 
 10. — of devises in trust. H. died 
 seized of certain premises subject to a mort- 
 gage ; he left a will by which he devised his 
 estate, including said premises, to his executors 
 in trust to divide the same into three parts ; as 
 to one part he provided as follows : " I direct 
 my said trustees to permit and suffer my son, 
 William B. Slocum, to have, receive and take 
 the rents, issues and profits thereof for the 
 term of his natural life ; and after his decease I 
 give, devise and bequeath the same part or share 
 to the heirs-at-law of my said son." Held, that 
 the trust so attempted to be created was a pas- 
 sive one, and so was invalid ; that the son took 
 a life estate, upon which a judgment against him 
 was a lien; that, therefore, the judgment credi- 
 
436 
 
 TRUSTS, I. 
 
 tor was a necessary party to an action to fore- 
 ctose the mortgage ; and, he not having been 
 made a party, that a purchaser on foreclosure 
 sale was entitled to be released from his pur- 
 chase— a afApp., Dec., 1877. Verdin v. Slo- 
 cum, 71 N. Y. 345 ; affirming 9 Hun 150. 
 
 11. J. devised and bequeathed all her estate 
 to her daughter C, with power to convey ; the 
 income to be expended for the support of H., a 
 lunatic; during life, and then the principal to 
 C. C. sold certain premises of which the testa- 
 tor died seized, and conveyed by deed, reciting 
 substantially the provisions of the will, receiv- 
 ing a bond and mgrtgage for the purchase 
 money, the principal payable after the death of 
 H. C. received the interest annually for many 
 years, and applied it to the support of H. ; she 
 then assigned the bond and mortgage as collat- 
 eral security for a note of her husband. In an ' 
 actionby the committee of H. to protect her in- 
 terest in the bond and mortgage — Hdd, that as 
 it appeared clear that the parties acquiesced in 
 and acted upon the theory that the will created 
 a trust in C. for the benefit of H., no other 
 construction could be given to it; and the 
 assignee could neither question this construc- 
 tion, or the legality of the trust ; that C, save 
 for purposes connected with the trust, could 
 only assign her interest in the securities— i. c, 
 her right to the principal — and the assignee re- 
 ceived them subject to the rights of the cestui 
 am trust.— Ct. of .App., Feb., 1878. Eeid v. 
 Sprague, 72 N. Y. 457 ; affirming 9 Hun 30. 
 
 12. Resulting trusts. In order to estab- 
 lish a resulting trust by parol evidence it must 
 appear that the price was paid with the proper 
 funds of the alleged cestui que trust and the title 
 taken in the name of another. — Supreme Ct., {1st 
 Bept.,) Nov., 1879. Mason k. Libbey, 19 Hun 
 119. 
 
 13. The money paid was the earnings of the 
 wife of the alleged cestui que trust, and equitably 
 hers, and the deed was taken to her. Held, that 
 no resulting trust arose in favor of the hnsband. 
 Ih. 
 
 14. Constructive trust, in favor of 
 owner of stolen property. The owner 
 of negotiable securities,' stolen and afterwards 
 sold by the thief, may follow and claim the pro- 
 ceeds in the hands of the felonious taker or of 
 his assignee with notice ; and this j-ight contin- 
 ues and attaches to any securities or property in 
 which the proceeds are invested, so long as they 
 can be traced and identified, and the rights of a 
 bona fide purchaser do not intervene. The law 
 will raise a trust in invitum out of the transac- 
 tion, in order that the substituted property may 
 be subjected to the purposes of indemnity and 
 recompense. — Ct. of App., March, 1877. New- 
 ton V. Porter, 69 N. Y. 133, 136. 
 
 15. Validity and effect of trusts in 
 favor of the society of Shakers. Under 
 the provision of the "act in relation to certain 
 trusts," (Laws of 1839, ch. 174, as amended by 
 Laws of 1849, ch. 373,) declaring the validity 
 of deeds executed prior to January 1st, 1830, to 
 any persons in trust for any " united society of 
 people called Shakers," and that the legal au- 
 thority vesied in the original trustees shall "for- 
 ever descend in regular succession to their suc- 
 cessors in ofiice," and which also authorizes 
 future trusts for the benefit of any such society, 
 the trustees of a society of Shakers, so holding 
 its property in trust, are to be regarded as a 
 
 corporate body, and the property held by them 
 as corporate property for the purposes of the 
 remedy by suit to enforce any authorized con- 
 tract made by them in the business of and for 
 the society.— C*. of Arm., Mov., 1877. White v. 
 Miller, 71 N. J. 118, 125. 
 
 16. An action upon such a contract, there- 
 fore, may be brought against the society, desig- 
 nating the defendant as " trustees of the mutual 
 society called Shakers," and a judgment in the 
 action when docketed will become a lieu on the 
 real estate held by the trustees, and may be 
 collected out of the real and personal estate in 
 their hands, as in case of a judgment against 
 individuals. lb. 128. 
 
 IV. Where the trustees of a society of Shakers 
 have authority Under their covenant to make 
 contracts of sale, they have, as incident thereto, 
 the ppwer to give the article sold a name and 
 descriptive character, and to bind the society 
 upon a warranty arising from such a descrip- 
 tion, lb. 
 
 2. Mequiremeats of the statute of uses and trusts. 
 
 18. Operation of the statute, gener- 
 ally. The provisions of the statute of uses and 
 trusts, declaring that every valid express trust 
 shall vest the whole- estate in the trustees, and 
 that the beneficiaries shall take no estate or in- 
 terest in the lands, refers only to the trust es- 
 tate, not to an interest in the lands not embraced 
 in the trust ; it does not prevent a valid limita- 
 tion of a remainder to the beneficiaries of the 
 trust to take efiect in possession upon its ter- 
 mination, and to vest in interest at the death of 
 the testator. — Ct of App., Sept., 1877. Stevenson 
 V. Lesley, 70 N. Y. 512 ; modifying 9 Hun 637. 
 
 19. What is a valid express trust, 
 within the statute. To create a valid 
 trast, under the statute of uses and trusts,' it is 
 not necessary that the trust should be stated in 
 the very words of the statute; it is sufficient if a 
 purpose within the statute is clearly embraced 
 in the language used, for the execution of which 
 the trustee may be clothed with the legal title. 
 — Ct. of App., Sept., 1879. Donovan v. Vande- 
 mark, 78 N. Y. 244. 
 
 20. The will of M. devised and bequeathed 
 his residuary estate to his executors in trust, in 
 case his three children survived him, to divide 
 the same into three equal shares, one to be held 
 for each of said children during life, and upon 
 decease of the child first to die, his or her share 
 to go in fee to the lawful issue, if any ; if none, 
 then the share to be divided into two equal 
 parts, one to be held in trust for each of the sur- 
 viving children during life, and upon the death 
 of the child next dying the part or sub-share so 
 held for the one so dying to go to his or her 
 issue, if any ; if none, to the persons who, if the 
 surviving child were dead without issue, would 
 be the testator's heirs-at-law ; upon death of the 
 survivor, the sub-share held for his or her benefit 
 to vest absolutely as specified. A similar provision 
 was made as to the share held for the child the 
 second to die. In case of death without issue, 
 one of the sub-shares to go to the issue of th& 
 child first dying, if any ; if none, to the persons- 
 who, if the surviving child were dead without 
 issue, would be the testator's heirs-at-law, &c. 
 Held, that the provision did not suspend the 
 power of alienation for more than two lives then- 
 
TRUSTS, I., II. 
 
 437 
 
 in being, and was valid. — Ct. ofApp., Fe6.,1878. 
 Moore v. Hegeman, 72 N. Y. 376. 
 
 21. Another provision of said will directed 
 that a specified sum out of the rents, issues and 
 profits of each share of the estate, during the 
 minority of the child for whose benefit it was 
 held "shall be applied to his or her education 
 and support," and the balance added to the 
 principal ; after the arrival of each child at the 
 age of twenty-one, then that the whole of the 
 income " shall be paid over quarterly to such 
 child."— JHis/d, that the words "applied" and 
 " paid over," as used, were substantial equiva- 
 lents, that the trust was within the provision of 
 the statute of uses and trusts relating to express 
 trusts, and was valid. lb. 
 
 II. The Trustee. 
 
 1. Mights, powers and duties of trustees. 
 
 {Consult, also, Exbodtobs abb Aduhtistbatobs, ni.] 
 
 22. Po"wer to sue. A trustee of an ex- 
 press trust may bring and maintain an action 
 based upon a contract executed by him in that 
 capacity. — Superior Ct., August, 1877. Arose- 
 mena v. Hinckley, 43 Superior 43. 
 
 23. Power to dispose of trust prop- 
 erty, and. Tao-w exercised. A trustee hav- 
 ing once accepted the trust in any manner, f 
 purchaser cannot safely dispense with his con- 
 currence in a sale of the trust estate, notwith- 
 standing he may have attempted to disclaim, 
 and although he may have released his estate to 
 his cotrustees. All the trustees must unite in 
 a disposal of the trust property and a deed by 
 two, while a third is living, is not valid. The 
 trustees take as joint-tenants, and must all unite 
 in the execution of the trust, and especially in 
 a deed of lands. — Ct. of App., Dec., 1877. 
 Brennan v. Willson, 71 N. Y. 502, 507 ; S. C, 
 4 Abb. N. Cas. 279. 
 
 24. Power to oliarge trust estate 
 -witli expenditores. Where a trustee is 
 authorized by the terms of the instrument cre- 
 ating the trust to make an expenditure which is 
 necessary for the protection or reparation of the 
 trust estate, and has no trust funds in his hands 
 for the purpose, he may, by express agreement 
 •with another, exempt himself from liability, and 
 make the expenditure a charge upon the estate. 
 —Ct. of App., March, 1878. New v. NicoU, 73 
 N. Y. 127, 131; ajirming 12 Hun 431. 
 
 25. To create such a lien or charge, however, 
 there must be some agreement to that effect ; it 
 is not sufficient that the one doing the work or 
 making the expenditure did it upon the faith 
 and credit of the estate. lb. 
 
 2Q. Where there has been no such agree- 
 ment, and in consequence the trustee is charge- 
 .able individually for the expenditure, the trustee 
 cannot, by a subsequent promise to pay out of 
 the estate, give a lien thereon ; to transfer the 
 ■charge from the trustee to the estate, there must 
 ■either be an agreement based upon some new 
 consideration, or an assignment of the lien or 
 claim which the trustee has upon the estate for 
 the expenditure. lb. 132. 
 
 27. Duties of trustees, generally. 
 Where a note was drawn payable on demand, 
 .and indorsed over and delivered to the defend- 
 .ant, who thereupon executed and delivered a 
 teceipt for the same, whereby he acknowledged 
 
 that the note had been so indorsed and deliv- 
 ered to him " to hold the same and the proceeds 
 thereof, to secure, indemnify and save harmless 
 the plaintiffs for being sureties for the payees of 
 the note," &a.—Hdd, that the defendant occu- 
 pied a trust relation towards the plaintiffs and 
 the payee of the note ; the extent of his trust, 
 however, being limited by the terms of the re- 
 ceipt and the resolution of the directors of the 
 payee of the note. He was bound or under 
 a duty, to hold the note, and its proceeds, if 
 paid to him, for the benefit of plaintifls. — Sa- 
 perior Ct., May, 1879. Morris v. Webb, 45 Su- 
 perior 305. 
 
 28. As there was testimony in the case tend- 
 ing to show that he did not hold the note in his 
 possession and under his control continuously, 
 and also that he considered and stated that the 
 note had been paid— ^eW, that the dismissal of 
 the complaint by the court below, without any 
 explanation of these facts and statements of de- 
 fendant, which seemed to be in violation of his 
 duty as trustee, was erroneous, for the plaintiffs 
 had established a cause of action. lb. 
 
 29. — as to investments of trust 
 ftinds. The will of W. devised to his execu- 
 tors certain real estate, in trust, with power to 
 sell and to invest the proceeds in other lands, in 
 bonds and mortgages, or in such securities as 
 they should deem safe and for the greatest bene- 
 fit of the cestuis que trust. The executors trans- 
 ferred the lands, which were undeveloped coal 
 lands, for the purpose of organizing a mining 
 corporation to develop and work them, taking 
 pay in the stock of the corporation. After the 
 funds of the company were exhausted, its bonds, 
 secured by mortgage on its lands, were issued to 
 raise funds to build a railroad to the lands, 
 which bonds the stockholders were requested to 
 take pro rata, and a portion of which the execu ■ 
 tors took, crediting themselves as executors the 
 amount paid therefor, as an investment for the 
 estate. The amount of the bonds issued was 
 more than the value of the company's lands. 
 No dividend had been paid, and it did not ap- 
 pear that the property was yielding any profits 
 or income out of which interest could be paid . 
 Held, that the executors were not entitled to the 
 credit ; that the bonds were not such a security 
 as a prudent executor or trustee would volun- 
 tarily have accepted as an , investment for trust 
 funds, or as the rules of courts of equity would 
 have sanctioned; and it was questionable 
 whether, even if the investment had been made 
 in the exercise of the power, it could be sus- 
 tained ; but that it was not so made, as the pur- 
 chase of the bonds was a quasi compulsory ad- 
 vance, to protect the stock received in payment 
 for the lands ; and as the transaction by which 
 the lands were sold and the stock acquired was 
 unauthorized, and thereby the executors became 
 personally accountable to the estate for the value 
 of the lands, the stock was their individual 
 property, the investment in the bonds was for 
 their individual account, and not chargeable to 
 the estate. — Ct. of App., Nov., 1878. Adair v. 
 Brimmer, 74 N. Y. 539. 
 
 30. To establish a ratification by the cestui 
 que trust, in such a case, the ratification must not 
 only be clearly proved, but it must be shown 
 that it was made with full knowledge of all the 
 material facts, and also that the cestui que trust 
 was fully apprised of their effect and of his or 
 her legal rights in the premises. lb. 
 
438 
 
 TRUSTS, II. 
 
 31. Rights of third persons dealing 
 "With trustees. One who purchases a trust 
 estate with knowledge of the trust, is subject to 
 all the duties respecting the same which rested 
 upon the trustee from whom he made the pur- 
 chase. — Supreme Ct., (Isi Vept.,) March, 1878. 
 Gautier v. Douglass Manuf. Co., 13 Hun 514. 
 Compare Budd v. Munroe, 18 Hun 316. 
 
 32. The estate of a cestui que trust is liable 
 and can be held for the fraud of a trustee, by a 
 purchaser of the trust property itself, for a full 
 and fair price, without notice or knowledge of 
 the trust. The contribution of trust property to 
 the capital stock of a co-partnership at the time 
 
 , of its formation, by a trustee, as his own property, 
 and so contributed without notice to or knowl- 
 edge by the other co-partners of the fact of its 
 being trust property, is closely analogous to its 
 sale and purchase. There is but little if any 
 difference in principle. — Superior Ct., May, 1878. 
 Hollembaek v. More, 44 Superior 107. 
 
 33. In such a case, tlie cestui que trust, seek- 
 ing his property (thus converted) from co-part- 
 nership assets, can only claim and take there- 
 from what his trustee would be entitled to take 
 had he been vested with absolute ownership of 
 the funds invested by him in the co-partnership, 
 instead of holding the same as he did, merely in 
 trust, lb. 
 
 34. The equities of the co-partners of a trus- 
 tee, dealing with him as the absolute owner of 
 the property contributed by him to the co-part- 
 nersiiip, and without notice or knowledge of any 
 trust relations in regard to the same, are para- 
 mount to those of the cestui que trust in regard to 
 such property. lb. 
 
 35. By the will pf W. E. G-., theexecutor, J. 
 S. G., was authorized and required to set apart, 
 invest and hold a certain portion of tlie funds of 
 the estate for the purposes of certain specified 
 trusts. J. S. G. deposited nearly $17,000, set 
 apart from the assets of the estate as part of the 
 trust fund, to his credit as executor, in the N. Y. 
 & E. Bank, of which bank he was the president, 
 and of whose business affairs lie had the entire 
 control and management. J. S. G., in fraud of 
 the eestuis que trust, caused certain shares of the 
 stock of the bank owned by him to be trans- 
 ferred through a third person from himself in- 
 dividually to himself as executor, at par, he 
 making the transfers upon the books of the 
 bank as president, knowing at the time that the 
 bank was insolvent, and the stock worthless. As 
 part payment for the stock, he drew checks upon 
 his account as executor for $17,000, and de- 
 posited the same to the credit of his individual 
 account, which was at that time overdrawn 
 $6522.50. He was also otherwise largely in- 
 debted to the bank to much more than the 
 amount of the check. J. S. G. subsequently 
 drew out the balance deposited to his individual 
 credit. In an action to set aside the transfer of 
 the stock, and to recover of the bank the de- 
 posit — , 1 , ■ 1. 
 
 Hdd, 1. That the bank was chargeable with 
 the knowledge possessed by its agent, J. 8. G., 
 when making the transfers, whether acquired by 
 him as such agent, as executor, or as an indi- 
 vidual, and was responsible for the fraud to the 
 extent that it profited thereby. _ 
 
 2 That the profit of the bank in the transac- 
 tion was not simply the amount the account of 
 J S G was overdrawn at the time, but the 
 whole sum of $17,000, which passed from the 
 
 estate to the property of the bank. — Ct. of App^ 
 Jan., 1878. Holden v. New York and Erie 
 Bank, 72 N. Y. 286. 
 
 _ 36. After the death of J. S. G., on the peti- 
 tion of the eestuis que trust, plaintiff was ap- 
 pointed trustee of the trust estate, and as such 
 brought this action. 
 
 Held, 1. That this was proper ; that the funds- 
 were in the hands of J. S. G. as trustee, not 
 technically as executor, and there was no duty 
 to be performed in reference thereto requiring 
 the appointment of an administrator with the- 
 wUl annexed ; that the trust fund was such 
 property as fell within the jurisdiction of a court 
 of equity, which had power to appoint a custo- 
 dian and manager of it. 
 
 2. That the bank, as a wrong-doer, wa^ 
 properly chargeable with interest on the deposit 
 from the time of the transfer, and with costs. 
 lb. 
 
 2. lAabilities of trustees 
 
 37. Liability for losses, misappro- 
 priations, &o. Testamentary trustees author- 
 ized to invest funds belonging to the estate, in 
 general terms, at their discretion, are not liable- 
 for losses where they acted as a prudent owner 
 of property would act in making an investment 
 for beneficiaries selected by himself. — Superior 
 Qt., {Sp. T.,) Nov., 1878. Eoosevelt v. Eoosevelt, 
 6 Abb. N. Cas. 447. 
 
 38. As to the liability of one of several, 
 trustees for the misappropriation of a portion of" 
 the fund by his co-trustee, see Bates v. IJnderhill,. 
 3 Eedf. 365. 
 
 39. — for costs. When, in a suit by trus- 
 tees in which they are unsuccessful, an execution, 
 against them personally for costs, is improper, 
 see Alger v. Conger, 17 Hun 45 ; affirmed 79 N. 
 Y. 633. 
 
 3. Resignation, removal amd substitutimi. 
 
 40. Resignation, and subsequent lia- 
 bility. Where a trustee's resignation is ac- 
 cepted and his bond discharged, upon his trans- 
 ferring the trust estate, consisting of money and 
 lawful securities, to his successor, he is exempt 
 from all liability for any loss subsequently oc- 
 curring to the estate. — Supreme Ct., {1st Dept.,) 
 Oct., 1878. Matter of Foster, 15 Hun 387. 
 
 But where he has invested the trust property 
 in, and transfers to his successor securities not 
 recognized by the law as valid investments,, 
 such as promissory notes, he continues to be re- 
 sponsible until such investments are converted 
 into money or lawfully invested. Where, how- 
 ever, one of such notes is subsec[uently paid by 
 the maker, the outgoing trustee is relieved from 
 all liability therefor, notwithstanding the amount 
 thereof may never be received by the trust es- 
 tate, lb. 
 
 41. Removal. The Supreme Court, and not 
 the surrogate, is vested with power to remove a. 
 testamentary trustee. — N. Y. Surr. Ot., Sept., 
 1877. Blake v. Sands, 3 Kedf. 168. 
 
 42. Substitution. The donor of n trust 
 transferred, by an instrument in writing, certain 
 securities to one W., in trust, to receive the in- 
 come thereof and pay it over to the cestui que trust, 
 for and during his natural life. The cestui que- 
 trust was empowered to dispose of the trust fund 
 and any unpaid income by his will, and the in- 
 
TRUSTS, II., III.— TURNPIKE COMPANIES. 
 
 439 
 
 Btrument provided that the trust might he ter 
 ininated at any time, as to all or any part of the 
 trust fund, upon the joint consent or agreement 
 in writing of the donor, trustee and cestui que 
 trust. Some time afterwards the latter requested 
 the donor to consent that the trust should be ter- 
 minated as to one-half the fund, and that that 
 amount should be paid over to him. He re- 
 fused to consent, and the cestui que trust applied 
 to the court to have some other person substi- 
 tuted in his place, with power to give such con- 
 sent, ffeld, that the court had no power to make 
 such substitution, and that even if it had such 
 power, no case was made for its exercise. — Su- 
 preme a., {1st Dep«.,) April, 1880. Matter of 
 Vanderbilt, 20 Hun 520. 
 
 ni. Eights and Eemedies of the Cestui 
 QUE Trust. 
 
 43. In general. Where bonds are held in 
 trust, the cestui que trust to receive " the interest, 
 income or dividends" arising therefrom, on a 
 sale of the bonds by the trustee at the expira- 
 tion of the loan, the cestui que trust is not entitled 
 to the principal sum of the profits made on such 
 sale, but only to interest thereon. — N. T. Surr. 
 Ct. Townsend o. United States Trust Co., 3 
 Eedf. 220. 
 
 _ 44. Election of remedies for viola- 
 tion of trust. Where a trustee has made 
 improper investments of the trust fund the 
 cestui que trust has his election to take the origi- 
 nal fund and legal interest thereon, or to take 
 the fund as invested at the time of (he account- 
 ing, and all profits realized by the trustee. If 
 he elects to take the latter, the whole period 
 during which the trustee has held the fund is to 
 be considered in estimating the profits to be 
 realized. The beneficiary cannot take profits 
 for a part of the time and interest for the re- 
 mainder. — Supreme Ct., (2d Dept.,) May, 1879. 
 Baker v. Disbrow, 18 Hun 29; affirmed 79 N. Y. 
 631. 
 
 45. As to the right of the cestui que trust to 
 ratify some of a series of unauthorized pur- 
 chases and sales of land by the trustee, and re- 
 pudiate others, on the accounting of the trustee, 
 see Baker v. Disbrow, 3 Eedf 348. 
 
 46. Bight to follow trust fund di- 
 verted by trustee. Where trust moneys 
 have been, by the fraud or violation of duty of 
 the trustee, diverted from the purposes of the trust 
 and converted into other property, equity will 
 follow the trust fund into the property into 
 which it has been converted, and appropriate it 
 for the indemnity of the beneficiary. It is im- 
 material in what way the change has been made, 
 whether money has been laid out in land, or 
 land has been turned into money, or how the 
 legal title to the converted property may be 
 placed. Equity only stops the pursuit when the 
 means of ascertainment fails, or the rights of 
 bona fide purchasers for value, without notice of 
 the trust, have intervened. Tlie relief will be 
 moulded and adapted to the circumstances of tlie 
 case, so as to protect the interests and rights of 
 
 the true owner. — Ct. of App., March, 1877. 
 Newton v. Porter, 69 N. Y. 133, 139. 
 
 47. Where trust money has been mingled 
 with other moneys of the trustee so as to be in- 
 distinguishable, and the trustee has made in- 
 vestments, generally, with the moneys in his pos- 
 session, the cestui que trust caxmot claim a specific 
 lien upon the properly or funds conslituting'the 
 investments. — Ct. of App., March, 1878. Ferris 
 V. Van Vechten, 73 N. Y. 113, 121 ; affirming 9 
 Hun 12. 
 
 48. Jt seems that trust funds which have been 
 misappropriated by the trustee, may be follow- 
 ed into lands to the purchase of which they have 
 been applied, and the cestui que trust may elect 
 either to hold the unfaithful trustee personally 
 responsible, to claim the lands, the fruits of the 
 misappropriation, or to cause the lands to be 
 sold for his indemnity, and hold the trustee for 
 any deficiency. lb. 119. 
 
 49. To follow the money into lands, how- 
 ever, and to impress them with the trust, at 
 least as against innocent third persons, the 
 money must be distinctly traced and clearly 
 proved to have been invested in the lands. It 
 does not suffice to show possession of the trust 
 funds by the trustee, and the purchase by him 
 of, and payment for lands. No presumption 
 arises from the payment alone that it was made 
 with the trust funds. lb. 
 
 50. Right of cestui que trust to act 
 as trustee. A trust will not be held void be- 
 cause the trustee and beneficiary are one and the 
 same person. The court may appoint a new 
 trustee in such a ease. Eogers v. Eogers, 18 
 Hun 409. Compare Moke v. Norris, 14 Hun 
 128. 
 
 For rules applying to any Particular class of 
 trustees, or to persons occupying Fiduciary rela- 
 tions, see such titles as Assi&NMENTSroR Bene- 
 fit OF Creditoks ; Attorney and Client ; 
 Executors and Administrators ; Guardian 
 AD Litem ; Guardian and Ward ; Infants ; 
 Insane Persons ; Principal and Agent ; 
 Eeceivers. 
 
 TURNPIKE COMPANIES. 
 
 Liability for obstructing the road. 
 Defendant, a turnpike company, permitted a 
 quantity of stones which it intended to use in 
 repairing a bridge, to be piled on the side of its 
 road, near the bridge, and to remain there. 
 It had notice that horses of ordinary gentle- 
 ness were more or less frightened thereby. 
 Plaintifi''s horse, which was kind and gentle, 
 while being driven by him in a proper manner, 
 was frightened at sight of the stones, and jump- 
 ed from the bridge, injuring plaintiff. Meld, 
 that defendant was liable and that the fact that 
 other horses of ordinary gentleness were fright- 
 ened at the pile of stones, was admissible in 
 evidence, as it tended to prove that it presented 
 an unusual and strange appearance. — Supreiae 
 Ct., (3d Dept.,) May, 1879. Egglestou v. Colum- 
 bia Turnpike Eoad, 18 Hun 146. 
 
 For the Jaw of Highways, see that title. 
 
440 
 
 UNDERTAKINGS— USURY, I., II., HI. 
 
 U. 
 
 UNDERTAKINGS. 
 
 rConsnlt, also, Appkal, 64, 65, 111. 112 2Rli 
 2*8, 886-298; Akekst, 30-82; Ai£Ac^hT,li' 
 26-27, 47; iNJUHCTioif, IV. ; Ebcbitees, IS: Eh^ 
 PMViN, 9-11, 83-26.] >io,»ii- 
 
 LiabUity of surety. Under Code of 
 Pro., § 340, providing that the undertaking to 
 stay execution pending an appeal, may be in 
 one or several instruments, where an undertak- 
 ing signed by two sureties fails of approval be- 
 cause one of them is insufficient, and a separate 
 undertaking is afterwards executed by anothei 
 surety alone, he is bound, although the first un- 
 dataking, by reason of having failed of approv- 
 al, has been held void.— Qroi. Pleas, April. 1877. 
 Gottwald V. Tuttle, 7 Daly 105. 
 
 UNDUE INFLUENCE. 
 
 CONTBACTS, 40; Fraud, 11 ; Wells, 65-Y3. 
 
 USAGE. 
 
 Custom and Usage. 
 
 USE AND OCCUPATION. 
 
 Landlord and Tenant, 56. 
 
 
 USES. 
 
 
 Trusts. 
 
 
 USURY. 
 
 
 [Consult, also, Intbbbst.J 
 
 I. 
 
 What Constitutes Usury. 
 
 II. 
 
 The Defence of Usury. 
 
 ITT. 
 
 Effect op Usury. 
 
 IV. 
 
 Bemedies. 
 
 I. What Constitutes Usury. 
 
 1. What constitutes usury in respect 
 to loans. For an insurance company to make 
 a loan upon real estate, and at the same time to 
 make an insurance on the life of the borrower 
 or his friend, is not usury, even (hough the tak- 
 ing of the policy was the inducement for the 
 loan, if the policy was properly issued and the 
 usual premium charged. — Supreme Ct., (Kings 
 Sp. T.,) Feb., 1878. John Hancock Mutual Life 
 Ins. Co. v. Nichols, 5-5 How. Pr. 393. 
 
 As to what amounts to a usurious loan, see, 
 also, Gray v. Green, 77 N. Y. 615 ; Norris v. 
 Wood, 14 Huri 196. 
 
 2. Oommissions, bonuses, &c. A con- 
 tract between a commission merchant and a 
 dealer in produce, by which the former agree? to 
 
 advance money at the legal rate of interest to 
 enable the dealer to purchase or carry his pro- 
 duce, the lender to receive a percentage upon 
 the money advanced aa a commission for the 
 care, management and sale of the property, is 
 not ^erse usurious; the onus is upon the party 
 seeking to impeach the transaction to show a 
 guilty intent, and that the contract was a cover 
 for usuiy.— CT!. of App., June, 1877. Matthews 
 V. Coe, 70 N. Y. 239. 
 
 3. Where, therefore, it does not appear that 
 the commission charged was unusual or unreas- 
 onable, or in any%ay that the lender took ad- 
 vantage of the necessities of the borrower, a 
 finding of a referee that such a contract is usuri- 
 ous, is unsupported by the evidence and is a 
 legal error. lb. 
 
 4. The fact that the borrower in fact takes 
 charge of and manages the produce purchased 
 by him, does not affect the nature of the con- 
 tract, lb. 
 
 5. The giving of a bonus, by a mortgagor 
 whose mortgage had been foreclosed, for a loan 
 made to him by a third person to enable him to 
 stop the foreclosure sale — Held., not usury, in a 
 case depending upon particular facts. — Supreme 
 a., (2d Dept.,) Sept., 1878. Wyeth v. Branif, 14 
 Hun 537. 
 
 II. The Defence of Usury. 
 
 6. Who may avail himself of the de- 
 fence. A second mortgagee may defend 
 against a prior usurious mortgage ; the defence 
 is legal and should be "treated as any other de- 
 fence. — Supreme Ct., (Sp. T.,) August, 1880. 
 Union Dime Savings Institution v. Clark, 59 
 How. Pr. 342. 
 
 7. Who may not. In an action against 
 the indorsers of a note, the defence was that they 
 had been discharged by an extension of time 
 given to the maker without their consent. Plain- 
 tiff claimed that the extension was invalid, its 
 consideration being an usurious bonus exacted 
 from the maker. Held, that it could not set up its 
 own usury to invalidate its agreement. — Supreme 
 Gt., (Sd Dept.,) Nov., 1878. National Bank of 
 Gloversville v. Place, 15 Hun 564. Compare 
 Hansee «. Phinney, 20 Hun 153. 
 
 8. Pleading usury as a defence. An 
 answer setting up usury as a defence need not 
 set forth in so many words a formal agreeement, 
 either verbal or written; if a usurious agreement 
 be in substance averred it is sufficient. It is 
 enough to allege the facts as they occurred, and 
 if ihey justify the inference of a usurious con- 
 tract, and no demurrer is interposed thereto, the 
 answer ought to be held sufficient. — Supreme Gt., 
 (2d Dept.,) May, 1878. Maule v. Crawford, 14 
 Hun 193. 
 
 III. Effect of Usury. 
 
 9. Upon original valid contract. An 
 obligation, valid in its inception, is not invalid- 
 ated by an usurious agreement for the exten- 
 sion of the time of payment ; but the sum paid 
 on the agreement for forbearance will in equity 
 be applied as payment. — Ct. of App., AprU, 
 1877. Real Estate Trust Co. v. Keech, 69 N. 
 Y. 248. 
 
USURY, IV.— VENDOR AND PURCHASER, 
 
 441 
 
 IV. Kemedies. 
 
 10. Relief in equity— restoring con- 
 sideration received. A devisee of a mort- 
 gagor, who seeks to set aside the mortgage on 
 the ground of usury, must first offer to pay back 
 the monev loaned on the mortgage to his ances- 
 tors.— /Suprme a, {Oen. T.,) Jan., 1878. Marsh 
 t>. House, 13 Hun 126. 
 
 11. Forfeitures for usury. To create a 
 forfeiture under the provision of the national 
 banking act, (U. S. Eev. Stat., g 5198,) it is suf- 
 ficient that the usurious interest has been 
 "taken, received or charged." The provision 
 is not limited to cases where the note upon its 
 face carries interest with it. — Ct. of Avp., Dec., 
 1878. National Bank of Auburn v. Lewis 75 
 N. Y. 516. 
 
 12. Where the note in suit is the last of a 
 series of renewed notes, the original loan being 
 usurious, the taint of usury afiects the whole. 
 The forfeiture of the entire interest follows, and 
 credit must be given for all the interest which 
 has been paid from the beginning of the trans- 
 action, lb. 
 
 13. Under Laws of 1870, ch. 163, i 1, the 
 forfeiture of the whole interest, when more than 
 lawful interest has been received, can only be 
 claimed in an action brought to enforce the 
 usurious contract. — Supreme Ct., (4tA Dqit.,) 
 Oct., 1878. Merchants' Bank v. Freeman, 15 
 Hun 359. 
 
 UTICA. 
 
 MtTNICIPAIi COBPOEATIONS, 145-147. 
 
 V. 
 
 VALUE. 
 
 Opinwia of vntnesses, to prove, see WriNESSES, 
 123, 124. 
 
 VENDOR AND PURCHASER. 
 
 [Includes only decisions relative to the requisites of, 
 and rights and liabilities arising out of, JExecutory con- 
 tracts for the sale of land. For the law applicable to 
 Gfmveyances^ and the Covenants contained in them, see 
 Covenants ; Deeds. As to the Spcoijlc performa/nce 
 of contracts to sell land, see, also, Sfbcxtio Fbs- 
 
 FOSMANCE, 6-7.] 
 
 I. CONTEACTS rOB THE SALE OF LAND. 
 
 1. Vcdidity, and requisites, generally. 
 
 2. Interpretation; and rights of the 
 parties. 
 
 n. Eights op bona fide Puechasees. 
 
 m. The.Vendge's Lien. 
 
 rV. Eemedies. 
 
 1. Of the vendor. 
 
 2. Of the purchaser. 
 
 L CiONTEACTS FOE THE SaLE OF LAND. 
 
 1. ValidHy, amd requisites; generally. 
 
 1. "What amounts to a valid contract, 
 generally. On an exchange of real property, 
 a check signed by one of the parties, and a re- 
 ceipt given for the check, stating that the check 
 was given on the exchange of properties, men- 
 tioning them, and stating the prices of the 
 property, signed by the other party, constitutes 
 a valid contract as against the party signing the 
 receipt, and raises a su£Scient consideration for 
 the check. — Superior Ct., Nov., 1878. Eaubits- 
 chek V. Blank, 44 Superior 564. 
 
 2. "What does not. The parties nego- 
 tiated for the purchase by defendant, and sale 
 by piaintiflF, of certain premises. They agreed 
 upon the price, and a contract was signed in 
 duplicate, to which P. attached his name as' a 
 
 witness. While the papers lay upon the table 
 in the possession of P., defendant inquired as to 
 the papers in respect to the title. Plaintiff re- 
 plied that he had none. Defendant then sug- 
 gested that before proceeding further the matter 
 should be submitted to his counsel for approval, 
 which was assented to by plaintifiT. .The parties 
 went to the oflice of that counsel, and he being 
 absent, the papers, with defendant's check for 
 the sum to be paid dowii, were left with a clerk, 
 with directions to deliver them if the counsel 
 approved. He did not approve, but rejected the 
 title as defective. Before said counsel had 
 given his opinion, plaintiff obtained one of the 
 duplicates from the clerk, and procured an 
 acknowledgement thereof on the oath of the 
 subscribing witness. In an action for specific 
 performance — 
 
 Sdd, 1. That the facts justified a finding that 
 no contract was concluded ; that all the acts of 
 the parties were to be regarded as parts of one 
 transaction, which was never consummated, as 
 there was to be no contract until delivery, and 
 no delivery until approval. 
 
 2. That plaintiff acquired no advantage by 
 procuring possession of the contract or the sub- 
 sequent proof thereof. — Ot. of App., Jan., 1880. 
 Dietz V. Parish, 79 N. Y. 520. 
 
 2. Interpretation; and righis of the parties. 
 
 3. In general. A right of re-entry for a 
 breach of a condition subsequent does not pass 
 by a conveyance of the land ; and until there is 
 a re-entry by the grantor or his heirs, or the 
 successors of the grantor, for a breach of the 
 condition, the estate is not forfeited, bat remains 
 unimpaired in the grantee. A mere stranger 
 cannot take advantage of it. — Ct. of App., Sept., 
 1877. Towle v. Eemsen, 70 N. Y. 303, 312. 
 
 4. Whoever purchases lands upon which the 
 owner has imposed an easement of any kind, or 
 created a charge which would be enforced in 
 equity against him, takes the title subject to all 
 easements, equities and charges, however cre- 
 ated, of which he has notice. — Ct. of App., Sept. 
 1877. Trustees of Columbia College v. Lynch, 
 70 N. Y. 440, 450. 
 
442 
 
 VENDOR AND PURCHASER, I., II., III. 
 
 5. Interpreting the contract as re- 
 spects the covenants contained in it. 
 A covenant in a deed that the premises shall 
 not be occupied as a cemetery' or burying 
 ground, followed by a general covenant against 
 nuisances, do not constitute such an incum- 
 brance as to relieve a purchaser from his con- 
 tract—Com. Pleas., (Sp. T.,) Sept., 1879. Floyd 
 V. Clark, 7 Abb. N. Cas. 136. 
 
 6. Ho'w far the purchaser is deemed 
 the 0"wner. The equitable doctrine which 
 protects an individual who has contracted for 
 the purchase of land and treats him as the 
 owner, and thevendor as the owner of the pur- 
 chase money, is not an invariable rule, and is 
 subject to some exceptions. It cannot be ap- 
 plied when the intention of the parties is clearly 
 adveree to any such presumption. — Git. of App., 
 Jwne, 1878. Bostwick v. Frankfield, 74 N. Y. 
 207, 215. 
 
 7. Representations on part of ven- 
 dor. A vendee in a contract for the sale of 
 land is not bound to know what land is contain- 
 ed in the description in his contract or deed, 
 and fraud may be predicated upon representa- 
 tions that the description covers lands not 
 actually included therein. — Ct. of App., May, 
 1877. Beardsley v. Dundey, 69 N. Y. 577. 
 
 8. When the vendor makes willfully false 
 representations as to the market value of land, 
 knowing the vendee has not seen it, and induces 
 him not to examine it, but to rely upon such 
 representations, he is guilty of fraud, and liable 
 for the damages thereby occasioned. — Supreme 
 Ct., (3d Dept.,) Sept., 1878. Bacon v. Frisbie, 15 
 Hun 26. 
 
 9. Duty of vendor to convey, and 
 ■what is a sufficient conveyance. That 
 a vendee cannot be subjected to damages for a 
 refusal to perform his contract to purchase, how- 
 ever insufficient the reason assigned therefor, 
 without showing that the vendor was able, ready 
 and willing to perform, and that the former 
 would have received what he contracted for had 
 he performed, see Ct. of App., May, 1879. Big- 
 ler V. Morgan, 77 N. Y. 312, 319. Compare 
 Hoag V. Parr, 13 Hun 95. 
 
 10. An objection to the form of a deed, capa- 
 ble of being remedied if suggested, as that it 
 does not contain covenants of warranty to which 
 the grantee is entitled, is waived by failing to 
 specify it when the deed is offered. Bigler v. 
 Morgan, supra. 
 
 11. A deed from a third party conveying the 
 title is a substantial compliance with a covenant 
 to convey ; but when a vendee is entitled to a 
 covenant of warranty he may require the cov- 
 enant of the vendor, and is not bound to accept 
 in lieu thereof the covenant of another. lb. 
 
 12. Plaintiff contracted to sell to defendant, 
 and to convey by warranty deed free of all in- 
 cumbrances, a certain tract of land " lying on 
 the southwesterly side of the York river," in 
 Virginia. The tract was bounded by the thread 
 of the river, and included certain oyster beds ; 
 these were not mentioned in the contract. Other 
 
 Earties claimed to hold the oyster beds under 
 iases from the state. The facts with respect 
 thereto were well known to defendant at the 
 time of making the contract. Held, that in the 
 absence of any special provision in the contract 
 with respect to the riparian right to the oyster 
 beds, which appeared to have been a mere inci- 
 dent to the ownership of tlie land, it would be 
 
 assumed that all the contract bound the plain- 
 tiff to convey was a clear title to the upland,, 
 and such interest in the river, or the land cov- 
 ered by it, as the law of the state conferred upon 
 the owner of the upland ; that these were sub- 
 ject to the public rights of the state, and plain- 
 tiff could not be called upon to warrant against 
 these, or against parties claiming privilege* 
 granted by the state. lb. 
 
 13. When a purchaser, who is entitled to a 
 deed with a warranty, accepts a quit-claim deed 
 he is not entitled to equitable relief. — Gt. of 
 App., March, 1879. Whittemore v. Farrington, 
 76 N. Y. 452. 
 
 14. WTiat title purchaser may be 
 compelled to accept. Where there is con- 
 flict of opinion among competent men as to- 
 whether the whole of the premises contracted to 
 be sold fall within the description of the con- 
 veyances through which the vendor claims to 
 derive title thereto, the title is not marketable. 
 — Superior Ct., Nov., 1878. Deitz v. Farish, 44 
 Superior 190. 
 
 15. The fact that at the [time of the com- 
 mencement of an action against a purchaser, to- 
 enforce specific performance by him of a con- 
 tract for the sale of lands, the vendor could not 
 make a good title, is immaterial, except upon the 
 question of interest, and will not affect a judg- 
 ment in his favor if he can make such title at 
 the time of the decre'e. — Ct. of App., April, 1878. 
 Jenkins v. Fahey, 73 N. Y. 355, 359. 
 
 16. Duty of purchaser as to pajrment 
 of mortg'ag'e assumed. Where, at the 
 time of the conveyance, it is verbally agreed 
 that the purchaser shall assume and pay a mort- 
 gage for which the vendor is liable, the latter,. 
 & subsequently compelled to pay the mortgage, 
 may recover the amount paid from the pur- 
 chaser, though the conveyance contains no 
 agreement on the part of the latter to assume 
 the mortgage, but is only made subject to it. — 
 Supreme Ct., {Sd Dept.,) Sept., 1879. Taintor Ji. 
 Hemmingway, 18 Hun 458. 
 
 II. Eights or bona fide Pubcsasebs. 
 
 17. Who are deemed to be bona fide 
 purchasers. A bond, fide purchaser is one 
 who takes a legal title, without notice of con- 
 flicting equities, and for a valuable consideration. 
 —Supreme Ct., (3d Dept.,) Sept., 1879. Crippens 
 u. Baumes, 15 Hun 136. 
 
 18. The purchaser of an equitable 
 title takes subject to all prior equities. lb. 
 
 III. The Vendoe's Lien. 
 
 19. Who may claun a lien. Where 
 premises are conveyed, "subject to a certain 
 mortgage on the southerly portion of the same,"' 
 made by the vendor, which mortgage the ven- 
 dee assumes and agrees to pay, by a clause in 
 the conveyance which states that the amount of 
 the debt has " been deducted from the considera- 
 tion hereinbefore expressed," there is no_ equita- 
 ble lien upon the mortgaged premises in favor 
 of the vendor ; this, though the vendee, after 
 paying interest for a certain time, makes de- 
 fault, and allows the mortgage to be foreclosed, 
 and the vendor to be thereby charged with a 
 judgment for deficiency. The assumption of th& 
 mortgage is, pro tanto, the consideration. A 
 fortiori, there is no equitable lien upon that por- 
 
VENDOR AND PURCHASER III., IV. 
 
 445 
 
 tion of the premises not covered by the mort- 
 gage. — Superior Ct., Nov., 1879. Lea v. Fabbri, 
 45 Superior 361. 
 
 20. "Waiver of the lien. A vendor's lien 
 for the purchase money is destroyed by taking 
 back a purchase money mortgage. — i^mreme Ct., 
 (3d Dept.,) Sept., 1878. Gaylord v. Knapp, 15 
 Hun 87. 
 
 21. A vendor waives his lien for the unpaid 
 purchase money, by talcing the note or obliga- 
 tion of a third person therefor, or by taking 
 from the vendee an agreement to pay the amount 
 due, in some commodity other than money. — 
 Smreme Ct, (4«A Dept.,) June, 1880. Hazeltine 
 V. Moore, 21 Hun 355. 
 
 IV. Eemedies. 
 
 1. Of the vendor. 
 
 22. Right to sue for purchase money. 
 That where the purchaser assigns his contract, 
 the assignee agreeing to pay the purchase money, 
 such agreement is not enforceable by the vendor, 
 when the assignment is only collateral to a debt, 
 see Eoe v. Barker, 17 Hun 84. 
 
 23. A., plaintiff's intestate, in his lifetime, 
 sold for the sum of $6000, to the defendant, an 
 undivided one-half of certain premises, upon 
 which was a mortgage of $4000. The purchase 
 price was agreed to be paid, $3000 in cash, and 
 the balance by assuming to pay three-fourths of 
 the mortgage ; this was stated in the deed, and 
 A. conveyed " free from all incumbrances ex- 
 cept the said $4000 mortgage." Defendant did 
 not pay his proportion of the mortgage, which 
 was foreclosed and the mortgaged premises 
 sold. In an action, among other things, to re- 
 cover $3000, the three-fourths of the mortgage 
 assumed — as so much of the purchase price 
 unpaid — Held, that by the agreement as well as 
 the provision of the deed, the cash payment and 
 the promise to pay three-fourths of the mort- 
 gage were the full consideration for the con- 
 veyance, and there was no longer an indebted- 
 ness on that account ; that' defendant became 
 liable to the holder of the mortgage for so much 
 of it as he had assumed to pay, but this was not 
 a liability to his grantor, and the action there- 
 fore was not maintainable. — Ct. of App., Sept., 
 1879. Ayers v. Dixon, 78 N. Y. 318. 
 
 24. Evidence and buiden of proof. 
 In an action by a grantor to recover the pur- 
 chase money, the burden of proof is upon him 
 of showing that defendant was in default at the 
 time of bringing the action, and any evidence 
 tending to disprove the allegations and proof 
 of plaintiff, is competent under a general denial, 
 although consisting entirely of affirmative proof 
 of a contract different from that alleged by 
 plaintiff. — Ct. of Aw-, June, 1877. Hebbard v. 
 Haughian, 70 N. Y. 54, 59. 
 
 25. A vendor of real estate sued to recover 
 the consideration agreed to be paid by the ven- 
 dee, alleging that the vendee agreed to pay 
 $30,000, deducting therefrom all existing mort- 
 gages, liens and incumbrances on the property 
 at the date of the deed ; and alleged that the 
 property was subject at the date of the deed to 
 incumbrances amounting to $24,000; and that 
 the vendee had paid $500. The action was 
 brought to recover the balance of $5500. 
 
 iMd, 1. That it devolved on the plaintiff to 
 prove the amount of the incumbrances. 
 
 2. That it being admitted in the contract that 
 there were liens, proof that there were certain, 
 liens was not sufficient to prove that there were 
 no others.-^Supm'or Ct., Nov., 1877. Algie v. 
 Wood, 43 Superior 46. 
 
 26. In such case plaintiff cannot rest on a 
 presumption that in the absence of the existenoe- 
 of liens, it will be assumed that there are none. 
 lb. 
 
 27. In such ease the rule which casts on a 
 party the burden of proving such facts as are 
 more peculiarly in his knowledge than in that 
 of the other, does not a^ply. lb. 
 
 28. When, in an action for purchase money,, 
 evidence of the value of property covered by a 
 mortgage is admissible, to show that a transfer 
 of the mortgage was a payment, and not made 
 by way of security, see Wallis v. Bandall, 16- 
 Hun 33. 
 
 2. Of the purchaser. 
 
 29. Action for breach of contract in. 
 failing or refusing to convey. Defendant 
 laid out a tract of land into lots, which it sold 
 at auction ; by the terms of sale, it was to con- 
 vey by warranty deeds free of incumbrance^. 
 There were at that time two large mortgages 
 covering its road and a portion of the tracts 
 Plaintiff bid off one of the lots which was cov- 
 ered by the mortgages. The officers of the road 
 acted in entire good faith, and the evidence 
 tended to show that they hjid no knowledge of 
 the fact that the land was covered by the mort- 
 gages. No releases could be obtained of the 
 mortgages. Defendant offered to convey with 
 covenants of warranty and to give ample in- 
 demnity against the mortgages, but plaintiff 
 declined the offer. Plaintiff paid ten per cent., 
 to the auctioneer at the time of sale, receiving a 
 receipt stating that defendant could not claim it 
 ,until the receipt was indorsed by plaintiff; this 
 
 sum never came into the possession or under the 
 control of defendant. In an action to recover 
 damages for non-performance of the contract — 
 Held, that plaintiff was only entitled to recover 
 the money paid to the auctioneer, without inter- 
 est thereon, the auctioneei''s fees paid and the 
 attorney's fees for examining title. — Ct. of App., 
 April, 1877. Cockcroft v. New York and Harlem. 
 E. E. Co., 69 N. Y. 201. 
 
 30. A contracted to sell land to B, and af- 
 terwards, for a valuable consideration, assigned 
 his contract with B to C ; B paid C the pur- 
 chase money, but A refused to convey the land 
 to him. 
 
 Held, 1. That B could not sue C for breach 
 of contract, nor on any implied liability arising^ 
 from failure of consideration, unless C con- 
 tracted with A to fulfill the contract. 
 
 2. That if C was a purchaser for value, the 
 fact that both B and C believed that A had 
 title to the premises, while in fact he did not, 
 would not enable B to recover the money paid 
 to C as money paid under a mutual mistake of 
 fact. 
 
 3. That B's remedy was against A for breach 
 of contract, if, after a demand, he failed to give 
 a good and sufficient deed. — Supreme Ct., {3d 
 Dept.,) Nov., 1878. Youmans v. Edgerton, 16 
 Hun 28. 
 
 31. Where a husband contracts to sell land 
 held by him and his wife jointly, and is unable- 
 to fulfill the contract by reason of the wife's re- 
 
4U 
 
 VENDOR AND PUECASER, IV. 
 
 fusal to join in tlie deed, the parchaser may re- 
 •coyer, as damages, the difference between the 
 price named ^n the contract and the actual 
 value of the land at the time of its breach. — 
 Supreme Ct., [ith Depl.,) June, 1879. Timby v. 
 Kinsey, 18 Hun 255. 
 
 32. Action on covenant in the deed. 
 When the title is encumbered by reason of 
 !the prior grant of an easement (a party wall), a 
 right of a(!tlon immediately accrues on the 
 -covenant against incumbrances by reason of the 
 breach thereof. Whether the covenantee had 
 -or had not notice or knowledge of the existence 
 of the incumbrances, is immaterial to the right 
 of action, or to the question of damages. More 
 Ihan nominal damages may be recovered in 
 such case. — Sumreme Ct., Jan., 1878. Mohr v. 
 Parmelee, 43 Superior 320. 
 
 33. Action to recover back purchase 
 money. Where one who, under a valid agree- 
 ment for the conveyance of him of lands, is en- 
 titled to insist upon a good title and a deed with 
 ■covenants, pays the consideration and is ten- 
 dered a deed without covenants, which he, 
 rafter demand and refusal of a deed conforming, 
 io the agreement, accepts, believing the title to 
 be dear, goes into possession, and continues to 
 •occupy and improve the premises, and an in- 
 -cumbrance, unknown at the time to either party, 
 is thereafter discovered, in the absence of fraud, 
 no legal liability rests upon the grantor, nor is 
 -the grantee entitled to any equitable relief. — 
 ■Ct. of App., March, 1879. Whittemore v. Far- 
 .rington, 76 N. Y. 452 ; affirming 12 Hun 349. 
 
 34. The acceptance of the deed in such case 
 -cannot be set aside on the ground of mistake as 
 •to its contents ; the acceptance also constituted 
 -a full execution of the prior oral agreement, 
 which is merged in the deed, and equity cannot 
 -decree a second performance. Ih. 
 
 35. It seems that a contract for the purchase 
 •or exchange of lands may be rescinded, and 
 purchase money paid in advance by one party ' 
 may be recovered back on the failure of the 
 •other to perform, even though the former could 
 .not have performed. But neither party can in 
 such case recover damages for a breach of the 
 contract.— a. of App., May; 1879. Bigler v. 
 Morgan, 77 N. Y. 312, 318. Compare Clark v. 
 -Jacobs, 56 How. Pr. 519. 
 
 36. The rule, that upon the rescission of a 
 ■contract for the sale of real estate the vendee is 
 -entitled to recover back what he has paid to- 
 ward the purchase money, does not apply where 
 .there is an express surrender by the latter of all 
 claims under the contract. — Ot. of App., April, 
 1879. Tice v. Zinsser, 76 N. Y. 549 ; reversing 
 J.3 Hun 366. 
 
 37. The parties entered into a written agree- 
 ment for purchase and sale of certain premises ; 
 plaintiff paid 11000 of the purchase money 
 down, and received possession of the premises. 
 Subseqently, the parties executed an instrument 
 by which each surrendered all his right, titleand 
 interest under and by virtue of the agreement, 
 -and agreed that the same "shall be canceled, 
 and of no effect from this date ;" the signatures 
 and seals were torn from the original contract, 
 and possession of tlie premises surrendered to 
 defendant. In an action by plaintiff to recover 
 back the payment maAe—Hdd, that by the re- 
 lease plaintiff gave up all right to the money 
 paid, and hence could not maintam an action to 
 a-ecover it back. lb. 
 
 38. -Various other remedies of the 
 purchaser. Where, subsequent to the exe- 
 cution of a contract for the sale of lands, the 
 vendor agrees by parol that the purchase price 
 may be paid by the vendee in work and labor, 
 and where, after the performance of the work 
 and labor, the vendor refuses or is unable to 
 perform, an action may be maintained against 
 him to recover the value of the work and labor. 
 In such case, the statute of frauds has no appli- 
 cation. — Ct. of App., Jun,e, 1877. Moody v. 
 Smith, 70 N. Y. 598. 
 
 39. Where property is conveyed subject to a 
 mortgage upon which back interest has accrued, 
 but has not hecome payable, and the purchaser 
 is obliged to pay such interest when it becomes 
 due, he has no cause of action against the ven- 
 dor for the proportionate amount which had 
 accrued prior to the delivery of the.deed, in the 
 absence of an express covenant on the part of 
 the vendor to pay the same; — Com. Pleas, {Gen. 
 T.,) Dec., 1876. Lynch v. Kinaldo, 58 How. Pr. 
 133. 
 
 40. Where there is a claim of title adverse 
 to the vendor, known to him [and to the pur- 
 chaser, and the latter takes from the former a 
 deed with covenant of title, and agrees with him 
 that he shall receive, as part of the purchase 
 money, a mortgage which shall not be collect- 
 ible until he shall obtain for the purchaser a 
 release or quite-claim deed from the party hold- 
 ing the adverse claim, which •the vendor agrees 
 to obtain within a specified time, the purchaser 
 cannot, after the expiration of that time, main- 
 tain an equitable action for the cancellation of 
 the mortgage, simply on the ground that the 
 vendor has not obtained either the release or 
 the quitrclaim deed, no fraud, accident or mis- 
 take being shown, and no offer to rescind the 
 contract having been made. — Com. PUas, Feb., 
 1879. Byerson «. Willis, 8 Daly 462. 
 
 41. As to the rights of one purchasing land 
 after a judgment in partition, when the judg- 
 ment is subsequently set aside ; and when the 
 purchaser is entitled to a confirmatory deed 
 from his vendor, see Esterbrook e. Savage, 21 
 Hun 145. 
 
 As to JvMcial sales, and rights of purchasers 
 thereunder, see Execution, 14-29 ; JtjBica-Ali 
 Sales ; Moetgages, 109-196. 
 
 As to sales of Chattds, see Sales. 
 
 VENUE. 
 
 Eemoval or Causes, I., II. ; Tbial, IL 
 
 VERDICT. 
 
 Trial, VII. 
 
 VERIFICATION. 
 
 Pleading, V. 
 
 VILLAGES. 
 
 Municipal Corporations, 105, 110, 113- 
 116, 126-128. 
 
WAR— WAKEHOUSEMEN. 
 
 445 
 
 w. 
 
 WAGER POLICIES. 
 
 Insubance, 87. 
 
 WAGERS. 
 
 As to GonliracU in the nature of wageis, see 
 CONTBAOTS 43, 44. 
 
 WAGES. 
 
 Master and Servant, 1-3 ; Paeent and 
 Child, 5 ; Sebvicbs. 
 
 WAIVER. 
 
 Of iSSinci performance of contract, see CoN- 
 
 TBACTS, 50-53. 
 
 Oi Demand and Notice, see Promissobt Notes, 
 39-41, 68. 
 
 Of objections that should be Taken at the trial, 
 see Appeal, 31-45, 135, 240-243 ; Ebbob, 
 20-23. 
 
 Of Objections to Pleadings, see Pleadings, 
 71-73. 
 
 Of Bight to trial by jury, see Trial, 5-10. 
 
 Of Preliminary proofs of loss, see Insubance, 
 2-5, 72, 73. 
 
 Of Condition in fire policy, see Insubance, 
 51, 52. 
 
 Of Vendor's lien, see Vendob and Pub- 
 chaser, 20, 21. 
 
 Effect of Appearance as a waiver of defects, 
 see Action, 26-33. 
 
 WAR. 
 
 1. Big'ht to conflsoate enemies' prop- 
 erty. War gives to the sovereign' the right to 
 take the persons and confiscate the property of 
 enemies wherever found. — Superior Ct., (Gem. 
 T.,) May, 1878. Chapman v. Phoenix Nat. 
 Bank, 44 Superior 340 ; S. C, 5 Abb. N. Cas. 118. 
 
 2. The right to condemn and confiscate the 
 property of enemies captured on the high seas, 
 exists by the law of nations. Before the courts 
 of the United States can condemn and confis- 
 cate, as a consequence of the declaration of war, 
 any property of an enemy found on land at the 
 commencement of hostilities, provision by law 
 must be made for that purpose. The right to 
 enact such a law exists, and when enacted by 
 the sovereign power of the United States, the 
 judicial department must give eflect to the same. 
 But untU such enactment, no power of condem- 
 nation can exist in the courts. lb. 
 
 3. Oonstruction of acts of congress. 
 The provisions of the acts of congress of August 
 6th, 1861, and July 17th, 1862, taken together 
 and construed with reference to the purposes 
 therein avowed and also expressed in their re- 
 spective titles, unmistakably show that the in- 
 tention of congress was to provide not only a 
 
 complete system for the capture ana condemna- 
 tion of property, liable to be considered a» 
 enemy's property, but a system that should be- 
 most eflfective in times of great national commo- 
 tion, peril, and distress ; and with that end in 
 view, it invested the District CoTirts of the United 
 States with full and general powers to take cog- 
 nizance of, and inquire into all offences under 
 said acts. lb, 
 
 4. Jurisdiction of XJ. S. District 
 Courts. The jurisdiction of the United States 
 District Courts in these cases does not depend 
 upon the fact of the commission of the offence- 
 alone, but embraces the power to hear and de- 
 termine all cases arising under these statutes ; 
 and if in any case it shall be found that the 
 property brought before the court belongs to a 
 person guilty of an offence under said acts, then 
 it may be condemned as enemies' property, ift- 
 
 WARD. 
 
 GUABDIAN AND WaBD. 
 
 WAREHOUSEMEN. 
 
 1. Warehouse receipts. As to the duty 
 of one purchasing a warehouse receipt, and 
 when he is charged with notice that the article 
 must have been removed from the warehouse, 
 see Van Schoonhoven v. Curley, 21 Hun 205. 
 
 2. Fees for storage. Defendants stored 
 with J. & U., warehousemen, a quantity of 
 Brazil wood, receiving a warehouse receipt, 
 which stated the charges for storage'to be twelve 
 and one-half cents per ton per month, and by the 
 terms of which the contract of storage could be 
 terminated by J. & U. at the end of any month. 
 Plaintiffs thereafter entered into possession of 
 the warehouse under a lease, by the terms of 
 which they assumed all outstanding contracts 
 for storage. Plaintiffs subsequently wrote to 
 J. & U. to remove the wood at the end of the 
 then current month, notifying them that if not 
 removed the charge thereafter would be 
 $2 per ton per month. This letter was 
 shown to defendants, who claimed that they had 
 the right to have the wood remain in store at 
 the rate specified in the receipt until they sold 
 it, and declined to pay the increased rate. De- 
 fendants did not remove the wood. The mar- 
 ket price for storage did not exceed twelve and 
 and one-half cents per month. In an action to- 
 foreclose plaintiff's lien for storage — Held, that 
 permitting the wood to remain in store did not, 
 under the circumstances, create an implied con- 
 tract on the part of defendants to pay the priee 
 stated in plaintiffs' letter ; that plaintiffl were not 
 bound to retain the property after the contract 
 was terminated, and would have been justified 
 in removing and depositing it in another ware- 
 house at the risk and expense of the owner ; but 
 having retained it, they were simply entitled 
 to charge the market rate for storage. — Ct. of 
 App., March, 1878. Hazeltine v. Weld, 73 N. 
 Y. 156. 
 
446 
 
 WAREHOUSEMEN— WHARVES. 
 
 3. Liability of ■warehousemen. A 
 •warehouseman is liable for goods stored with 
 him absolutely, unless he can show that they 
 Tvere lost or destroyed through no fault of his 
 -own. Mere inability to deliver is itself prima 
 Jade evidence of negligence. To relieve him- 
 self from liability to the bailor, the warehouse- 
 man, as bailee, must fully account for the goods, 
 and this he can only do by showing the manner 
 of their loss or destruction, and that the same 
 occurred in spite of proper care and diligence 
 ■on his part. Thus even proof of larceny or 
 burglary does not of itself relieve the ware- 
 houseman, He must, in addition, show that he 
 •did not in any wise contribute by any neglect or 
 -want of precaution on his part. — Superior Ct., 
 Feb., 1878. Abecasis v. Gray, 43 Superior 573. 
 
 4. Warehousemen must maintain that degree 
 ■of care over the property intrusted to their care, 
 that men of prudence would exercise under like 
 •circumstances in regard to their own property. 
 They are not liable for a return, or for the value 
 •of the goods, where the same have been stolen 
 from their possession without negligence on their 
 part. Theft of the goods may be proven by the 
 proof of facts and circumstances that reasonably 
 establish the conclusion that the goods were 
 ■stolen. — Superior Ct., April, 1879. Madan v. 
 •Covert, 45 Superior 245. 
 
 5. Bight to indemnity in case of ad- 
 verse claims. A warehouseman has no right 
 to demand of a mortgagee (not his bailee,) who 
 tinds the mortgaged goods in his possession, an 
 indemnity against an adverse claim as a condi- 
 tion of delivery. His proper remedy in such a 
 •case is an interpleader. — Superior Ct., Dee., 1879. 
 Banfield v. Haeger, 45 Superior 428 ; S. C, 7 
 Abb. N. Cas. 318. 
 
 6. Burden of proof in actions against 
 "warehousemen. A warehouseman in the 
 absence of bad faith is only liable for negligence, 
 and one bringing an action against him for the 
 loss of goods must allege and prove negligence ; 
 this burden is never shifted ; if plaintiff prove 
 ■demand and refusal to deliver, this, unexplained 
 is prima fade evidence of negligence ; hut if it 
 appear that the goods have been lost by theft, 
 plaintiff must show that the loss arose from the 
 negligence of defendant. Where, therefore, the 
 facts proved are as consistent with due care as 
 -with the want of it, plaintiff cannot recover. — 
 Ct. of App., Nov., 1878. Claflin •.;. Meyer, 75 N. 
 Y. 260 ; reverdng 43 Superior 1. S. P., Madan 
 «). Covert, supra. But see Golden v. Bomer, 20 
 Hun 438. 
 
 7. The non-delivery of property on demand 
 by a warehouseman, raises a presumption of 
 negligence which he is bound to remove by 
 proof showing that mffieient ordinary care has 
 been bestowed by him upon the property ; and 
 to establish mek care the proof should show o/- 
 finruUively that the loss, however it may have oc- 
 curred, •was not caused by want of proper care 
 and diligence on his part. If the proof comes 
 fuUy up to this requirement, the question of 
 negligence becomes a question of law, and may 
 be determined as such. But if, in such a case, 
 the fair and legitimate inference from the eyi- 
 •dence is favorable to plaintiff's claim, or a case 
 is presented where reasonable minds might dif- 
 fer as to the inference to be drawn from the evi- 
 dence, the question is one of fact, and must be 
 determined by the jury.— Superior Ct., June, 
 
 1877. Fairfax v. New York Central, &c., E. E. 
 Co., 43 Superior 18 ; affirmed 73 N. Y. 167. 
 
 WARRANTS. 
 
 Abbest, 33-36 ; Attachment, 19-23 ; 
 Justice or the Peace, 8, 9 ; Peocess, 24. 
 
 WARRANTY. 
 
 Covenants, 12; Sales, 26-31; Vbndob 
 and puechaseb, 7, 8. 
 
 WASTE, 
 
 As to the liability of a Teiumt for life for 
 waste, see Estates, 3. 
 
 WATER-COURSES. 
 
 [Consult, also. Mills; Bipablui Biohts.] 
 
 1. Property in ice. Natural flow of 
 stream. The owner of the land under a pond, 
 or one having the right to flow land of another 
 by means of a dam, is the owner of the ice 
 which forms on the pond, and may remove and 
 sell the same, sul^ect to the duty not to alter the 
 flow of the stream to the injury of the righfs of 
 owners below. — Supreme Ct., (3d Dept. &. T.,) 
 Jan., 1878. Myer v. Whitaker, 5 Abb. N. Cas. 
 172 1 S. C, 55 How Pr. 376. 
 
 2. Remedies for obstructions, flo'w- 
 age, &c. Defendant placed piers in the bed 
 of a stream running through his land, thereby 
 obstructing its natural flow and causing the 
 water to set back upon lands adjoining the 
 stream further up. Several of the owners of 
 separate parcels of such lands, united in a suit 
 to abate the nuisance and restrain its further 
 continuance. 
 
 Seld, 1. That they properly joined in bring- 
 ing one suit. 
 
 2. That the fact that defendant's piers were 
 not further out in the stream than the abutments 
 of an old bridge above them, which had stood 
 for twenty years, and been but recently removed, 
 did not affect plaintiffs' rights to have the piers , 
 removed. — Supreme Ct., {3d Dept.,) May, 1879. 
 Gillespie v. Forrest, 18 Hun 110. 
 
 3. Damages for interference with 
 use of spring. What evidence is inadmis- 
 sible on the question of the damages sustained 
 by the owner of an easement to use water from 
 a spring, by reason of his being temporarily de- 
 prived of the water, considered. — Sum-erne Ct., 
 (3d Dept.,) April, 1880. Matthews v. Delaware 
 and Hudson Canal Co., 20 Hun 427. 
 
 WHARVES. 
 
 Bights of vessel in slip. Wharfage. 
 
 A vessel occupying a slip between two piers 
 and fastened to one only of those piers and to 
 the bulkhead between them, is not "lying at 
 
WHARVES— WILLS, I. 
 
 447 
 
 anchor " in the slip, within the meaning of Laws 
 •of 1860, ch. 254, so as to make the owners of 
 vessel liable for wharfage for the use of the pier 
 to which it was not fastened. — Com. Pleas, June; 
 1878. Walsh v. New York Floating Dry Dock 
 ■Co., 8 Daly 387. 
 
 As to the Regulaiian of wharves and piers in 
 New York city, see New York City, 16-10. 
 
 WIDOW. 
 
 Bight of, to Bower, see Dower. 
 
 WILLS. 
 
 I. The Vowee to make a Will ; akd how 
 Exercised. 
 
 1. Oeneral principles. 
 
 2. Execution, attestatum, &e. 
 
 3. Beoocalion. 
 
 II. PBOTtNG A Will. 
 
 III. Validity. 
 
 IV. Law op Place. 
 
 V. Inteepretation and Effect. 
 
 1. Oenercd rides of construction. 
 
 2. The residuary clause. 
 
 8. The doctrine of equitable conversion. 
 -4. Actions for the construction oftmUs. 
 
 vi. contestino a will for incapacity ob 
 Undue Influence. 
 
 I. The Power to make a Will ; and how 
 Exercised. 
 
 1. Oemeral principles. 
 
 1. What ■will toe deemed -to be a ■will. 
 An instrument which was duly executed by the 
 deceased, which simply appoints certain persons 
 as executors, and authorizes them to sell real 
 ■estate, is a will and entitled to probate. — Su- 
 preme Ct., (3d Dept.,) Jan., 1879. Barber v. 
 Barber, 17 Hun 72. 
 
 2. Testamentary capacity. There is 
 no presumption against a will because made by 
 a, person of advanced age ; nor can incapacity to 
 make a will be inferred from an enfeebled con- 
 dition of mind or body. If the testator has suffl- 
 ■cient intelligence to comprehend the condition 
 ■of his property^ his relation to those who are 
 or may be the objects of his bounty, and the 
 •scope and meaning of the provisions of his will, 
 and if it is his free act, it will be sustained. — Q!. 
 ■of App., Jan., 1878. Horn v. Pullman, 72 N. 
 Y. 269, 276. See, also, post, 63, 64. 
 
 2. ^Execution, attestation, &c. 
 
 3. Sufficiency of the signing by tes- 
 tator. The testator entered a store where two 
 persons were, produced a paper and said: 
 "" I have a paper that I want you to sign." One 
 •of the two persons took the paper and saw what 
 at was and the testator's signature. The latter 
 
 then said : " This is my will ; I want you to 
 witness it." Both the two persons thereupon 
 signed the paper as witnesses, under the attesta- 
 tion clause. The testator then took the paper 
 and said, " I declare this to be my last will and 
 testament," and delivered it to one of the wit- 
 nesses for safe keeping. At the time all this 
 took place, the paper had the testator's name 
 signed at the end of it. Held, not a sufficient 
 signing of the will by the testator in the presence 
 of the witnesses, nor a sufficient acknowledg- 
 ment to them that he had done so, to satisfy the 
 requirement of the statute, and that the paper 
 was not entitled to probate. — Supreme Gt.A^ 
 Dept.,) Nov., 1878. Mitchell v. Michell, 16 Hun 
 97 ; affirmed 77 N. Y. 596. 
 
 4. Who are competent ■witnesses. 
 One named as executor in a will is not prohibited 
 from being witness thereto and is not rendered 
 incompetent either by the Eevised Statutes (2 
 Eev. Stat. 65, § 50,) or by Code of Pro., ? 399, as a 
 witness upon probate of the will to prove its 
 execution. If disqualified by the Eevised 
 Statutes, this is so far modified and controlled 
 by the Code of Pro., ?? 398, 399, that he is 
 rendered entirely competent. — Ct. of App., Sept., 
 1877. Children's Aid Soc. v. Loveridge, 70 N. 
 Y. 387, 394. 
 
 5. The necessary publication, and 
 request that -witnesses attest. When 
 a man is in full health and strength, the declara- 
 tion that an instrument is his will, and a re- 
 quest to the witnesses to sign it, may be made, 
 in his presence by a third person, and assumed 
 to be the acts of the testator ; but where the tes- 
 tator is very feeble at the end of a sickness, 
 which has lasted eleven years, and within a few 
 hours of his death, such assumption cannot be 
 made, without clear proof of the acts of such per- 
 son.— /Supreme Ct., (3d Dept.,) Sept., 1878. 
 Heath v. Cole, 15 Hun 100. 
 
 6. What attestation is sufficient. 
 The subscribing witnesses to a will should sign 
 the same after it has been subscribed by the 
 testator.— /Supj-eme Ct., (ith Dept.,) June, 1880. 
 Eugg V. Eugg, 21 Hun 383. 
 
 3. Seiioeation, 
 
 1. What amounts to a revocation, 
 generally. When a testator wholly divests 
 himself of the property devised or bequeathed 
 by the will, in his lifetime, the will is effectually 
 revoked, although he does it by making such a 
 conversion of the property as he directed in the 
 will, and leaves the fund not otherwise disposed 
 oi.— Monroe Surr. Ct., Dee., 1879. Dowd's Will, 
 8 Abb. N. Caa. 118; S. C, sub nom. Matter of 
 Dowd, 58 How. Pr. 107. 
 
 8. Implied revocation. Testator exe- 
 cuted a will in the city of New York, devising 
 his interest in a house and lot in said city to two 
 cousins. Six years aftemariis, in Switzerland, 
 he executed, in accordance with the laws of this 
 state, a second will, whereby, after giving 
 certain legacies, he gave the remainder of his 
 property situated or invested in America, to his 
 natural heirs. Held, that although the second 
 will did not in express terms revoke the first, 
 yet the first will being inconsistent therewith' 
 •was revoked by the second.— /Supreme Ct., (1st 
 Dept.,) Oct., 1878. Ludlam v. Otis, 15 Hun 
 410. 
 
 9. Revocation by subsequent mar- 
 
448 
 
 WILLS, I., IL, III. 
 
 fq^ a?^®„?™^"i°° of *e Eevised Statutes 
 (-i Key. htat. 64, | 44,) declaring that the will of 
 an unmarried woman is revoked by her subse- 
 quent marriage, is not abrogated by the subse- 
 quent statutes conferring upon married women 
 testamentary capacity, and thus taking away the 
 reason of the rule at common law. The courts 
 cannot dispense with a statutory rule because it 
 appears that the policy upon which it was es- 
 tablished has ceaSed.— Oif. of App., May, 1879. 
 Brown v. Clark, 77 N. Y. 369, 3^ 
 
 10. Reviving revoked will by de- 
 struction of revoking codicil. Re-pub- 
 lication. As to the power of the surrogate, 
 on the probate of a wUl, to determine whether 
 the same is revoked by a lost or destroyed will 
 or codicil ; the effect of the destruction of a codi- 
 cil revoking a will, to revive the testamentary 
 provisions revoked ; and the validity of a parol 
 re-pubhcation of a revoked will, see' Matter of 
 Simpson, 56 How. Pr. 125. 
 
 II. Phoving a Will. 
 
 11. The application. As to the necessity 
 of a written application for the probate of a will, 
 see Wright v. Fleming, 19 Hun 370. 
 
 12. Powers of the surrogate. Upon an 
 application to the surrogate of New York county 
 to admit a will to probate, he has power to pass 
 upon the validity of any of the provisions of the ' 
 will which may he contested, and to pass upon 
 their construction or legal effect when called in 
 question by any of the parties interested, as fully 
 and conclusively as the Supreme Court might 
 do. But such jurisdiction should not be exer- 
 cised, except so far as necessary for the purpose 
 of passing upon the probate of the will, until all 
 the parties in interest are brought into court. — 
 Supreme Q., {1st Dept.,) March, 1878. Currin v. 
 Fanning, 13 Hun 458. 
 
 13. What proof is admissible and 
 suflQcient. One named as an executor in a 
 will is a competent witness in behalf of the pro- 
 ponents thereof, to establish the validity of its 
 execution.— Supreme Ct., {4th Dept.,) June, 1880. 
 Eugg V. Eugg, 21 Hun 383. 
 
 14. The due execution of a will may be es- 
 tablished by other evidence than, or in opposi- 
 tion to the testimony of the subscribing wit- 
 nesses. 1 b. 
 
 15. Proof of due execution of a codicil, con- 
 taining an express reference to a will previously 
 executed, which it declares it is to be taken as 
 a part of, supplies the want of proof of the due 
 
 •execution of the will itself — Weslc. Surr. Cl. 
 Storms' Will, 3 Eedf. 327. But compare Proc- 
 tor V. Clarke, Id. 445. 
 
 16. For rules as to competency of witnesses, 
 and their testimony as to transactions and com- 
 munications between themselves and the testa- 
 tor, on tlie probate of a will, see Eeeve v. Crosby, 
 3 Eedf. 74 ; Montgomery e. Miller, Id. 154 ; 
 Staunton v. Parker, 19 Hun 55 ; Schoonmaker, 
 V. Wolford, 20 Id. 166. 
 
 17. What evidence of due execution is suffi- 
 cient to entitle a will to probate, see Dack v. 
 Dack, 19 Hun 630 : Mairs v. Freeman, 3 Eedf. 
 181. 
 
 18. Effect of uncertainty in testi- 
 mony of subscribing witnesses.- Where 
 the attestation clause to a will recites all the 
 facts necessary to constitute a due execution and 
 publication, and is signed by two witnesses, and 
 
 it appears that the testator executed the will in 
 the presence of the witnesses, that they were re- 
 quested by some one lo become witnesses to a 
 wiU, and that they attended at the time in pur- 
 suance of such request, the fact that the wit- 
 nesses when examined are unable to recollect 
 that they signed as witnesses at the request of 
 the testator does not authorize a finding that the 
 statute requirements were not observed. In the 
 absence of evidence contradicting the recitals, 
 tills lack of memory does not rebut the presump- 
 tion of due publication arising from the attesta- 
 tion clause and the other circumstances.— Ot. of 
 i^i'U^'^' ■^^'^^- ^'■°''° "■ Clark, 77 N. Y. 
 
 10. Matters of practice. That the de- 
 posiUons of the sabscribing witnesses, taken be- 
 before the surrogate, upon the return day of the 
 citations, are. not affected by the subsequent 
 hlnig of objections to the probate, see Downev 
 V. Downey, 16 Hun 481. 
 
 20. Revoking the probate. When it 
 reste m the discretion of the surrogate to grant 
 or deny an application to revoke or vacate the 
 probate of a will, made by persons not cited to 
 be present at the former hearing, who claim to 
 be collateral relatives of the deceased, and as 
 such interested in the real estate devised, see 
 Bailey v. Hilton, 14 Hun 3. 
 
 21. Establishing lost or destroyed 
 will. _ The testimony of two witnesses, differing 
 materially, either as to the legatees or amount 
 of the legacies given in a will alleged to have 
 been lost or destroyed, is insufficient to estab- 
 lish the ml\.— Supreme Cl., (1«« Dept.,) Jan., 
 1879. Sheridan v. Houghton, 6 Abb. N. Gas, 
 234. 
 
 HI. Vaudity. 
 
 22. The requisite certainty as to de- 
 visee or legatee intended. A testator 
 having disposed of two-thirds of his estate, then 
 provided in his will as follows : " The balance I 
 give to my executors, to be divided by them 
 amongst such Eoman Catholic charities, insti- 
 tutions, schools or churches in the city of New 
 York, as a majority of my executrix and exe- 
 cutors shall decide, and in such proportions as 
 they may think proper." At the time of testa- 
 tor's death there were numerous incorporated 
 Eoman Catholic charities, institutions, schools 
 and churches in the city of New York, author- 
 ized to take by devise or bequest. HM, that it 
 should be presumed that the testator intended 
 to confine his bequest to such charities as were 
 incorporated and authorized to take by will, and 
 that the trust was not invalid by reason of the 
 uncertainty of the beneficiaries. — Supreme' Ct., 
 (1st Dept.,) Dec., 1878. Power v. Cassidy, 16- 
 Hun 294; affirmed 79 N. Y. 602. 
 
 _ 23. Suspension of power of aliena- 
 tion. A provision which merely prevents ai 
 division of the estate until testator's youngest 
 child shall come of age, or die, is not an unlawful 
 suspension of the power of alienation. — Swpreme 
 a., {1st Dept.. Sp. T.,) Nov.. 1878. Muller -v. 
 Struppman, 6 Abb. N. Cas. 343. 
 
 24. The will of P., in case of his decease leav- 
 ing a surviving child, not of full age, devised 
 all his real estate to trustees, in trust, to pay the 
 net income from the rents and profits to his 
 widow, until all of his living ehudreu should 
 arrive at full age. Upon their arrival at full 
 
WILLS QL, IV., V. 
 
 449 
 
 iige, he directed that the trust should cease ; and 
 thereupon he devised to his widow a life estate 
 i.i certain premises, remainder to his son D., 
 and disposed of the residue of the realty by 
 VMrious specific devises to his children. Sdd, 
 that the trust was for the life of the widow, and 
 terminable in any event at her death, and sub- 
 ject to be determined by the arrival, during her 
 life, of all testator's living children at full age ; 
 and that the triist so created was valid and 
 effectnal.— Ci. of App., June, 1877. Provost v. 
 Provost, 70 N. Y. 141, 145. Compare Monarque 
 V. Monarque, 8 Abb. N. Cas. 102 ; revemng 19 
 Hun 332, 
 
 25. For an instance of a testamentary pro- 
 vision held void as suspending the power of 
 alienation for more than two lives in being, see 
 Bowers v. Beekman, 16 Hun 268. 
 
 IV. Law of Place. 
 
 26. Effect of, on testamentary capa- 
 city of married -women. By her marriage 
 with a citizen of a foreign state, and her resi- 
 dence with him at his domicil there, the wife, 
 although previously a citizen of this state, be- 
 comes subject to the laws of such foreign state ; 
 and her right to dispose of her property by will 
 while residing there is to be determined by the 
 laws of such foreign state. — Supreme Gt., (Sp. T.,) 
 Oct., 1878. Trimble v. Dzieduzyiki, 57 How. 
 Pr. 208. 
 
 V. Interpretation and Epfect. 
 
 1. General rules of construction. 
 
 27. Construction of technical words. 
 It is a general rule of construction that when a 
 testator uses technical words, he is presumed to 
 employ them in their legal sense, and that 
 words in general are to be taken in their ordi- 
 nary and grammatical sense unless the context 
 clearly indicates the contrary. — Ot. of App., Jan., 
 1878. Ketehas v. Keteltas, 72 N. Y. 312, 315. 
 S P., March, 1878. Luce v. Dunham, 69 Id. 36, 
 39. 
 
 28. Construing separate provisions. 
 The will of J., after various bequests, devised 
 and bequeathed one-fourth of his residuary 
 estate to his executors in trust for the benefit of 
 his son A. during his life, with authority to the 
 trustees, at their discretion, to transfer any part 
 or all of said share to the cestui que trust; in 
 case of the death of A. while any part of said 
 share was held in trust, the same to go to his 
 lawful issue ; in case of his death without leaving 
 lawful issue surviving, the same to go to the 
 testator's daughter M. A. died before the tes- 
 tator, leaving no issue. Held, that there was no 
 such necessary connection between the several 
 and successive gifts as to make the last depend- 
 ent upon the first; on the contrary each suc- 
 ceeding one was to be understood as intended to 
 provide against a lapse or failure at any time or 
 for any reason of those preceding; and that 
 therefore M. was entitled to said share. — Ct. of 
 App., June, 1877. McLean v. Freeman, 70 N. 
 Y. 81 ; affii-ming 9 Hun 246. 
 
 29. Reference to other papers. When a 
 reference in a will to an unexecuted paper is 
 not sufficient to make such paper a part of the 
 will, see Ludlam v. Otis, 15 Hun 410. 
 
 30. Interpretation and effect of codi- 
 
 cils. M., a married woman, executed in due 
 form a codicil which, after referring to and de- 
 scribing a wiU executed by her before marriage, 
 contained the following clause : " I do hereby 
 re-publish, re-affirm and adopt the aforesaid in- 
 strument as my present will in like manner as 
 if so executed by me, but modified pursuant to 
 this codicil, which in connection with and 
 amendment of my said will I now publish and 
 declare together as constituting my last will and 
 testament." The will was present when the co- 
 dicil was executed, and the attention of the wit- 
 nesses was called to it, and the testatrix at the 
 time declared the instrument to be " a codicil to 
 her last will and testament, and a re-affirmation 
 of the latter." Held, that the execution of the 
 codicil was a re-publication of the will ; and that 
 it and the codicil together were to be considered 
 
 as the will of the testatrix. — Ct. of App., ^ _, 
 1879. Brown v. Clark, 77 N. Y. 369, 373; 
 affirming 16 Hun 559. 
 
 ■ 31. It seems that a codicil executed with the 
 formalities required by statute for the execution 
 of wills operates as a re-publication of the will 
 to which it refers, so far as not changed by the 
 codicil. This rule was not changed by the pro- 
 • vision of the Revised Statutes (2 Eev. Stat. 63, 
 § 40,) in reference to the execution of wills, lb. 
 375. 
 
 32. Construction as to time, when 
 the wiU speaks from time of testator's 
 death. Where, after a bequest to a tenant for 
 life, the will proceeds, "upon her death I give" 
 tlie subject matter of the bequest for life, " to 
 my children, or the survivor or survivors of 
 them," the gift in remainder is vested in testa- 
 tor's surviving children at the time of his death. 
 Monroe Surr. Ot., Feb., 1879. Meyer's Will, 6 
 Abb. N. Cas. 438 ; S. C, 57 How. Pr. 203. 
 
 33. The will of D., after various devises and 
 bequests, gave to his executors $275,000 of 
 moneys belonging to him, then invested in bonds 
 and mortgages, in trust, to hold and ke^ in- 
 vested, and, among other things, to pay annually 
 to B. seven per cent, interest on $15,000, and, at 
 the end of five years from the testator's decease, 
 to pay the principal to said B. B. died before 
 the expiration of the five years. 
 
 Held, 1. That the legacy vested in B. imme- 
 diately upon the-death of the testator, and passed 
 to his personal representatives. 
 
 2. That this construction was not afiected by 
 the fact that the principal might not have yield- 
 ed interest at the rate named, as all the interest 
 that was derived therefrom was to be paid, and 
 both the legacy and the interest thereon were 
 connected as gifts to the legatee. — Ct. of App., 
 Jan., 1879. Warner *. Durant, 76 N. Y. 133 ; 
 affirming 15 Hun 450. 
 
 34. The estate or interest 'which •will 
 pass. A will provided "I give and bequeath 
 to my beloved wife, Susan, one-third part of all 
 my property, both real and personal, and to 
 have the control of my farm as long as she 
 remains my widow ; and I wish my son George 
 to have the first privilege of carrying on the 
 farm as my wife may see fit and proper ; and 
 at the death of my wife all my property, both 
 real and personal, to be equally divided between 
 my eight children." Held, that the widow took 
 an estate in fee in an undivided third of the 
 farm, and not merely an estate for life therein. 
 —Supreme Ct., {4th Dept.,) Oct., 1878. Eose- 
 boom V. Eoseboom, 15 Hun 309. 
 
 29 
 
450 
 
 WILLS, V. 
 
 ■35. A testator, by his will, which was dated 
 and admitted to probate in 1799, gave and be- 
 queathed certain real estate to his daughter 
 Ahuldah, stating that " the intent and meaning 
 of this my will is that my daughter, Ahuldah 
 Tooker, and her heir or heirs born of her body, 
 shall have and enjoy the estate I have hereto- 
 fore given her freely and clearly forever ; but 
 in case she should die without a child, then' it 
 shall return to my daughter Nancy or to her 
 heirs." Ahuldah died in 1865, leaving chil- 
 dren and her sister Nancy her surviving. Held, 
 that Ahuldah took an estate in fee, and that a 
 deed of the land executed by her in her life- 
 time passed a good title thereto. — Supreme Cl., 
 {2d Dejpt.,) May, 1880. Hounslea v. Hand, 21 
 Hun 251. 
 
 36. The will of L. gave his residuary estate 
 to his executors in these words : " In trust for 
 my grand children, namely, the children of my 
 son, Alexander M., and the survivors of them, 
 share and share alike, and the children of my 
 daughter, Ellen J. Stevenson, deceased, and the 
 survivors of them, share and share alike, to be 
 paid and conveyed to each of said children re- 
 q)ectively, as they each become of age, in equal 
 shares ; and, in the meantime, the income shall 
 be applied to the necessary and proper support, 
 maintenance, and education of each of said 
 children, under the care of my said executors." 
 
 HM, 1. That the estate vested in the execu- 
 tors as trustees in separate shares and upon 
 separate and several trusts, for the benefit 
 of the grandchildren living at the testa- 
 tor's death, the trust as to each share 
 terminating when the beneficiary became 
 of age ; that each of the surviving grandchil- 
 dren took a vested remainder in his or her share, 
 expectant upon the termination of the trust at 
 majority ; that the devise, therefore, did not sus- 
 pend the power of alienation beyond the minor- 
 ity of a beneficiary, and was valid ; that if any 
 beneficiaiy should die during minority, his or 
 her share would be liberated from the trust, and 
 would pass absolutely to the heiis and personal 
 representatives of such beneficiary. 
 
 2. That the beneficiaries took per capita, not 
 per stirpes. 
 
 3. That a child of Alexander, born after the 
 death of the testator, but before the time for the 
 distribution of any part of the corpus of the es- 
 tate, was entitled to a sliare therein. — Ct. of 
 App., Sept., 1877. Stevenson v. Lesley, 70 N. 
 X 512 ; modifying 9 Hun 637. 
 
 37. The will of J. contained this clause: "I 
 give fuU power and authority and control to sell 
 my property in Brooklyn to my sister, Mrs. 
 Conboy, and to receive the rent of it, house No. 
 865 Pacific street, Brooklyn." Mrs. Conboy was 
 not appointed executrix or trustee under the 
 will, and there was nothing in the will indica- 
 tive of an intent on the part of the testator that 
 any other person should have the rents or the 
 proceeds of sale. In an action for partition, 
 brought under the statute, by an heir claiming 
 the devise to be void (Laws of 1853, ch. 238, 
 § 2.)— Held, that assuming that the language 
 ■of the clause was insufficient to give the fee, it 
 created a valid beneficial power of sale j but 
 that, by the devise of the rent without qualifica- 
 tion, the fee was given to Mrs. Conboy, which 
 was not cut down or aflfeoted by the power of 
 «ale.-a of App., AprU, 1878 Jennings v. 
 Conboy, 73 N. Y. 230 ; reoersmg 10 Hun 77. 
 
 38. Interpretation of the •word ' ' chil- 
 dren." The will of L. after various devises 
 and bequests, among them a provision for A. a 
 granddaughter, child of a deceased daughter, 
 gave the testator's residuary estate to his wife 
 and all his "living children," share and share 
 alike. Specific directions were given for the in- 
 vestment and management of the portions of 
 the testator's two daughters. In an action for 
 a construction of the will — Seld, that the grand- 
 daughter was not included, and was not entitled 
 to take as one of the "living children;" that 
 the word " children," was used in its primary 
 si^ification, and did not include the represen- 
 tatives of a deceased child. — Ct. of App., Feb., 
 1878. Low V. Harmony, 72 N. Y. 408, 413. 
 
 39. The pro^sion for A. was a direction to 
 the executors to permanently invest $10,000, the 
 interest or income thereof, to go to her support, 
 with this further direction, "if she should die 
 without issue then this sum shall be divided 
 with ray other heirs, or should she be married, 
 then at her death she can will this sum to whom 
 she please." Beid, that A. took no interest in 
 or title to the principal sum, but that the same 
 was vested in the executor in trust for her, she 
 having a conditional power of disposition of it ; 
 if not so disposed of, in case of her death, leav- 
 ing children, the same to go to her children ; 
 if she have no children then that the same 
 should be divided between the widow and chil- 
 dren of the testator. lb. 
 
 40. The will directed the portions of the 
 two daughters of the testator to be invested and 
 held in trust for them for life, and "should both 
 or either die without heirs then their portion 
 shall be given to my other children and wife or 
 their heirs; or should they be married, they 
 can at their death make such disposition of 
 their interests as they may think proper." 
 Held, that A. was included in the discription 
 "my other children * * * or their heirs." lb. 
 414. 
 
 41. The will of S. gave to his " beloved wife, 
 Catharine," his dwelling-house during her 
 widowhood ; if sold with her consent, the pro- 
 ceeds to be invested by the executors, the in- 
 come to be applied to her use during widowhood, 
 and upon her death or re-marriage, the princi- 
 pal to be divided among his " then surviving 
 children." Various other provisions were made 
 for the benefit o£ his said wife, who was ap- 
 pointed guardian of the testator's infant child- 
 ren. The will also directed the executors to 
 set apart out of the estate several sums of $5000, 
 according to the number of the testator's child- 
 ren surviving him, to be held in trust for the 
 benefit of each child, and the residue of the 
 estate was given in equal shares to his children, 
 the issue of any child dying before the testator 
 to take the parent's portion. The testator was 
 married to Catharine in 1848 ; lived with her 
 from that time up to his death, treating her as 
 his lawful wife, and had by her eight children, 
 who were living at the time of his death ; five 
 of them were at that time minors. Afler his 
 death an action was brought by Jane, who 
 claimed to have been married to S. in 1833, to 
 recover dower. Catharine and her_ children 
 were made parties. Jane recovered judgment. 
 She had two children who survived S. In an 
 action for a construction of the will — Held, that 
 the word " children" in the will referred to the 
 children of Catharine, and that the children of 
 
WILLS, V. 
 
 451 
 
 Jane were not entitled to share in the estate. — 
 Ct. ofApp., Sept., 1879. Gelston v. Shields, 78 
 JST. Y. 275 ; affirming 16 Hun 143. 
 
 42. — " executors." A will provided, 
 .among other things, as follows : " I appoint my 
 wife,Ann Margaret Van Home Molie, execu- 
 trix ; my father-in-law, Adam Norrie, * * * 
 or such of them as may qualify, executors of 
 this my last will and testament, and trustees 
 thereunder of my estate " Elsewhere, the will 
 •conferred certain powers upon his " executors," 
 and appointed his " executors " guardians of his 
 ■children, and conveyed property to them to be 
 held in trust. Held, that, in using the word 
 /"executors," the testator intended to include 
 iherein the " executrix," and that his wife was 
 entitled to act as trustee and as guardian of the 
 children. — Supreme Ot., (1st Dept.,) April, 1878. 
 Moke V. Norrie, 14 Hun 128. 
 
 43. — "heirs." The will of D., after a 
 devise of certain real estate to his wife, and a 
 heq'uest to her of $100,000, also bequests to four 
 sisters, contained this residuary clause: "All 
 the rest, residue and remainder of my estate, 
 real and personal, present and hereafter to be 
 acquired, and wherever situated, I give, devise 
 and bequeath, and do devise and will that the 
 same shall be divided among my heiis and next 
 •of kin, in the same manner as it would be by 
 the laws of the State of New York, had I died 
 intestate." The testator, at the time of the ex- 
 ecution of the will, and at the time of his death, 
 had no other real estate save that devised to his 
 wife. Upon settlement of the estate, the widow 
 claimed a share of the residuary estate. Held, 
 ihat the word '" heirs " in said clause, was used 
 simply in reference to real estate, and the fact 
 that the testator owned no real estate save that 
 specifically devised, did not show an intent to 
 .apply it to the personalty; that the words 
 " next of kin " did not include the widow ; and 
 that the addition of the words referring to the 
 statute, in case of intestacy, did not enlarge the 
 class of legatees so aa to include her. — O, . of 
 App., March, 1877. Luce v. Dunham, 69 N. Y. 
 36 ; reversing 7 Hun 202. 
 
 44. — " natural heirs." The testator 
 left his property to his "natural heirs." He 
 left him surviving a mother, sister and cousins, 
 but no widow or children. Held, that by the 
 -term "natural heirs" the testator meant his 
 mother and sister. — Svpreme Ct., {\st Dept.,) 
 Oct., 1878. Ludlam v. Otis, 15 Hun 410. 
 
 45. — "interests." The personal prop- 
 erty of the testator consisted principally of ships 
 -and vessels. The testator directed that his ex- 
 ecutors should not be compelled to sell his 
 ships, &c., or to pay the legacies until, in their 
 judgment, the best interests of the estate would 
 be promoted, and that his wife should draw from 
 the earnings of the ships the share which her 
 " interests " under the will should bear to the 
 whole net earnings. Seld, that the use of the 
 word " interests" did not authorize an inference 
 that the testator intended his widow to have 
 another interest in addition to the legacy, i. e., a 
 share in the residuary estate. Luce v, Dunham, 
 ■mpra. 
 
 46. — " next of kin." The will directed 
 that the testator's residuaiy estate should be 
 divided among his " next of kin according to 
 the statute of the State of New York concerning 
 
 ■ihe distribution of personal estates of intestates." 
 .At the time of making the will the testator had 
 
 no wife, but married subsequently. Held^ that 
 there being nothing in the context to show a 
 different intent, the ordinary meaning should be 
 given to the words "next of. kin," i. «., rela- 
 tives in blood, and that they did not include the 
 testator's widow. — Ct. of App., Jan., 1878. Ket- 
 eltas V. Keteltas, 72 N. Y. 312. 
 
 47. Instances of the construction of peculiar 
 testamentary dispositions of property, and of 
 the determination of questions arising upon un- 
 usual language employed by the testator, and 
 the facts existing in the particular case. Clancy 
 V. O'Gara, 4 Abb. N. Cas. 268 ; Betts v. Betts, 
 Id. 317 ; Kelso v. Lorillard, 8 Daly 300 ; Mc- 
 Grath v. Stavoren, Id. 454 ; Thomson v. Thom- 
 son, 55 How. Pr. 494 ; Gano v. McCunn, 56 Id. 
 337; Clark i;. Jacobs, Id. 519; McKeon v. 
 Kearney, 57 Id. 349 ; Wilde v. Wilde, 58 Id. 
 71 ; Giraud v. Giraud, Id. 175 ; Brown v. Cleve- 
 land, Id. 293 , Leonard v. Davenport, Id. 384 ; 
 Kerr v. Dougherty, 59 Id. 44 ; Heartt v. Liv- 
 ingston, 14 Hun 285; James v. Beasley, Id. 
 520; Willets v. Titus, Id. 554 ; Newell v. Toles, 
 17 Id. 76 ; McLaughlin v. Maher, Id. 215 ; Foley 
 V. Foley, Id. 235 ; De Witt v. Cooper, 18 Id. 67 ; 
 Palmer v. Horn, 20 Id. 70 ; Cutting «. Cutting, 
 Id. 360 ; Wylie v. Lockwood, Id. 377 ? Lane v. 
 Brown, Td. 382 ; Buel v. Southwick, 70 N. Y. 
 581 ; Garvey v. McDevitt, 72 Id. 556 ; Newell 
 V. Nichols, 75 Id. 78. Hall v. Hall, 78 Id. 535 ; 
 Prentice v. Janssen, 79 Id. 478 ; Matter of Pol- 
 lock,' 3 Eedf. 100 ; Grant v. Grant, Id. 283 ; Van 
 Emburgh v. Ackerman, Id. 499. 
 
 2. The residuary clause. 
 
 48. WTiat will fall into the residuum. 
 
 The general rule that in a will of personal 
 property a general residuary clause carries 
 whatever is not otherwise legally disposed of, 
 does not apply to a residuary clause limited by 
 its terms to what remains after payment of spe- 
 cific legacies ; in such case if any of the legacies 
 are- void there is another residuum which is un- 
 disposed of. — Ct. of App., Jan., 1880 Kerr f. 
 Dougherty, 79 N. Y. 327. 
 
 49. In the interpretation of a residuary clause 
 in a will the court will look not only at the lan- 
 guage employed, but the surrounding circum- 
 stances, to determine what the intention of the 
 testator was. lb. 
 
 50. Lapsed or void legacies. The 
 will of K., which contained various legacies, 
 some held void, gave to his wife the net income 
 derived from his estate, after pa;^ment of the 
 legacies, during her life, and the principal left of 
 the estate after her death to various societies. 
 Held, that the sums attempted to be bequeathed 
 by the void legacies were undisposed of by the 
 will, and were to be distributed as in case of in- 
 testacy, lb. 
 
 51. Rights of residuary devisee or 
 legatee. When it is manifest from the ex- 
 press words of a will, that a gift of the residue 
 is confined to the residue of a particular fund or 
 description of property, or to some certain resi- 
 duum, the legatee will be restricted to what is 
 thus particularly given. — Surrogates Ct., (Mon- 
 roe Co.,) Dec., 1879. Dowd's Will, 8 Abb. N. 
 Cas. 118. 
 
 52. The will of C, after directing the pay- 
 ment of his debts out of his personal property, 
 and after certain bequests to strangers to his 
 
452 
 
 WILLS, v., VI. 
 
 Wood, and a specific devise of certain real es- 
 tatej contained this residuary clause : " I give, 
 devise and bequeath all the rest, residue and 
 remainder of my estate, real and personal, to the 
 executors of my will * * in frust * * to 
 rent the rest of my real estate, and to invest tlie 
 rest of my personal estate, and to keep the same 
 invested in good securities." Then followed a 
 specification of the trusts, which were for the 
 benefit of the testatoi-'s widow and children. 
 The clause contained the only provision for the 
 latter, and the principal provision for the 
 former, and embraced the largest part of the 
 testator|s estate. The personal estate proved 
 insufficient to pay the debts and general legacies, 
 the inadequacy being revealed after the testa- 
 tor's death. Mdd, that the general legacies 
 were not chargeable upon the residuary real es- 
 tate. — Ot. ofApp^ Jan., 1878. Bevan v. Cooper, 
 72N. Y. 317. 
 
 3. The doctrine of equitoAh conversion. 
 
 53. Effect of power to sell. Where a 
 testator authorizes his executors to sell real es- 
 tate, and it is apparent from the general provi- 
 Bionsof the will that he intended a sale, the 
 doctrine of equitable conversion applies, al- 
 though the power of sale is not in terms imper- 
 ative. — O. of App., Jan., 1880. Power v. Cas- 
 sidy, 79 N. Y. 602. 
 
 54. Necessity of actual sale. That a 
 devise to sell and distribute the proceeds of real 
 estate is not, without a sale, an equitable con- 
 version of the real estate into personalty, see 
 Matter of Hunter, 3 Bedf. 175. 
 
 55. Election to take the land. Where 
 a will directs real estate to be converted into 
 money, and the proceeds distributed, the parties 
 entitled thereto may, if of lawful age, and if the 
 rights of others will not be aflfected, elect to take 
 the lands, and prevent the actual convei'sion 
 thereof into personalty. — Ct. of App., Jan., 1880. 
 Prentice v. Janssen, 79 N. Y. 478. 
 
 56. So distinct or positive act is required ; a 
 slight expression of intent will .be considered 
 sufficient to show an election. lb. 
 
 4. Actions for the construction of with. 
 
 57 Jurisdiction. The Supreme Court of 
 this state has no jurisdiction to declare and ad- 
 ludge the construction to be given to a will, 
 .^uly admitted to probate in this state, which 
 contains no trusts. — Supreme Ct., (4«A Dept.,) 
 April, 1880. Wager v. Wager, 21 Hun 93. 
 
 58. The right to sue. Where a will con- 
 tains no trusts, a devisee claiming a mere legal 
 estate in the lands devised, cannot maintain an 
 equitable action for the construction of the will ; 
 nor can one interested under the will, but who 
 claims in opposition to a clause therein. — Su- 
 preme a., {1st Dept. Sp. T.,) April, 1878. Dun- 
 can V. Duncan, 4 Abb. N. Cas. 275. See, also, 
 Stinde v. Eidgway, 55 How. Pr. 301 ; Trow v. 
 Shannon, 59 Id. 214. 
 
 59. Where an estate in lands given by testa- 
 tor's will to his wife is claimed by her to be in 
 fee, and by his heirs-at-law to be for her life 
 only, the heirs-at-law cannot maintain an action 
 for the construction of the will, and to have Llie 
 estate to which, she is entitled judicially deter- 
 mined.— SMpreme Ct., (M Dept.,) May, 1878. 
 Marlett v. Marlett, 14 Hun 313. 
 
 i 
 
 60. The wife was appointed executrix, and 
 the will gave her the testator's residuary es- 
 tate either for life or absolute. , Seld, that testa- 
 tor's next of kin could not maintain an action to 
 have the nature of the estate to which she was 
 entitled declared, in the absence of proof that 
 she was squandering or wasting the estate, or 
 unable to respond to the plaintiffi, at the termi- 
 nation of the life estate or to those who might 
 then represent them. lb. 
 
 61. The judgment, tn an action brought, 
 for the construction of a will, it is improper in- 
 the judgment to direct the executors to sell land 
 under a discretionary power of sale vested in 
 them by the will.— &preme Ct., CM Beat.,) Dec., 
 1878. Gelston v. Shields, 17 Hun 143: affirmed. 
 78N. Y. 275. • 
 
 VI. CONTESIING A WlLl POK InOAPACITT 
 OR UnDTJE iNFLTTEtfCE. 
 
 62. Jurisdiction. As to the power of a 
 court of equity to entertain an action to set 
 aside a will, and when a refusal to entertain 
 jurisdiction of such an action is proper, see De- 
 Bussierre v. HoUaday, 4 Abb. N. Cas. Ill ; S. 
 C, 55 How. Pr. 210. 
 
 63. What constitutes testamentary 
 incapacity, and how proved. The feet, 
 that an aged person is forgetful and at times- 
 labors under slight delusions, does not per se es- 
 tablish want of testamentary capacity. — Gt. of 
 App., Sept., 1877. Children's Aid Soc. v. Love- 
 ridge, 70 N. Y. 387._ 
 
 64. What constitutes mental unsoundness, 
 and the admissibility and weight of various- 
 proofs and indications of mental derangement 
 discussed, in view of the circumstances of the 
 particular case. — N. Y. Sarr. Ct. La Bau v. 
 Vanderbilt, 3 Redf. 384. OS. of App., Sept., 1879.. 
 Coit V. Patehen, 77 N. Y. 533. 
 
 65. What constitutes undue influ- 
 ence, and how proved or disproved. 
 In order to avoid a will, upon the ground of 
 undue influence, it must be shown that the in- 
 fluence exercised amounted to moral coercion, 
 which restrained independent action and de- 
 stroyed free agency; or that, by importunity, 
 which he was unable to resist, the testator was- 
 constrained to do that which was against his free 
 will and desire.— C!!. of App., Sept., 1877. Chil- 
 dren's Aid Soc. V. Loveridge, 70 N. Y. 387. 
 
 66. Although by the will of an aged invalid, 
 radical changes are made from previous testa- - 
 mentary disposition, yet when the testimony 
 shows that the act was free, voluntary and intel- 
 ligent, the will will be sustained. lb. 
 
 67. Where those who surromid such a testar 
 tor and are present at the execution of the will, 
 are interested, either in their own behalf or in. 
 behalf of friends who are beneficiaries, and no- 
 outside or disinterested persons are present to- 
 witness or participate; where the will is drawn 
 by one named as executor, members of 
 whose family are beneficiaries ; and where the- 
 executors named in (he will are the witnesses 
 thereto ;' while these facts may cull for and im- 
 pose upon ihe proponents of the will_ the burden 
 of explanation, they are not conclusive of fraua. 
 or undue influence, and do not necessarily ren- 
 der the will invalid. lb. 
 
 68. Wheie it appeared that at the time of 
 the execution of a will there were no other near 
 relatives to call or consult ; that former benefi- 
 
WILLS, VI.— WITNESSES, L, II. 
 
 45.3 
 
 claries, who were not summoned to be present, 
 had excited the prejudices of the testatrix, who 
 had intended in consequence to exclude them 
 from participating in her estate.; and that disin- 
 terested persons were sent for as witnesses, but 
 <:ould not be obtained ; that the drawing of the 
 will by the executor was at the express request 
 of the testatrix, who, upon its being suggested, 
 objected to having the attorney who had drawn 
 former wills, called, and particularly requested 
 that it should be kept private ; and that the dis- 
 position made was in accordance with the in- 
 tention of the testatrix, as expressed by her to 
 hor physician and other disinterested persons — 
 Hdd, that the explanation was sufiScient to rebut 
 any presumption of fraud or undue influence ; 
 that, while the executor should have objected to 
 ■drawing the will, this act was not such an abuse 
 ■of confidence, under the circumstances, as to in- 
 validate the will. lb. ' 
 
 69. A change of testamentary intention is 
 important sometimes as bearing upon the ques- 
 tion of undue influence, but its force depends 
 mainly upon its connection with other facts. If 
 the change is made upon a reason satisfactory to 
 the testator, it furnishes no ground for setting 
 aside the will, although the reason may seem in- 
 adequate to a court investigating the question. — 
 Ot. of App., Jan., 1878. Horn v. Pullman, 72 
 N. Y. 269, 276. 
 
 "70. The question in all such cases is simply. 
 Was tlie will the free act of a competent testator ? 
 The fact that its provisions are inequitable and 
 unjust, furnishes no ground for disturbing it. lb. 
 277. 
 
 71. H., a man ei^ty-three years of age, and 
 •of impaired mental and physical powers, made 
 a will, leaving the bulk of his property to C, a 
 grandson, and his wife, to the exclusion of the 
 ■children of the testator. He had made three 
 prior wills; by the first two the bulk of his 
 property was left to his three sons ; the thif d will 
 was substantially like the one in question. C. and 
 his wife, for about six years before the making 
 ■of the last will, had lived with the testator and 
 ■cared for him, and C/ had managed his farm. 
 "The will stated that the provision for C. and 
 wife was made because of the affection he bore 
 them, and for "the faithful care and support" 
 of his declining years. The testator's own chil- 
 ■dren lived elsewhere, visited him but seldom, 
 and declined to have him live with them. Of 
 this he complained. His relations, however, 
 ■with them were friendly. The testator acted in- 
 telligently in matters of business which engaged 
 his attention, and in other matters. His attend- 
 ing physician, who was also a subscribing wit- 
 ness to the will, gave his opinion as a witness 
 that neither the mental nor bodily infirmities of 
 the testator affected his competency. The testa- 
 tor gave all the instructions as to the drawing of 
 the will, without suggestions from any one, and 
 stated the reason for the changes he desired to 
 have made. After the will was drawn it was 
 jead over to him, and he pronounced it right. 
 Neither C. nor his wife was present, and it did 
 not appear that they did any act to influence the 
 testator. Hdd, that the evidence failed to sliow 
 want of mental capacity, or to establish a case 
 ■of undue influence ; and that the will was prop- 
 ■erly admitted to probate. lb. 
 
 72. As to what facts suffice to warrant a find- 
 ing of undue influence, see Booth v. Kitchen, 3 
 JBedf. 52 ; Mairs v. Freeman, Id. 181. 
 
 73. What facts are insufficient^ to constitute 
 such undue influence as will avoid a will, see 
 Wait V. Breeze, 18 Hun 403. 
 
 As to the powers, duties and liabilities of Ex- 
 ecutors and Testamentary trustees, see Executobs 
 AND Administratobs ; Trusts. 
 
 As to the admissibility of Parol evidence to 
 explain the meaning of words used in a will, see 
 Evidence, 103. 
 
 WITNESSES. 
 
 I. Attendance and CoMPENaATioN. 
 II. Competency. 
 
 1. Parties to the record. . 
 
 2. Persons interested in the event. 
 
 3. Husband and wife, 
 
 4. Attorneys. Physicians. 
 
 5. Convicts. ■-, 
 JII. Credibility. 
 
 1. Oeneral rules. 
 
 2. Impeaching ana contradicting. 
 
 3. Corroborating. 
 
 IV. EniiEs OF Examination. 
 
 1. Examination-in-chief. Oross-exami- 
 
 nation. Me-examinalum^ 
 
 2. Mefreshing the memory. 
 
 V. Opinions of Experts, and others. 
 
 I. Attendance and Compensation. 
 
 1. Oompelling attendance. An attach- 
 ment to compel the attendance of the superin- 
 tendent of the Albany penitentiary, as a wit- 
 ness before a committee of the supervisors, 
 mayor and recorder of Albany, refused in a par- 
 ticular case.— (Supreme Ct., {Alb. Sp. T.,) Sept., 
 1878. Matter of Pilsbury, 56 How. Pr. 290. 
 And compare Matter of Dickinson, 58 Id. 260. 
 
 2. Privilege from arrest and civil 
 process. A non-resident witness is privileged 
 both from arrest and service of summons; a 
 resident witness is privileged from arrest only, 
 not from service of summons. A party, even 
 though a non-resident, is only privileged from 
 arrest, not from service of summons. — Supreme 
 Ot., {Onondaga Sp. T.,) July, 1878. Jenkins v. 
 Smith, 57 How. Pr. 171. S. P., as to non-resi- 
 dent witness, Grafton v. Weeks, 7 Daly 523. 
 
 3. Fees. A witness subpoenaed under a 
 svbpaena duces tecum is entitled to a fee of fifty 
 cents only, the same as an ordinary witness. — ■ 
 Supreme Ot., {1st Dept. So. T.,) March, 1879. 
 Matter of Corwin, 6 Abb. N. Gas. 437. 
 
 II. Competency. 
 
 1. Parties to the record. 
 
 4. Competency of parties to testifSr, 
 generally. Where the deposition of a party, 
 taken before trial, is read thereon without ob- 
 jection, he is not thereby precluded from being 
 examined as a witness on the trial. — Ct. of App., 
 Jan., 1880. Misland v. Boynton, 79 N. Y. 630. 
 
454 
 
 WITNESSES, II. 
 
 5. Where a fraudulent intent is imputed to a 
 person, or_ forms an element of a crime with 
 ■which he is charged, he may, as a witness on his 
 own behalf" deny the fraudulent intent, whether 
 the effect be to defeat the action or to diminish 
 the damage .or punishment. — Supreme Ct., (ith 
 DepU,) Oct., 1878. Baboock v. People, 15 Hun 
 347. 
 
 6. Testimony as to transactions with 
 deceased persona; when competent, 
 generally. In an action against a surviving 
 partner upon a contract made with the firm, 
 plaintiff may testify as to a personal transaction 
 with the deceased partner, if defendant was 
 present at the time it occurred.^-Suprenie Ct., 
 (3d Dept.,) May, 1879. Kale v. Elliott, 18 Hun 
 198. 
 
 7. In an action upon a promissory note, the 
 defence was, in substance, that defendants' pur- 
 chased for plaintiff,, and with her money, cer- 
 tain United States bonds ; that she not desiring 
 to be known as the purchaser, thpy were bought 
 in a defendant's name, and left in their hands 
 for safe keeping, the note being given as a means' 
 of insuring the delivery of the bonds when 
 called for, or of obtaining a compensation there- 
 for if they were withheld ; and that the bonds 
 were subsequently delivered to plaintiff's hus- 
 band, who was her authorized ageut. Upon 
 the trial one of the defendants was allowed to 
 testify to conversations with plaintiff's husband, 
 who was then deceased, in one of which he re- 
 quested witness to go and purchase the bonds in 
 his own name. No authority had then been 
 shown in plaintiff's husband to act for her, and 
 the evidence was objected to on that ground ; 
 the authority was subsequently proved, and it 
 appeared from the record that the trial court 
 knew that this should be established before the 
 declarations were competent. Held, that the 
 objection was simply to the order of proof, 
 which is always in the discretion of the court, 
 and so was untenable ; and that the testimony 
 was relevant.— Cc of App., Sept., 1879. Plat- 
 ner v. Platner, 78 N. Y. 90. 
 
 The testimony was also objected to as in vio- 
 lation of the spirit of Code of Pro., § 399. 
 Held, untenable. 
 
 8. — ■wrhen incompetent. In an action 
 for the specific performance of an alleged parol 
 contract for the sale of land by L., since de- 
 ceased, through whom defendants derived title, 
 to plaintiff, the latter claimed and gave evidence 
 of adnyssions of L., tending to show that the 
 price for the land, was $12 per acre, which he 
 had paid. Defendants claimed and proved 
 admissions of plaintiff to the effect that the price 
 was $30 per acre. Plaintiff thereupon, as a wit- 
 ness in his own behalf, was asked : " Did you 
 ever agree to pay $30 an acre for the land ?" 
 This was objected to as inadmissible, under 
 g 399 of the code. The objection was overruled, 
 and the plaintiff answered "No." Held, that 
 the question was incompetent, as it directly in- 
 volved a transaction with the deceased, and the 
 reception of the evidence was error.— Oi!. of App., 
 April, 1877. Chadwick ». Foiiner, 69 N. Y, 404, 
 
 407. , . . ,. 
 
 O. Defendant was called as a witness in his 
 own behalf; on cross-examination he was ask- 
 ed what the consideration expressed in a deed 
 from the deceased to him was; he answered, 
 "$6000 imaginary consideration." His counsel 
 then asked him to state the real consideration ; 
 
 this was objected to as calling for a transactio i* 
 with the deceased, and excluded. HM, no error 
 —Ol. of App., Sept., 1879. Ball-ou v. Ballou, 7» 
 N. Y. 325. 
 
 10. As to the right of a party to be examined 
 on his own behalf, under Code of Civ. Pro., I 
 829, in respect to transactions with a deceased per- 
 son, see also, Pettit v. Geesler, 58 How. Pr. 195 • 
 Markell v. Benson, 55 How. Pr. 360 ; Champlin 
 V. Seeber, 56 How. Pr. 46 ; Titus v. O'Connor, 18- 
 Hun 373 ; S. C, 57 How. Pr. 391 ; Hill v. Heer- 
 mans, 17 Hun 470. 
 
 II- — when competent as against 
 personal representatives of the de- 
 ceased person. On an application by a 
 child for his share of his father's estate, the ex- 
 ecutors claimed to deduct a sum alleged to havfr 
 been advanced to him by the testator, in his- 
 lifetime, and put in evidence to prove such ad- 
 vancement, an entry made in one of testator's 
 books. Held, that the child was entitled, under 
 Code of Civ. Pro., § 829, to testify in reference to. 
 such advancement, and explain or deny such 
 entij.— Supreme Ct.,(lstDept.,) Juh/, 1879. Marsh 
 V. Brown, 18 Hun 319. 
 
 12. That Code of Pro., § 399, does not apply 
 in an action against a bank to recover a deposit 
 made by a deceased person and assigned to plain- 
 tiff, merefy because the executors of the original 
 depositor have indemnified the bank, without 
 intervening as parties to the action, see Seven* 
 V. Nat. State Bank of Troyj 18 Hun 228. 
 
 13. — when incompetent. Although a 
 party is not incompetent under Code of Pro., § 
 399, to testify to an independent conversation 
 between the deceased and a third person, yet if 
 he participated in the conversation and it re- 
 lated to a transaction between him and the de- 
 ceased, he is incompetent. Therefore, where in 
 the course of a business transaction between 
 plaintiff's testator and defendant M., the de- 
 ceased made certain statements to Y., who was 
 engaged in drawing up papers between the par- 
 ties in regard to such transaction, and whicli. 
 statements were in reference to it — Held, that 
 M. was incompetent to testify thereto. — Ct. of 
 App., Jan., 1878. Kraushaar v. Meyer, 72 N. 
 Y;602. 
 
 14. In an action for money had and received- 
 it was alleged in the answer that the money and. 
 property in controversy were placed in the hands- 
 of defendant's intestate by plaintiff, with intent 
 to defraud his creditors. After evidence had 
 been given on the trial tending to sustain th& 
 answer, plaintiff, as a witness in his own behalf^ 
 was asked if he put any property in the hands 
 of the intestate with intent to defraud his cred- 
 itors. Plaintiff's counsel objected generally,, 
 and the referee sustained the objection. Held,. 
 no error ; that plaintiff was incompetent to an- 
 swer, under Code of Pro., § 399, as it related to 
 a personal transaction with the deceased, and 
 that the objection was sufficient. — Ct. of App.,. 
 May, 1877. Tooley v. Bacon, 70 N. Y. 34. 
 
 15. Plaintiff was also asked who was owner 
 of the property placed in the hands of the de- 
 fendant's intestate. Held, that it was properly 
 excluded on the same ground. Ih. 
 
 16. The surety upon the bond of a non-resi- 
 dent executor is interested in the event of the- 
 accounting of his principal, within the meaning^ 
 of Code of Pro., § 399 ; therefore— 
 
 Held, 1. That such a surety was incompetent, 
 to testify, as a witness on behalf of the executor^ 
 
WITNESSES, II. 
 
 455 
 
 5 a personal transaction or communication be- 
 freen him and the deceased. 
 
 2. That the fact that the surety was call- 
 d by those objecting to the executor's ac- 
 ount, and was examined as to other facts to 
 fluch he was competent to testify, was not a 
 raiver of their right to object to the calling out 
 f the incompetent evidence upon cross-exami- 
 .tion. 
 
 3. That such incompetent evidence having 
 leen given without objection, the court had the 
 lower to strike it out on motion, proof being 
 aade that, at the time the evidence was given, 
 he contestants were ignorant of the fact that the 
 fitness was a surety, and it appearing that no 
 larm could come to the executor by the delay 
 n making the objection ; that it was a matter 
 irithin the discretion of the trial court, with the 
 air exercise of which this court would not in- 
 firfere.— 0!. of App., Sept., 1879. Miller v. 
 ktontgomery, 78 N. Y. 282. 
 
 17. Upon the trial, one of the defendants ad- 
 nitted tfeit she had possession of the property, 
 br the conversion of which the action was 
 jrought, but claimed to have a lien upon it, 
 inder the statutes of New Jersey, for rent due 
 ler by plaintiff's testator. To substantiate 
 laid claim, she was allowed, against plaintiff's 
 ]bjection and exception, to prove, by her own 
 estimony, a hiring, by the deceased, of a part 
 )f her house, at an ajreed rental, the occupa- 
 ;ion thereof, &c., &c. Sdd, error, as involving 
 jersonal transactions between the deceased and 
 1 party interested in the event, as against exec- 
 itors. — Superior Ot., June, 1879. Hammond v. 
 Jchultze, 45 Superior 611. 
 
 18. In an action to foreclose a mortgage exe- 
 nited by a husband and wife, upon land belong- 
 ng to the wife, to one C, and by him assigned 
 io plaintiff's testatrix, judgment for any defi- 
 ciency was asked against the husband. 0. was 
 lead. The husband was offered as a witness to 
 prove usury in the loan to C. Seld, that his 
 «8timony was inadmissible, under Code of Civ. 
 Pro., I 829— ySiipi-me C*., (2d Dept.,) Sept., 1878. 
 W^hitehead v. Smith, 14 Hun 531. 
 
 19. In an action for services rendered and 
 naterials furnished to defendant's testator, plain- 
 ;iff served a bill of particulars, made after the 
 estator's death, containing a statement of the 
 »ntraot-price of the services and materials. 
 3.e was allowed to testify to its accuracy in 
 jross, and then to read it in evidence. Held, 
 hat the evidence was inadmissible under Code 
 if Civ. Pro., ? S29.— Supreme Ct., (2d Dept.,) 
 Td>., 1879. Fisher v. Verplanck, 17 Hun 150. 
 
 20 — -when party may testify for 
 50-party. The payee of the note sued on 
 laving died, this action was brought by her ad- 
 ninistrator. Upon the trial, the maker, who 
 iffered no defence, was allowed, against plain- 
 iff 's objection and exception, to testify in behalf 
 if the surety as to personal transactions had by 
 lim with the deceased. Held, that as his testi- 
 aony was not in his own behalf or interest, or 
 a that of the party succeeding to his title or in- 
 srest, it was not inadmissible under Code of 
 'ro., ? 829.— Supreme Ot., (3d Dept.,) Jan., 1879. 
 Jhurch V. Howard, 17 Hun 5. Compare AlUs v. 
 Itafford, 14 Hun 418 ; Ely v. Clute, 19 Hun 35 ; 
 lichardson v. Warner, 13 Hun 13. 
 
 21. In an action brought by the personal re- 
 resentatives of a deceased person upon a 
 romissory note against maker and indorser, 
 
 neither of the defeiidants can be called as a wit- 
 ness in favor of the other, as to personal trans- 
 actions with the deceased, although they have 
 put in separate answers. — Ct. <tf App., Sept., 
 1877. Alexander v. Butcher, 70 N. Y. 385 ; 
 affirming 7 Hun 439. 
 
 22. Code of Pro., ? 399, makes no distinction 
 between cases wjiere parties are called as wit- 
 nesses in their own behalf or in behalf of a co- 
 defendant, or cases where they were jointly or 
 severally liable. lb. 
 
 23. The act of 1832, (Laws of 1832, ch. 236,) 
 authorizing maker and indorser to be joined in 
 one action, and declaring that a defendant in 
 such action shall be entitled to the testimony of 
 a co-defendant in those cases where he would 
 have been entitled to it, had the suit been 
 brought in the form theretofore used, was super- 
 seded by Code of Pro., U 120 and 397. lb. 
 
 2. Persons interested in the event. 
 
 ■ 24. Agents. In an action upon promis- 
 sory notes made by defendant, and delivered to 
 and owned by plaintiffs' intestate at the time of 
 his death, the notes were signed with defendant's 
 name by an agent. Held, that the agent was a 
 competent witness for defendant, to prove pay- 
 ment of the notes to the intestate — Supreme Ct., 
 (2d Dept.,) Dec., 1878. Nearpass v. Oilman, 
 16 Hun 121. 
 
 25. G-rand jurors may be examined as 
 witnesses, on a motion to quash, with a view to 
 ascertain whether or not twelve of the panel 
 concurred in finding the ■indictment. — Buffalo 
 Suprerior Ct., {Grim. T.,) June, 1878. People v. 
 Shattuck, 6 Abb. N. Cas. 33. 
 
 26. Heirs. Under the Code of Civ. Pro., 
 ? 829, an heir cannot testify as to personal trans- 
 action with the deceased, as against an executor 
 propounding the will for probate. — Supreme Ot., 
 (3d Dept.,) Jan., 1880. Sclioonmaker j). Wol- 
 ford, 20 Hun 166. 
 
 27. Legatees. UnSer Code of Pro., § 399, 
 a legatee under a will could not be examined 
 as to personal transiictious with the testator, as 
 against his executors, although her interest was 
 adverse to that of the partv calling her. — /Su- 
 preme Ot., (3d Dept.,) Sept.] 1878. Gifford v. 
 Sackett, 15 Hun 79. 
 
 That it is otherwise, under Code of Civ. Pro., 
 ? 829, see Pursell v. Fry, 19 Hun 595; S. C, 58 
 How. Pr. 317. ' 
 
 28. Next of kin. In an action by an ad- 
 ministrator to set aside an assignment of a mort- 
 gage made by his intestate, the next of kin, 
 though interested in the event and claiming 
 their rights through the plaintiff, may testify in 
 his behalf, under Code of Civ. Pro., ? 829, as to 
 what they had noticed and observed in the con- 
 duct and actions of the intestate, and as to per- 
 sonal transactions of his with which they had 
 no connection, and as to communications made 
 by him to others in their presence without any 
 inducement, suggestion or participation on their 
 ■part.— Supreme a, (3d Dept.,) Jan., 1880. Hol- 
 comb V. Holcomb, 20 Hun 156. 
 
 3. Husband and wife. 
 
 29. Oompetenoy of wife, generally. 
 In an action by an ad ministrator, to recover certain 
 personal property belonging to his intestate, the 
 defence was that certain notes, described in the 
 complaint, were given by the intestate to de- 
 
456 
 
 WITNESSES, II., HI. 
 
 fendant K., the proceeds to-be equally divided 
 between himself and defendant J. j that the 
 residue of the property described in the com- 
 plaint was given to defendant J. and his wife. 
 Upon the trial J.'s wife wa-s permitted to testify, 
 as a witness, for defendants, as to what occurred 
 at the time the intestate was alleged to have 
 given the notes to K. Held, that, as her hus- 
 band was interested in the event of the action, 
 as he was to share in the proceeds of the notes, her 
 testimony was incompetent under Code of Civ' 
 Pro., g 830.— Supreme a.. {ithDeat.,] Oct., 1878 
 Waver v. Waver, 15 Hun 278. 
 
 . 30- — in suits involving the mar- 
 riage relation. In an action for crim. coji. the 
 divorced wife of the plaintiff is a competent 
 witness for him, both to prove the marriage and 
 the offence charged— Of. of App., Nov., 1877. 
 Wottrich V. Freeman, 71 N. Y. 601. 
 
 31. The judgment record in the action for di- 
 vorceis competent evidence to show the state of 
 the divorced wife and her competency as a wit- 
 ness. Such judgment cannot be attacked for error 
 or irregularity. lb. 
 
 32. That under the provisions of Rule 78, a 
 defendant in an action for divorce cannot be per- 
 mitted to testify in her own behalf to con- 
 tradict the plaintiff, in respect to the matters 
 as to which that rule allows the plaintiff to 
 testify, see Hennessey i;. Hennessey, 58 How. 
 Pr. 304. 
 
 4. AUomeya. Physidam. 
 
 33. Attorneys. In the examination of a 
 par^ to an action against parties claiming under 
 a deceased person, under Code of Pro., | 399, 
 the question " About the time you were intro- 
 duced to [the deceased,] did you commence any 
 action for him ?" is inadmissible, as calling for 
 evidence of employment of the witness by the 
 deceased. — 8v/perior Ot., Jan., 1878. Freeman v. 
 Lawrence, 43 Superior 288. 
 
 34. On a trial for seduction, an attorney em- 
 ployed by the prosecutrix to bring an action 
 against the accused for breach of promise of 
 marriage was asked wliether he obtained from 
 her the facts stated in the complaint in scnh 
 action. This was objected to as calling for a 
 privileged communication. The complaint was 
 not sworn to, nor was it read over to the prose- 
 cutrix after it was made. Held, that the objection 
 was properly sustained. — Ot. of App., June, 1877. 
 Armstrong v. People, 70 N. Y. 38, 47. 
 
 35. Physicians. What questions may be 
 asked of a physician who attended the deceased, 
 in an action on a life insurance policy, see Bd- 
 ington V. iEtna Life Ins. Co., 13 Hun 543 ; re- 
 versed, on other points, 77 N. Y. 564. 
 
 5. Gonvicis. 
 
 36. Conviction without sentence 
 does not not disqualify. Under the pro- 
 vision of the Revised Statutes (2 Rev. Stat. 681, 
 j 1,) disqualifying thereafter, as a witness, any 
 person wlio ''shall, upon conviction, be ad- 
 judged guilty of perjury," a person is not ren- 
 dered incompetent until, by judgment, sentence 
 has been pronounced upon him; a verdict of 
 guilty alone is not sufl3oient.— d. of App., 
 March, 1877. Blaufus v. People, 69 N. Y. 107. 
 
 37. Foreign conviction and sentence 
 do not render incompetent. The provis- 
 
 ion of the Revised Statutes, (2 Rev. Stat., 701, ? 
 23,) declaring a person sentenced upon a convic- 
 tion for felony, to be incompetent as a witness 
 does not apply to a conviction in another state ' 
 It has reference only to a conviction in this state' 
 —Ct. of App., Dec., 1878. Sims v. Sims, 75 N. Y. 
 466 ; reversing 12 Hun 231. AprU, 1879. Na- 
 tional Trust Co. of New York v. Gleason, 77 N. 
 Y. 400, 410. 
 
 38. That the fact that under the laws of an- 
 other state where a conviction was had, a person 
 convicted of the offence was incompetent as a 
 witness, does not affect his competency in this 
 state, see Sims v. Sims, supra. 
 
 39. This rule is not affected by the fact that 
 at the time he is offered as a witness the term of 
 his sentence has not expired. National Trust 
 Co. of New York v. Gleason, sapra. 
 
 III. CEEDIBrLITT. 
 
 1. General rules. 
 
 40. Discretionary power of the jury. 
 
 A jury is not bound to adopt the statements of a 
 witness simply for the reason that no other wit- 
 ness has denied them, and that the character of 
 the witness is not impeached ; the witness may 
 be contradicted by circumstances as well as by 
 statements of others, contrary to his own, or 
 there may be such a degree of improbability in 
 his statements as to deprive them of credit, 
 however positively made. — Ol. of App., Sept., 
 1879. Koehler v. Adler, 78 N. Y. 287. 
 
 But the testimony of a witness which is mere- 
 ly controverted and not otherwise impeached 
 cannot ordinarily be entirely disregarded as ut- 
 terly false.— Oi!. of App., Nov., 1878. Moran v. 
 MoLarty, 75 N. Y. 25. 
 
 41. Plaintiffs' case in the main depended on 
 the evidence of H., who testified to a conspiracy 
 between him and C to defraud the plamtiffi, 
 and to the accomplishment of the fraud alleged 
 in the complaint. He was contradicted by G., 
 and in essential particulars, by at least half a 
 dozen witnesses, in such a manner that if he 
 told the truth, they willfully perjured them- 
 selves. He, however, was corroborated to a 
 large degree by facts and circumstances. Sdd, 
 a verdict for plaintiffs should not be disturbed. — 
 Superior Ol., March, 1878. Cohn v. Goldman, 
 43 Superior 436 ; reversed 76 N. Y. 284. 
 
 42. Credibility as dependent upon 
 character of witness. The fact that the 
 testimony of a witness is shown to be untrue in 
 some particular does not, as matter of law, 
 wliere it is not made plain that the testimony 
 was corruptly given, require his testimony, as to 
 other matters in which it is not contradicted, to 
 be disregarded.— Ci!. of App., Oct., 1878, Deer- 
 ing!). Metcalf, 74N..Y. 501. 
 
 43. The mB.ximfal«as in unOjfalsus in omni- 
 bus is not of universal application. The un- 
 contradicted testimony of even a forsworn wit- 
 ness, if corroborated, must not necessarily be 
 utterly rejected and disregarded. The true rule 
 is that the jury is at liberty to reject utterly the 
 testimony of a witness who has deliberately 
 sworn falsely in regard to any material fact in 
 the case, except in so far as he is corroborated 
 by other credible witnesses, or by necessary in- 
 ferences from undisputed facts. — Superior Ct., 
 May, 1878. Seymour v. Fellows, 44 Superior 
 124. , 
 
WITNESSES, III. 
 
 457 
 
 44. _ or his bias. Where the credibility 
 ' a witness is impeached, his testimony cannot 
 s taken as conclusive although uncontradicted, 
 id the question of fact as to which his testi-' 
 lony was given must be submitted to the jury. 
 
 where the witness is interested in the ques- 
 OD, although he is not directly impeached, and 
 is testimony is uncontradicted, his credibility 
 
 1 a question for the jury, and the court is not 
 'arranted in directing a verdict upon his testi- 
 lony alone.— Ct. of Am., April, 1878. Gilder- 
 leeve v. Landon, 73 n! Y. 609. 
 
 45. — upon inconsistent testimony. 
 Vhen a plaintiff, to fasten a liability on a de- 
 sndant by reason of an act done between a per- 
 on acting on behalf of the plaintiff and the 
 lefendant, calls as a witness he who acted on 
 )laintiff's behalf, who testifies that the act done 
 to wit, the payment of a sum of money) was 
 lone under such circumstances as not to fasten 
 I liability on the defendant (to wit, as compen- 
 i;ttion, pursuant to an agreement between pfain- 
 iff and defendant, of which the witness had no 
 personal knowledge, for services rendered by 
 ;he latter to the former,) and who, upon a fur- 
 ther examination by plaintiff, in the nature of 
 1 cross-examination, allowed on the assumption 
 that he was an adverse witness, gives evidence 
 tending to show that his first statement as to the 
 oircumstances under which the act was done 
 was incredible (viz., an inability to state what 
 the services were for which the payment was 
 made, or to show how and why it was that all 
 the services which the witness had detailed were 
 aot fully compensated under an agreement be- 
 Iween the parties, without the payment in ques- 
 tion,) it cannot be inferred, that the transaction 
 must have been of a kind that madethe defend- 
 ant responsible. ,If the examination in the na- 
 ture of a cross-examination, successfully shows 
 the first statement to be incredible, the whole 
 account of the witness must go for nothing, as 
 not shown by a credible witness. — Supeiior Ot., 
 April, 1879. American Kational Bank of New 
 York V. Wheelock, 45 Superior 205. 
 
 46. Credibility of party. The rule 
 that where a witness is unimpeached, and the 
 facts sworn to by him are uncontradicted, either 
 directly or indirectly by other witnesses, and 
 there is no intrinsic improbability in the rela- 
 tion he gives, his testimony cannot be disregard- 
 ed by the court or by the jury, does not apply 
 to parties who are witnesses in their own behalf. 
 The jury may disregard their evidence though 
 uncontradicted and unimpeached. — Com. Pleas., 
 Jan., 1879. Nicholson v. Conner, 8 Daly 212, 
 215. 
 
 47. — of accomplices. In this state, it 
 is the law that a person charged with crime may 
 be convicted upon the uncorroborated evidence 
 of an accomplice. Such evidence should be 
 carefully scrutinized and generally should be 
 corroborated before it is relied on to produce a 
 conviction. But if a jury believe the facts tes- 
 tified to by an accomplice uncorroborated, they 
 can base their verdict upon it, and ihe judge 
 presiding at the trial would not be justified in 
 instructing the jury to disregard such evidence. 
 —Ot. of App., Nov., 1879. New York Guaranty, 
 &c., Co. V. Gleason, 78 N. Y. 503, 512 ; S. P., 
 Stape V. People, 21 Hun 399. 
 
 48. The rule that the evidence of a para- 
 mour or other accomplice is to be listened to 
 with caution, and should be corroborated, only 
 
 applies when the witness admits the criminality 
 alleged, not where such witness appears only in 
 obedience to process and denies any criminality, 
 —a. of App., Nov., 1877. Pollock v. Pollock, 71 
 N. Y. 137, 152. 
 
 49. Weighing testimony — oonniot- 
 ing testimony. In judging of the evidence 
 of several witnesses who have testified to_ the 
 same occurrence, their capacity to observe is to 
 be tested by their cultivation of mind and 
 quickness of faculties, and of sight. — Superior 
 Ct., Jan., 1878. Adolph v. Central Park, &c., 
 E. E. Co., 43 Superior 199. 
 
 50. The jury may take parts of the testi- 
 mony of the witnesses in connection with all 
 the probabilities of the case, and thus determine 
 the fact. It is not necessary that they should 
 take the whole of any one witness' statement. 
 lb. 
 
 51. As between the keeper of a house of ill- 
 fame and the landlord who rents the house for 
 that purpose, and the person who equips it for 
 that purpose, neither has any advantage over 
 the other in morals, and neither is to be more 
 favorably considered by the court or jury in 
 weighing testimony, and determining the credit 
 to be given. — Superior Ct., AprU, 1878. Hewitt 
 •D. Morris, 44 Superior 557. 
 
 52. When two accomplices are called as wit- 
 nesses, whether more weight should be given to 
 the evidence of two than of one, and whether 
 they corroborate each other, and to what extent, 
 are matters for the jury. New York Guaranty, 
 &c. Oo., V. Geason, supra. 
 
 2. Impeaching amd contradicting. 
 
 53. The right to impeach, or contra- 
 dict a "witness. The right to cross-examine 
 a witness as to any fact, for the purpose of dis- 
 crediting him, by contradicting his testimony 
 by other witnesses, is limited to those matters 
 which tend to contradict, discredit, vary, qualify 
 or explain the testimony given by the witness, 
 on direct examination. — Supreme Ct., {ith Dept.,) 
 Api-U, 1880. People v. Cox, 21 Hun 47. See, to 
 the contrary, Greenfield v. People, 13 Hun 242. 
 
 54. How a witness may be impeach- 
 ed, generally. This action was brought by 
 the plaintiff, who claimed to be the widow of 
 one William Clark, to recover her dower in cer- 
 tain lands devised by the said Clark to the de- 
 fendant. The latter denied that the plaintiff 
 was ever married to Clark. Upon the trial the 
 plaintiff gave evidence tending to show that on 
 the 12lh of October, 1 870, she was married to 
 Cark, at his house, near Carthage, Lewis county, 
 by a Cafholic priest, in the presence of Bridget 
 Foley (her sister), and Catharine Purcell. Two 
 witnesses for the plaintiff, who testified that the 
 marriage ceremony was performed by the priest 
 on the day stated, said that he remained at 
 Clark's house on that occusion about two weeks. 
 The priest died before the trial of this action. 
 The defendant offered in evidence a register 
 of baptisms kept by the priest at his church in 
 Schenectady, containing entries inhis hand writ- 
 ing showing baptisms performed by him, in 
 that city, on the 1st, 6th, 9th, 10th, 16th, and 
 23d of October, 1870. 
 
 Held, 1. That the entries in the book were ad- 
 missible to discredit the testimony of the wit- 
 nesses to the effect that the ceremony took'^lace 
 
468 
 
 WITNESSES, III. 
 
 on October 12th, and that the priest then re- 
 ^o'tu'" -^ county for two weeks. 
 
 Z. Ihat It was also admissible to show that 
 iJndget Foley, after the date of the alleged mar- 
 nag^ executed a receipt for a sister, and signed 
 It 'JE. E. Foley, by sister B. A. Foley." 
 
 3. That is was proper, on the cross-examina- 
 tion of Bridget, to ask her whether, after the date 
 of the alleged marriage, she had not told one 
 Mathews tBat she had advised her sister to come 
 away from Clark, and not work any longer, and 
 that she would make her do bo.— Supreme a, 
 {m, Dept.,) April, 1880. Clark v. St. James' 
 Church, 21 Hun 95. 
 
 •u-v^' ■^°' ^^^ Purpose of impeaching the cred- 
 ibility of a witness he may be asked if he ever 
 deserted from the army, such an act being a 
 crime.— ^^wme a, (4th DepQ June, 1880. 
 Stape V. People, 21 Hun 399. 
 
 56. "What proof of previous contra- 
 diotory or inconsistent statements will 
 discredit a witness. It is competent upon 
 the cross-examination of a witness to show that, 
 upon a material matter, he testified differently 
 before a grand jury from the evidence given by 
 him.— a. of App., Nov., 1879. New York 
 (ruaranty, &c., Co. v. Gleason, 78 N. Y. 503 • S 
 C, 7 Abb. N. Cas. 334. 
 
 57. Upon the trial of an action for assault 
 and battery a, witness was permitted, against de- 
 fendant's objection and exception, to testify that 
 defendant, upon a former trial of the action, in 
 opening the case to the jury in his own behalf, 
 stated, in reference to the affray, that he knew 
 he had made himself liable. Seld, no error. — 
 Supreme &., (3d Dept.,) Jan., 1880. Kiff v. 
 Youmans, 20 Hun 123. 
 
 58. "What will not. A witness cannot be 
 impeached by showing that at a former trial, 
 when testifying on the subject under investiga- 
 tion, he omitted to state circumstances which 
 he details at the present trial. It is no contra- 
 diction, unless his attention was called at the 
 former trial, to the matters which he then 
 omitted to state.— Cbm. Pleas, April, 1877. Hueb- 
 ner v. Boosevelt, 7 Daly 111, 113. 
 
 59. Statements of a defendant, pertinent to 
 the issues, are competent evidence against him 
 of the facts stated ; but such statements are not 
 competent to discredit the statements of a wit- 
 ness for the defendants. — Ct. of App., Nm., 
 1879. New York Guaranty, &c., Co. v. Gleason, 
 78 N. Y. 503. 
 
 60. As to impeaching a witness by proof of 
 contradictory statements made before the trial, 
 see, also, Sparrowhawk v. Sparrowhawk, 73 N. 
 Y. 591 ; Briggs v. "Wheeler, 16 Hun 583. 
 
 61. Proof of bias, hostility, or preju- 
 dice. Evidence to show that a witness enter- 
 tains unfriendly feelings towards a party to the 
 action is inadmissible, unless it tends to show 
 that such feelings exist at the time of the trial. 
 — Supreme Cl., [4th Dept.,) Oct., 1878. Higham 
 V. Gault, 15 Hun 383. 
 
 62. While it is competent for a party to 
 show that a witness who has testified against 
 him is hostile to him, the evidence to establish 
 it should be direct and pointed ; the court is 
 not bound to receive evidence of a remote and 
 uncertain bearing. — Ct. of App., Jan., 1879. 
 Gale V. New York Central, &o., E. R. Co., 76 
 N. Y. 594. 
 
 63. In an action against a railroad company 
 for negligence, defendant offered to show that 
 
 one of plaintiff's witnesses had, prior to the ac- 
 cident as to which he testified, applied for a po- 
 sition upon its road, and ha/ been refused. 
 Meld, that the rejection thereof was not error. 
 lb, 
 
 64. Showing a conviction of crime. 
 It IS not competent, for the purpose of discred- 
 iting a witness, to put in evidence an indictment 
 or sworn charges made before a magistrate- 
 agamst him, unless he is shown to have been- 
 convicted thereon. A record of conviction is 
 admissible for that purpose, but not a mere- 
 ?2S)?^T?J °'^ indictment.— Cbm. Pleas, Jvme, 
 1877. West ». Lynch, 7 Daly 245. 
 
 65. As to whether a record of conviction of 
 a witness for a felony, where it does not dis- 
 qualify, is evidence in a civil action for the pur- 
 pose of impeachment, is doubtful. If competent, 
 it is not conclusive of the commission of the 
 crime charged against the witness, but may be 
 rebutted.— a of App., Dec., 1878. Sims e. 
 Sims, 75 N. Y. 466. 
 
 _ 66. Defendant having testified as a witness 
 in his own behalf, a record of his conviction in 
 the_ State of Ohio for a felony was offered by 
 plaintiff and received in evidence. Defendant 
 was thereupon asked by his counsel whether he- 
 was guilty of the offence of which he had been 
 convicted. This was objected to and excluded. 
 Held, error- lb.; reoersing 12 Hun 231. 
 
 6'7. Collateral matters elicited on 
 cross-examination not foundation for 
 impeachment. Where evidence which is 
 entirely collateral is drawn out on cross-exami- 
 nation, it cannot be contradicted. — Gl. of App 
 Jan., 1880. Misland ii. Boynton, 79 N. Y. 630. 
 See, also, Stape v. People, 21 Hun 399. 
 
 _ 68. A party cannot call witnesses to contra- 
 dict statements made by an adverse witness, in 
 answer to questions asked on cross-examination 
 simply for the purpose of laying a foundation- 
 to impeach him. — Supreme Cl., (Isi Dept.,) Ami, 
 1878. Kobbe ». Price, 14 Hun 55. 
 
 69. Instances. Plaintiff was run over by 
 a car on defendant's road. In an action to re- 
 cover damages for the injury, which was alleged 
 to . have been caused by the negligence of the 
 driver of the car, the conductor was called as a 
 witness for the defence. He was not asked, and 
 did not testify as to the conduct of the driver, 
 and it did not appear that he was in a condition 
 to observe it. Upon cross examination he was 
 asked, but denied that he had made statements 
 to the effect that if the driver had looked out he 
 would have seen the child, and would not have 
 run over it. Plaintiff thereafter called and ex- 
 amined a witness as to declarations of the con- 
 ductor made long after the accident. After 
 several questions had been put to the witness in 
 respect to these declarations, which failed to- 
 elicit anything, in answer to a question as to 
 what the conductor said about the driver look- 
 ing or not looking, witness answered: "He 
 told me he thinks the driver did not look, or the 
 child would not have been run over." Each of 
 these questions was objected to, on the ground 
 that the conductor's declarations were incompe- 
 tent to bind defendant. The objections were 
 overruled and exceptions taken. Held, that the 
 evidence was erroneously received; that such 
 declarations were not competent as binding upon, 
 or affecting the defendant ; nor were they ad- 
 missible for the purpose of contradicting or af- 
 fecting the credibility of the conductor, as the- 
 
WITNESSES, III. 
 
 45^ 
 
 statement of the conductor sought to be contra- 
 dicted, having been drawn out on cross-exami- 
 nation and not being relevant to the case, could 
 not be contradicted. — Ct. of App., Feb., 1878. 
 Furst V. Second Ave. R. E., Co., 72 N. Y. 542. 
 
 70. Upon the cross-examination of S., a wit- 
 ness for plaintiff, who had given material testi- 
 mony for him, and who had been in defendant's 
 employ, he was asked if he wa9 discharged for 
 inefficiency and drunkenness; if he was dis- 
 charged at all ; and if O., his " immediate boss," 
 did not assign these reasons for discharging him, 
 to all of which he answered, " No." O. was 
 called by defendant's counsel, who offered to 
 prove by him, that he became aware that S. was 
 in the habit of being intoxicated, and neglected 
 his duly, and that he was discharged for that 
 reason. This was excluded. Held, no error; 
 that the fact of his discharge was immaterial; 
 that if the discharge was for inefficiency or 
 drunkenness, this could not be proved by way 
 of impeachment, and was matter collateral to 
 the issue, as to which the answers of S. were 
 conclusive; tliat if such grounds for the dis- 
 charge were communicated to S., it might lay 
 the foundation of an inquiry as to his feelings 
 toward defendant; but as defendant did not 
 offer to show this, and as it was not disclosed on 
 the trial that the offer was to show a hostile 
 feeling, the question could not be presented 
 here. — Gt. of App., Dec., 1879. Kirkpatrick v. 
 New York Central, &c., E. E. Co., 79 N. Y. 
 240. 
 
 "71. Upon the trial of this action the defence 
 called one George Morse for the purpose of im- 
 peaching the plaintiff's character, he having 
 been sworn as a witness. Moree having testified 
 that the plaintiff's general character for truth 
 and veracity was bad, was asked, and allowed, 
 against the plaintiff's objection and exception, 
 to answer in the affirmative the following ques- 
 tion : " Did Mr. Wilder [the plaintiff] state to 
 you in a certain conversation that he regarded 
 it as no wrong to swear falsely against such a 
 man as Albert Morse ? " Held, that it was error 
 to allow the question to be put and answered, as 
 it called for a specific declaration upon a col- 
 lateral matter to which the attention of the 
 plaintiff had not been called on his cross-exam- 
 ination. — Supreme Ct., {4th Dept.,) June, 1880. 
 Wilder v. Peahody, 21 Hun 376. 
 
 72. Impeaching one's owa 'witness. 
 A party who presents a witness thereby asserts 
 or admits his credibility ; and while such party 
 may show his witness to have been mistaken, he 
 cannot impeach or assail him. — Ct. of Am., Nov., 
 1877. Pollock V. Pollock, 71 N. Y. 137, 152. 
 
 3. Corroboraimg. 
 
 73. "When allowed. Where, in an action 
 upon a policy of fire insurance, the secretary of 
 the. insurer is called as a witness to contradict 
 evidence on the part of plaintiff of a waiver by 
 said officer, of a condition in the policy, and 
 where he is not impeached, it is not competent, 
 for the purpose of corroboration, to prove by 
 him his general course of dealing, and the ex- 
 tent and limit of his powers, as thiit lie had 
 never waived any such condition, and had no 
 authority so to do. — Ct. of App., June, 1877. 
 Adams v. Greenwich Ins. Co., 70 N. Y. 166. 
 
 74. What is admissible in corrobor- 
 ation, generally. Where a witness, called 
 
 to sustain the character of an impeached witness,, 
 testifies that he does not know the general char- 
 acter of said witness for truth and veracity, but 
 gives evidence importing an acquaintance with- 
 his associates, and a knowledge of his character, 
 and testifies that he has heard his character 
 questioned, it is competent for him to testify 
 that he would believe the witness under oath. 
 lb. 
 
 75. On the trial of an action for the breach 
 of a contract made with a school teacher by de- 
 fendant's predecessor as school trustee, the- 
 principal question at issue was as to the genu- 
 ineness of the signature of the school commis- 
 sioner, S., to a certificate that plaintiff was 
 qualified to teach. S. testified to the best of his 
 Knowledge and belief he did not sign or issue- 
 the certificate ; and that he kept a book in- 
 which he entered the certificates issued by him 
 during the month in which the certificate bore 
 date. Defendant produced this book, and of- 
 fered it in evidence to show that it contained no- 
 entry of the certificate in question. Upon 
 plaintiff's objection, the book was excluded- 
 Held, error. — Supreme Ct., (4<A Dept.,) Jan.,. 
 1878. Morrow v. Ostrander, 13 Hun 219. 
 
 76. Defendant's counsel asked S. whether, 
 during his term of office, he was accustomed to- 
 issue such certificates, except upon a personal 
 examination of the applicant. Upon the ob- 
 jection of plaintiff's cbunsel, this question was- 
 excluded. Held, error, lb. 
 
 11. On the trial of an action for assault and' 
 battery, several witnesses for defendant having- 
 testified to the bad character of plaintiff, a mil- 
 liner, who had testified in her own behalf, she 
 was recalled and asked : " How was it as to thfr 
 better class of ladies in the village patronizing 
 you up to that time?" Held, that the court 
 erred in allowing this question to be put and 
 answered against defendant's objection and' 
 exception. — Supreme Ct., [ith Dept.,) Jan., 1878- 
 Hagadorn v. Kearney, 13 Hun 236. 
 
 78. Proof of previoias consistent 
 statement. Where it is sought to discredit ai 
 witness on the ground that his interests at the- 
 time his evidence was given prompted him to- 
 make a false statement, he may show that he- 
 made similar statements at a time when he had 
 no advantage to derive from so doing. — Supreme^ 
 Ct., (1st Dept.,) March, 1878. Herrick v. Smith,. 
 13 Hun 446. 
 
 70. In an action for a partnership account- 
 ing, defendant claimed that the accounts had' 
 been settled by an accord and satisfaction, and- 
 to impeach plaintiff's testimony denying the- 
 settlement, gave evidence to show that at th& 
 time of the settlement, plaintiff thought that de- 
 fendant's father, a man of wealth, intended to- 
 leave his property to defendant in trust and not 
 absolutely ; and that subsequently,, upon learn- 
 ing that the property was left to defendant ab- 
 solutely, so that defendant was pecuniarily re- 
 sponsible, he denied the settlement. Plaintiff 
 produced a witness by whom he offered to prove 
 that he had denied that any settlement had been- 
 made before he knew the contents of the will of 
 defendant's father. Hdd, that the evidence 
 was proper as tending to show that plaintiff had 
 denied the settlement at a time when he could' 
 not have been impelled so to do by a knowledge- 
 of the change in defendant's pecuniary circum- 
 stances, lb. 
 
 80. Corroboration of accomplices.. 
 
460 
 
 WITNESSES, III., IV. 
 
 The testimony of an accomplice may be corrob- 
 orated, even though he has not been impeached. 
 —Supreme Ct, {ith Dept.,) Jan., 1880. Mosher 
 «. People, 19 Hun 625. 
 
 IV. EuLES OP Examination. 
 
 1. Examinatian-in-chie/. Oross-examination. 
 Re-examination. 
 
 81. General rules as to scope of the 
 inquiry. In an action by a professional man 
 — in this case a dentist^to recover damages for 
 injuries sustained on a railroad, he may testify 
 as to his past earnings for the purpose of show- 
 ing the damages sustained. — Supreme Ct., (2d 
 Dept.,) Dee., 1879. Nash v. Sharpe, 19 Hun 
 ^65. 
 
 82. In an action upon a promissory note, 
 where the defence was that the signature of the 
 maker (the defendant's intestate) was forged, a, 
 'witness, who had testified that he had seen de- 
 ceased subscribe his name to various papers 
 passing between them, was permitted to testify 
 as to what kind of instruments these papers 
 were. Seld, no error ; that while it would not 
 be competent to go into detail as to the contents 
 •of the papers, it was competent upon the point 
 of witness' knowledge of the handwriting to show 
 "the nature of the signatures he had seen, i. e., 
 that they were of an important character, which 
 might call more particular attention of the wit- 
 ness to them.— Cl!. ofApp., Nov., 1878. Bardin 
 ■V. Stevenson, 75 N. Y. 164, 166. 
 
 83. What questions are proper. 
 While a party cannot cross-examine his own 
 witness, and is in general bound by the answers 
 made, it is not objectionable, after a witness has 
 given an ambiguous answer, to inquire as to any 
 circumstance or fact tending to enable him to 
 recollect the fact sought to be proved more 
 clearly or certainly. — Cl. of App., Feb., 1879. 
 O'Hagan v. Dillon, 76 N. Y. 170. 
 
 84. A witness on the part of defendant, 
 who had testified that he hung a lamp, on the 
 evening of the accident, near an excavation in 
 the street, and about the hour in the morning 
 when he removed it, was asked, " Is your recol- 
 lection refreshed or your attention called to that 
 
 ^ [the time of removal] from any circumstance, 
 -any accident that happened then ?" This was 
 objected to and excluded. Seld, error. Jb. 
 
 85. Upon the trial of an indictment for 
 seduction, under the act punishing seduction as 
 a crime (Laws of 1848, ch. Ill,) the prosecutrix 
 was permitted to answer, under objection and 
 ■exception, when her parents died. Held, no 
 error.— CJ. of App., June, 1877. Armstrong v. 
 People, 70 N. Y. 38, 42. 
 
 86. She was also permitted to testify, under 
 objection, to a conversation, and to the circum- 
 stances attending it, had with the accused some 
 two months after the commission of the alleged 
 offence, in relation thereto. ifeW, no error. J6. 
 
 87. She was also permitted to answer, under 
 •objection and exception, the following question: 
 " Did you believe him, when he had connection 
 with you, that he would marry you ?" Held, 
 no error, as an answer would tend to prove or 
 .disprove one of the important elements of the 
 .crime, i. e., that the consent of the prosecutrix 
 was given under and by reason of a promise of 
 marriage ; also— BeM, that the testimony of the 
 prosecutrix that she was in the family way at 
 
 the time of the trial, some seven months after 
 the commission of the alleged offence, was com- 
 petent, lb. 43. 
 
 88. In an action to recover possession of cer- 
 tain municipal bonds which had been stolen 
 from plaintiff and sold to defendants, as a cir- 
 cumstance indicative of bad faith, plaintiff 
 proved that defendants had purchased of the 
 same person, of whom they purchased the 
 bonds in question, another bond which had 
 been stolen. One of the defendants, as a witness 
 in their behalf, after giving evidence of the cir- 
 cumstances imder which the other bond was 
 purchased, and the explanation made by the 
 seller which was consistent with but not decisive 
 of innocence, was asked " Were you satisfied 
 with the explanation given?" This was ob- 
 jected to and excluded. Held, error. — Ct. of 
 App., April, 1878. Dutchess Co. Mut. Ins. Co. 
 V. Hachfield, 73 N. Y. 226. 
 
 89. The admissibility of testimony, and the 
 propriety^ of jiuestions put to the plaintiff as to 
 his meaning in the use of the words " for me " 
 in a letter in evidence, written by him, contain- 
 ing the clause " S. has secured for me 100 M 
 lbs. of Lake Ingot Copper for July and August 
 delivery," determined, the claim of plaintiff be- 
 ing that he bought the copper as agent for defend- 
 ant, and the controversy being whether he was 
 entitled to commissions, defendant claiming 
 that plaintiff bought the copper on his own ac- 
 count. — Supreme Ct., Nm., 1879.- Harnickell v. 
 Brown, 45 Superior 350. 
 
 90. What questions are improper. 
 A question as to whether or not there are any 
 indorsements on a paper in evidence and before 
 the jury, may properly be overruled. — Supreme 
 Ct., {U Dept.,) Dec., 1878. De Wolf v. Capital 
 City Ins. Co., 16 Hun 116. 
 
 91. Upon the trial, a, witness called by the 
 plaintiff to testify as to a conversation he had 
 had with the defendant, said that he could not 
 say what the defendant had stated in it. Sub- 
 sequently he was asked what impression that 
 conversation made upon his mind. Held, that 
 the question was properly excluded. — Supreme 
 a., [ith Dept.,) Jvm, 1880. Wilder v. Pea- 
 body, 21 Hun 376. 
 
 92. To show the possession in plaintiff 
 necessary to the maintenance of trespass, in the 
 
 "case of iminclosed, unoccupied woodland, it is 
 incompetent to ask a witness whether he was in 
 possession of the land; the facts should be 
 shown which in law constitute possession. — Ct. 
 of App., Dec., 1877. Miller v. Long Island B. 
 R. Co., 71 N. Y. 380 ; reversing 9 Hun 194. 
 
 93. In an action to recover damages for 
 alleged negligence in leaving an excavation in 
 a street unprotected, a witness for plaintiff was 
 asked, in reference to another accident occur- 
 ring at the same place, "Do you know any- 
 thing about a party recovering a judgment of 
 $5000?" This was objected to and objection 
 overruled. The witness answered, in substance, 
 that he did not know anything about it, but 
 heard "from some parties outside that there 
 was such a thing." Held, that the question was 
 incompetent, and that the latter part of the 
 answer was not so irresponsive as to relieve 
 plaintiff from the responsibility of it; that to 
 avoid such responsibility he should, at least, 
 have disclaimed the answer and declined to re- 
 ceive it. O'Hagan *. Dillon, mpra. 
 
 «4. Direct or leading questions. The 
 
WITNESSES, IV. 
 
 461 
 
 rule that in a proper case the intention which 
 prompted an act or the belief entertained in re- 
 gard to the truth of a statement upon which a 
 witness acted, may be proved by asking the di- 
 rect question, without resorting to conversations 
 or circumstances, applied to the facts of the par- 
 ticular case.— Supreme Cl., (IsJ Dept.,) March, 
 1878. Hardt v. Schulting, 13 Hun 537. 
 
 05. Extent of the right to cross-ex- 
 amine. Where a party was called as a wit- 
 ness by the adverse party and was examined as 
 to a transaction with a deceased party in refer- 
 ence to *hich he would have been precluded 
 from testifying in his own behalf under the code 
 of procedure (l 399)— -HeM, that the witness 
 was entitled, upon cross-examination, to explain 
 his testimony, and to state the whole transac- 
 tion.— CJ. 0/ App., Jam., 1880. Merritt v. Camp- 
 bell, 79 N. Y. 625. 
 
 96. What questions may be asked 
 on cross-examination. One of plaintiff's 
 attorneys was called as a witness in has behalf 
 and gave material testimony. Upon cross-ex- 
 amination he testified that his compensation de- 
 pended in some degree upon the result of the 
 action. He was then asked " To what extent ? " 
 This was objected to and objection sustained. 
 HM, no error.— a. of App., Feb., 1878. King v. 
 New York Central, &c., E. E. Co., 72 N. Y. 607, 
 611. 
 
 97. Upon the trial of an indictment for as- 
 sault and battery, the offence was alleged to 
 have been committed during an affray at a town 
 meeting ; one of the witnesses for the prisoner 
 was asked on cross-examination whether he had 
 been indicted for assault and battery committed 
 on that day ; this was objected to, objection 
 overruled, and the witness answered " Yes." 
 Held, that it was a fair inference that the wit- 
 ness was indicted as one of the participants in 
 the affray ; and that the question was competent 
 to show the position he occupied in respect to 
 the controversy out of which the affray arose, 
 and his interest in the litigation, and as showing 
 prejudice or bias. — Ct. of App., Jan., 1880. Eyan 
 V. People, 79 N. Y. 593. 
 
 08. What questions may be asked on cross- 
 examination for the purpose of showing want 
 of ownership in the plaintiff of the note sucu 
 on, see Lockwood v. Underwood, 16 Hun 592. 
 
 99. Cross-examination of defendant, 
 on criminal trial. Where, upon a criminal 
 trial, the prisoner offers himself as a witness in 
 his own behalf, he is subject to the same rules 
 upon cross-examination as any other witness ; 
 he may be asked questions disclosing his past 
 life and conduct, and thus impairing his credit, 
 although tending to show he has before been 
 guilty of the same crime for which he is upon 
 trial. The extent to which such an examina- 
 tion may go to test the witness' credibility is 
 largely in the discretion of the trial court. — Ct. 
 of App., Feb., 1878. People v. Casey, 72 N. Y. 
 393,399. 
 
 100. Although a person on trial for a crimi- 
 nal offence by taking the stand as a witness may 
 subject himself to the rales applicable to other 
 witnesses, he is not thereby deprived of his 
 rights as a party ; his counsel may speak for 
 him while he is a witness, and an error com- 
 mitted by the court against him may inure to 
 his benefit as a party. — Ct. of App., Feb., 1878. 
 People V. Brown, 72 N. Y. 571. 
 
 101. It seems that the cross-examination in 
 
 such case should in general be limited to mat- 
 ters pertinent to the issue, or such as may be 
 proved by other witnesses. lb. 
 
 102. To entitle the prosecution to put to 
 him, upon cross-examination, questions which 
 are irrelevant to the issue and are calculated to- 
 prejudice him with the jury, they must, at 
 least, be such as clearly go to impeach his gen- 
 eral moral character and his credibility as a 
 witness.— Cl!. of App., Feb., 1879. People v. 
 Crapo, 76 N. Y. 288. . 
 
 103. Instances. Upon the trial of an in- 
 dictment, the prisoner, while a witness in his- 
 own behalf, waS asked upon cross-examination : 
 " ilow many times have you been arrested ?" 
 This was objected to by his counsel, upon the 
 ground, among others, that it tended to degrade 
 the witness, and he was privileged from answer- 
 ing. The oMection was overruled. Seld, error ; 
 that the objection was valid, was properly 
 taken by the prisoner's counsel, and that the- 
 exception to the ruling was available to the 
 prisoner as a party. People v. Brown, supra ,- 
 affirming 8 Hun 562. 
 
 104. Upon the trial of an indictment for 
 burglary and larceny, the prisoner, on cross- 
 examination, was asked if he had not been ar- 
 rested on a charge of bigamy; this was ob- 
 jected to ; objection overruled. Held, error ;. 
 that it did not legitimately tend to impair the 
 credibility of the witness, and was incompetent 
 for any purpose. — People v. Crapo, 76 N. Y. 288, 
 sapra. 
 
 105. Upon a trial for aggravated assault the- 
 prisoner was a witness in his own behalf, and 
 the counsel for the people, upon cross-examina- 
 tion, was permitted to question him as to other 
 altercations in which he had been engaged, and 
 
 . other assaults committed by him. Held, no 
 error. People v. Casey, supra. 
 
 106. In a prosecution for cruelty to. a child, 
 cross-examination of the accused, as to his wife's 
 means and property, and his own private inde- 
 pendent Ibusiness relations, having no immediate 
 connection with the offence charged — Held, not 
 beyond the limits of cross examination. — Su- 
 prema Ct., (\st Dept.,) May, 1880. Cowley v. 
 People, 8 Abb. N. Cas. 1. 
 
 107. Sufficiency and effect of •wit- 
 ness' ans'Wer. In an action upon a promis- 
 sory note, the defence was that the alleged sig- 
 nature of defendant's intestate, as maker, was a 
 forgery. Upon the trial, a cashier of a bank, aa 
 a witness for plaintiff to prove, the handwriting, 
 was asked if the deceased, in his lifetime, had 
 presented instruments with his signature at the 
 bank for the purpose of having them discounted ;. 
 this was objected to, the objection being to that 
 portion of the question calling for the purpose ; 
 the objection was overruled, and exception 
 taken. The witness answered that the deceased 
 did present instruments containing his signa- 
 ture to the bank. Held, that as the witness sim- 
 ply answered that portion of the question con- 
 ceded to be proper, the exception was not availa- 
 ble. — Ct. of App., Nov., 1878. Bardin v. Steven- 
 son, 75 N. Y. 164, 166. 
 
 108. In an action to recover damages for in- 
 juries alleged to have been sustained through 
 the wrongful act of defendant's servant, plain- 
 tiff's evidence tended to show that a driver of 
 one of defendant's ice carts, while engaged in 
 the performance of his duties, and in the course 
 of his employment, carelessly and recklessly 
 
462 
 
 WITNESSES IV., V. 
 
 ■drove his cart against plaintiflF's carriage, 'caus- 
 ing the injury complained of. Upon the cross- 
 ■examination of one of plaintiff's witnesses, 
 whose direct examination tended to show gross 
 carelessness on the part of the driver, the wit- 
 ness, in answer to a question as to whether the 
 driver drove into plainti^ff's carriage purposely, 
 answered : " It seems so ; it looks like it." The 
 ■question being substantially repeated, the wit- 
 ness answered : "Well, I could not tell." Plain- 
 tiff also offered in evidence a former answer — 
 ■amended pleadings having been subsequently 
 served — ^which contained an admission that de- 
 fendant's servant, then in its employ as driver 
 of an ice cart, " willfully, and not negligently 
 nor carelessly, drove said ice cart against the 
 carriage of plaintiff." Plaintiff was nonsuited. 
 Held, error; that the first answer of plaintiff's 
 witness, above stated, was but the expression of 
 an opinion upon a fact to be determined by the 
 jury, not by the witness ; but that as an opinion 
 its effect was destroyed by the last answer ; that 
 plaintiff was not estopped from questioning the 
 allegation of the answer that the act was done 
 "willfully;" also that the answer did not ex- 
 clude all presumption of liability, as the act 
 may have been done "willfully," and yet in the 
 course of the employment, and so have made 
 defendant liable.— Cf. of Amp., May, 1878. Mott 
 V. Consumers' Ice Co., 73 NT Y. 543, 549. 
 
 109. Motion to strike out, or for in- 
 struction to disregard ana-wer. Where 
 A witness, in answering a proper question, with 
 proper and responsive matter, testifies to some- 
 tbing irresponsive and incompetent, an objection 
 does not reach it ; the proper course is for the 
 party to move to strike out the improper por- 
 tion of the answer, or to ask instructions to the 
 jury that they disregard it. — Ot. of App., Sept., 
 1879. Platner ti. Plainer, 78 N. Y. 90. 
 
 110. Be-direot examination. Where a 
 witness called for plaintiff in an action for slan- 
 der to prove the slanderous words, in answer to a 
 ■question upon cross-examination, as to whether 
 he did not swear, upon another occasion, that he 
 had never heard anybody speak disrespectfully 
 of plaintiff, stated without objection what he did 
 swear to — Held, that it was competent for plain- 
 tiff's counsel, on re-direct examination, to ex- 
 amine him upon that subject. — Ot. of App., 
 March, 1877. Distln v. Rose, 69 N. Y. 122, 125. 
 
 111. Re-oalling and re-examining wit- 
 ness. Upon the trial of an action, a party 
 holding the aflirmative of an issue is bound to 
 introduce all the evidence upon his side before 
 he closes ; having rested, and the opposite side 
 having closed, it is entirely in the discretion of 
 the court whether to allow said party to intro- 
 ■duce new evidence to maintain the issue, or to 
 re-examine a witness on his part as to transac- 
 tions previously testified to.— C<. of App., Oct., 
 1879. Marshall v. Davies, 78 N. Y. 414; S. 
 ■C., 58 How. Pr. 231. 
 
 112. Where a party, as a witness to sustain 
 an issue as to which he has the aflirmatiye, tes- 
 tifies to one conversation, which is denied on 
 the other side, he is not entitled, as a matter of 
 right, to prove another as to which he has not 
 previously testified, even though it tends to sup- 
 port his original statement. lb. 
 
 2. Sefreshing the memory. 
 
 113. The right to refer to memor- 
 anda. In an action to recover for the conver- 
 
 sion of a stock of goods, or personal properly 
 consisting of many items, a witness who has 
 made a list of all the items and their values, 
 and who is able to testify that all the articles 
 namedwere taken and were of the values stated, 
 may aid his memory while testifying by such 
 list, and may use it to enable him to state the 
 items ; after he has testified the list may be put 
 in evidence, not as proving anything of itself, 
 but as a detailed statement of the items teslified 
 to.— a. of App., April, 1879. Howard v. Mc- 
 Donough, 77 N. Y. 592; affirming 8 Daly 365. 
 
 114. The trial court may in its discretion re- 
 quire the witness to testify to each item sepa- 
 rately or may allow him to testify generally to 
 the items and their values, and receive the 
 memorandum as the detailed result of the ex- 
 amination. Ih. 
 
 115. "What is such a memorandum 
 as may be used by a witness to refresh his 
 memory, see Palmer v. People, 19 Hun 372. 
 
 V. Opinions op Experts aot) othebs. 
 
 116. Opinions of ordinary witnesses, 
 when inadmissible. A witness for defend- 
 ants having testified to the effect of the weather 
 and of the wear upon rails of plaintiffs' patent, 
 which he saw in use, the length of time they 
 were kept in use, and that compared with them 
 the iron rail was better, was asked to give his 
 opinion as to the comparative durability of the 
 two kinds of rail; this was excluded. Held, 
 that the exclusion was not error, as his opinion 
 would have added nothing to the effect of his 
 evidence from knowledge. — Ct. of App., May, 
 1878. Booth V. Cleveland Mill Co., 74 N. Y. 
 15, 27 ; affirming 11 Hun 278. 
 
 117. In an action by a buyer to recover pos- 
 session of goods purchased, S., as a witness for 
 plaintiff, was asked whether the sale was made 
 for an improper purpose ; also whether anything 
 transpired between him and plaintiff, by whicli 
 he gave plaintiff to understand, or by which it 
 was understood, that the transaction was for an 
 improper purpose or to defraud creditors. 
 These questions were excluded under objection. 
 — ifeid, no error. Ct.,of A'pp.,June,\il^. Blaut 
 V. Gabler, 77 N. Y. 461 ; affirming 8 Daly 48. 
 
 118. On an application to set aside the pro- 
 bate of a wUl on the. ground that the testator 
 was of unsound mind, non-professional witnesses, 
 who had been acquainted and had conversed 
 witli the testator, were asked to state, upon the 
 facts as to which they had testified, and from 
 what they had observed, what opinion they had 
 formed; "of his soundness or unsoundness of 
 mind after the shook ;" " as to his being compos 
 mentis or otherwise ;" " was he, in your judg- 
 ment, of sound mind and memory." Hdi, 
 error to allow these questions to be put and an- 
 swered.— iSuprme Cl., . (2d Bept.,) Sept., 1878. 
 Matter of Arnold, 14 Hun 525. 
 
 119. Limits and exceptions to the 
 rule. To ask a witness to say whether he saw 
 a locomotive sufficiently to see whether or not 
 the bell was ringing: whether he was in a po- 
 sition where, if a bell had been rung, he could 
 have heard it; whether he_ could, when in a 
 certain position, see a certain other designated 
 spot, is to ask for statements of fact, and not for 
 the opinion of the witness. — Com. Pleas., Feb., 
 1879. Casey v. New York Central, &c., E. K. 
 Co., 8 Daly 220 ; S. C, 6 Abb. N. Cas. 104. 
 
 120. A witness having knowledge may testi- 
 
WITNESSES, V. 
 
 463 
 
 if who owns property-^Ci!. of App., Apil, 1877. 
 UeWolf V. Williams; 69 N. Y. 62 1. 
 
 121. Upon an issue as to identity, a witness 
 may testify to opinion or belief. — Ct. of App., 
 Feb., 1878. King v. New York Central, &c., R. 
 E. Co , 72 N. Y. 607, 610. 
 
 122. When an impression, belief or opinion 
 is competent on the trial of an indictment for 
 murder, see Blake v. People, 73 IS'. Y. 586, 
 
 123. Admissibilty of opinion on 
 ■question of value. In an action for work 
 and labor, where the value of the service is in 
 ■question, it is competent for a witness, who has 
 heard the testimony of another witness as to the 
 nature and extent of the gervices rendered, to 
 give an opinion as to the value of the services 
 so testified to.— Os. of App., April, 1879. Sey- 
 mour V. Fellows, 77 N. Y. 178 ; affirming 44 Su- 
 jperior 124. 
 
 124. On the trial of an action for the value 
 •of a dog killed by defendant, it appeared that 
 the dog was a farm dog, trained to bring up 
 cows, and as a watch-dog. Plaintiff was asked, 
 .and, against defendant's objection and exception, 
 allowed to state what the market value of the 
 ■dog was. Hdd, that, as the dog was not shown 
 to have any value, the admission of the answer 
 was error. — Supreme Ct., {4ih Depl.,) Oct., 1878. 
 Smith V. Griswold, 15 Hun 273. 
 
 125. — of hand-writing. A witness who 
 has either ever seen the party write or who, not 
 having seen him write, has received letters from 
 him which have been " acted upon " by him 
 as genuine, is competent to give an opinion 
 as to his handwriting. And this comp.etency is 
 not affected by the lack of frequency of observa- 
 tion, the length of time which has elapsed since 
 the writing w.as seen, or the slightness of the cor- 
 respondence, although the weight of the opinion 
 will of course depend much upon these circum- 
 stances. — Ct. of App., Nov., 1878. Miles v. 
 Loomis, 75 N. Y. 288, 295. 
 
 126. Expert testimony : when com- 
 petent. In an action upon a policy of fire in- 
 surance providing against any increase of risk, 
 the testimony of experts is competent upon the 
 question as to the materiality of circumstances 
 affecting the risk, especially where its determi- 
 nation calls for a degree of knowledge not likely 
 ■to be possessed by an ordinary jury ; but expert 
 testimony, although uncontradicted, is not con- 
 •clusive, save in cases where none but experts 
 •are eapable of determining the questions. — Ct. 
 of App., Sept., 1878. Cornish v. Farm Buildings 
 Fire Ins. Co., 74 N. Y. 295. 
 
 127. Plaintiff, who had invented an im- 
 proved cotton gin, and had applied for letters- 
 patent therefor, contracted to sell the same to 
 defendants, and to assign the letters-patent when 
 obtained, for a sum specified ; the contract con- 
 tained a warranty that said cotton gin would 
 ■" be equal in all respects to the best saw gin 
 then in use." In an action upon the contract, 
 wherein defendant set up a breach of the war- 
 ranty as a defence — Hdd, that the testimony 
 of men, competent from education and experi- 
 ence to express an opinion as to whether plain- 
 tiff's invention was in fact equal to the best saw 
 gins, was competent ; that the inquiry related to 
 a matter which was not the subject of general 
 4cnowledge, but which depended on facts, from 
 -their nature difficult if not impossible to be tes- 
 -tified to, and it could only be answered by one 
 iiaving peculiar knowledge and skill in the use 
 
 of this and other machines. — Ct. of App., Dec., 
 1879. Scatterwood v. Wood, 79 N. Y. 263. 
 
 128. In a proscution under Laws of 1876, cli. 
 122, I 4, to prevent and punish wrongs to child- 
 ren, the testimony of experts is proper as to the 
 physical condition of the child^ as well as evi- 
 dence as to the food supplied, and its general mode 
 of life as directed by the accused. Testimony 
 as to the resulting condition of the child is not 
 inadmissible merely because witness first saw,, 
 him some days after he had been taken from the 
 charge of the accused. — Supreme Ct., (Ist Dipt.,) 
 May, 1880. Cowley v. People, 8 Abb. N. Cas._ 1. 
 
 129. Where, in an action to recover the price 
 of a machine sold upon the contingency that rt 
 was to be tested for a certain length of time, and 
 in that time was to perform certain work, the 
 issue was on the performance of the contingency 
 and the testimony was conflicting on the ques- 
 tion as to how and for what length of time the 
 test was to be made, and whether it had in fact 
 been completed according to the real terras of 
 the sale; and, in a certain view the further ques- 
 tion presented itself whether the completion of 
 the test agreed on had or no£ been prevented or 
 secured by the conduct of the defendants — Held, 
 that the testimony of experts, to the effect that 
 from inherent imperfections plainly to be seen, 
 the machine was incapable of performing the 
 required work, had a material bearing on all 
 the disputed points, and its exclusion was error. 
 — Superim- Ct., Nov., 1878. Meiners v. Stein- 
 way, 44 Superior 369. 
 
 130. As to the admissibility of the testimony 
 of experts, in an action for the purchase price of 
 " good, clear ice," where the defence was poor 
 condition of the ice when delivered, that under 
 certain conditions, ice is subject to a peculiar 
 change called "striking," which greatly dimin- 
 ishes its value and renders it no longer good, 
 clear ice, see Eich v. Lyles, 45 Superior 601. 
 
 131. — -when incompetent. It is not 
 error for a referee to refuse to allow a witness to 
 show the results derived from his examination 
 of books of account, where it does not appear 
 that it requires expert testimony to ascertain 
 the facts offered to be shown by the witness ; 
 while he may allow a witness with the books 
 before him to give a summary of their contents, 
 this is discretionary with him. — Ct. of App., Feb., 
 1878. Von Sachs v. Kretz, 72 N. Y. 548, 552. 
 
 132. The prosecution endeavored to show, 
 mainly by circumstantial evidence, that the ac- 
 cused shot the deceased with a gun loaded with 
 powder and shot, and that -a piece of paper, 
 found near the body, and claimed to have been 
 a part of the wadding, was part of a paper to 
 which the accused was a subscriber, and that 
 another part of the same issue of the paper was 
 found in his house. The witness who found the 
 piece of paper having testified that he had used 
 firearms a good deal, and was familiar with the 
 appearance of wadding fired from a gun, the 
 paper was shown to him and he was asked 
 whether, when found, it had the appearance of 
 wadding fired from a gun, and answered in the 
 affirmative, against the objection and exception 
 of the counsel for the accused. Held, error, as 
 the question was not one to be determined by 
 the opinion of experts. — Supreme Ct., [Alh Dept.,) 
 April, 1879. Manke v. People, 17 Hun 410: 
 affii'med 78 N. Y. 611. 
 
 133. Qualifications of experts, gen- 
 erally. Whether one offered as an expert is 
 
464 
 
 WITNESSES, V. 
 
 qualified to speak as such is a fact preliminary 
 to his testifying, to be determined by the court 
 upon the trial.— 04. ofApp., Dec., 1877. Nelson 
 V. Sun Mut. Ins. Co., 71 N. Y. 453, 460. 
 
 134. A merchant, called as a witness by 
 plaintiflf in an action on a marine policy, testi- 
 fied in substance that lie was more or less ac- 
 quainted with procuring marine policies ; that 
 he knew of the phrase '' port-risk in the port of 
 
 ■ New York," but that he had never seen the 
 words "port-risk," or known of its use in a pol- 
 icy or an application for one ; he did not testify 
 to any knowledge derived from study as to the 
 meaning of technical terms used in marine in- 
 surance. The witness was then asked the mean- 
 ing of the phrase, and the evidence was exclud- 
 ed. Held, no error; that the witness did not 
 show such knowledge as qualified him to speak 
 as an expert. lb. 
 
 135. — of experts in handwriting. 
 Comparison of handwriting. Where 
 the genuineness of a signature is in question in 
 an action, experts in handwriting who have no 
 other knowledge of the handwriting of the per- 
 son whose signature the one in question purports 
 to be, than that derived by a comparison in 
 court of such signature with other signatures 
 of the person to instruments proved and proper- 
 ly in evidence, are competent as witnesses to 
 give their opinion, derived from such compari- 
 son, as to the genuineness of the disputed signa- 
 ture, and as to whether it appears a natural or 
 simulated hand. — Ct. ofApp., Nov., 1878. Miles 
 V. Loomis, 75 N. Y. 288 ; affirming 10 Hun 372. 
 
 136. There can be no comparison of hand- 
 writing by an expert unless the pieces of writing 
 by wliich comparison is made are properly in 
 evidence in the case for some purpose other 
 than that of being compared. A comparison of 
 a signature in dispute with photographic copies 
 of other writings for the purpose of allowing an 
 opinion of an expert as to the character of the 
 signature, when the writings from which the 
 copies were made are not before the court, ought 
 not to he permitted. — C*. of App., Sept., 1880. 
 Hynes v. McDermott, 22 Abb. L. J. 367. 
 
 137. While to enable a witness to give his 
 opinion as to handwriting, he need not have 
 seen the person write, it being sufficient if he 
 has seen handwriting nnder such circumstances 
 as to put it beyond doubt that it was genuine, 
 when such witness has, while in the eraployof a 
 party as a detective, to obtain testimony in a 
 case, gained his knowledge of the writing of the 
 other party by the admission of such party that 
 two pieces of writing the witness saw wei-e gen- 
 uine— fl«M, that his testimony as to the char- 
 acter of the writing, was properly excluded. 
 
 138. — of physicians. On an applica- 
 tion to set aside the probate of a will on the 
 ground of testamentary incapacity, a physician, 
 who attended the testator about a week after a 
 stroke of paralysis, having been asked if he un- 
 derstood what was meant in law or medical 
 jurisprudence by the term testamentary capaci- 
 ty, and answered in the affirmative, was per- 
 mitted, against proponent's objection and excep- 
 tion, to answer the question, ''^Did you consider 
 him possessed of that power between the time 
 of his shock and the time of his death ?" Hdd, 
 error.— Supreme Ct., {U Deipt.,) Sept., 1878. 
 Matter of Arnold, 14 Hun 525. _ _ 
 
 139_ _ of surveyors. The provision of 
 
 the act of 1851 (Laws of 1851, ch. 33, § 134,) in 
 reference to the survey and measurement of land, 
 which prohibits a surveyor from testifying "re- 
 specting the survey or measurement of lands " 
 made by him, unless he shall make oath, if re- 
 quired, that the chain or measure jised by him 
 conformed to the state standards, applies only to 
 surface surveys and measurements as to the 
 quantity of material taken from an excavation. 
 The statute being restrictive of a common law 
 rule, should not be extended beyond its feir im- 
 
 Sort and intent.— C*. ofApp., April, 1879. Mc- 
 lanus V. Gavin, 77 N. Y. 36 ; affirming 8 Daly 
 
 140. Rules for the examination of 
 experts ; and effect of their testimony- 
 In an action for injuries to a canal boat occa- 
 sioned by xlefendant's negligence, a canal boat- 
 man, as a witness for defendant, was asked : 
 "Did Mr. Carpenter [plaintiff], in your opinion 
 as a canal boatman, in any way omit or neglect 
 to do anything which he might have done t» 
 save his boat ?" This was objected to and ex- 
 cluded. Held, no error. — Q. ofApp., Jan., 1878. 
 Carpenter v. Eastern Transp. Co., 71 N. Y. 574. 
 
 141. Opinion of experts as to value of ser- 
 vices, cannot be based on the testimony of a wit- 
 ness or witnesses as to what services were 
 rendered, hut may be based on facts stated by 
 witnesses, and claimed by counsel to have been 
 proved by their testimony. Hypothetical ques- 
 tions based on such facts may be put to experts. 
 — Superior Ct., Jan., 1878. Freeman v. Law- 
 rence, 43 Superior 288. 
 
 142. In an action for negligence in the im- 
 proper explosion of a blast within the city 
 limits, an expert in the manufacture and use of 
 explosives in blasting, may properly be asked, 
 whether a blast covered in a specified manner, 
 (being the manner prescribed by a city ordi- 
 nance) could throw portions of rock such a 
 distance as the person injured by the blast was 
 at the time of the explosion, from the blast. — 
 Com. Pleas, April, 1879. Koster v. Noonan, S 
 Daly 231. 
 
 As to obtaining Inspection of books and papers,. 
 before trial, see Discovert and Inspection. 
 
 As to taking testimony of witnesses by Depo- 
 dtion, see Depositions. 
 
 As to the examination of witnesses on the 
 ProbaU of wills, see Wills, 13-18. 
 
 For Eides of emdence, generally, irrespective 
 of the competency of witnesses or the manner 
 of examining them, see Evidenck. 
 
 WRITS. 
 
 Pordedsions relative to mit» In present wse, 
 see Cebtiobabi; Execution; Habeas Coe- 
 pus; Mandamus; Prohibition. 
 
 As to Writs of error, see Erbob. 
 
 WRONGS. 
 
 Assault; Conspibaoy; False Imprison- 
 ment- Fraud; Libex; Malicious Prosecu- 
 tion; Negligence; Nuisance; Slander; 
 Trespass; Trover. 
 
CASES CRITICISED. 
 
 CASES DIGESTED. 
 
 GENERAL INDEX. 
 
 465 
 
 30 
 
CASES CRITICISED. 
 
 A TABLE OF CASE3 
 
 Affirmed, Approved, Commented on, Denkd, Disapproved, Distinguished, Doubted, 
 Explained, Followed, Limited, Modified, Not Follomd, Overruled, 
 Questioned, Beversed, or Otherwise GritMsed by Subse- 
 quent Decisions Digested in this Volume.* 
 
 A. 
 
 Abbott V. People, 15 Hun 437. False 
 pretences. Jurisdiction of federal courts. 
 Affirmed. Abbott v. People, 75 N. Y. 602. 
 
 Abraham v. Plestoro, 3 Wend. 538/548. 
 Extra-territorial effect of assignment in bank- 
 ruptcy. Followed. Hibei-nia Nat. Bank v. 
 Merchant^, &c.. Bank of New Orleans, 21 Hun 
 166,176. 
 
 Acer V. Merchants' Ins. Co., 57 Barb. 
 68. In order to constitute a breach of the con- 
 dition against further insurance, the further in- 
 surance must be on the same interest. Distin- 
 guished. Van, Alstyne v. ^Ina Ins. Co., 14 
 Hun 360, 362. 
 
 Acker v. Acker, 16 Hun 173. Statute of 
 limitations. Disability of coverture. Re- 
 VBKSED, it seems, June Ist, 1880. 
 
 Adams y. Curtis, 4 Lans. 164. Distin- 
 guished. Howland v. Howland, 20 Hun 472, 
 473. 
 
 Adams v. G-reenwlch Ins. Co., 9 Hun 
 45. Validity of parol waiver of condition in 
 Are policy, avoiding it in case of non-occupation 
 of insured premises for thirty days. Affibmbd, 
 bvi not on points discussed below. Adams v. 
 Greenwich Ins. Co., 70 N. Y. 166. 
 
 Adams v. Mills, 38 Superior 16. Liar 
 bility of married woman for fraudulent acts of 
 Ihusband while acting as her agent. Affirmed. 
 Adams v. MUls, 60 N. Y. 533. 
 
 Adams v. 'WUloughby, 6 Johns. 64. 
 Construction of contract to refer to arbitration. 
 Distinguished. Oibbs v. Continental Ins. Co., 
 13 Hum 611, 617. 
 
 Adee v. Campbell, 14 Hun 551. _ Distri- 
 ibution — who are entitled as next of kin. Af- 
 FIBMED. Adee V. Campbell, 79 N. Y. 52. 
 
 Adee v. Ho'we, 15 Hun 20. Statement of 
 counsel — when not admission of client. Dis- 
 tinguished. Kiffy. Youmans, 20 Hun 123, 124. 
 Adolf V. Central Park, &c., B. B. 
 
 Co., 33 Superior 186. Liability of horse rail- 
 road company for acts of driver. Reversed. 
 Adolf V. Omtral Park, &c., B. B. Co., 65 N. Y. 
 554. _ 
 
 Adolf V. Central Park, &o., R. B. 
 Co., 43 Superior 199. Relative rights of driver 
 of street car, and vehicle running on the tracks 
 in front of the car. Affirmed. Adolf f. Cen- 
 tral Park, &e., B. B. Co., 76 N. Y. 530. 
 
 Adsit V. Brady, 4 Hill 630. Where an 
 individual sustains an injury by the misfeasance 
 or nonfeasance of a public officer who acts or 
 omits to act contrary to his duty, the law gives 
 redress to the injured party by an action adapted 
 to the nature of the case. _" That rule received 
 a very emphatic approval in Bobinson v. Cham- 
 berlain, [34 N. Y. 389] ; and if the opinion of 
 Mr. Justice Selden in the case of West v. Trm- 
 tees of Brockpm-t, [16 N. Y. 161, n.,] tended to 
 impair that rule, it was restored to full vigor by 
 the decision of the court in Bobinson v. Cham- 
 berlain." Cminers v. Adams, 13 Hun 427, 
 430. 
 
 Agate V. King, 17 Abb. Pr. 159. Right 
 to interpose counter-claim in action to foreclose 
 mortgage. Ovebeuled. Sdigman v. Dudley, 
 
 14 Hun 186, 190. 
 
 Ahem v. Goodspeed, 9 Hun 263. Maker 
 of note bound by representations of broker with 
 whom he leaves the note for sale. Affirmed. 
 Ahren v. Goodspeed, 72 N. Y. lOS. 
 
 Aikln V. Wasson, 24 N. Y. 482. Dis- 
 tinguished. Stn/ker v. Cassidy, 76 N. Y. 50, 
 53. 
 
 Ainsley v. Mead, 3 Lans. 116. Liability 
 of married woman upon contracts for benefit of 
 separate estate. Distinguished. Husted v. 
 Mathea, 77 N. Y. 388, 390 ; Treman v. Allen, 
 
 15 Hun 4, 8. 
 
 Albany, &c., R. B. Co. v. People, 15 
 Hun 126. Parties to suit to dissolve corpora- 
 
 * A number of affirmances and reversals of cases reported in Jones and Spencer's Reports, (vols. 83-42 Su- 
 Sjerior,) which were inadvertently omitted in the corresponding table in the preceding volume of this work, 
 Are also noted here. — ^Kd.J 
 
 467 
 
468 
 
 CASES CRITICISED. 
 
 tion. Intervention. Eeveksed. People y. Air 
 homj, &c., B. B. Co., 77 N. Y. 232 P^"'-^"^ 
 
 ■Albany Fire Ins. Co. v. Bay, 4 N. Y. 9 
 Married woman may convey lands by her own 
 individual deed, wherein her husband does not 
 join. Followed. Savage v. OnU, 19 Hun 4 
 
 Alexander v. Dutoher, 7 Hun 439. In 
 action on note by representatives of deceased 
 holder against maker and indorser, neither de- 
 tendant can testify as to transactions with de- 
 ceased, in favor of the other. Apfibmed. 
 Alemnder v. Butcher, 70 N. Y. 385. 
 T<r'^^^f^^%^- <*ermania ins. Co.; 66 
 JN. X. 464. Knowledge of insurance agent, 
 when does not bind the company. Dis- 
 tinguished. Whited V. Germania Pirelm. 0>., 
 76 N. y. 415, 419. Followed. BeU v. Lu- 
 coming Fire Ins. Cb., 19 Hun 238, 244. Disap- 
 PBOVED. Chase v. Peoples Fire Ins. Co., 14 
 
 Alexander v. Greene, 7 Hill 533. Suffi- 
 ciency of special contract to exempt common 
 carrier of merchandise from liability for neg- 
 ligence. Followed. Maj/nard v. Syraeuse, &e., 
 B. B. a., 71 N. Y. 180. :'. . , 
 
 Alger V. Conger, 17 Hun 45. When a 
 personal execution against a trustee plaintiff is 
 improper. Affirmed. Aher v. Qmoer. 78 
 N. Y. 633. 
 
 Algiir V. Gardner, 54 N. Y. 360. Dis- 
 tinguished. Moore v. Bogart, 19 Hun 227, 
 229. ' 
 
 Allen y. Allen, 59 How. Pr. 27. Allow- 
 ance of alimoiiy to wife in action to nulJify 
 marriage on ground of impotency. Not fol- 
 lowed. Bloodgood v. Bhodgood, 59 How. Pr. 
 
 Allen V. Brown, 44 N. Y. 228. Dis- 
 tinguished. Hays V. Hathom, 74 N. Y. 486, 
 489. 
 
 Allen V. City of Buffalo, 38 N. Y. 280. 
 Is rendered nugatory by Code Civ. Pro., ^ 488, 
 subd. 5. Enos-v. Leaeh, 18 Hun 139, 142. 
 
 Allen V. Coit, 6 Hill 318. Effect of part- 
 nership booIcB as evidence between the partners. 
 Followed. Cheever v. Lamar, 19 Hun 130, 
 133. 
 
 Allen V. Eigbmie, 14 Hun 559. Con- 
 struction and validity of verbal guaranty of 
 bond. Statute of frauds. Affibmed. Alien v. 
 Fighmie, 79 N. Y. 632. 
 
 Allen V. Fourth Nat. Bank,~37 Superior 
 137. Becovery back of money paid on foiged 
 commercial paper. Affiriied. AUen v. 
 Fourth Nat. Bank, 59 N. Y. 12. 
 
 AUen V. Meyer, 7 Daly 229. Motion to 
 vacate attachment. Affibmed. AUen v. Meyer, 
 73 K. Y. 1. 
 
 Allen V. Public Adm'r, 1 Bradf. 221 ; 
 S. C, mb Tum. Thayer v. Allen, Seld. No. 
 57. Admissibility in evidence of communica- 
 tions between physician and patient. Ap- 
 proved. Pierson v. People, 18 Hun 239, 247, 
 249. 
 
 Allen V. Suydam, 17 Wend. 368. Duties 
 and liability of collecting agent. " That case 
 was taken to the Court of Errors, and again ap- 
 pears in 20 Wend. 321, and although the judg- 
 ment was reversed upon the question of dam- 
 ages, the same rule was laid down as to the duty 
 and liability of the agent." First Nat. Bank of 
 MeadviUe v. Fourth Nat. Bank of New York, 77 
 N. Y. 320, 325, 328. 
 AUerton v. Allerton, 50 N. Y. 670. 
 
 Ee-adoption 
 Halhnheck v. 
 
 Y. 50. Dis- 
 ', 59 How. Pr. 
 
 Distinguished. Gondd v. Cayuga, &e., Nat 
 Bank of Avium, 21 Hun 293, 302. 
 
 T ^"if ""V,?®?."*";*^' 46 N. Y. 688; 22 Alb. 
 J^ J. 28. Pleading m suit on promissory nole 
 
 275'^276'™' '^'"''* ''' ^'"^' ^ ^°^- ^'- 2^4' 
 
 Allls V. Bead, 45 N. Y. 142. 
 of void contract. Explained. 
 Cochran, 20 Hun 416, 419. 
 
 Allis V. Wheeler, 56 N. 
 TiNGuiSHED. WHliam V. Cassadi 
 490. 
 
 Allyn V. Thurston, 53 N. Y. 622. Ex- 
 hausting legal remedy before filing- creditors' 
 
 flon CO, ^^°'^^''- ^"^^ ^- '^"'^i 13 Hun 
 629, 631. 
 
 Simple contract creditor cannot maintain 
 creditor's suit. Followed. Fiians v. HiU. 18 
 Hun 464, 465. 
 
 American Medicine Co. v. Kessler, 
 38 Superior 407. What is not sufficient evi- 
 dence of conversion. Reversed. American 
 Medicine Co. v. Kessler, 66 N. Y. 637. 
 
 Ames Vi New York Union Ins. Co., 
 14 K. Y. 253. Condition in policy limiting 
 time to sue thereon. Approved. Hay v. Star 
 Fire Ins. a., 77 N. Y. 235, 244. 
 
 Amidon v. "Wheeler, 3 Hill 137. Dis- 
 tinguished. Matter of Gaurdian Savings Inst.. 
 78 N. Y. 408, 413. ^ ' 
 
 Amory v. Amory, 36 Superior 520. Ee- 
 moyal of cause to federal court. Eequisites of 
 petition. Affirmed. Amory v. Amory, 58 N, 
 
 Amsbry v. Hinds, 48 N. Y. 57, 61. Con- 
 struction of statute relative to discontinuance 
 of highways. Followed. McOahill y. Hamil- 
 ton, 20 Hun 388, 392. 
 
 Amsdell v. MoOaftey, 16 Hun 255. 
 Statement of grounds of appeal in notice of 
 appeal from justice's judgment. Distin- 
 guished. Andrews v. Lmg, 19 Hun 303, 304, 
 305. 
 
 Anderson v. Mather, 44 N. Y. 249. 
 Equitable estate of catui que ti-vst. Followed. 
 Bennett v. Garlock, 79 N. Y. 302, 320. 
 
 Anderson v. Rome, &c., R. R. Co., 54 
 N. Y. 334. The erroneous admission of in- 
 competent and illegal evidence, unless it is clear, 
 beyond rational doubt, that the result was not 
 and could not have been affected thereby, will 
 not be disregarded on appeal. Followed. 
 Havemeyef v. Havemeyer, 43 Superior 506, 522. 
 Distinguished. Casey v. New York OaUral,. 
 &e., B. B. Co., 6 Abb. N. Cas. 104, 123. 
 
 Andrews v. Betts, 8 Hun 322. Appoint- 
 ment of receiver of property subject to sheriff's- 
 levy, when proper. Followed. Shehan v. 
 Makar, 17 Hun 129, 130. 
 
 Andrews v. Diu-ant, 11 N. _Y. 35. 
 When title passes, under contract to build ves- 
 sel, to be paid for as -work progresses. Dis- 
 tinguished. Burrows v. WhUaSer, 71 N. Y. 
 291 295. 
 
 Andrews v. GUlespie, 47 N. Y. 487. 
 Defence of mistake in mortgage, when allowed 
 in foreclosure. Followed. Savings Institution 
 V. Burdick, 20 Hun 104, 113, 114. 
 
 Andrews v. Long, 19 Hun 303. Order 
 of County Court dismissing appeal from justice's- 
 judgment is appealable to Supreme Court. Re- 
 versed. Andvews v. Long, 79 N. Y. 573. 
 
 Angell V. Lawton, 14 Hun 70. Foreign 
 representatives of non-resident joint debtor not 
 
CASES CRITICISED. 
 
 469 
 
 necessary parties to suit on the joint indebted- 
 ness, when. Affibmed.* ATigell v. Lawton, 
 76 N. Y. 540. 
 
 Ansonia Brass, &o., Co. v. Babbitt, 
 S Hun 157. Eifect of proceedings in bank- 
 ruptcy upon lien of execution previously levied. 
 FoLLOVifED. Nat. Bank v. Babbitt, 17 Hun 
 447, 453, 455. 
 
 Anthony v. Harrison, 14 Him 198. 
 Effect of affixing seal to promissory note — 
 when payee must prove consideration. Af- 
 firmed, Anthony v. Harrison, 74 N. Y. 613. 
 
 Appleby v. Brie County Savings 
 Bank, 62 N. Y. 12. Liability of savings bank 
 to depositor, for amount paid on forged signa- 
 ture in pass-book. Distinguished. Allen v. 
 Wiiliamsburgh Savings Bank, 69 N. Y. 314, 
 320. 
 
 Appley V. Trustees of Montauk, 38 
 Barb. 275. Interpretation of Laws of 1852, 
 ■ch. 139, incorporating the proprietors of Mon- 
 tauk lands, in East Hampton, Suffolk county. 
 Approved and roiiLOWED. (Mnnell v. Mao- 
 lean, 16 Hun 133, 134. 
 
 Appo V. People, 20 N. Y. 531. Writ of 
 prohibition proper where subordinate tribunal, 
 having jurisdiction, exceeds it. Approved. 
 People, ex rel. Mayor, &c., of New York, v. 
 Niclwh, 18 Hun 530, 538, q. v. in this Table. 
 
 Arctic Fire Ins. Co. v. Austin, 3 Hun 
 195. Contributory negligence of captain of 
 <!anal boat in tow by defendant, no defence in 
 action by owner of cargo, for damages sustained 
 by collision with another tow of defendant. 
 Eevehsed. Arctic Fire Ins. Co. v. Austin, 69 
 N. Y. 470. ; 
 
 Arkell y. Oommerce Ins. Co., 7 Hun 
 455. Condition of fire policy against manufac- 
 ture of illuminating gas, or use of gasoline for 
 lighting, construed. Affiemed. ArkeU v. 
 ■Commerce Ins. Co., 69 N. Y. 191. 
 
 Armour v. Michigan Central R. R. 
 Co., 35 Superior 563. 
 
 [Eeported in memorandum.] 
 Reversed. Armour v. Michigan Central S. B. 
 ■Cb., 65 N. Y. 111. 
 
 Arnold v. Angell, 62 N. Y. 508. Ac- 
 ■counting as between partners, where it is found 
 that no partnership existed in law. Distin- 
 guished. Smith V. Bodine, 74 N. Y. 30, 33. 
 
 Arnold v. Nichols, 64 N. Y. 117. Prom- 
 ise for benefit of third person. Followed. 
 Mdvain v. Tom,es, 14 Hun 31, 33. 
 
 Arnold v. Pacific Mut. Ins. Co., 14 
 Hun 83. Marine insurance— description of 
 voyage — deviation. Reversed. Arnold v. 
 Pacific Mut. Ins. Co., 78 N. Y. 7. 
 
 Aspin-wrall v. Commissioners of 
 Daviess County, 22 How. (U. S.) ' 364. 
 ■Constitutional prohibition of bonding towns in 
 aid of corporations. Distinguished. Anqd 
 V. Tom of Hum^, 17 Hun 374, 383. 
 Astor, Matter of, 50 N. Y. 363. Dis- 
 
 *The appeal was diamisaed, but the doctrine of the 
 ■General Term above mentioned, waa approved by the 
 ■Court of Appeals. 
 
 TiNGUiSHED. Moore V. Mayor, &c., of New York, 
 73 N. Y. 238, 249. 
 
 Astor, matter of, 53 N. Y. 617. Distik- 
 GUISHED. Matter of Marsh, 21 Hun 582. 
 
 Atlantic Nat. Bank v. Franklin, 55 
 N. Y. 235. Distinguished. First Nat. Bank 
 of Buffalo V. Wood, 71 N. Y. 405, 411. 
 
 Attorney- G-eneral v. Atlantic Mut. 
 Life Ins. Co., 15 Hun 84. When the court 
 will refuse to direct receiver of insolvent insur- 
 ance company to continue the business of the 
 company. Affirmed in part. Attorney Gen- 
 eral V. Atlantic Mut. Life Ins. Co., 77 N. Y. 336. 
 
 Attorney-General v. Continental 
 Life Ins. Co., 71 N. Y. 325. What is an 
 order on a particular fund so as to operate as an 
 assignment pro tanto. Approved. Master of 
 Le Blanc, l4 Hnn 8, 9. 
 
 Attorney-General v. North America 
 Life Ins. Co , 15 Hun 18. Intervening pol- 
 icy-holders appearing in proceedings to dis- 
 solve an insurance company, cannot appeal 
 from orders made in such proceedings. Re- 
 versed. Attorney-General v. North Ameriea 
 Life Ins. Co., 77 N. Y. 297. 
 
 Attorney-General v. North America 
 Life In3._ Co., 18 Hun 470. Eights of re- 
 ceiver of insolvent insurance company, under 
 Laws of 1869, ch. 902. Affirmed, it seems, 
 February 24th, 1880. 
 
 Attorney-General, Matter of, v. 
 North Ameria Life Ins. Co., 21 Hun 283. 
 
 [Reported in memorandum.] 
 Modified, it seems, September 28th, 1880. 
 
 Atwood V. Lynch, 37 Superior 5. 
 Liability of sheriff for illegal levy of execution, 
 and sale thereunder. Distinguished. Parker 
 V. Conner, 44 Superior 416, 422. 
 
 Augustine v. Britt, 15 Him 395. When 
 deed conveying city lot does not convey fee of 
 street on which lot fronts. Affirmed, it seems, 
 March 19th, 1880. 
 
 Austin V. Dye, 46 N. Y. 500. Purchase)- 
 under conditional sale can confer no title until 
 condition is performed. Distinguished. 
 Cijmer v. Ownningham, 77 N. Y. 391. 
 
 Austin V. Fuller, 12 Barb. 360. Agree- 
 ment to pay usury on note expressing lawful 
 interest, may be shown by parol evidence. 
 Followed. Mudgett v. Goler, 18 Hun 302, 
 303. 
 
 Austin V. Monroe, 47 N. Y. 360. Con- 
 tracts by executors, when do not bind estate. 
 Followed. Lunt v. Lant, 8 Abb. N. Cas. 83 
 90. 
 
 Austin V. Rawdon, 44 N. Y. 63. Dis- 
 tinguished. Smith V. FVosl, 70 N. Y. 65, 71. 
 
 Ayer v. Kobbe, 36 Superior 158. Con- 
 struction of special contract between landlord 
 and tenant. Affirmed. Ayer v. Kobhe. 59 N 
 Y. 454. '^ ' 
 
 Ayers v. Lawrence, 59 K. Y. 192. 
 Right of tax-payers under Laws of 1872, ch. 
 161, to restrain towm-bonding proceedings 
 Followed. Metzger v. Attica, &c., B. S. Ob 
 79 N. Y. 171, 174. ' 
 
470 
 
 CASES CRITICISED. 
 
 B. 
 
 Babcock V. Libbey, 17 Hun 131. False 
 representations as to existence of corporation, in 
 fact dissolved. Affirmed, it seerm, September 
 28th, 1880. 
 
 BEiche V. Doacber, 41 Superior 150. Ac- 
 tion for deficiency on foreclosure. Affiemed. 
 Baehe v. Doseher, 67 N. Y. 429. 
 
 Baggerly v. Farmers' Joint Stock 
 Ins. Co., 72 N. Y. 607. Waiver by insurauce 
 company of condition as to time of presenting 
 proofs of loss. Followed. Goodwin v. Massor 
 daaeUs Mut. L^e Ins. Co., 73 N. Y. 480, 495. 
 
 Baggrott V. Boulger, 2 Doer 160. " Was 
 decided nnder the code of 1849, and before the 
 amendment of 1861 had added the last clause to 
 I 113,* and is not an authority for a construc- 
 tion of the statute as it now stands." People, 
 ex rd. Beear, v. StruOer, 16 Hnn 234^ 236. 
 
 Bagrley v. Smith, 10 X. Y. 489. Eeoovery 
 of compensation for loss of future profits, when 
 proper. DisrnsGtnsHED. MUchdl v. Oameli, 
 44 Superior 401, 405. 
 
 Bailey v. Homestead Fire Ins. C!o., 16 
 Hun 503. What is not a breach of warranty 
 against fature incumbrances in fire policy. 
 Affibked, t^ seems, January 27th, 1^0. 
 
 Bailey v. Mayor, &c., of New York, 3 
 Hill 531. Liability of municipal corporations 
 for Diligence or want of skill of their servants. 
 " The remarks of >"e!son, Ch. J., to the effect 
 that monicipal corporations, in their private 
 character as owners and occupants of land, must 
 be regarded the same as iudividnal owners, and 
 dealt with accordingly, must be restricted, I 
 think, tp apply only to cases where the officers 
 do not exceed their powers." Smith y. CHty of 
 BoehaUr, 76 S. Y. 506, 510. 
 
 Bailey v. Stone, 41 How. Pr. 346. Party 
 having obtained dismissal on ground that sum 
 involred was above jurisdiction of justice, 
 (Stopped from afterwards asserting the reverse. 
 FootLOWED. Br<HJ>i«rT.J3biiMrd,14Hnn420,422. 
 
 Bainbridge v. Richmond, 17 Hun 391. 
 Parol evidence, when admissible to vary terms 
 of chattel mortgage. Affirmed. Bainbridge 
 V. Biekmmid, 78 N. Y. 6IS. 
 
 Baird v. Daly, 57 X. Y. 236. Distin- 
 guished. BarOet v. Spieer, 75 X. Y. 528, 534. 
 
 Baird v. GiUett, 47 X. Y. 186. The erro- 
 neous admission of incompetent and iU^al evi- 
 dence, unless it is clear, beyond rational doubt, 
 that the result was not, and could not have been, 
 affected thereby, will not be disr^aided on 
 appod. FoiiOWED. Hatemeya- v. Havemeyer, 
 43 Sup<rior 506, 522. _ ^ 
 
 Bsjrd V. Mayor, Sec, of New York, 
 74 N. Y. 386. When right of trial by jury is 
 waived by proceeding with reference, without 
 appealing from order appointing referee. Fol- 
 lowed. People, ex rd. Tafe, v. Eelder, 19 Hun 
 609, 613. ^ , „„ ^ . 
 
 Baker v. Bouoicault, 1 Daly 23. Ijia- 
 bili^of carrier for loss of goods shipped C. O. 
 D. Disapproved, liiggins v. Murray, 73 N. 
 Y. 252,254. 
 
 Baker v. Disbrow, 18 Hun 29. Liabihty 
 
 ♦Deflnine who shall be deemed a trOBtee of an ex- 
 pi^SustTand so enUtled to sue, though not real party 
 iu interest. 
 
 of trustee for improper investments. Afpieiied 
 Baker v. Disbrow, 79 N. Y. 631. 
 
 Baker v. Kenworthy, 41 N. Y. 215. 
 When execution not levyable on property in 
 hands of sheriff. Distinguishbd. Ihadop v 
 Palterson Fire Ins. Co., 74 N. Y. 145, 150. Fol- 
 lowed. Adams v. Welsh, 43 Superior 52, 56. 
 
 Baker y. People, 15 Hun 256. Judgment 
 of divorce in foneign state, against citizen of this 
 state, not founded on personal service of process, 
 valid, even though defendant was never within 
 the jurisdiction and did not appear in the action. 
 Beversed. People v. BaJeer, 76 N. Y. 78. 
 
 Baker V. Thrasher, 4 Den. 493. Absolute- 
 deed given to pay a debt, with proviso that if 
 grantor find purchaser, grantee will convey to 
 such purchaser for amount of such debt and in- 
 terest; otherwise that grantee will pay such ad- 
 ditional sum as may be fixed by appraisers, is not 
 a mortgage. Appkoved and followed. 
 Maeaulay v. Porter, 71 N. Y. 173, 179. 
 
 Balbo V. People, 19 Hun 424. Qualifica- 
 tion of jurors. Challenge for cause and to the- 
 favor. Confession while in illegal custody. 
 Arrest for murder without process. Affirmed,. 
 it seems, April 6th, 1880. 
 
 Baldwin v. Liverpool, &c., Steamship 
 Co., 11 Hun 496. Extra compensation not re- 
 coverable by carrier, where shipper practices no 
 deception, and carriers fails to inquire as to nature- 
 and value of goods shipped. Affirmed. Bald- 
 win V. Liverpool, &c.. Steamship Oo., 74 N. Y. 125. 
 
 Baldwin v. MoArthur, 17 Barb. 414. 
 Disqualification of judge by reason of interest. 
 DismtGUiSHED. Matter of Dodge, &c., Manuf. 
 Co., 77 N. Y. 101, 111. 
 
 Baldwin v. United States Teleg. Op., 
 45 N. Y. 744. Measure of damages in action 
 for failure to transmit telegraphic message. Fol- 
 lowed. McOoU V. Western Union Teleg. Co., 44 
 Superior 487, 495 ; S. C, 7 Abb. N. Cas. 151, 154. 
 
 Ball V. Bullard, 52 Barb. 141. Disability 
 of coverture under the statute of limitations. 
 Criticised. Clark v. McCann, 18 Hun 13, 15. 
 
 Ballard v.Burgett, 40 N.Y. 314. Eights 
 of parties and third persons in cases of condi- 
 ti«nal sales. Distinguished. Comer v. Oan- 
 mngham, 77 N. Y. 391. 
 
 Ballin v. Dillaye, 37 N. Y. 35. Liability 
 of married woman on bond given for purchase 
 money of land purchased by her. " It is a little- 
 difficult to ascertain the precise ground upon 
 which the decision in this court proceeds." 
 Oashman v. Henry, 75 N. Y. 103, 111. 
 
 Baltzer v. Nioolay, 35 Superior 203. 
 Admission in answer, how construed. Liability 
 of agent on contract which does not bind princi- 
 paL Eeveksed. Baltzer v. Nieday, 53 N. Y. 
 
 467 
 
 Bank of California v. CoUins, 5 Hun 
 209. Actions against trustees of manufactunng 
 companies, for failure to file annual report, do- 
 not survive against executors of deceased trustee. 
 DotTBTED. Pier V. Oeorge, 14 Hun 568, 571. 
 Distinguished. Oarley v. Sedges, 19 Id. 187, 
 
 183. „ . „ , 
 
 Bank of Commerce v. Union BanK, 
 3 N. Y. 230. Kecovery of money paid by mis- 
 take. Distinguished. Susquelmnna VaUe}t 
 Bank v. Piclcering, 19 Hun 230, 232, 233. 
 
CASES CRITICISED. 
 
 471 
 
 Bank of Commonwealth v. Mayor, 
 &o., of New York, 43 N. Y. 184. Becovery 
 of money paid under illegal tax. Distinguish- 
 ed. Strudmrgh v. Mayor, &e., of Uew York, 45 
 Superior, 508, 511. 
 
 Bank of Georgia v. Lewin, 45 Barb. 
 340. Effect of law of place on discount of bill 
 or note. Distinguished. Bukmon v. Ed- 
 wards, 77 N. Y. 573, 580. 
 
 Bank of Newburgh v. Seymour, 14 
 Johns. 219. Adding party after judgment. 
 Distinguished. OrarU v. Qriswold, 21 Hun 
 509, 511. 
 
 Bank of St. Albans v. Gilliland, 23 
 Wend. 311. When indorsee of bill or note 
 must show parting with value. Distinguished. 
 Harger v. WarraU, 69 N. Y. 370, 373. Com- 
 mented ON. Phemx Ins. Co. v. Church, 59 How. 
 Pr 293 300. 
 
 Bank of Salina v. Alvord, 31 N. Y. 473. 
 Due diligence in detecting spurious character 
 of commercial paper. Followed. Moore v. 
 Sogart, 19 Hun 227, 229. 
 
 Bank of Salina v. Babcock, 21 Wend. 
 499. Distinguished. Jogger Iron Go.Y.Walker, 
 76 N. Y. 521, 526. 
 
 Bank of Sandusky v. ScoviUe, 24 
 Wend. 115. What is parting with value. Com- 
 mented ON. Phmic Ins. Co. v. Church, 59 How. 
 Pr 293 300. 
 
 Banta, Matter of, 60 N. Y. 165. Distin- 
 guished. People, ex rd. Boss, v. OUy of Brook- 
 lyn, 69 N. Y. 605. 
 
 Banta v. Ganno, 1 Sandf. Ch. 383. Dis- 
 tinguished. Sndling v. Mclntyre, 6 Abb. N. 
 Cas. 469, 472. 
 
 Barber v. Gary, 11 N. Y. 397. Execution 
 of power conditioned on consent of third per- 
 son. Followed. MaMer of Vtunderbilt, 20 Hun 
 520, 526. 
 
 Barker v. Millard, 16 Wend. 572. An 
 injunction staying the commencement of an ac- 
 tion does not ipso facto operate to suspend the 
 running of the statute of limitation, or relieve a 
 party from its operation. Approved. WU- 
 Unsmi V. First Nat. Fire Ins. Co., 72 N. Y. 499, 
 503. 
 
 Barlow v. Myers, 64 N. Y. 41. Distin- 
 guished. Brovm v. Oitrran, 14 Hun 260, 263. 
 
 Barlow v. St. Nicholas Nat. Bank, 63 
 N. Y. 399. Entry of land in assessment-roll, 
 not breach of covenant against incumbrances. 
 Followed. Skidmore v. Hart, 13 Hun 441, 
 445. 
 
 Barnes v. Brown, 11 Hun 315. Ee- 
 VEBSED IN PAKT, it seems, April 6th, 1880. 
 
 Barnesciotta v. People, 10 Hun 137. 
 Insufficient plea: in abatement for misnomer in 
 indictment. Demurrer proper mode of dispos- 
 ing of such plea. House of prostitution a dis- 
 orderly house. Affirmed. Barnesciotta v. 
 Peoph, 69 N. Y. 612. 
 
 Barnett v. Selling, 9 Hun 236. Eeplevin 
 maintainable for check, by maker against payee, 
 after it has been paid by drawee, and returned 
 to maker as a voucher. Keversed on this point. 
 Barnett v. Selling, 70 N. Y. 492. 
 
 Barrett v. Third Ave. R. R. Co., 45 N. 
 Y. 628. Election to sue one or all of several 
 tort-feasors. Distinguished. Chipman v. 
 Palnwr, 77 N. Y. 51, 54. 
 
 Motion to set aside verdict as contrary to evi- 
 dence, discretionary. Distinguished. Lucus 
 V. McEnema, 19 Hun 14, 16. 
 
 Barringer v. Delaware, &o., Oanal 
 Co., 19 Hun 216. Foreman of corporation, 
 when not alter ego of corporation, in cases of in- 
 jury to co-seiTant. Distinguished. McOosker 
 V. Long Island R. B. Co., 21 Hun 500, 507. 
 
 Barrow v. Richard, 8 Paige 351. Where 
 land-owners create mutual easements for benefit 
 of owners of whole tract, equity will enforce the 
 covenants creating such easements against pur- 
 chasers of any part of the tract. Followed. 
 Trustees of Columbia College v. Lynch, 70 N. Y. 
 440, 452. 
 
 Barry v. Brune, 8 Hun 395; Same v. 
 Equitable Life Assur. Soc, 59 N. Y. 587. 
 Eights of wife after assignment, by coercioa of 
 her husband, of policy of insurance upon latter's 
 life, payable to her. Affirmed. Barry v. 
 Brune, 71 N. Y. 261. 
 
 Barry v. Equitable Life Assur. Soc, 
 59 N. Y. 587. Policy on life of husband, for 
 benefit of wife, issued under Laws of 1840, ch. 
 277, not assignable by wife. Followed. WU- 
 son V. Lawence, 13 Hun 238, 241. 
 
 Bartlett v. Bartlett, Clarke Ch. 460. Ali- 
 mony not allowable to wife in her suit to annul 
 marriage for alleged impotency of husband. 
 Followed. Bloodgood v. Bloodgood, 59 How. 
 Pr. 42, 43. Not followed. Alien v. Alien, 
 Id 27 32. 
 
 isartlett v. Drew, 57 N. Y. 587. Enforce- 
 ment of individual liability of stockholders in 
 corporation. Distinguished. Oriffith v. Man- 
 gam, 73 N. Y. 611, 612. 
 
 Bartlett v. Holmes, 12 Hun 398. Judg- 
 ment in personam against non-resident, not per- 
 sonally served, and who does not appear, is void. 
 Supreme Court has no jurisdiction of an action 
 upon a stipulation in admiralty. Affirmed. 
 Bartlett v. Spicer, 75 N. Y. 528. 
 
 Bartlett v. Tarbox, 1 Keyes 495. Dis- 
 tinguished. Richardson v. Warner, 13 Hun 
 13, 15. 
 
 Barto V. Himrod, 8 N. Y. 483. Distin- 
 guished. Matter of OUbert Elevated Ry. Co., 
 70 N. Y. 361, 374. 
 
 Bartow v. People, 18 Hun 22. What 
 constitutes embezzlement, under Laws of 1874, 
 ch. 207. Eeversed. Bartow v. People, 78 N. 
 Y. 377, 
 
 Baskin v. Baskin, 36 N. Y. 416. What 
 signing and publication of a will is sufficient. 
 Distinguished. Mitchell v. Mitchell, 16 Hun 
 97, 100. 
 
 Bassett v. Fish| 12 Hun 209. Trustees 
 of union free schools individually liable to per- 
 son injured by reason of want of repair of school 
 building. Eeversed. Bassett v. Fish, 75 N. 
 Y. 303. 
 
 Bassett v. Spofiford, 45 N. Y. 387. Dis- 
 tinction between larceny and false pretences. 
 Followed. Zmk v. People, 77 N. Y. 114, 
 124. 
 
 Battell V. Torrey, 65 N. Y. 294. Pro- 
 ceedings for sale of infant's lands. Approved 
 and followed. Matter of Valentine, 72 N. Y. 
 184, 188. 
 
 Baxter v. Smack, 17 How. Pr. 184. Disi 
 TINGUISHED. Schaff V. O'Brien, 8 Daly 181. 
 
 Bay V. Cbddington, 5 Johns. Ch. 54 ; S. 
 C. in error, 20 Johns. 637. Eights of purchaser 
 of diverted negotiable paper, who receives it for 
 an antecedent debt. Followed as controlling. 
 Comstock V. JEfier, 73 N. Y. 269, 276. Criticised. 
 Brooklyn, &e., R. R. Co. v. Nat. Bank of Repub 
 
472 
 
 CASES CRITICISED. 
 
 lie, 22 Alb. L. J. 189. See Ooddington v. Bay, 
 in this Table. 
 
 Beach v. Endress, 51 Barb. 570. Dis- 
 TEdGinsHBD. JRoe V. Conway, 74 N. Y. 201, 206. 
 Beach v. Gregory, 2 Abb. Pr. 203. Mak- 
 ing personal representatives of party dying be- 
 fore judgment, parties. Approved. Adams y. 
 Ndlia, 59 How. Pr. 385, 389. 
 
 Beach V. Hollister, 3 Hun 519. Nature of 
 tenancy by liusband and wife of property con- 
 veyed to them jointly. Disappbovbd. Meeker 
 V. Wright, 76 N. Y. 262, 270. 
 
 Beach v. Mayor, &c., of New York, 3 
 Abb. N. Cas., 113. When order for examination 
 of party before trial should be granted. Be- 
 VERSED. Beach v. Mayor, &e., of Nem Yorh, 4 
 Abb. N. Cas. 236. 
 
 Beach v. Mayor, <&c., of New York, 4 
 Abb. N. Cas. 236 ; S. C, 14 Hun. 79. Power of 
 the court to vacate order for examination of ad- 
 verse party befpre trial. Followed. Chapin 
 V. Thompson, 16 Hun 53, 55, 56. 
 
 Beach V. Resrnolds, 53 N. Y. 1. Eight to 
 revive action, when lost by laches. Not roL- 
 LOWED. Oieene v. Marline, 21 Hun 136, 138. 
 DiSTrNGtnsHED. Evarti v. Cleeeland, 72 N. Y. 
 486, 490. And see Coit v. Campbell, 20 Hun 
 50, 53. 
 
 Bean v. Kiah, 4 Hun 171. Action for 
 services rendered by wife must be brought in 
 name of husband, when. Followed. Ovick v. 
 Quaekenbush, 13 Hun 107, 109. 
 
 Beams v. Gotild, 8 Daly 384. Powers of 
 surrogate of New York county. Afeirmed. 
 Beai-ns v. Cfould, 77 N. Y. 455. 
 
 Beattie v. Qua, 15 Barb. 132. The Su- 
 preme Court cannot review the taxation of costs 
 upon an appeal from the judgment of the County 
 Court, and if the party has any grievances as to 
 the items of cost-i, he should apply to the 
 Coimty Court upon motion. Distingtiished. 
 Woodford v. Bucklin, 14 Hun 444, 445. 
 
 Beckwlth v. "Whalen, 9 Hun 408. What 
 amounts to such a discontinuance of a highway 
 leading to a creek bounding a town, as to relieve 
 the town from liability to an adjoining town for 
 half the expenses of bridging the creek at its 
 place of intersection with the abandoned high- 
 way. Aefibmed. Beekmith v. Whalen, 70 N. 
 Y. 430. 
 
 Beckwlth v. "Whalen, 65 N. Y. 322. 
 Liability of adjoining towns to share expense 
 of building bridges over streams dividing them. 
 Distinguished. Beckwith v. Whalen, 70 N. Y. 
 430, 436. 
 
 Bedell v. Oarll, 33 N. Y. 581. Distin- 
 guished. Conklin v. Conklin, 20 Hun 278, 282. 
 Bedell v. Shaw, 59 N. Y. 46. Possession 
 and claim of title under tax lease for one thou- 
 sand years, will not give title by adverse pos- 
 session. Followed. Hilton v. Bender, 69 N. 
 Y 75 79 
 
 Be'ebe v. Bstabrook, 11 Hun 523. Dis- 
 tribution—effect of advancements to children. 
 Affirmed. Beebe v. Estahrook, 79 N. Y. 246. 
 Beebe v. Holmes, 15 Hun 585, see Holmes 
 V. McDowell, in this Table. 
 
 Beers v. Shaianon, 12 Hun 161. Dam- 
 ages recoverable in action by executor on bond 
 to pay incumbrances. Eetersed. Beers v. 
 Shannon, 73 N. Y. 292. ,„ ^^ ,^ ^,^ „ , . 
 Behan v. People, 17 N. Y. 516. Sale of 
 liquor in quantities less than five gallons, with- 
 out license, punishable by indictment. Distin- 
 
 guished AND LIMITED. Peopfo V. Hislop, 77 N. 
 Y. 331, 333, 335. 
 
 Belsiegel v. New York Central E. R. 
 Co., 40 N. Y. 9. To submit to jury whether 
 a railroad company should keep a flagman sta- 
 tioned at a particular point, erroneous. Fol- 
 lowed. Dyer v. Erie Bailway Co., 71 N. Y. 
 228, 231. 
 
 _ Belknap v. Sealey, 14 N. Y. 143. Res- 
 cission of contract for sale of land on ground 
 of deficiency in quantity. Explained. Paine 
 V. Upton, 21 Hun 306, 311. 
 
 Bell V. Dagg, 60 N. Y. 528. Distin- 
 guished. Littauer v. Qoldman, 72 N. Y. 506, 
 511. 
 
 Bell V. Day, 32 N. Y. 165. Distinguished. 
 Moore v. BogaH, 19 Hun 227, 230. 
 
 Bell V. Mayor, &c., of New York, 10 
 Paige 49. Computation of amount to be paid 
 by dowress on redeeming land from mortgage. 
 Followed. Baynor v. Baynor, 21 Hun 36, 44. 
 Bell V. Pierce, 51 N. Y. 12. A man may 
 be a resident of two places at one time. Fol- 
 lowed. Union Sold Co. v. Hersee, 79 N. Y. 
 454, 462. ' 
 
 Belmont v. Ponvert, 35 Superior 208. 
 Construction of agreement for forbearance on 
 part of judgment creditor. Modified. Bd- 
 mmt V. Ponvert, 63 N. Y. 547. 
 
 Belton V. Baxter, 54 N. Y. 245. It is 
 negligence per se for a foot passenger to attempt 
 to cross a public thoroughfare, upon a nice cal- 
 culation of chances of injuiy ; and if in sudi 
 case the attempt be made and the calculations 
 fail, to the plaintiff's 'harm, he can have no re- 
 dress for injuries received in his mistaken effort. 
 " The case was again tried, and in process of 
 time came again on appeal before the Court of 
 Appeals, (58 N. Y. 411,) where that court, upon 
 a slight difference in the verbiage of the evi- 
 dence, reversed a judgment of non-suit which 
 had been rendered upon the second trial." 
 Hoffman v. New York Central, &e., B. B. Co., 13 
 Hun 589, 592 ; q. v. in this Table. 
 
 Bendernagle y. Cooks, 19 Wend. 207. 
 All demands due on contract sued on must be 
 included in complaint, or judgment for a part 
 will bar recovery on residue. Followed. Jex 
 V. Jacob, 19 Hun 105, 109. 
 
 Benedict v. Benedict, 15 Hun 305. Re- 
 quisites of judgment for defendant in injunction 
 suit, upon which to found motion for reference 
 to ascertain damages sustained by the injunc- 
 tion. Affirmed. Benedict v. Benedict, 76 N. 
 Y. 600. 
 
 Benedict v. Howard, 31 Barb. 569. Dis- 
 tinguished. Osborn v. Schenck, 18 Hun 202, 
 205. 
 
 Bennett v. Brown, 20 N. Y. 99 ; 31 Barb. 
 158. Damages recoverable on attachment bond. 
 Followed. Northrwp v. Oarrett, 17 Hun 497, 
 
 Bennett v. Garlock, 10 Hun 328. Rights 
 and estate of trustee. Rule in Shelley's Case. 
 Reversed. Bennett v. Oarlock, 79 N. Y. 302. 
 
 Bennett v. New York Central, &o., 
 B. B. Co., 5 Hun 599. Right of railroad 
 company to eject passenger for non-payment of 
 fare. Affirmed. Benns(t v. New York Central, 
 &e., B. B. Co., 69 N. Y.'594. 
 . Bennett v. North British, &o., Ins. 
 Co., 8 Daly 471. Construction of condition in 
 fire policy against use of explosive oils, &c. 
 Affirmed, it seems, see 8 Daly 474, note. 
 
CASES CRITICISED. 
 
 473 
 
 Bensel v. Gray, 38 Superior 447. Con- 
 tract for sale of leases, how construed. Tax 
 leases in city of New York. Affibmed. Ben- 
 id V. Gray, 62 N. Y. 632. 
 
 Bensen v. Perry, 17 Hun 16. Amount 
 paid to procure satisfaction of judgment must 
 be repaid or tendered before motion to set aside 
 satisfaction on ground of mistalie. Affibmed. 
 Bmsen v. Pen'y, 77 N. Y. 625. 
 
 Benton v. Wiokwire, 54 N. Y. 226. 
 Distinguished. Fox v.Kidd, 77 N. Y. 489. 
 
 Berger v. Snedeker, 21 Alb. L. J. 54. 
 Powers of referee in proceedings to distribute 
 surplus moneys in foreclosure. Followed. 
 TaiarN. Adams, 20 Hun 131, 132. 
 
 Berkshire "Woolen Oo. v. Juillard, 13 
 Hun 506. When a bond constitutes a partner- 
 ship obligation, although executed by the part- 
 ners in their individual names. Affirmed. 
 Berhhire Woolen Go. v. Juillard, 75 N. Y. 535. 
 
 Bertholf v. O'ReUly, 8 Hun 16. Civil 
 damage act constitutional as to owner of prem- 
 ises. Affirmed. BeriAoi/'v. O'iJeifly, 74 N.Y. 
 509. 
 
 Besel V. NeTV York Central, &c., R. R. 
 Co., 9 Hun 457. Liability of master to servant 
 for injuries occasioned by negligence of fellow 
 servants. Eeversed. Besd v. New York Gen- 
 tral, &c., R. R. Co., 70 N. Y. 171. 
 
 Besel V. NeTW York Central, &o., R.R. 
 Co., 70 N. Y. 171. Liability of master to ser- 
 vant for negligence of co-servant. FoiiLOWED. 
 Murphy v. Boston arid Albany R. R Co., 8 Abb. N. 
 Ca-!., 41, 48; S. C, 59 How. Pr. 197, 203; Me- 
 Cosher v. Long Island B: B. Co., 21 Hun 500, 
 506. 
 
 Bevan v. Cooper, 7 Hun 117. When a 
 legacy is a charge on land. Bevessed, on 
 question of jurisdiction not presented below. Beiian 
 V. Cooper, 72 N. Y. 317. 
 
 Blel8cb.ofsky v. People, 8 Hun 40. — 
 Distinguished. Boland v. People, 19 Hun 80, 
 82. 
 
 Bierbauer v. Ne-w Central, &c., R. R. 
 Co., 15 Hi in 559. Action for causing death — 
 verdict for $5000, when not excessive. Af- 
 firmed. Bierbauer v. New York Central, &e., 
 R. R. Co., 77 N. Y. 588. 
 
 Bigelow V. Benedict, 9 Hun 429. Op- 
 tional contract, founded on valuable considera- 
 tion, to deliver gold coin, when not a wager. 
 Affirmed. Bigdow v. Benedict, 70 N. Y. 202. 
 See, also. Story v. Salomon, 71 Id. 420, 422. 
 
 Biggs V. Peniman, 8 Cow. 387. Distin- 
 <JTJISHED. Cheever v. Gilbert Elecaied Ry. Co., 
 43 Superior 478, 495. 
 
 Bigler v. New York Central Ins. Co., 
 22 N. Y. 402. Condition as to subsequent in- 
 surance, how broken. Followed. Landers v. 
 Watertown Fire Ins. Co., 19 Hun 174, 177. 
 
 Bigsby V. Warden, 62 N. Y. 27; 46 
 How. _Pr. 239. Sufficiency of notice of appeal 
 from justice's judgment. Followed. Doron 
 Y. Mclaughlin, 14 Hun 628, 629. 
 
 Bight to costs in justices' courts. Followed. 
 Ohnplin v. Skeels, 20 Hun 448, 449. 
 
 Billings V. Carver, 54 Barb. 40. Omis- 
 sion to show original, when serving copy in- 
 junction order, an irregularity merely, and 
 is waived by appearing and answering on the 
 return-day. Followed. Newdl v. GiUler, 19 
 Him 74, 76. 
 
 BUlington V. Wagoner, 33 N. Y. 31.— 
 Only the victim of usury, not the usurer, can set 
 
 up against a contract that it is usurious and 
 void. Followed. Nat. Bank of Gloversmlle v. 
 Place, 15 Hun 564, 566. 
 
 Birdsall v. Clark, 7 Hun 351. Powers 
 and duties of superintendents of streets in city 
 of Binghanipton. Ebversed. Birdsall v. 
 Clark, 73 N. Y. 73. 
 
 Birkbeck V. Ackroyd, 11 Hun 365. In 
 what cases husband may sue for wife's earnings, 
 since the married women's acts. Affirmed. 
 Birkbeck V. Acb-oyd, 74 N. Y. 356. 
 
 Bisbey v. Shaw, 12 N. Y. 67. Evidence 
 in mitigation of damages in libel and slander. 
 Followed. Hatfield v. Lasher, 17 Hun 23, 25. 
 
 Bissell V. Balcom, 39 N. Y. 275. Dis- 
 tinguished. Hallenbeck v. Coehran, 20 Hun 
 416, 418. 
 
 Bissell V. Kellogg, 60 Barb. 617. A party 
 cannot maintain an action to remove a, cloud 
 from the title to land in which he has no inter- 
 est, upon the sole ground that he has warranted 
 the title. Distinguished. Levy v. Merrill, 14 
 Hun 145, 146. 
 
 Bissell V. Saxton, 66 N. Y. 55. Distin- 
 guished. Scofidd V. Churchill, 72 N. Y. 565, 
 568. 
 
 Blade v. Noland, 12 Wend. 173. A plain- 
 tiff cannot recover upon a note sued upon as a, 
 lost note, or resort to proof of the original con- 
 sideration, upon proof that he has voluntarily 
 and deliberately burnt the note, without ac- 
 counting for its destruction in such manner as 
 to repel the inference of a fraudulent design in 
 its destruction. Distinguished. Steele v. Lord, 
 70 N. Y. 280, 283. 
 
 Blair v. Wait, 6 Hun 477. Creditor, 
 when estopped by statement to debtor that debt 
 is owned by third party. Affirmed. Blair 
 V. WaU, 69 N. Y. 113. 
 
 Blake v. Ferris, 5 N. Y. 48. Master's 
 liability for acts of servants. Followed. 
 Tovm of Pierrepont v. Loveless, 72 N. Y. 211, 
 214. 
 
 Blancbard v. Blanchard, 4 Hun 287. 
 Construction of will. Suspension of power of 
 sale when valid. Affirmed. Blanchard v. 
 Blanchard, 70 N. Y. 615. 
 
 Blank v. Westcott, 7 Abb. Pr. (N. S.) 
 225. Construction of statutes relative to costs. 
 Criticised. Whitney v. Daggett, 6 Abb. N. 
 Cas. 434, 436. 
 
 Blaut V. Gabler, 8 Daly 48. Presumption 
 of fraud from possession remaining in seller. 
 Affirmed. BUmt v. Gabler, 77 N. Y. 461. 
 
 Blend y. People, 41 N. Y. 604. When 
 one of the justices of a Court of Sessions leaves 
 the court-room during a criminal trial, and a 
 county judge appoints another and proceeds (or 
 receives the verdict in his absence), it is a mis- 
 trial. Followed. Hinman v. People, 13 Hun 
 266, 267. 
 
 Bliss V. Greeley, 45 N. Y. 671. Diversion 
 of spring-water by percolation. Distinouished. 
 Johnstown Cheese Manuf. Co. v. Veqhte, 69 N. Y. 
 16, 23. 
 
 Bliss V. Swarts. 65 N. Y. 444. Compro- 
 mise with creditors, when not conclusive. Dis- 
 tinguished. Ludington v. Bell, 77 N. Y. 138, 
 142. 
 
 Blossom V. Barrett, 37 N. Y. 434. Join- 
 der of distinct causes of action. Distinguished. 
 Moremus v. Crawford, 15 Hun 45, 47. 
 
 Blossom V. Dodd, 43 N. Y. 264, 270. 
 Effect of express receipt to limit carrier's lia- 
 
474 
 
 CASES CRITICISED. 
 
 bility for loss of baggage. Followed. Madam, 
 V. Sherard, 73 K. Y. 329, 334. 
 
 Blott V. Rider, 47 How. Pr. 90. Construc- 
 tion of statute relating to divorces. Followed. 
 Harding v. Harding, 43 Superior 27, 33. 
 
 Bockes V. Lansing, 13 Hun 38. Deed of 
 receiver in supplementary proceedings not cloud 
 on title. Proper remedy ejectment. Apflrmed. 
 Bockes V. Laming, 74 N. Y. 437. 
 
 Bockes V. Lansing, 74 N. Y. 437. Eef- 
 eree cannot change cause of action from one for 
 equitable relief to one in ejectment. Distik- 
 GUISHED. Malikewi V. BeUmare, &e., Canal Co., 
 20 Hun 427, 437. 
 
 Boeklen v. Hardenburgh, 37 Superior 
 110. What facts do not show the existence of a 
 partnership. Affirmed. Boeklen v. Harden- 
 burgh, 60 N. Y. 8. 
 
 Boese v. Locke, 17 Hun 270. Suspension 
 of state insolvent law by U. S. bankrupt act. 
 Beveesed. Boese v. King, 78 N. Y. 471. 
 _ Bolen V. Crosby, 49 N. Y. 183. An as- 
 signment of a judgment against a corporation, 
 organized under Laws of 1848, carries with it 
 the claim or debt upon which it is founded, and 
 all rights and remedies for the recovery of, and 
 collection of tlie claim or debt, including the 
 remedy given by the act against the trustees. 
 Followed. Pier v. George, 14 Hun 568, 572. 
 
 Boiler V. Mayor, &c., of New York, 
 40 Superior ^523. Collateral impeachment of 
 judgment by proof of want of jurisdiction. Ex- 
 plained. Boderigas v. East Biver Savings In- 
 Btitution, 43 Superior 217, 227; q. v. in this 
 Table. 
 
 Bolton V. Jacks, 6 Eobt. 166. Judgment 
 may be attacked collaterally by showing want 
 of jurisdictional facts. Followed. Boderigas 
 V. East Biver Savings Institution, 43 Superior 
 217, 227. Approved. Ferguson v. Crawford, 
 70 N. Y. 253, 267. 
 
 Bonesteel v. Mayor, &c., of New 
 York, 22 N. Y. 162. Distinguished. Moore 
 V. Mayor, &e., of New York, 73 N. Y. 23S, 248. 
 
 Bonner v. MoPbail, 31 Barb. 106. Dis- 
 TINGDISHED. Eighmy v. People, 79 N. Y. 546, 
 557 
 
 Bonynge v. "Waterbury, 12 Hun 534. 
 Liability of attorney for fees of stenographer. 
 Followed. Bonynge v. Field, 44 Superior 581. 
 
 Boomer v. Koon, 6 Hun 645. Defence of 
 fraudulent alteration may be proved under gen- 
 eral denial. Followed. Schwarz v. Oppold, 
 7 Daly 121, 122. „ t, « 
 
 Boorman v. Atlantic, &c., R. B. Co., 
 17 Hun 555. Directors of defendant corpora- 
 tion cannot be examined before trial. Ap- 
 HRMED. Boorman v. Atlantic, &c., B. B. Co., 
 78 N. Y. 599. ' „ „ ^ 
 
 Booth V. Boston and Albany R. R. Co., 
 
 73 N.' Y. 38. When negligence of a co servant 
 will not relieve master from liability for in- 
 juries to servant, caused primarily by masters 
 neo-ligence. Followed. Cone v. DelMvare, 
 &e B. B. Co., 15 Hun 172; Stevenson v. Jewett, 
 16 id. 210, 211. „.„ „ 
 
 Booth V. Cleveland Rolling Mill Co., 
 11 Hun 278. When agent's act is provable, 
 
 what he said, while doing it, is admissible. Ob- 
 ieotions to evidence must be promptly taken. 
 
 Affikmed. Booth V. Cleveland Bollmg Mdl Co., 
 
 74 N Y 15. See, also, Bruce v. Fvitm Nat. 
 
 Bamh, 79 N. Y. 154, 161. ^^ + T.=.r.v ii 
 
 Booth V. Fanners', &c., Nat. Bank, 11 
 
 Hun 258. Party paying ioint obligation cannot 
 keep it alive, as against his co-obligors, by tak- 
 ing assignment to himself or a third person. 
 Affirmed. Booth v. Farmer^, &e., Nat. Bank, 
 74 N. Y. 228. Distinguished. Marsh v. Bene- 
 dict, 14 Hun 317, 320. 
 
 Borden v. Fitch, 15 Johns. 121. Validity 
 of judgment obtained in foreign state without 
 personal service of process or appearance. Dis- 
 tinguished Hunt V. Hunt, 72 N. Y. 217, 240. 
 
 Bostwick V. Baltimore, &c., R. R. Co., 
 45 N. Y. 712. Conclusiveness of bill of lading 
 as evidence of contract between the parties. 
 Explained and Distinguished. Oermania 
 Fire Ins. Co., v. Memphis, &c., B. B. Co., 72 N. 
 Y. 90; Hill V. Syracuse, &c., B. B. Co., 73 Id. 
 351. 
 
 Bostwick V. Burnett, 11 Hun 301. Gen- 
 eral assignment with preferences, made in con- 
 templation of insolvency, void per se under 
 bankrupt act. Eeveesed. Bostwick v. Burnet, 
 74N. Y.317. 
 
 Bostwick V. Frankfleld, 11 Hun 475. 
 Contract of sale, by landlord to tenant, of leased 
 land, no merger of lease. Affirmed. Bostwick 
 V. Frankfleld, 74 N. Y. 207. 
 
 Bostwick V. Menck, 40 N. Y. 383. Power 
 of receiver, in supplementary proceedings, to 
 sue. Followed. Manley v. Bassiga, 13 Hun 
 288, 290. Distinguished. Verplanck v. Van 
 Buren, 76 N. Y. 247, 256. 
 
 Boughton V. Flint, 13 Hun 206. On final 
 accounting by executors, the surrogate has not 
 jurisdiction to hear and determine the validity 
 of a disputed claim against the estate. Re- 
 versed. Boughton v. Flint, 74 N. Y. 476 ; S. 
 G, 5Abb. N. Cas. 215. 
 
 Boughton V. Otis, 21 N. Y. 261. Dis- 
 tinguished. Losee v. Bullard, 79 N. Y. 404, 
 406. 
 
 Bovee v. King, 11 Hun 250. Action 
 against sheriff for wrongful seizure on execu- 
 tion—when the writ is a protection. Af- 
 firmed. Bovee v. King, 75 N. Y. 609. 
 
 Bowen V. Bradley, 9 Abb. Pr. (N. S.) 395. 
 Effect of law of place on validity of contracte. 
 Overruled. Biekimon v. Edwards, 77 N. Y. 
 573, 580 ; S. C, 58 How. Pr. 24. 
 
 Bowers v. Smith, 10 Paige 193. Jurisdic- 
 tion of action for construction of wiU. Fol- 
 lowed. Monarque v. MonarAie, 19 Hun 332, 
 336 ; Duncan v. Duncan, 4 Abb. N. Caa. 27\ 278 . 
 
 Bowery Nat. Bank v. Duryee, 74 N. Y. 
 491 ; 54 How. Pr. 450. Sufficiency of complaint 
 to sustain order of arrest, (Code of Civ. PfO^, «« 
 549-558.) Followed. flecAt v. ieiiy, 20 Uun 
 53, 54. Not followed. Mather v. Hannmer, 
 55 How. Pr. 1. . T, 1 
 
 Bowling Green Savings Bank y. 
 Todd, 52 N. Y. 489. Attorney may retain his 
 
 impensation out of moneys collected by him. 
 
 OLLOWED. MaUer of Knapp, 8 Abb. N. Cas. 
 
 con 
 Followed. 
 
 308, 310. ,.. ^T ^ aAA 
 
 Boyce v. People,' 55 N. Y. 644. 
 ency of evidence to support 'estimonyofjros^^ 
 
 Suffioi- 
 
 cutrix, on trial for seduction under promise of 
 marriage. Followed. Armstrong v. People,. 
 
 ^"i'oy^^'v. City of Brooklyn, 8 Hun 32 
 Complaint in action to vacate assessment rni^t 
 sbow that defects are such as would "O* neces- 
 sarily appear in prdceedings to enforce the hen 
 of the assessment. REVERSED. Boyle v. Wfs? 
 of Brooklyn, 71 N. Y. 1. 
 
CASES CRITICISED. 
 
 475- 
 
 Boynton v. Andrews, 63 N. Y. 93. 
 liability of trustee of manufacturing company 
 rhere capiial has not been all paid in. Dis- 
 'INGXJISHED. Brown V. Smith, 13 Hun 408, 412. 
 i'oLLOWED. Thurber v. Thompson, 21 Hun 472, 
 
 :74. 
 
 Boynton v. Hatch, 47 N. Y. 225. To 
 ;harge a holder of stock, issued upon and for 
 he purchase of property;, ipdividu'ally for the 
 lebts of the company, it is not enough to prove 
 hat the property has been purchased and paid 
 or at an over-valuation through a mere mistake 
 ir error of judgment on the part of the trustees, 
 rat it must be shown thA the purchase at 
 he price agreed upon was in bad faith and to 
 ivade the statute. The transaction may be im- 
 peached for fraud, but not for error of judgment 
 ir mistaken views of the value of the property, 
 inasmuch as good faith and the exercise of an 
 honest judgment is all that is required. "The 
 question upon which this court divided has been 
 definitely settled by the later decisions of this 
 court as well as the commission of appeals." 
 Sehenck v. Andrews; 57 N. Y. 133 ; Boynton v. 
 Andrews, 63 Id. 93 ; Douglass v. Ireland, 73 Id. 
 100. 
 
 Bradish v. Sohenck, 8 Johns. 151. The 
 letting of land upon shares, if for a single crop, 
 is no lease of the land, and the owner alone 
 must bring trespass for breaking the close. 
 " This subject hAs been much discussed in the 
 courts of this state since the decision above 
 cited was made, but the rule there declared has 
 been uniformly followed in subsequent cases, 
 and has been quite recently re-affirmed in the 
 Court of Appeals in Taylor v. Bradley, 39 N. Y. 
 129 ; and in Sarris v. Frink, 49 Id. 24." 
 Dedeer v. Decker, 17 Hun 13, 14. 
 
 Bradley v. Burwell, 3 Den. 61. Distin- 
 guished. Comes V. Wilkin, 14 Hun 428, 432. 
 
 Bradley v. Roofr, 5 Paige 632, 641. What 
 is such an order upon a particular fund as will 
 operate as an equitable assignment pro tanto of 
 the fund. Distinguished. Attomey-Oeneral 
 V. Continental Life Ins. Co., 71 N. Y. 325, 
 329. 
 
 Bradner v. Howard, 14 Hun 420. De- 
 fendant obtaining discontinuance in justice's 
 court because amount involved exceeds the 
 jurisdiction, is estopped in Supreme Court from 
 claiming costs on ground that justice had juris- 
 diction. Afpikmed. Bradner v. Howard, 75 
 N. Y. 417. 
 
 Brady, Matter of, 8 Hun 437. What 
 must be shown to prevent discharge of impris- 
 oned debtor, on assignment of property under 2 
 Bev. Stat. 31 et seq. Appikmed. Matter of 
 Brady, 69 N. Y. 215. Followed. Matter of 
 Fowler, 59 How. Pr. 148, 153 ; Coffin v. Oourlay, 
 20 Hun 308, 309. Distinguished. Swydam 
 V. Belknap, Id. 87. 
 
 Brague v. Lord, 2 Abb. N. Cas. 1. Testi- 
 mony of party, as to transactions with deceased 
 person. (Code of Pro., § 399.) Followed. 
 Freeman v. Lawrence, 43 Superior 288, 290. 
 
 Brainard v. Jones, 18 N. Y. 35. Distin- 
 guished. Beers v. Shannon, 73 N. Y. 292, 
 303. 
 
 Brandon v. Avery, 22 N. Y. 469. Juris- 
 diction of justices' courts in cities. " The case 
 * * * is not now authority on this point." 
 'Geraiy v. Beid, 13 Hun 313, 314. But see S. C. 
 on appeal, 78 N. Y. 64, 66. 
 
 Brandon v. People, 42 N. Y. 265. Im- 
 
 peachment of witness by proof of character.. 
 Criticised. Orajpo v. People, 15 Hun 269, 272 y 
 Distinguished. People v. Brown, 72 N. Y. 571, 
 574. 
 
 Brandon Manuf. Co. v. Bridgman, 14 
 Hun 122. Eight to order for examination of. 
 adverse party before trial. Commented on. 
 Chapin v. Thompson, 16 Hun 53, 55. 
 
 Brennan v. Mayor, &c., of New York,^ 
 Laws of 1870, ch. 382, § 9, unconstitutional. 
 Followed. Murray v. Mayor, &o., of New York,. 
 43 Superior 164, 168. 
 
 Brennan v. Willson, 7 Daly 59. Two of 
 three assignees under general assignment, can- 
 not convey debtor's land. Affirmed. Brennan. 
 V. WiUson, 71 N. Y. 502. 
 
 Brewer v. Brewer, 11 Hun 147. Trust 
 void for suspension of power of alienation, not 
 cured by power of sale. Second extra allowance- 
 cannot be made in same suit for partition. 
 Affirmed. Brewer v. Penniman, 72 N. Y.. 
 603. 
 
 Brewster v. Michigan Central, R. R. 
 Co., 5 How. Pr. 183. Who is a managing 
 agent of a corporation within the statute as to 
 service of process in suits against corporations. 
 Followed. Emerson v. A'tSmrn, &c., B. B. Co.,. 
 13 Hun 150, 152. 
 
 Brewster v. Taylor, 39 Superior 159. 
 What acceptance of goods sold will not take the- 
 sale out of the statute of frauds. Affirmed. 
 Brewster v. Taylor, 63 N. Y. 587. 
 
 Briggs V. Partridge, 39 Superior 339.. 
 Liability of undisclosed principal on sealed 
 contract made by agent. Affirmed. Briggsr 
 V. Partridge, 64 N. Y. 357. 
 
 Briggs V. Partridge, 64 N. Y. 357. A con- 
 tract of sale under seal cannot be enforced as the 
 simple contract of another not mentioned in or 
 a p^rty to the instrument, on proof that the ven- 
 dee named had oral authority from such other 
 to enter into the contract, and acted as agent ia 
 the transaction ; at least, in the absence of proof 
 of some act of ratification on the part of the un- 
 disclosed principal. Followed. Schaefer v. 
 Henkel, 75 N. Y..378, 382 ; Nicoll v. Burke, 78- 
 Id. 580, 584. Distinguished. Sensler v. Sef- 
 rin, 19 Hun 564, 567, 
 
 Brill V. Tuttle, 15 Hun 289. When order 
 to pay money is not an equitable assignments 
 Beversed, it seems, September 21st, 1880. 
 
 Brink v. Hanover Fire Ins. Co., 70 N. 
 Y. 593. Fire insurance. Effect of failure to 
 serve proofs of loss in time. Followed. BeUt 
 V. Lycoming Fire Ins. Co., 19 Hun 238, 239. 
 
 Brinkerhoffv. Brown, 6 Johns Ch. 139. 
 Bequisites of bill in equity against several de- 
 fendants. Followed. Garner v. Harmony 
 MUls, 6 Abb. N. Cas. 212, 216. 
 
 Brinkley v. Brinkley, 50 N. Y. 184. Ali- 
 mony and counsel fees not allowable where mar- 
 riage is denied, without proof of the marriage to- 
 the satisfaction of the court. Followed. Col- 
 lins V. Collins, 71 N. Y. 269, 273. 
 
 Brisbane v. Pratt, 4 Den. 63. Declara- 
 tions of former party in interest, when inadmis- 
 sible against holder of note. Approved. Von 
 Sachs V. Kretz, 72 N. Y. 548, 554. 
 
 Possession of negotiable paper as evidence- 
 of title. "May be regarded as overruled in 6 
 N. Y. 209; 17 Barb. 534, and 18 Barb. 344."^ 
 Taylor v. Surget, 14 Hun 116, 118. 
 
 Briscoe, Matter of, 51 How. Pr. 422. 
 Auihox-ity of the courts to control executive ac- 
 
476 
 
 CASES CRITICISED. 
 
 tion. Followed. People, ex rd. Nichols, v. 
 Mayor, 19 Hun 441, 457. 
 
 Broadhead v. Lycoming Ins. Co., 14 
 Hun 452. Fire insurance — efl'ect of knowledge 
 ■of agent to bind company. Doubted. BdL v. 
 I/ycoming Fire Ins. Co., 19 Hun 238, 244. 
 
 Bronson v. Bronson, 48 How. Pr. 481. 
 Distinguished. Ellingwood v. Beare, 59 How. 
 Pr. 503, 506. 
 
 Brooklyn, &c., R. B. Co., Matter of, 
 19 Hun 314. Acquisition of land by railroad 
 company. Beginning to construct road. Ap- 
 riRMED, it seems, June 1st, 1880. 
 
 Brooklyn, &o., R. R. Co., Matter of, 
 72 N. Y. 245. Loss of corporate existence by 
 railroad company by failure to begin construc- 
 tion of road. Followed. Brooklyn Steam 
 Trandt Co. v. City of Brooklyn, 78 N. Y. 524, 
 -530. Distinguished. Union Hold Co. v. fler- 
 ,see, 79 Id. 454, 459. 
 
 Brooklyn Bank v. De Grauw, 23 Wend. 
 542. Necessity of keeping tender good. Fol- 
 lowed. Dodge v. Fearey, 19 Hun 277, 278. 
 
 Brooklyn Park Commissioners v. 
 Armstrong, 45 N. Y. 234, 245. Eminent 
 -domain — ^nse of city streets for raiboads. Ap- 
 PB.0VED AND FOLLOWED. Sixth Ave. By. Co. V. 
 -Gilbert Elevated By. Co., 43 Superior 292, 318. 
 
 Brooks V. Moore, 67 Barb. 393. Part 
 payment not an extinguishment of debt, though 
 received as such and receipt in full given. Dis- 
 tinguished. I/udington v. Bell, 77 N. Y. 138, 
 143. 
 
 Brooks V. Sohwerin, 54 N. Y. 343. Dis- 
 tinguished. Minick v. OUy of Troy, 19 Hun 
 253, 257. 
 
 Broome v. Taylor, 13 Hun 341, (see 9 Id. 
 155.) Sufficiency of complaint to charge wife, 
 ■on joint bond of husband and wife. Eeveesed 
 in part. Broome v. Taylor, 76 N. Y. 564. 
 
 Brotlierton v. People, 14 Hun 486. Error 
 in charge to jury not reviewed in criminal case, 
 tinless exception be taken. Affibmed. Broth- 
 ■erton v. People, 75 N. Y. 159. 
 
 Brown v. Clark, 16 Hun 559. Sufficiency 
 •of republication, by married woman, of will 
 made while single. Affirmed. Brown v. Clark, 
 77 N. Y. 369. 
 
 Brown v. Ourtiss, 2 N. Y. 225. Liability 
 -of guarantor of payment of note. Explained 
 AND distinguished. Deck v. Works, 18 Hun 
 
 "266 269 
 
 Brown v. Peeter, 7 Wend. 301. Liability 
 for issuing execution upon paid judgment. 
 Distinguished. Sailesbury v. Oreswell, 14 Hun 
 
 460 464 
 
 Brown v. Hoburger, 52 Barb. 15. What 
 foundation must be laid before asking opinion 
 ■of witness as to value of a dog. Followed. 
 SmUh V. Gri^old, 15 Hun 273, 274. . 
 
 Brown v. Knapp, 17 Hun 160. Jurisdic- 
 .tion of suits against foreign executors. Interest 
 on legacie.s. Bbvebsed, but not on pointB fe- 
 ■ ■ Broum v. Knapp, 79 JN. l. 
 
 ^^Brown v. Leavitt, 31 N. Y. 113. Who 
 is a holder for value of negotiable paper. Fol- 
 lowed. Phenix Ins. Co. v. Church, 59 How. Pr. 
 
 ^^Bro^ V. Mclntyre, 43 Barb. 344. When 
 action for malicious prosecution wil lie. Dis- 
 tinguished. Sailesbury v. Creswdl, 14 Hun 
 
 ^^Brtwn V. Mayor, &c., of New York, 
 
 66 N. Y. 385. Judgment by default in sum- 
 mary proceedings, conclusive evidence of exist- 
 ence and validity of lease. Followed. Jarvis 
 V. Driggs, 69 N. Y. 143, 146. 
 
 Brown V Nichols, 42 N. Y. 26. Collateral 
 impeachment of judgment on ground of un- 
 auihorizeri appearance by attorney, not allowed. 
 Distingqished. Ferguson v. Crailiford, 70 N. 
 Y. 253, 2.55. 
 
 Brown v. Penfleld, 36 N. Y. 473. Dis- 
 tinguished. Says V. Haihom, 74 N. Y. 486, 
 489. 
 
 BroTvn v. Pentz, 1 Abb. App. Dec. 227. 
 Distinguished. Smtt v. McMillan, 76 N. Y. 
 141, 144. 
 
 Brown v. People, 8 Hun 562. Prisoner, 
 when a witness in. his own behalf, cannot be 
 asked, on cross-examination, "How many times 
 have you been arrested ? " Affirmed. People 
 V. Brown, 72 N. Y. 571. 
 
 Brown v. Snell, 57 N. Y. 286, 287. Right 
 to sue on guardian's bond. Followed. Girvin 
 V. Hickman, 21 Him 316, 318. 
 
 Browne v. Millard, 6 Hill 496. Action 
 may be maintained on bond given on issuing an 
 attachment, although the justice issuing it failed 
 to acquire jurisdiction of the attachment suit. 
 Followed. Northrup v. Oarrett, 17 Hun 497, 
 499 
 
 Browne v. Vredenbm-gh, 43 If. Y. 195. 
 Distinguishei5? Moore v. Bogart, 19 Hun 227, 
 229. 
 
 Browning v. Home Ins. Co., 6 Daly 522. 
 What acts of insured will not avoid fire policy. 
 Affirmed. Bramning v. Home Ins. Co., 71 N. 
 Y. 508. 
 
 Bruce v. Carter, 7 Daly 87. Construction 
 of agreement to compromise pending suits. 
 Affirmed. Bruce v. Carter, 72 K. Y. 616. 
 
 Bruce v. Pulton Nat. Bank, ,16 Hun 615. 
 Construction of covenant of renewal in lease. 
 Affirmed. Bruce v. Fulton Nat. Bank, 79 N. 
 Y. 154. ^, 
 
 Bruce v. Griscom, 9 Hun 280. When 
 advances from father to son will be deemed a 
 loan and not an advancement. Affirmed. 
 Bruce v. Griscom,, 70 N. Y. 612. 
 
 Bruce v. Tilson, 25 N. Y. 194. Where 
 there is a contract for a conveyance of land, a 
 request for such conveyance is not necessary. 
 The party entitled may bring an action for spe- 
 cific performance without request. Distin- 
 guished. De Groffy. Terpenning, 14 Hun 301, 
 
 307 ' 
 
 Brummer v. Cohen, 6 Abb N. Cas. 409 ; 
 57 How. P;-. 386. Assignability of policy of 
 life insurance in favor of wife. Affirmed, 
 Brwmmer v. Cohen, 58 How. Pr. 239. 
 
 Brust V. Barrett, 16 Hun 409. Effect of 
 failure to present check. When barred by statute 
 of limitations. Followed. Scott v. Meeker, 20 
 
 Hun 161, 165. . „ ... xt r. i9^ 
 
 Bryan v. Durrie, 6 Abb. N. Cas. 135. 
 What is a "difficult and extraordinary " case 
 within the rule as to extra allowances. Fol- 
 lowed. Mor^-ison v. Agate, 2^ Hun 23, 24. 
 
 Bryant v. Bryant, 4 Abb. Pr. (N. S.) 138. 
 Distinguished. Zinsser v. Seller, 7 Daly 4b4, 
 
 ^^Buchan v. Bintoul, 10 Hun 183. Where 
 obiections are filed to account of executor, the 
 surrogate of New York county may appoint 
 referee to examine account and report to him. 
 Affirmed. Buckan v. Bintoul, 70 W. 1. 1. 
 
CASES CRITICISED. 
 
 47T 
 
 Buckley v. Bramhall, 24 How. Pr. 455. 
 What facts make one liable as a general partner. 
 DiSTiNGtriSHED. Bumelt v. Snyder, 43 Superior 
 238, 250. 
 
 Buel V. People, 18 Hun 487. Killing dur- 
 ing commission of another felony, murder in 
 first degree. Affirmed. Bud v. People, 78 
 N. Y. 492. 
 
 Buel V. Village of Lockport, 8 N. Y. 
 55. Distinguished. Matter of Oily of Buffalo, 
 78 N. Y. 362, 368. 
 
 Buffalo, &c. , R. R. Co., Matter of, 5 Hun 
 485. Distinguished. Angd v. Town of Hume, 
 17 Hun 374, 380. 
 
 Buffalo, &c., R. R. Oo. v. Judson, 7 
 Hun 499. See Falconer v. Buffalo, Ac, B. B. 
 do., in this Table. 
 
 Bulger V. Albany Railway, 42 N. Y. 
 459. Liability of horse railroad company for 
 acts of driver. Followed. Schwier v. New 
 York Central, &e., B. B. Co., 15 Hun 572. 
 
 BuUard v. Saratoga Victory Manuf. 
 Co., 13 Hun 43. Eights of upper mill-owner 
 as to detention of water in time of drought. 
 Damnum ahaque injuria. Affirued. BvUard 
 V. Saratoga Victory Manuf. Co., 77 N. Y. 525. 
 
 Bullis V. Montgomery, 50 N. Y. 352. 
 Distinguished. Von Saclie v. Krets, 72 N. Y. 
 548, 556. 
 
 Bundy v. Bundy, 38 N. Y. 410. Court 
 may appoint new trustee where cestui gue trust is 
 also trustee. Followed. Bogers v. Bogers, 18 
 Hun 409, 410. 
 
 Bunge V. Koop, 48 N. Y. 225, 229. Part 
 payment not an extinguishment of debt, though 
 received as such and receipt in full given. Dis- 
 tinguished. Imdingtan v. Bell, 77 N. Y. 138, 143. 
 
 Burbridge v. Marcy, 54 How. Pr._ 446. 
 Effect of filing notice of mechanics' lien — ^when 
 ineffectual. Followed. BoUey v. Van Dolsen, 
 55 How. Pr. 333. 
 
 Burkhalter v. Second Nat. Bank of 
 Brie, Pa., 42 N. Y.-538. What is sufficient 
 diligence to charge drawer of bill of exchange. 
 Distinguished. First Nat. Bank of Meadville 
 V. Fourth Nat. Bank of New York, 77 K. Y. 320, 
 326. 
 
 Burkitt V. Harper, 14 Hun 581.. What 
 is " permission " by owner, to build, within me- 
 chanics' lien law for Kings and Queens counties, 
 (Laws of 1862, ch. 478.) Affirmed. Burkitt 
 V. Harper, 79 N. Y. 273. 
 
 Burmeister, • Matter of, 12 Hun 478. 
 What is included in "paving" and "repaving" 
 as used in the laws regulating actions to vacate 
 asse6sment<< in New Yorlt city. Beyebsed. 
 Mailer of Burmeister, 76 N. Y. 174. 
 
 Burmeister, Matter of, 76 N. Y. 174. 
 Validity of assessments for street paving in New 
 York city. Followed. Mailer of Hyde, 76 
 N. Y.629. 
 
 Burnett v. Klncaid, 2 Lans. 320. Power 
 of surrogate to determine validity of claim 
 against estate on application for order to sell 
 real estate. Explained. Hopkins v. Van Valk- 
 eniurgh, 16 Hun 3, 6. 
 
 BiuTiett V. Snyder, 43 Superior 238. 
 What agreement wi 11 not conslitute a partnership. 
 Affirmed. Burnett v. Snyder, 76 N. Y. 344. 
 
 Burnham v. Brennan, 42 Superior 49. 
 Admissions by former owner of chattels, when 
 admissible. Eevebsed. Burnham v. Brennan, 
 74 N. Y. 597. 
 
 Burr V. Amer. Spiral Spring Butt 
 
 Co., 17 Hun 188. Compliance with recitals ia 
 contract, when not essential to recovery for 
 breach. Affirmed, it seems, June 1st, 1880. 
 
 Burr V. Beers, 24 N. Y. 178. Liability 
 of grantee who assumes payment of mortgage. 
 Explained and followed. Beal Estate Trust 
 Oo. V. Balch, 45 Superior 528, 532, 534 ; Pardee 
 v. Treat, 18 Hun 298, 301. 
 
 Burrows v. "Whitaker, 8 Hun 260. Sale- 
 of lumber. What is a sufficient delivery and 
 acceptance to pass title as between the parties. 
 Affirmed. Burrows v. Whitaker, 71 N. Y. 291.. 
 
 Burt V. Brewers' and Malsters' Ins. 
 Co., 9 Hun 383. Marine insurance. Construc- 
 tion of policy. Actual and constructive total 
 loss. Affirmed. Burt v. Brewer^ and Maisters'' 
 Ins. Co., 78 N. Y. 400. 
 
 Burt V. Place, 4 Wend. 591. When action 
 for false imprisonment will lie. Distingulshed.. 
 Sailesbury v. Oreswdl, 14 Hun 460, 463. 
 
 Burtls V. Burtis, Hopk. 557. English 
 laws of divorce never adopted by this state.^ 
 FoLLOVTED. OampbeU v. Oramipimi, 8 Abb. N. 
 Cas. 363, 374. 
 
 Burtis V. Thompson, 42 N. Y. 246. Ke- 
 fusal by one party to perform, when gives im- 
 mediate right of action to the other. Approved. 
 Shaw V. Bepvhlie Ufe Ins. Co., 69 N. Y. 286, 293. 
 
 Bush V. Prosser, 11 N. Y. 347. In slander 
 or libel, facts and circumstances tending to dis- 
 prove malice may be given in evidence ia 
 mitigation of damages, although they should tend 
 to establish the truth of the defamatory charge. 
 Followed. Hatfield v. Lasher, 17 Hun 23, 24. 
 
 Bush V. "Westchester Fire Ins. Co., 
 63 N. Y. 531. Power of agent of insurance- 
 company to adjust losses, or waive proofs of 
 loss. Distinguished. Ooodvnn v. Massachu- 
 setts Mul. Ufe Ins. Co., 73 N. Y. 480, 492. 
 
 Bushnell v. Chautauqua Oo. Nat. 
 Bank, 10 Hun 378. Liability of defendant 
 for costs, in action against bank on special de- 
 posit made as collateral to a contract. Modi- 
 fied. Bushnell v. Chautauqua Co. Nat. Bank^ 
 74 N. Y. 290. 
 
 Butler y. Evening Mail Assoc, 34 Su- 
 perior 58. Purchase of goods by agent, when 
 presumption is that credit was given to princi- 
 pal. ■ Keversed. Butler v. Evening Mail 
 Assoc, 61 N. Y. 634. 
 
 Butler V. Tucker, 24 Wend. 447. Effect 
 of agreement to perform contract to the satis- 
 faction of a third person. Followed. Wilson 
 V. Gould, 21 Hun 446, 449 ; Whiteman v. Mayor,. 
 &c., of New York, Id. 117, 120. 
 
 Butolph V. Blust, 5 Lans. 84. Power of 
 police officer to arrest without warrant person 
 found violating city ordinance. Distinguished. 
 Hennessy v. Connolly, 13 Hun 173. 
 
 Butterworth v. Crawford, 46 N. Y. 349. 
 Distinguished. FlirU v. Bacon, 13 Hun 454, 457. 
 
 Butterworth v. Gould, 41 N. Y. 450. 
 Where A is indebted to B or C, and B and 
 C severally claim the debt is due to him, and 
 A pays the debt to B, C cannot recover the 
 money of B as money had and received to the 
 use of C, even though it may be made to ap- 
 pear that the debt was in fact owing to C. It 
 cannot be regarded as money paid to the use of 
 C, for the payment thus made does not in any 
 respect affect his right still to call on hb debtor 
 for payment. Distinguished. Long v. Bus- 
 seU, 45 Superior 434, 444 : Lake v. Detioe Manuf. 
 Co., 7 Daly 161, 163. 
 
478 
 
 CASES CRITICISED. 
 
 C. 
 
 Cahon v. Continental Life Ins. Co., 41 
 Superior 296. Application for life policy. Tes- 
 timony by physician. Reversed. Cahem v. 
 Continental Life Ins. Co., 69 N. Y. 300. 
 
 Calien v. Piatt, 40 Superior 483. Breach 
 of warranty on sales of chattels. Damages for 
 refusal of buyer to accept goods. Ebversed. 
 CJahen v. Pkdt, 69 N. Y. 348. 
 
 Calvo V. Davies, 8 Hun 222. Agreement 
 between mortgagee and grantee of mortgagor 
 who has assumed payment of the mortgage, ex- 
 tending the time of payment, discharges the 
 mortgagor if made without his consent. Af- 
 firmed. Calvo V. Davies, 73 N. Y. 211. Fol- 
 lowed. Paine v. Jones, 76 N. Y. 274, 278. 
 
 Cameron v. Seaman, 7 Hun 601. Annual 
 report of manufacturing company must be pub- 
 lished, as well as made and filed, within twenty 
 •days from January 1st (Laws of 1848, ch. 40, J 
 12.) What is proper place of publication. 
 Ebversed. Cameron v. iieaman, 69 N. Y. 396. 
 
 Campbell v. Bruen, 1 Bradf. 224. Con- 
 testing executor's accounts in surrogate's court. 
 Appointment of auditor. Dotjbted. Buchan 
 V. Bintaal, 70 N. Y. 1. , 
 
 Campbell v. Conner, 41 Superior 459. 
 Seizure of vessel under attachment — liability of 
 sheriff. Affirmed. Campbell v. Conner, 70 N. 
 Y. 424. 
 
 Campbell v. Poster, 35 N. Y. 361. In- 
 come of cestui que trust cannot be reached by 
 creditor's bill, even though not needed for his 
 support. Limited and distinguished. Wil- 
 liams V. Thorn, 70 N. Y. 270, 274. Followed. 
 McEwen v. Brewsler, 17 Hnn 223, 227. 
 
 Campbell v. Smith, 8 Hun 6. Grantee's 
 covenant to assume mortgage inures to benefit 
 of morlgiigee, so as to make grantee liable for 
 deficiency. Affirmed. Campbelly. SmUh,71 
 N. Y. 26. 
 
 Cancemi v. People, 18 N. Y. 128. Trial 
 of criminal case by less than twelve jurors. 
 Distinguished. Pierson v. People, 79 N. Y. 
 424. 
 
 danfleld v. Baltimore, &c., R. R. Co., 
 43 Superior 562. Liability of railroad com- 
 pany for loss of goods. Burden of proof, in- 
 structions, &c. Eeversed. Canfidd v. Balti- 
 more, &c., R. B. Co., 75 N. Y. 144. 
 
 Cantwell v. Dubuque "Western R. R. 
 -Co., 17 How. Pr. 16. Cause of action on note 
 made in Iowa and payable here, does not arise 
 here. Overruled. Hibemia Nat. Bank v. 
 Mechanic^, &c., Bank of New Orleans, 21 Hun 
 1 fifi 174- 
 
 Carpenter v. Blake, 10 Hun 358. Im- 
 plied undertaking of surgeon as to skill, care 
 and diligence. Affirmed. Caiyemto- v. Blake, 
 75 N Y. 12. 
 
 Carpenter v. Blake, 2 Lans. 206. Wit- 
 ness who has not heard all the testimony cannot 
 give opinion based upon portion heard. Dis- 
 tinguished. Seymour v. Fellows, 77 N. Y. 178, 
 
 180 
 
 Carpenter v. Nixon, 5 Hill 260. Eeoord 
 of conviction of petty larceny admissible to im- 
 peach witness. Disapproved. Sims v. Sims, 
 75 N Y. 466, 472. 
 
 Carr v. Breese, 18 Hun 134. Convey- 
 ance to wife of grantor, when fraudulent as to 
 
 creditors. Eeversed, U seem, September 2l8t, 
 1880. 
 
 Oarrington v. Ward, 42 Superior 571. 
 
 [Eeported in memorandum.] 
 Affirmed. Oarrington v. Ward, 71 K. Y. 360. 
 
 Carroll v. Staten Island R. R. Co., 58 
 N. Y. 126. Fact that passenger (or shipper of 
 goods) violates a statute no defence to carrier in 
 action for injuries (or loss of goods.) Fol- 
 lowed. Wood V. Erie Bailwai/ Co., 72 N. Y. 
 196, 200. 
 
 Carvey v. Rider, 2 Cow. 617. Costs on 
 new trial after reversal. Followed. MoU v. 
 Consumer^ lee Co., 8 Daly 244. 
 
 Cary v. White, 59 N. Y. 336. Admissi- 
 bility of testimony nnder Code of Pro., ? 399. 
 Followed. HoUamb v. Rokomb, 20 Hun 156, 
 159. 
 
 Case V. Hall, 24 Wend. 102. When action 
 lies for breach of warranty of title. Followed. 
 Converse v. Miner, 21 Hun 367, 374. 
 
 Case V. People, 14 Hun 503. Effect of 
 words " knowledge and belief" in affidavit, for 
 false swearing to which indictment for perjury 
 is found. Statements required to be filed with 
 insurance department by officers of life insur- 
 ance companies. Eeversed on other grownds. 
 Case V. People, 76 N. Y. 242; S. C, 6 Abb. N. 
 Cas. 151. 
 
 Case V. People, 76 N. Y. 242. "The Court 
 of Appeals went to the extretnest length in in- 
 terfering with ihe verdict of a jury in criminal 
 cases, but we do not feel ourselves justified in 
 applying the rulings of that case to any other, 
 not in all respects precisely analogous." Leiry 
 V. People, 19 Hun 383, 388. 
 
 Gashmanv. Henry, 44 Superior 93. Lia- 
 bility of grantee (a married woman) who as- 
 sumes mortgage, for deficiency on foreclosure. 
 Reversed. Oashman v. Henry, 75 N. Y. 103 ; 
 5 Abb. N. Cas. 230. Followed. Slauson v. 
 Watkins, 44 Superior 73. 
 
 Oassidy v. City of Brooklyn, 60 Barb. 
 105 ; S. C, 47 N. Y. 659. Concurrence of the 
 mayor essential to valid confirmation by com- 
 mon council of appointment of clerk in justice's 
 court. Followed. People, ex rel. Ennis, v. 
 Schroeder, 76 S.Y. 160, 162. 
 
 Cassidy v. Schedell, 9 Hun 340. Ex- 
 tension of time to principal, when does not 
 affect liability of sureties. Affirmed. Ots- 
 sidwv. SAecfeM, 71N.Y. 603. 
 
 Castle V. Lewis, 13 Hun 298. Power of 
 manufacturing corporation to transfer property, 
 while it has two trustees, only. Affirmed. 
 Caslle V. ieiuJs; 78 N. Y. 131. 
 
 Caswell V. Davis, 58 N. Y. 223. What 
 words may be used as a trade-mark. Fol- 
 lowed. 4j/er V. -KMsA(on, 7 Daly 9, 13. 
 
 Catlin V. Adirondack Co., 20 Hun 19. 
 Action against carrier for loss of baggage, when 
 in tort. Execution against plaintiff s person to 
 collect judgment for costs. Reveksed, tt seems, 
 June 8lh, 1880. i^ tj u a71 
 
 Oatskill Bank v. Gray, 14 Barb 4n. 
 Distinguished. Burnett v. Snyder, IS H. x. 
 
 daus'sidiere v. Beers, 2 Keyes 198. _ Dis- 
 tinguished. Stephens v. Board of Eduaitum of 
 Brooklyn, 79 N. Y. 183, 188. 
 
CASES CRITICISED. 
 
 4T9 
 
 Caylus V. New York, Kingston, &c., 
 I. R. Co., 10 Hun 295. Fraud in issue of rail- 
 oad boiids. What puts purcliaser on inquiry. 
 irpiRMED on another point. Caylus v. New York, 
 'Cingdcm, &c., R. R. Co., 76 N. Y. 609. 
 
 Central Nat. Bank v. Richland Nat. 
 Sank, 52 How. Pr. 136. Interlocutory attach- 
 nents not issuable against national bank. Af- 
 •KOVED AND FOLLOWED. Rhoner V. Mrst Nat. 
 3ank ofAllentown, 14 Hun 126, 127. Ckiticised. 
 Robinson v. Nat. Sank of New Seme, 19 Hun 477, 
 
 :80. 
 
 Chadwiok v. Fonner, 6 Hun 543. Parol 
 leclarations of owner of land that vendee has 
 )aid price, admissible against him and those 
 laiming under him. Eeyeesed.* Ohadwiek 
 '. Fonner, 69 N. Y. 404. Distinguished. Fon- 
 ler V. Johnson, 78 Id. 617. 
 
 Chamberlain v. Chamljerlain, 43 N. Y. 
 124, 431. Power of corporations to take by de- 
 rise. Followed. Setta v. Setts, 4 Abb. N. 
 ;:!as. 317, 397, 422. Distinguished. Kerr v. 
 Dmgherty, 79 N. Y. 327, 342 : S. C, 59 How. Pr. 
 14, 58. 
 
 Chambers v. Lewis, 28 N. Y. 454. Dis- 
 CINGUISHED. Anderson v. Speers, 21 Hun 568, 
 571. 
 
 Champion v. Boatwick, 18 Wend. 175. 
 Distinguished. Sumett y. Snyder, 76 N. Y. 
 544, 351. 
 
 Ohamplain v. People, 2 N. Y. 82. Power 
 )f Supreme Court commissioners to take ball in 
 ;riminal cases. Distinguished and ckiti- 
 3ISED. People V. C/«w«, 77 N. Y. 39, 45. 
 
 Champney v. Coope, 32 N. Y. 543. When 
 layment of face of mortgage will not extinguish 
 t, owing to agreement between original parties 
 hat it should be kept alive to secure another 
 ndebtedness. Followed. Hubbdl v. Slakes- 
 lee, 71 N. Y. 63, 70. 
 
 Chapin v. Thompson, 16 Hun 53. Ex- 
 jminaiion of party before trial. Followed. 
 Fitzputi-ick V. Fim Schaick, 59 How. Pr. 472, 473. 
 
 Chapin v. Thompson, 18 Hun 446. 
 Proper contents of case, on appeal in equity 
 case where issues have been tried before a jury. 
 Reversed, it seems, March 2d, 1880. 
 
 Chapman v. City of Brooklyn, 40 N. 
 y. Sl'J. Becovery of money paid under void 
 assessment. Distinguished. Strusburgh v. 
 Mayor, &c., of New York, 45 Superior 508, 512; 
 De Grauw v. Sapervisors of Queens Co., 13 Hun 
 381, 384. 
 
 Chapman v. New Haven R. R. Co., 19 
 S'. Y. 341. Election to sue one or all of sev- 
 jral tort-feasors. Distinguished. Chirman v. 
 Palmer, 77 N. Y. 51, 54. 
 
 Chapman v. Robertson, 6 Paige 627. 
 Effect of law of place on rate of interest. Dis- 
 riNGUiSHED. Dickinson v. Edwards, 77 N.Y. 573 
 585. ' 
 
 Chapman v. Rose, 56 N. Y. 137. When 
 naker of negotiable instrument is estopped to 
 ieny its genuineness. Approved. Mosher v. 
 Oarpenter, 13 Hun 602, 605. 
 
 Chase v. Barrett, 4 Paige 148. Dis- 
 cinguished. Sumett v. Snyder, 76 N. Y 344 
 S51. 
 
 Chase v. Lord, 16 Hun 369. What is a 
 iufficient paying in of capital by insurance com- 
 pany to authorize it to carry on business. Lia- 
 
 *The reversal was on a point of evidence not 
 jrought before the General Term; not on the rule of 
 aw above mentioned, — Ed. 
 
 bility of stockholders where capital stock has 
 not been paid in. Ebveesed. Chase v. Lord, 
 77 N. Y. 1 ; S, C, 6 Abb. N. Cas. 258. 
 
 Chase v. People's Fire Ins. Co., 14 Hun 
 456. Knowledge of agent of insurance company, 
 effect of to bind company. Criticised. Sell 
 V. Lycoming Fire Ins. Co., 19 Hun 238, 244. 
 
 Chase v. Vanderbiltj 37 Superior 334. 
 Consolidation of corporations. Affirmed. 
 Chase v. Vanderhilt, 62 N. Y. 307. 
 
 Oheesbrough, Matt* of, 17 Hun 561. 
 Constitutionality and interpretation of drainage 
 act, (Laws of 1871, ch. 566.) Affirmed. Mat- 
 ter of Cheesbrough, 78 N. Y. 232. 
 
 Cheesman v. Thorne, 1 Edw. Ch. 629. 
 Interpretation of statutes relating to partition 
 of land. " Has been followed without question 
 from that time." Srevoort v. Srevoort, 70 N. Y. 
 136, 140. 
 
 Chegaray v. Jenkins, 5 N. Y. 376. De- 
 termination of assessors as to fact upon which 
 their jurisdiction depends, not conclusive. Fol- 
 lowed. Matter of New York Catholic Protectory, 
 77 N. Y. 342, 343. 
 
 Chenango Bridge Co. v. Lewis, 63 
 Barb. 111. Liability for illegal erection and 
 use of bridge. Distinguished. Chimnan v. 
 Palmer, 77 N. Y. 51, 56. 
 
 Cheney v. Fisk, 22 How. Pr. 36. De- 
 murrer to complaint for improper joinder of 
 causes of action. Criticised. Harris v. Eld- 
 ridge, 5 Abb. N. Cas. 278, 281. 
 
 Cheney v. 'Woodruff, 45 N. Y. 98. Pur- 
 chaser at foreclosure sale not entitled to rents 
 until delivery of deed. Followed. Mutual 
 Life Ins. Co. v. Salch, 4 Abb. N. Cas. 200. 202. 
 
 Chester v. Dickerson, 54 N. Y. 1 . Part- 
 nership to speculate in real estate, valid ; and 
 may be created by parol agieement. Fol- 
 lowed. SisaeU v. Harrington, 18 Hun 81, 83. 
 85. 
 
 Chesterman v. Eyland, 17 Hun 520. Lia- 
 bility of chamberlain of the city of New York 
 for investments on inadequate security. Af- 
 firmed, it seems, Jnne 15th, 1880. 
 
 Children's Aid Soo. v. Loveridge, 70 
 N. Y. 387. What is .such undue influence as 
 will avoid a will. Approved and followed. 
 Coit V. Patchen, 77 N. Y. 533, 589 ; Webster v. 
 Cole, 17 Hun 507, 510. 
 
 Ohipman v. Montgomery, 63 N. Y. 221. 
 Jurisdiction of equity to pass upon the inter- 
 pretation of wills. Followed. Monarqne v. 
 Monarque, 19 Hun 332, 336: Wager v. Wager, 
 21 Id. 93, 94. ' ' * y ' 
 
 Chipman v. Palmer, 9 Hun 517. Dam- 
 ages for pollution of running stream. Respect- 
 ive liability of several persons who separately 
 contaminate the water. Affirmed. Chipman 
 V. Palmer, 77 N. Y. 51. 
 
 Church V. Howard, 17 Hun 5. State- 
 ment by administrator, when admissible against 
 estate of intestate. Examination of witnesses. 
 Reversed. Church v. Howard, 79 N. Y. 415 
 
 Church V. Kidd, 3 Hun 254. Evidence 
 improperly admitted, when not ground for re- 
 versal in equity. Criticised, bckoonmaker v. 
 Wolford, 20 Hun 166, 168. 
 
 Church V. Maloy, 9 Hun 148. Effect of 
 usurious agreement for extension of mortgage 
 on right to foreclose for non-payment of interest. 
 When money paid for extension will not be ap- 
 plied to the payment of interest. Affirmed 
 Church V. Maloy, 70 N. Y. 63. 
 
480 
 
 CASES CRITICISED. 
 
 nre of mortgage. Defence of usury. Dbtin- 
 
 2q°v%^?^ o^^ew Haven v. Perkins, 
 ,.l,-^-.t-^^ Evidence to controvert plain- 
 tut s title as owner of note sued on. " Some re- 
 marks in the opinion, not necessary to the de- 
 cision, are perhaps too broad to be entirely 
 approved." Hayt v. BaOiom, 74 X. Y. 486 489 
 Oity of BuJ^lo, Matter of, 16 Hnn 497.' 
 Power of city of Bnfiah) to take land. Constrnc- 
 tion of city charter. Affiemed. MaUer of 
 CUy of Buffalo, 78 X. Y. 362. ■' 
 
 Jpity of BnflCalo v. HoUoway, 7 N. Y 
 497. Selatiye liabilities of city and contractor 
 to gnard against personal injuries caused by ob- 
 strartions to travel made in excavating sewere 
 
 ery, Ti N. Y. 65, 69. ^ 
 
 (J^^iS^ Bochester v. Brickaon, 46 Barb. 
 92. Obstruction in bed of stream, when a nuis- 
 ??^, , Appboved. GOUxpU V. Forrexl, 18 Hnn 
 110, 114. 
 
 City of Bochester v. Montgomery, 9 
 Hun 394. Beoovery over by city against 
 wrong-doer, of amount recovered from dty in 
 action for injury from defects in street. Effect 
 of giving notice of action to wrong-doer. Af- 
 PIBXED. CUy <^ JSodtester v. Montgomery, 72 N. 
 Y. 65. 
 
 City of Bochester v. Town of Bush, 
 15 Hun 239. City property not subject to taxa- 
 tion. RgreBSBD, it seems, March 9th, 1880. 
 
 Claflin V. Houseman, 3 Otto (93 U. S.) 
 130. Jurisdiction of state courts of suits by as- 
 signees in bankruptcy, to recover assets trans- 
 ferred in fraud of the bankrupt act Foixowed. 
 Andey v. Patenon, 77 N. Y. 156, 157. 
 
 Olaflin V. Meyer, 43 Superior 1. Lia- 
 bility of warehouseman where goods are stolen. 
 Burden of proof to show n^ligeuce. Be- 
 YEBSED. Cfa^n V. Meyer, 75 N. Y. 230. 
 
 Claflin V. Meyer, 75 N. Y. 260. Burden 
 of proof of negligence in action against ware- 
 houseman for loss of goods. FoIiLOwed. 
 Madan v Qmert, 45 Superior, 245, 248. 
 
 Olaflin V. Ostrom, 54 N. Y. 581. Liabil- 
 tiy of grantee who assumes payment of mort- 
 gage. Criticised. Seal Eiale Trust Co. v. 
 Baleh, 45 Superior 528, 535. 
 
 Clapp V. Ftillerton. 34 N. Y. 190. Evi- 
 dence improperly admitt^ when not ground for 
 reversal. Cbiticised. Holcomb v. Holeomb, 
 20 Unn 156, 158; Schooimaker v. Wo^ord, Id. 
 166, 168. 
 
 Clapp V. Hudson Biver B. B. Co., 19 
 Barb. 461. See OolUns t. Albany &e^B.B.Cb. 
 in this Tabijl 
 
 Clark V. Bininger, 43 Superior 126, 344. 
 Punishment of receivers for refusal to obey or- 
 der of court Proceedings in contempt. Modi- 
 fied. CUirk V. Bimnger, 75 N. Y. 344. 
 
 dark V. Cleveland, 6 Hill 344. Power 
 of Supreme Court justices to admit to hail in 
 criminal cases. DiSTiNGTnsHED. People T. 
 dews, 77 N. Y. 39, 44. 
 
 Clark V. Mayor, &o., of New York, 
 4 N. Y. 338. Contracts for public work ; duty 
 of contractor to carry out alterations. Follow- 
 ed. Kingdey v. CUy of Brooklyn, 5 Abb. N. 
 Cas. 1, 30. 
 
 Clark V. Union Perry Co., 35 N. Y. 485. 
 Not negligence to take young and timid horse 
 
 on ferry-boat Followed. Kennedy y. Mm/or ' 
 &e., of Neu> York, 73 N. Y. 365, 368 ^ ' 
 
 10, «?.. '^- "tillage of Dunkirk, 12 Hun 
 181. What must be alleged in equitable action 
 to vacate assessment Apfibmed. Clark v. 
 
 T^ 0/ Dunkirk, 75 N. Y. 612. 
 
 " That ca^ seems to hold that 'where the as- 
 sessors en- m judgment, 'proceed upon errone- 
 ous prmciples ' as to the property which they 
 assess, an action can be maintained by a person 
 assessed to restrain thea.ssessment,onthegronnd 
 tnat snch error makes the assessment void. The 
 decision appears to cover the present case. And 
 therefore, without expressingour own opinion, we 
 follow that decision." Followed. Kennedys. 
 CUy of Troy, 14 Hun 308, 310, 312, q.v. in this 
 
 lABLE. 
 
 Valuation of assessment for benefits ; action 
 to vac ate fo r failure to value buildings. Dis- 
 TIHGDISHED. . Kennedy v. CUy of Troy, 77 N. 
 
 Clarke v. Goodridge, 41 K Y. 210. 
 Priority among creditors. "This case was lim- 
 ited apd distinguished in 56 N. Y. 52." Wehh 
 V. Connor, 69 N. Y. 546, 552. 
 
 Clarke v. Sawyer, 2 S. Y. 498. Juris- 
 diction of equity to annul a will. Followed. 
 Monarque v. Monarque, 19 Hun 332, 335. 
 
 Clarke v. Sheehan, 47 N. Y. 188. Con- 
 tract, when not usurious. Followed. Sail v. 
 IHtson, 5 Abb. N. Cas. 198, 208 ; S. C, 55 How. 
 Pr. 19. . . ; 
 
 Clarrissey v.Metropolitan FireDept., 
 1 Sweeney 224. Liability of New York fire 
 department for negligence of its agents and ser- 
 vants. " This decision stands unreversed ; nor 
 have I been able to find any case since decided 
 by the Court of Appeals in which it was ques- 
 tioned or overruled by implication or in eflect." 
 Doruwan v. Board of Education of New York, 44 
 Superior, 53, 64. 
 
 Clayes v. Hooker, 4 Hun 231. Law of 
 place as to usury in negotiable paper. Fol- 
 lowed. Dickenson v. Edwards, 13 Hun 405, 
 407. 
 
 Clenience y. City of Auburn, 4 Hua 
 386. Slight evidence of negligence on part of 
 defendant in action against city for injury caused 
 by defect in street, prevents non-suit Af- 
 firmed. Clemenee v. C% of Auburn, 66 N. Y. 
 334. Affboyeo. Bing v. (Xly of Cbhoea, 13 
 Hun 76, 83. 
 
 Clemenee v. City of Auburn, 66 N. Y. 
 334. Liability of city for injuries caused by 
 defects in streets. Followed. Ring v. CUy of 
 ahoes, 13 Hun 76, 84. 
 
 Clements v. Yturria, 14 Hun 151. Con- 
 tract for purpose of furnishing aid to public en- 
 emy, void. Affiemed, U seems, Jun6 1st, 1880. 
 
 Clinton v. Myers, 46 N. Y. 511, 517. 
 Bight of upper mill-owner to detain water in 
 time of drought Followed. BuUard v. Sara- 
 toga Victory Mamtf. Co^ 13 Hun. 43, 44 ; S. C, 
 77 N. Y. 525. 
 
 Clothier v. Adriance, 51 N. Y. 322. Who- 
 is a holder for value of negotiable paper. Ap- 
 proved. Phenix Ins. Oo. v. Church, 59 How. 
 Pr. 293, 298. 
 
 Clussman v. Iiong Island E. B. Co., 9- 
 Hun 618. Liability of ralroad company for 
 personal injuries occasioned by defective plat- 
 form at station Affirmed. Cliaaman v. Long 
 Mand B. B Co., 73 N. Y.. 606. 
 
 Clute V. Bool, 8 Paige 83. Bight of cred- 
 
CASES CRITICISED. 
 
 481 
 
 itor of cestui que trust to compel application of 
 surplus income to the payment of his debts. 
 Limited and distinguished. Williams v. 
 Thorn, 70 N. Y. 270, 279. 
 
 Oobb V. Knapp, 42 Superior 91. _ Agent, 
 when personally liable— insufficient disclosure 
 of principal. Affirmed. Oobb v. Knapp, 71 
 N. Y. 348. 
 
 Cochran v. Gottwald, 42 Superior 214. 
 Eight to costs of firs't trial, of one who prevails 
 on second trial, after reversal of judgment en- 
 tered on verdict rendered at first trial. Ap- 
 proved, BUT NOT FOLLOWED. Isaacs V. New 
 York Plaster Works, 43 Superior 397, 399 ; S. C, 
 4 Abb. N. Cas. 4. 
 
 Oockoroftv. New York, &c.,R.R Co , 
 69 N. Y. 201. Expenses of search recoverable 
 in action by vendee for damages for breach of 
 contract to convey. Followed. Sigler v. 
 Mnrga:n, 77 N. Y< 312, 320. 
 
 Ooddington v. Bay, 20 Johns. 637. Who 
 is a holder for value of negotiable paper. Fol- 
 lowed. Phenix Irts. Oo. v. Church, 59 How. Pr. 
 293, 296, 299, 300. See, also, Bay v. Ooddington, 
 in this Table. 
 
 Coe V. Cassidy, 6 Daly 242. Relative 
 rights of landlord and surety on lease. Af- 
 firmed. Coe V. Cassidy, 72 N. Y. 133. 
 
 Coe V. Hobby, 7 Hun 157. Effect of new 
 lease by parol upon existing lease under seal. 
 When nut a surrender. Affirmed. Coe v. 
 Hobby, 72 N. Y. 141. 
 
 Coffin V. Reynolds, 37 N. Y. 640. Dis- 
 tinguished. Stryker v. Oassidy, 76 N. Y. 50, 
 53. 
 
 Cohen V. Dry Dock, &c., R. R. Co., 40 
 Superior 368. Liability of liorse railroad com- 
 pany for negligence of driver. Affirmed. 
 Cohen v. Dry Dock, &e.. B. B. Co., 69 N. Y. 170. 
 
 Cohen v. Ne-w York Mut. Life Ins. 
 Co., 50 N. Y. 610. Action maintainable to 
 have canceled policy of insurance reinstated, in 
 a proper case. Followed. Mansbach v. Melro- 
 polilan Life Ins. Co., 17 Hun 340. 
 
 Oohn V. Goldman, 43 Superior 436. Suf- 
 ficiency of complaint in action for conspiracy to 
 clieat and defraud. Eeversed. Cohn v. Gold- 
 man, 7ti N. Y. 284. 
 
 Cohn V. Goldman, 76 N. Y. 284. Excep- 
 tion available in Court of Appeals, although not 
 pressed at General Term. Followed. Schoon- 
 maker v. Wolford, 20 Hun 166, 170. 
 
 Coit V. Patchen, 9 Weekly Dig. 15. What 
 amounts to undue influence such as will avoid a 
 will. Testamentary capacity. Followed. 
 Sch^onmaker v. Wolford, 20 Hun 166, 170. 
 
 Cole V. Gourlay, 9 Hun 493. Eights of 
 bona fide purchaser from heirs, on production of 
 will concealed by one of the heirs. Affirmed. 
 Cote V. Oourlay, 79 N. Y. 527. 
 
 Cole V. Hughes, 54 N. Y. 444. Covenant 
 to contribute for construction of party wall does 
 not run witli the land. Followed. Scott v. 
 McMillan, 76 N. Y. 141, 144. 
 
 Coleman v. Bean, 1 Abb. App. Dec. 394. 
 Sureties on undertaking in attachment estopped 
 by recital therein from showing that attach- 
 ment was not issued, or that they were induced 
 to execute the undertaking by false representa- 
 tions. Followed. Harrison v. Wilkin, 69 N. 
 Y. 412, 418. 
 
 Coleman v. First Nat. Bank of Bl- 
 mira, 53 N. Y. 388. Parol evidence admissi- 
 ble to show that loan was made to bank, and 
 
 not to cashier. Followed. Pleraon v. AUantio 
 Nat. Bank, 77 N. Y. 304, 310; West v. First 
 Nat. Bank of Etmira, 20 Hun 408, 411, 412. 
 
 Coleman v. Southw^ick, 9 Johns 45. 
 Eule as to setting aside verdicts for excessive 
 damages. Followed. Oale v. Nem York Cen- 
 tral, &e., B. B. Co., 13 Hun 1, 5 ; Minick v. Oily 
 of Troy, 19 Id. 253, 25«. 
 
 Colgrove v. New York, &c., B. R. 
 Co., 20 N. Y. 492. Election to sue one or all) 
 of several tort-feasors. Distinguished. Chip- 
 man V. Palmer, 77 N. Y. 51, 54. 
 
 Colgrove v. Tallman, 67 N. Y. 95. Ef- 
 fect of purchase by one partner of the interests 
 of the others, and assumption of the firm debts. 
 Followed. Bussell v. Weinberg, 4 Abb, N. 
 Cas. 139, 143. 
 
 Collier v. Idley, 1 Bradf. 94. Distin- 
 guished. Downey v. Downey, 16 Hun 481, 483- 
 
 Colligan v. Scott, 36 Superior 574. 
 
 [Reported in memorandum.] 
 Affirmed. Colligam v. Scott, 58 N. Y. 670. 
 
 Collins V. Albany, &c., R. R. Co., 12 
 Barb. 492. On appeal from order made on mo- 
 tion to set aside verdict for excessive damages, 
 in action of tort for injuries to the person. Gen- 
 eral Term has power to make an order reversing 
 judgment and granting new trial, unless plain- 
 tiff consent to reduce damages to specified sum, 
 and in that case affirming it for that amount. 
 Distinguished and limited to aetitmsfor per- 
 sonal injuries. Whitehead v. Kennedy, 69 N. Y. 
 462, 470. 
 
 Ooliins V. Collins, 10 Hun 272. In what 
 cases alimony pendente lite should be allowed in 
 divorce cases and' to what amount. Bevebsed. 
 Collins v. Collins, 71 N. Y. 269. 
 
 Collins V. Collins, 71 N. Y. 269. Suffici- 
 ency of plaintiff^s pleadings to show valid mar- 
 riage with defendant, in order to entitle her to 
 alimony in action for divorce. Distinguished. 
 Kennedy v. Kmnedy, 73 N. Y. 369, 372. 
 
 Collins V. Collins, 17 Hun 598. The writ 
 of ne exeat was not abolished by the code of 
 procedure. Affirmed, it seems, February 2d, 
 1880. 
 
 Collins V. Hasbrouck, 56 N. Y. 157. 
 An instrument executed by lessee, conveying 
 whole of unexpired term, at a different rate and 
 time of payment from original lease, and reserv- 
 ing right of re-entry for breach, and providing 
 for surrender of premises on expiration of term, 
 is a sub-lease, and not an assignment. Re- 
 affirmed. Oanson v. Tifft, 71 N. Y. 48, 54. 
 
 Collins V. New York Central, &o., 
 R. R. Co., 5 Hun 503. Liability of railroad 
 company for fireS occasioned by sparks from 
 locomotives. Affirmed. Collins v. New York 
 Central, &e., B. B. Co., 71 N.Y. 609. 
 
 Colman v. Crump, 40 Superior 548. 
 
 [Reported in memorandum.] 
 Affirmed. Colman v. Orwnp, 70 N. Y. 573. 
 
 Colt V. Sixth Ave. R. R. Co., 33 Supe- 
 rior 189. Liability of railroad company for 
 injury to passenger. Affirmed. Colt v. Sixth 
 Ave. B. B. Co., 49 N. Y. 671. 
 
 Oomins v. Hetfield, 12 Hun 375. Testi- 
 mony of party to action— effect of death of ad- 
 versary—motion to strike out. Affirmed, it 
 seems, February 24th, 1880. 
 
 Commissioners of Bushwiok v. Mes- 
 erole, 10 Wend. 123. Sufficiency of appeal 
 from determination of highway commissioners. 
 Followed. Beetor v. Clark, 78 N. Y. 21, 26. 
 
 31 
 
482 
 
 CASES CRITICISED. 
 
 XJomimssioners of Carmel v. Judges 
 of Putnam, 7 Wend. 264. Appeal from de- 
 terminStion of highway commissioners refusing 
 to lay out a road. Distingthshed. S^lor v. 
 <Jlm-k, 78 N. Y. 21, 26. 
 
 Oo xunissioners of "Washington Park, 
 Matter of, 56 N. Y. 144. Kelative rights of 
 inuaicipal officers and property-owners in pro- 
 ceedings to condemn lands for puhlic purposes. 
 FoUiO WED. People, ex ret. Gas Light Oo.,\. Com- 
 mon Council, 78 N. Y. 56, 59, 60. ' 
 
 Common-wealtli of Kentucky v. 
 Bassford, 6 Hill 526. Effect of law of place 
 upon contracts. Distingtjished. Dickiimm, 
 V. Edwards, 73 N. Y. 573, 583. 
 
 Coinstookv.Drohan,8 Hun 373. Where 
 a grantee under conveyance subject to mortgage 
 is sued by his grantor, who has been compelled 
 .to pay a judgment for deficiency in foreclosure, 
 the grantee not having been made a party, such 
 suit is not within 2 Eev. Stat. 191, ^ 155, pro- 
 hibiting proceedings at law, without leave of 
 court, for recovery of debt secured by mortgage, 
 after entry of decree in foreclosure. Affirmed. 
 Camslodc v. Drohan, 71 N. Y. 9. 
 
 Comstook V. Droban, 71 N. Y. 9. Con- 
 sent of Supreme Court not necessary to mainte- 
 nance of suit for deficiency against grantee of 
 mortgagor, who assumes the payment of the 
 mortgage. Foulowbd. Campbell v. Smith, 71 
 N. Y. 26, 29. DiSTiiTQUiSHED. Scofidd v. 
 Doscher, 72 Id. 491, 494. 
 
 Comstock V. Hier, 73 N. Y. 269. The 
 death of one of the partners in a firm, with 
 ■which plaintiff has made an arrangement, does 
 not render the plaintiff an incompetent witness 
 to prove the transaction, so long as the_ other 
 partner who was present at the interview is 
 living. Followed. Kale v. EllioU, 18 Hun 
 
 198- 
 
 Bight of indorser of diverted note, after pay- 
 ing it to innocent purchaser, to recover over 
 from original transferee in an action for money 
 had and received. Followed. Southimk v. 
 First Nat. Bank, 20 N.Y. 349, 353. DiSTiit- 
 OTJISHED. SoUnger v. Earle, 45 Superior 604. 
 
 Oonaughty v. Nichols, 42 N. Y. 83. 
 Distinguished. Smith v. Frost, 70 N. Y. 65, 
 
 '^bondit V. Baldwin, 21 N. Y .219. Dis- 
 tinguished. Moore v. Sogart, 19 Hun Z^l, 
 
 228 
 
 done V. Delaware, &c., B. R. Co., 15 
 Hun 172. LiabUity of master for injury to 
 servant. Affirmed, ii seems, June 1st, 1880. 
 
 Congreve v. Smith, 18 N.. Y. ,79. Lia- 
 bility of persons making excavations in streets. 
 Distinguished. Uwrey v. Brooklpi Cdy, &c., 
 iP P fS) 4 Abb. N. Cas. 32, 36. 
 "^•OonWi^g V. Shelley 28 N.Y 360. Dis- 
 tinguished. City Bank of Bochesler v. TfesJ- 
 4»ry, 16 Hun 458, 459. 
 
 Oonlin V. Oantrell, 64 N. Y. 217. .uis- 
 tinguished. Johnston v. Peugnet, 17 Hun 540, 
 
 ^^Connecticut Fire Ins. Co. v. Brie Bail- 
 way Co., 10 Hun 59. Bight of insurance 
 •company to be subrogated to claim of insured 
 Sus^party causing loss by fir| Reversed 
 Omnectimt Fire Ins. Co. v. Em Badway Co., 73 
 
 Vonners v. People, 50 N. Y. 240 Dis- 
 tinguished. P^opU v. Brown, 72 N. Y. 571, 
 574. 
 
 Connor v. Mayor, &o., of New York, 
 
 5 N. Y. 285. Eight of public officers to salary. 
 Followed. McVeany v. Mayor, &c., of New 
 ybri, 59How. Pr. 106, 109. 
 
 Considerant v. Brisbane, 22 N. Y. 389. 
 Who may sue as trustee of an express trust. 
 Followed. Funch v. Abmheim, 20 Hun 1, 4. 
 Cook V. Whipple, 55 N. Y. 150. Juris- 
 diction of state courts of suits by assignees in 
 bankruptcy to recover assets transferred in fraud 
 of bankrupt act. Followed. Ansley v. Patteir- 
 son, 77 N. Y. 156, 157 ; Bmther/ord v. Seivey, 59 
 How Pr. 231, 235; Tyler v. MeCoUwa, 19 Hun 
 622, 623. 
 
 Cooke V. State Nat. Bank of Boston, 
 52 N. Y. 96. A corporation cannot make the 
 affidavit required to remove a cause to the TJ. 
 S. Circuit Court' under the act of 1867. Over- 
 ruled. Mix, V. Andes Irus. Co., 74 N. Y. 53, 56. 
 Jurisdiction of suits against national banks. 
 Followed. Ulaler Co. Inst. v. Fourth Nat. 
 Bank of New York, 59 How. Pr. 482, 486; South- 
 vnck V. First Nat. Bank of Memphis, 20 Hun 349, 
 355. 
 
 Cope V. Wheeler, 41 N. Y. 303. Defence 
 of usury, when available in foreclosure. Fol- 
 lowed. Knickerbocker Life Ins. Co. v. Nelson, 
 78 N. Y. 137, 153. 
 
 Corbett v. De Comeau, 4 Abb. N. Cas. 
 252. Bequisites of affidavit to obtain order for 
 examination of party before trial. Eevebsed. 
 CorbeU v. De Comeau, 5 Abb N. Cas. 169. 
 
 Granting of order for examination of adverse 
 party before trial is obligatory, and consequently 
 such order cannot be vacated or set aside. Over- 
 ruled. Chapman v. Thompson, 16 Hun 53, 54. 
 Oordell v. New York Central, &o., R. 
 R. Co., 6 Hun 461. Distinguished. Mahar 
 V. Grand Tmnk Railway Co., 19 Hun 32, 34. 
 Corey v. Long, 35 Superior 569. 
 [Reported in memorandum.] 
 Affirmed. Corey v. Lrnig, 53 N. Y. 641. 
 
 Corn Exchange Ins. Co. v. Batacock, 
 42 N. Y. 613 Liability of married women. 
 "Has never been questioned in the Court of 
 Appeals, but has been uniformly followed." 
 Woohey v. Brown. 74 N. Y. 82. 
 
 Cornell v. Dakin, 38 N. Y. 253. Liability 
 of receiptor of property levied on by sheriff. 
 Distinguished. Chrk v. Weaver, 17 Hun 481, 
 486. 
 
 Comes V. Wilkin, 14 Hnn 428. Contri- 
 bution between co-sureties. Limitation of claims 
 against executors. Affirmed. Cbraes v. WO- 
 Un, 79 N. Y. 129. ^. ^ 
 
 Cornish v. Farm Buildings Fire Ins. 
 Co , 10 Hun 466. Whether non-occupancy of 
 an insured building is an "increase of risk," is 
 a question of fact for the jury, and uncontra- 
 dicted testimony of experts that it is, does not 
 warrant directing a verdict for the insurers. 
 Affirmed. Cornish v. J^'oi-m Bmidings Fire 
 Ins. Co., 74 N. Y. 295. 
 
 Corwin v. Campbell, 45 How. Pr. 9. 
 Effect of assessor's affidavit in town bonding 
 proceedings. Overruled. People, a,, rd. 
 New York and Canada B. B. Co. v. HuUon, 18 
 Hun 116, 124. , ^ ^ , ^ 
 
 Oosgrove v. New York Central, &o., 
 B. R. Co., 13 Hun 329. In action for injuries 
 against railroad company, negligence of com- 
 pany must be shown to have been proximate 
 cause of injuries. Followed. Barringer v. 
 New Tbrk Central, &e., B. B. Co., 18 Hun 398. 
 
CASES CRITICISED. 
 
 483 
 
 OougUin V. New York Central, &o., 
 H. R. Co., 8 Hun 136. Effect of settlement by 
 parties to suit, upon rights of plaintiff's attorney 
 conducting the suit, for a contingent fee. Ke- 
 VERSED. Cowghlin v. New York Central, &c., 
 
 Coughtry v. Globe "Woolen Co., 56 
 N. Y. 1 24. Liability of master to servant inj ured 
 by defective machinery. Followed. Sduvp- 
 pert V. Bingler, 45 Superior 345, 348. 
 B. M. Co., 71 N. Y. 443. Followed. McBrai- 
 ney v. Bame, &c., B. B. Co., 17 Hun 385, 388, 390. 
 
 County of Schuyler v. First Nat. 
 Bank of Havana, 5 Hun 649. Deposit in 
 bank by county treasurer — right to as between 
 county and his assignee in bankruptcy. Af- 
 firmed. County of Schuyler v. Firit Nat. Bank 
 ■of Havana, 76 N. Y. 598. 
 
 Covenlioven v. Shuler, 2 Pai^e 122. 
 <^onstruction of will as to interest of widow of 
 testator in the personal estate. Followed. 
 Bioseboom v. Boeeboom, liS Hun 309, 315. 
 
 CO'wing V. Altman, 5 Hun 556. Check 
 
 fiven to assignee in bankruptcy for more than 
 is legal fees, void in hands of bone fide pur- 
 chaser without notice. Reversed. Oomng v. 
 Altman, 71 N. Y. 435. 
 
 Cowing V. Altman, 71 N.Y. 435. Eights 
 of bona fide holder of check. Followed. 
 CowijiflT V. Altman, 76 N. Y. 167, 168. 
 
 Cowing V. Altman, 21 Hun 106. 
 
 [Beported in memorandum.] 
 Affirmed, it seems, September 28th, 1880. 
 
 Cox V. People, 19 Hun 430. Challenge 
 for favor, or for cause. Opinion of juror, when 
 does not disqualify. Followed. Balbo v. 
 People, 19 Hun 424, 428. 
 
 Indictment for n^urder while committing an- 
 other felony. Impaneling jurors. Challenge to 
 the array. Affirmed, it seems, April 6th, 1880. 
 
 Cragin v. New York Central, &o., R. 
 R. Co., 51 N. Y. 61. Distinguished. My- 
 nard v. Syraease, &c., B. B. Co., 71 N. Y. 180, 
 188. 
 
 Craig V. Marsh, 2 Daly '61. "The learn- 
 ed judge who wrote the opinion seems to have 
 been misled by the general language of the 
 opinion of some of the cases of sales of goods by 
 false pretences, and not to have kept in mind 
 the dlsiinction between this line of authorities 
 and those in wliicli there is de facto no contract 
 of sale made. * * * The opinion itself, and 
 the cases cited and relied upon by the learned 
 judge, indicate this mistake. * * « Xhe 
 case, so far as we are aware, has not been cited 
 with approval or followed, and is not supported 
 by any of the authorities referred to in the brief 
 opinion of the court." Collins v. Balli, 20 Hun 
 216, 255, 
 
 Craig V. Swinerton, 8 Hun 144. Me- 
 chanics' lien for materials furnished to vendee 
 in possession under executory contract to sell, 
 .not binding on owner without his consent. Af- 
 firmed, a-aig V. Swinerton, 76 N. Y. 608. 
 
 Craighead v. Peterson, 10 Hun 596. 
 Power of attorney to draw checks and notes on 
 any hp.nk in New York in which principal may 
 have an account, does not authorize the drawing 
 of notes payable at bank in which principal has 
 no account. Affirmed. Craighead v. Pder- 
 wn, 72 N. Y. 279. 
 
 Cram, Matter of, 69 N. Y. 452. Where 
 assessment for local improvement in New York 
 •city exceeds one-half taxable valuation of prop- 
 erty assessed, the court cannot, reduce the as- 
 
 sessment, but must vacate it. Followed. Mat- 
 ter of Hebrew Benev. Orphan Asylum Soc., 70 N. 
 Y. 476, 480. 
 
 Crane v. Knubel, 34 Superior 443. Per- 
 formance of contract, when condition precedent. 
 Proof of waiver of strict performance. Affirm- 
 ed. Crane v. Knubel, 61 N. Y. 645. 
 
 Crapo V. People, 15 Hun 269. _ Im- 
 peaching credibility of prisoner testifying in 
 his own behalf. Affirmed. People v. Crapo, 
 76 N. Y. 288. 
 
 Crary v. Goodman, 22 N. Y. 170. To 
 make the possession of land adverse, so as_ to 
 avoid a deed under the statute, the possession 
 must be under claim of some specific title; and 
 when a party occupies land not included in his 
 deed, but which he supposed was embraced in 
 the description, his possession is not adverse, so 
 as to render a grant by the true owner cham- 
 pertous. Followed. Christie v. Oage, 71 N. 
 Y. 189, 192. 
 
 Crawford v. Collins, 45 Barb. 269. En- 
 forcement of lien against canal boat for ma- 
 terials furnished to builder. Who is deemed 
 the builder. Followed. King v Greemoay, 
 71 N. Y. 413, 417. 
 
 Crawford v. "Wilson, 4 Barb. 504. Dis- 
 tinguished. Tuomy v. Dunn, 77 N. Y. 515, 517. 
 
 Creed v. Hartmann, 29 N. Y. 591. Elec- 
 tion to sue one or all of several tort-feasors. 
 Distinguished. Chip/man v. Palmer, 77 N. Y. 
 51, 54. 
 
 Liability of persons making excavations in 
 streets. Distinguished. Lowry v. Brooklyn 
 City, &c., B. B. Co., 4 Abb. N. Cas. 32, 36. 
 
 Oregin v. Brooklyn Crosstown R. R. 
 Co., 75 N. Y. 192. Husband's right to dam- 
 ages for injuries sustained by wife. Elements 
 of damage. Followed. Oregin v. Brooklyn 
 Orosstmn B. B. Co., 19 Hun 341, 343. 
 
 Crisfield v. Ferine, 15 Hun 200. Powers 
 of coroner as to who shall be present at post- 
 mortems. Affirmed, it seems, April 20th, 1880. 
 
 Crittenden v. Fairchild, 41 N. Y. 289.. 
 Distinguished. I^entice v. Janssen, 79 N. Y. 
 478, 486. 
 
 Crofut V. Brandt, 58 N. Y. 106, 112. 
 Sheriff's fees on execution. Followed. Town- 
 send V. Boss, 45 Superior 447. 
 
 Crooker y. Bragg, 10 Wend. 260. Liabil- 
 ity for diversion of running water. Followed. 
 Garwood v. New York Central, &c., B. B. Co., 17 
 Hun 356, 364. 
 
 Crosby v. Crafts, 5 Hun 327. Eight of 
 creditor to be substituted to benefit of security 
 held by surety, not lost by discharge of surety's 
 liability. Affirmed. Ckosby v: Crafts, 69 N. 
 Y. 607. 
 
 Cuddeback v. Kent, 5 Paige 92. Ac- 
 counting by guardian not a prerequisite to 
 action on his bond. Followed. Girvin v 
 Hickman, 21 Hun 316, 317. 
 
 Culhane v. New York Central, &o., 
 R. R. Co., 60 N. Y. 133. Admissibility and 
 effect of negative testimony. Criticised. Bryne 
 V. New York Central, &c., B. B. Co., 14 Hun 322 
 323. ' 
 
 Culver V. Sisson, 3 N. Y. 264.- Dis- 
 tinguished. Booth V. Cleveland Boiling Mill 
 Co., 74 N. Y. 15, 22. " 
 
 Cummiags v. Morris, 25 N. Y. 625. Dis- 
 tinguished. Hays V. Hathom, 74 N. Y. 486 
 488. ' 
 
 Cummins v. Bennett, 8 Paige 78. At 
 
484 
 
 CASES CRITICISED. 
 
 what stage of an action a discontinuance may 
 be allowed Distingotshed. Clearwater v 
 Decker, 13 Hun 63, 64. ^<^rwawr v. 
 
 Cunningham v. Knight, 1 Barb. 399. 
 What IS a good "exception" in a deed. FoL- 
 ^*T?°V. -^"S*"* V- Mayor, &c., of New York, 
 6 Abb. N. Cas. 314, 323. 
 
 Curtis V. Leavitt, 15 N. Y. 1, 97. Power 
 ot banking corporation to make loans. Fol- 
 lowed. PraU V. EaUm, 79 N. Y. 449 4.53 
 
 Cushman V. BaUey, 1 ffiU 526. Diarra- 
 
 QUISHED.' BumeU v. Snyder, 76 N. Y. 344 
 
 Cushman v. Thayer Manuf. Co 7 
 Daly 330. Stockholder may sue corporation'to- 
 compel transfer of shares on booksf Such ac- 
 tion not triable by jury Affirmed. Cuihrmn 
 V. Thayer Manuf. Co., 76 N. Y. 365 
 
 Cutting v.Marlor, 17 Hun 573. Liabil- 
 ity ot bank for collaterals fraudulently used by 
 Us officers. Affibmed. CtUting 7. Marlor, 18- 
 iN. X. 4o4. 
 
 D. 
 
 Dahash v. Flanders, 2 Thomp. & C. 445. 
 Judgment of county court on report of referee, 
 not appealable without motion for new trial in 
 county court. " This rule has been changed by 
 the code of civil procedure." KUmer v. O'Brien. 
 13 Hnn 224. 
 
 Dains v. Prosser, 32 Barb. 290. All 
 debtor's personal property prima fade liable to 
 execution levy. FoixowED. JSimer v. Borth- 
 mck, 20 Hun 119, 122. 
 
 Dalon V. Liverpool, &o., Ins. Co., 13 
 Hun 122. Sufficiency of proofs of loss. Insur- 
 ance as interest may appear. Apfibmed. JDa- 
 kin V. Liverpool, &c., Int. Co., 77 N. Y. 600. 
 
 Dale V. McEvers, 2 Cow. 118. Bight of 
 mortgagee who bids in mortgaged premises at 
 assessment sale, to reimbursement of amount of 
 bid, from mortg^or. Distdtouished. Cornell 
 V. Woodrvg, 77 N. Y. 203, 206. 
 
 Daly V. Byrne, 43 Superior 261. General 
 objection to evidence, when not sufficient on ap- 
 peal. Evidence in action of libel — what damages 
 are not excessive. Affibmbd. Daly v. Byrne, 
 77 N. Y. 182. 
 
 ■ Dambmann v. Sohulting, 12 Hun 1. 
 What is a fraudulent concealment on part of 
 debtor asking release from creditor. Bevebsed, 
 Dambmann v. SckuUing, 75 N. Y. 55. Follow- 
 ed. Hart V. SckvUing, 13 Hun 537. 
 
 Dannat v. Mayor, Sea., of New York, 
 66 New York 585. Liability of city of New 
 York for debt contracted by municipal depart- 
 ment. Followed. Waterman v. Mayor, &c., 
 of New York, 7 Daly 489, 491. 
 
 Darlington v. Mayor, Sao., of New 
 York, 31 N. Y. 164. Property held by city 
 for public use not liable to execution. Ap- 
 PEOVED and followed in respect to mechanic^ 
 liens. Leonard v. Oily of Brooklyn, 71 N. Y. 
 498 499 
 
 Darry v. People, 10 N. Y. 120, 161. What 
 killing during commission of another offence is 
 murder. Followed. Bud v. People, 18 Hun 
 487,489,490. 
 
 Davidson v. Alfaro, 16 Hun 353. 'Equi- 
 table right to set off— protection of attorney's lieu 
 for costs. Modified, Uaeeias, March 19th, 1880. 
 
 Davis V. Sturtevant, 4 Duer 148. _ Coun- 
 sel fees are recoverable as " expenses " in pro- 
 ceedings for contempt. Followed. Van Fo^ 
 kmburgh v. Doolittle, 4 Abb. N. Cas. 72, 74. 
 
 Davison v. Associates of the Jersey 
 Co., 6 Hun 470. What amounts to » re- 
 scission on part of vendee, so as to give ven- 
 dor right to sell land to another party. Af- 
 
 fibmed. Davison v. Associates of the Jerseu Co.. 
 71N. Y. 333. ' ' 
 
 Dawley v. Brown, 9 Hun 461. Deed, 
 when void for champerty. Bevebsed. Dawleit 
 v. Broim, 79 N. Y. 390. 
 
 Dawson v. People, 25 N. Y. 399. Ob- 
 jection of duplicity in indictment, fatal in arrest 
 of judgment or on writ of error. " The gener-' 
 al current of authority and the expressions of 
 text writers are the other way." Polinsku v. 
 People, 73 N. Y. 65, 72. 
 
 Day V. Brooklyn City B. B. Co., 12 
 Hun 435. Liability of horse railroad company 
 for injury occasioned by negligence of driver. 
 Affirmed. Day v. Brooklyn City B. M. Co., 7R 
 K Y. 593. 
 
 Dayton v. Johnson, 69 N. Y. 419. A 
 public administrator, who has succeeded to the 
 rights of a special administrator, and to whom 
 the bond of the latter has been assigned for 
 prosecution, may bring an action as public ad- 
 ministrator upon the bond. " This case was not 
 precisely like the one now under consideration,, 
 and as the opinion was prepared by the same 
 judge who wrote the opinion of the Supreme 
 Court in the case of People v. Towmend,* and 
 contains no reference to that case, it is not pro- 
 bable that it was intended to question the cor- 
 rectness of the decision in that case." People, 
 ex ret. Becar, v. SlruUer, 16 Hun 234, 237. 
 
 Dazell V. Odell, 3 Hill 215. Distin- 
 guished. Clark V. Weaver, 17 Hun 481, 486. 
 
 Dean v. .ffltna Life Ins. Co., 62 N. Y. 
 642. Extension of time to pay premiums on life 
 policy. Distinguished. Marvin v. Unimi-sal 
 JAfe Ins. Co., 16 Hun 494, 496. 
 
 De Bussierre v. HoUaday, 4 Abb. N. 
 Cas. 111. Jurisdiction of action for construc- 
 tion of will. Followed. Monarque v. Mon- 
 argue, 17 Hun 332, 336. 
 
 Decker v. G-aylord, 8 Hun 1 10. Disim- 
 GUi'sHED. Knowlesv. Cuddeback, 19 Hun 590, 594. 
 
 Decouche v. Savetier, 3 Johns. Ch. 190,. 
 " Was overruled by the same Chancellor who de- 
 cided it, in Kane v. Bloodgood, 7 Johns. Ch. 90,. 
 125-127." Boup V. Bradner, 19 Hun 513, 516. 
 
 Dedieu v. People, 22 N. Y. 178. _ Allega- 
 tion of ownership of dwelling burned, in indict- 
 ment for arson. Followed. Levy 7. People,. 
 19 Hun 383, 387. . „^ . 
 
 De G-roff v. American Linen Thread 
 Co., 24 Barb. 375 ; 21 N. Y. 124. Party to con- 
 tract, after performance by other party, cannot 
 
 •37 Barb. 521 j o. ». in this Taelb, 
 
CASES CRITICISED. 
 
 485 
 
 he permitted to set up his own want of power to 
 make the contract. FoLIiOWBD. Su/permors of 
 Sehmedady Co. v. McQueen, 15 Hun 551, 554. 
 
 Deldericks v. Oominercial Ins. Co., 10 
 Johns. 233. Separate valuation of difierent sub- 
 jects of insurance makes contract severable. " Is 
 an adjudication at least tending" to establish 
 above principle. Merrill v. Agneidtural Ins. Co., 
 73 N. Y. 452, 461. 
 
 Delafleld v. Parish, 25 N. Y. 1. Testi- 
 mony of attending physician admissible on ques^ 
 tion of testamentary capacity. Followed. 
 Stanton v. Parker, 19 Hun 55, 59. 
 
 De Lavallette v. "Wendt, 11 Hun 432. 
 General Term has power, on motion for new 
 trial because of excessive damages, to reverse, 
 and grant new trial, notwithstanding no suffi- 
 cient exception was taken to the error in the 
 judge's charge which occasioned the excess. 
 Affirmed. De LavaUeite v. Wendt, 75 N. Y. 
 ^79* 
 
 Delaware and Hudson Canal Co. v. 
 Pennsylvania Coal Co., 50 N. Y. 250. 
 •Construction of contract to refer to arbitration. 
 Distinguished. Qibbs v. Continental Ins. Co., 
 13 Hun 611, 616. . 
 
 Unwillingness of the courts to interfere where 
 parties have agreed to arbitrate. Followed. 
 Whiteman v. Mayor, &c., of New York, 21 Hun 
 117, 121. 
 
 Delaware, &c., B. R. Co. v. Bowns, 
 56 Superior 126. Contract to deliver coal. 
 Effect of strike of miners. Eeversed. Dela- 
 ware, &e., B. B. Co. v. Baums, 58 N. Y. 573. 
 
 Delaware Bank v. Jarvls, 20 N. Y. 226. 
 Warranty on transfer of note. Distinguished. 
 iMtaner v. Ooldman, 72 N. Y. 506, 510. 
 
 Demarest v. Mayor, &c., of New 
 York, 11 Hun 19. Constitutionality of act 
 abolishing board of assistant aldermen. Af- 
 firmed. Demarest v. Mayor, &c., of New York, 
 74 N. Y. 161. 
 
 Deming v. Puleston, 35 Superior 309. 
 Liability of trustees of mining corporation. Af- 
 firmed. Deming v. Puteston, 55 N. Y. 655. 
 
 Demutli V. American Institute, 42 
 Superior 336. Eights of exhibition company 
 :as to allotment of space to exhibitors. Af- 
 fiemed. Demuth v. American Institute, 75 N. 
 Y. 502. 
 
 Dent V. Watkins, 49 How. Pr. 275. In- 
 dorsement of Eule 6 of 1874, must be served 
 with copy of order of arrest. Disapproved. 
 Korpeloiwick v. Kersburg, 13 Hun 178, 179. 
 
 Denton v. Noyes, 6 Johns. 296. Collat- 
 •eral impeachment of judgment on ground of 
 unauthorized appearance by attorney, not al- 
 lowed. Distinguished. Ferguson v. Crawford, 
 70 N. Y. 253, 256. 
 
 Department of Public Parks, Matter 
 of, 73 N. Y. 560. Decision of commissioners 
 ■of assessment, when confirmed by Supreme 
 Court, conclusive on rights of parties. Not 
 followed. Livingston v. Sulger, 19 Hun 375, 
 383. 
 
 DePeyster, Matter of, 18 Hun 445. 
 Power of department of public works in New 
 York City as to construction of sewers. Af^ 
 tirmed, it seems, April 6th, 1880. 
 
 De Peyster y. Murphy, 39 Superior 255. 
 
 •The computation of interest in the judgment by 
 the General Term, was modified by the Court of Ap- 
 
 Assessments for street improvements, when 
 deemed confirmed so as to constitute a lien. 
 Eevebsed. De Peyster v. Murphy, 66 N. Y. 
 622. 
 
 Depierris, Matter of, 20 Hun 305. Pub- 
 lication of proceedings of New York common 
 council in assessment cases, (Laws of 1870, ch. 
 137, § 20.) Eevebsed, it seems, September 28th, 
 1880. 
 
 Despard v. Walbridge, 15 N. Y. 374. 
 Distinguished. Hazdtine v. Weld, 73 N. Y. 
 156, 161. 
 
 Deuohars v. "Wheaton, 16 How. Pr. 471. 
 " Was criticised, if not overruled, in Saunders 
 V. Keough, 27 How. Pr. 477 ; and since the 
 decision in Sperry v. Beynolds, 65 N. Y. 179, 
 can no longer be deemed authoritative." Vedder 
 M.Van Buren, 14 Hun 250, 252. 
 
 Devlin V. Deylin, 4 Hun 651. Contempt 
 in violating injunction against infringement of 
 trademark. Affibmed, Devlin v. Devlin, 69 N. 
 Y. 212. 
 
 Deylin v. Murphy, 56 How. Pr. 326. 
 Distinguished. Fleischauer v. DoeUner, 58 
 How. Pr. 190. 
 
 Devlin v. Piatt, 11 Abb. Pr. 398. _ Cfti- 
 orari does not lie until final determination. 
 Distinguished. People, ex rd. OUmore, v. X)ono- 
 hue, 59 How. Pr. 417, 418. 
 
 Dewey v. Moyer, 9 Hun 473. Confes- 
 sion of judgment for old debt, subsequent to dis- 
 charge in bankruptcy, valid. Eight of holder 
 of such judgment to follow property fraudulently 
 conveyed by the bankrupt prior to his dis- 
 charge. Affibmed. Dewey v. Moyer, 72 N. 
 Y. 70. 
 
 De 'Witt V. Hastings, 40 Superior 463. 
 Establishment of corporation de facto. Estoppel 
 of stockholder to deny incorporation. Af- 
 firmed. De Witt V. Hastings, 69 N. Y. 518. 
 
 Dickinson v. City of Poughkeepsie, 
 7 Hun 1. Powers of board of water commis- 
 sioners of city of Poughkeepsie, in awarding 
 contracts, &c. Affirmed. Dickinson v. City 
 of Poughkeepsie, 75 N. Y. 65. 
 
 Dickinson v. Edwards, 13 Hun 405. 
 Note made in and payable in this state, dis- 
 counted in another state at a rate of interest 
 lawful there, but unlawful here, void for usury. 
 Affirmed. Dickinson v. Edwards, 77 N. Y. 
 573; S. C, 58 How. Pr. 24; 7 Abb. N. Cas. 
 65. Distinguished. Opdyke v. Merwin, 13 
 Hun 401, 404. 
 
 Dickinson v. Edwards, 77 N. Y. 573. 
 Law of place as to usury in promissory note. 
 Distinguished. Wayne Co. Savings Bank v. 
 Lmo, 22 Alb. L. J. 346. 
 
 Dickson v. Frazer, 9 Hun 191. Duty of 
 sheriff as to collection of bids at judicial sale. 
 Affirmed. Dickson v. Frazer, 70 N. Y. 
 607. 
 
 Dietz V. Parish, 44 Superior 190. Con- 
 tract for sale of real estate. Affirmed. Dietz 
 V. Parish, 79 N. Y. 520. ' 
 
 Dillaye v. New York Central R. R. 
 Co., 56 Barb. 30. A railway company owes to 
 its passengers the duty of providing a safe and 
 easy mode of egress from its station to the near-' 
 est highway. " This was held in a case in 
 which the passenger injured was riding upon a 
 freight train. The decision was reversed in the 
 Court of Appeals, (see 2 Alb. L. J. 356,) without, 
 however, questioning that the duty indicated by 
 the Supreme Court was applicable in the case 
 
486 
 
 CASES CRITICISED. 
 
 of a passenger upon a regular passenger train, 
 the court holding that the receipt of fare from 
 such passengers as succeed in getting on a freight 
 train cannot be considered as a general invita- 
 tion to the public to ride in tliat way at their 
 pleasure." Hoffman v. New York Central, <6c., M. 
 R. Co., 13 Hun 589, 592 ; q. v. in this Table. 
 
 DUleber v. Home Life Ins. Co., 69 N. 
 Y. 256. Where evidence is received under ob- 
 jection, it is not necessary to object again to the 
 .same class of evidence subsequently offered on 
 the same trial. Distdtguished. Waqner v. 
 Jones, 77 N. Y. 590. 
 
 DUleber v. Knickerbocker Life Ins. 
 Co., 7 Daly 540. Waiver by president of life 
 insurance company of condition in policy as to 
 payment of premiums. Afpibmed. DUleber 
 V. Knickerbocker Life Ins. Co., 76 N. Y. 567. 
 
 Dillon V. Anderson, 43 N. Y. 231. Duty 
 of plaintiff to keep down damages. Followed. 
 Fiinch V Abenheim, 20 Hun 1, 10. 
 
 Where the doing of an act is not disputed, hut is 
 afSrmed, and whether the act shall be held valid 
 or invalid, hangs upon the intent with which it 
 was done, which intent, from its nature, would be 
 formed and held without avowal, then he upon 
 whom the intent is charged may testify whether 
 he secretly held such intent when he did the 
 act. Followed. West v. First Nat. Bank, 20 
 Hun 408, 414. 
 
 Dingeldein v. Third Ave. R. R. Co., 
 37 N. Y. 575. Distinouishbd. Scott v. Mc- 
 Millan, 8 Daly 320, 327. 
 
 Diossy V. Morgan, 17 Alb. L. J. 491. 
 Estoppel arising out of giving replevin bond. 
 Distinguished. Clark v. Weaver, 17 Hun 481, 
 486. 
 
 , Distin V. Rose, 7 Hun 83. In slander, 
 repetition of slanderous words at time other 
 than that stated in complaint, and before suit 
 brought, may be proved to show malice and 
 enhance damages. Atfibmed. Distin v. Hose, 
 69 N. Y. 122. 
 
 Dob V. Halsey, 16 Johns. 34. Power of 
 partner to bind firm by promissory note. Fol- 
 lowed. St. Nicholas Nat. Bank v. Savory, 45 
 Superior 97, 101. 
 
 Dodd, Matter of, 27 N. Y. 629. Appli- 
 cation to vacate assessment under act of 1858 
 not a special proceeding. Followed. Matter 
 of letter, 78 N. Y. 601, 604. 
 
 Dodge V. County of Platte, 16 Hun 285. 
 Liability of county on bonds issued in aid of 
 railroad. Kevebsed, it seems, September 28th, 
 1880. 
 
 Dodge & Stevenson Manuf. Co., 
 Matter of, 14 Hun 440. Disqualification of 
 judge by reason of kinship to ^stockholder in 
 corporation party. Eevebsed. Matter of 
 Dodge & Stevenson Manvf. Co., 77 N. Y. 101. 
 
 Dolan V. Mayor, &c., of New York, 
 68 N. Y. 274. Officer de jure cannot recover 
 salary paid to officer de facto. Commented on. 
 McVeany v. Mayor, 59 How. Pr. 106, 111, 
 114. 
 
 Dolevin v. "Wilder, 7 Eobt. 319. Evi- 
 dence in mitigation of damages in action for 
 slander. Approved. Hatfidd v. Lasher, 17 
 Hun 23, 25. 
 
 Donobue v. Mayor, &o., of New 
 York, 10 Hun 37. Distinguished. People 
 V. Denison, 19 Hun 137, 149. 
 
 Donovan v. Vandemark, 18 Hun 200. 
 What is an unauthorized and void trust in real 
 
 estate. Beversed. Donovan v. Vandeikark, 7? 
 N. Y. 244. 
 
 Doolittle V. Naylor, 2 Bosw. 206. Slatute 
 of frauds — promise to pay debt of another. 
 DisAPPBOVED. Prime v. KoeUer, 7 Daly 345, 
 351. 
 
 Dorrity v. Bapp, 11 Hun 374. ■ Duty of 
 lot-owner making excavation in New York or 
 Brooklyn, to protect wall on adjoining lot. Ee- 
 vebsed. Dorrity v. Rapp, 72 N. Y. 307 ; S. C, 
 4 Abb. N. Cas. 292. 
 
 Doscher v. Sbaw, 35 Superior 562. 
 
 [Eeported in memorandum.] 
 ArriEMED. Doscher v. Shaw, 52 N. Y. 602; 
 
 Doty V. Baker, 11 Hun 222. A release- 
 by a wife of an inchoate right of dower in the 
 lands of her husband, is a good consideration 
 for his paying or promising to pay a part of the 
 purchase money, except as to existing creditors ; 
 and as to them she is entitled to retain the ac- 
 tual value of such inchoate right as ascertained 
 by the rule laid down in the case of Jackson v.. 
 Edwards, 7 Paige 408. Followed. Smart v. 
 Sanng, 14 Hun 276, 278. 
 
 Doty V. Michigan Central R. R. Oc^ 
 8 Abb. Pr. 427. Who is a managing agent, of a 
 corporation within the statute as to service of 
 process in suit against corporations. Followed. 
 Emerson v. Avbum, de., B. B. Co., 13 Hun 150, 
 152. 
 
 Dougan V. Champlain Transp. Co., 
 
 ' 56 N. Y. 1. Distinguished. Bing v. dVjr 
 
 of- Cohoes, 13 Hun 76, 84 ; Semell v. OUy of 
 
 . Chhoes, 75 N. Y. 45, 54; Bartlet v. iSpicer, Id, 
 
 528, 534. 
 
 Doughty V. Devlin, 1 E. D. Sanith 625. 
 Explained and distinguished. Preusser v. 
 Floreme, 4 Abb. N. Cas. 136, 138. 
 
 Douglass, Matter of, 46 N. Y. 42. Dis- 
 tinguished. Moore v. Mayor, &e., of New York,. 
 73 N. Y. 238, 249. 
 
 Douglass V. Howland, 24 Wend. 35_ 
 " The case of WiUey v. Pavlt, [6 Cow. 74,] wa* 
 not cited by counsel in Douglass v. Howland, and 
 was overlooked by the court." Thomnon v. Jlfc- 
 Gregor, 45 Superior 197, 203. 
 
 Dounce v. Dow, 64 N. Y. 411. Sale of a- 
 chattel by a particular description, is a warranty 
 that article sold is of the kind specified. Fol- 
 lowed. White V. MiUer, 71 N. Y. 118, 129. 
 
 Dowdney v. Mayor, &c., of New- 
 York, 54 N. Y. 186. Assessment on property- 
 conveyed, when not breach of covenant against 
 encumbrances. Followed. Skidmore v. Hart,. 
 13 Hun 441, 445. ^ „ ' ^^ 
 
 Down V. McOourkey, 15 Hun 444. 
 Stenographer's fees not part of additional al- 
 lowance. Afpibmbd. Dovm v. McOoarkiy, 78 
 N. Y. 614. 
 
 Dows V. Cobb, 12 Barb. 310, [and cases 
 cited.] Eight of assignee of bill of lading to 
 sue in his own name. " These cases are common 
 law actions, brought before the code of proced- 
 ure was in operation. Since that enactment, 
 the real party in interest is authorized to sue on 
 any contract or chose in action which has been 
 transferred to him in his own name." -Mer- 
 chant^ Bank of Omada v. Union B. B. & Tratisp. 
 Co., 69 N. Y. 373, 380. 
 
 Doyle V. Lord, 39 Superior 421. Eights- 
 of landlord and tenant respecting Tmndowa, 
 light and air. Eeversed. Doyle v. Lords, 64 
 N. Y. 432. 
 
 Doyle V. Shairpe, 43 Superior 545. P6w- 
 
CASES CEITICISED. 
 
 487 
 
 ers and duties of marshal in respect to seizure 
 and custody of bankrupt's property. Affirmed. 
 Doyle V. Sharps, 74 N. Y. 154. 
 
 Doyle V. Sharps, 74 N. Y. 154. Eight of 
 marshal to seize goods of bankrupt in hands of 
 third persons claiming title. Explained. 
 Dederiek v. Fisk, 59 How. Pr. 73, 75. 
 
 Driscoll V. Mayor, <SSo., of New York, 
 11 Hun 101. Contributory negligence, when 
 question for the jury. Follot^ed. Lowrey v. 
 Brooklyn CUy, &e., B. B. Co., 4 Abb. N. Cas. 32, 
 36. 
 
 Di iscoU V. West Bradley, &o., Manuf. 
 Co., 36 Superior 488. Dealings of manufactur- 
 ing companies respecting their stock. Transfers 
 and rights of purchasers. Affirmed. Driscoll 
 y. West Bradley, &c., Manuf. Co., 59 N. Y. 96. 
 
 Drummond v. Husson, 14 N. Y. 60. 
 Sureties on undertaking on appeal not liable 
 where appeal is dismissed. Followed. Palmer 
 V. Foley, 71 N. Y. 106, 109. 
 
 Dubois V. Baker, 30 N. Y. 355. Compar- 
 ison of the handwriting of papers in evidence 
 permissible to ascertain genuineness of paper in 
 controversy. "Although this decision lays down 
 a somewhat more liberal rule as to evidence of 
 handwriting than had previously prevailed in 
 this state, yet it has been generally acquiesced 
 in, is in conformity with the law in other states, 
 and seems to have become an established prac- 
 tice in the trial courts. * * * It is sounder 
 in principle than the more narrow one, and in 
 no respect an infringement upon any wholesome 
 and just limitation of expert testimony." Miles 
 V. iMmnis, 75 N. Y. 288, 294. 
 
 Dubois V. Oassidy, 75 N. Y. 298. Eight 
 of receiver in supplementary proceedings to 
 maintain partition. Explained and dis- 
 TlNCHnsHED. Butherford v. Heweu, 59 How. 
 Pr. 231, 237. 
 
 Dubois V. Tbompson, 1 Daly 309. Dis- 
 TiNGinsHED. Tmnninger, v. Busch, 7 Daly 124, 
 126. 
 
 pucker v. Rapp, 41 Superior 235. Lia- 
 bility of surety on lease. Modified. Ducker 
 v. Bapp, 67 N. Y. 464. 
 
 Duffleld V. Horton, 10 Hun 140. Effect 
 of assignment in bankruptcy upon attachment 
 levied within four months prior to filing petition 
 in bankruptcy. Affirmed. Duffidd v. Horton, 
 73 N. Y. 218. 
 
 Duncan v. Berlin, 38 Superior 31. Levy 
 of attachment of deposit in bank — bank cannot 
 deduct outstanding check not yet presented. 
 Affirmed. Duncan v. Berlin, 60 N. Y. 151. 
 
 Duncan v. Katen, 6 Hun 1 ; 64 N. Y. 625. 
 What is an injury to property within Code of 
 Civ. Pro., I 549, relating to orders of arrest. 
 Followed. Cathin v. Adirmdack Co., 20 Hun 
 19/22. 
 
 Dunham v. Sage, 52 N. Y. 229. Limita- 
 tions of actions. Construction of Code of Pro^ 
 § 101, relative to suspension by reason of disa- 
 bility to sue. Followed. Acker v. Acker, 16 
 Hun 173, 175. 
 
 Dunlop V. Patterson, 5 Cow. 243. Jury 
 should disregard testimony of witness who con- 
 fesses having previously sworn falsely in rela- 
 tion to the same transaction. " This case has 
 been commented on in Dunn v. People, 29 N. Y. 
 523, and limited." Deering v. Metcalf, 74 N. Y. 
 501, 504. 
 
 Dunlop V. Patterson Fire Ins. Co., 12 
 Hun 627. Money deposited in court. When 
 liable to attachment. Affirmed. Dunlop v. 
 Patterson Fire Ins. Co., 74 N. Y. 145. 
 
 Dunn V. Hornbeck, 7 Hun. 629. Prom- 
 issory note executed to wife of alien husband , 
 on conveyance by her of real property purchased 
 with his money and held in her name because 
 of his alienage, cannot be recovered on by wife, 
 where payment has been made to husband. No 
 presumption of gift. Affirmed. Dnnn v. 
 Hornbeck, 72 N. Y. 80. 
 
 Dunn V. St. Andrew's Church, 1-t 
 Johns. 118. Assnnvpsit will lie upon an implied 
 promise against a coiporation, for services ren- 
 dered. Followed. Landers v. Frank Street 
 Church, 15 Hun 340, 342. 
 
 Dunphy v. Mayor, &c., of New York, 
 8 Hun 479. Neglect to appropriate money to 
 pay deputy clerk of municipal department, 
 equivalent to determination that his services 
 are no longer required. Followed, Brinck 
 V. Mayor, &c., of New York, 16 Hun 340, 343. 
 
 Durant v. Abendroth, 41 Superior 53. 
 Formation of limited partnership. Certificate 
 of capital paid in. Affirmed. Darant v. 
 Abendroth, 69 N. Y. 148. 
 
 Durgin v. Ireland, 14 N. Y. 322. Dis- 
 tingttished. Ooldenbergh v. Hoffman, 69 N. Y. 
 322, 327. 
 
 Durkee v. Mott, 8 Barb. 423. When fu- 
 ture profits recoverable in action for breach of 
 contract. Distinguished. Michell v. Odrnellf 
 44 Superior 401, 404. 
 
 Duryea v. Lester, 43 Superior 564. Ne- 
 cessity of request to submit questions of fact to 
 the jury. Affirmed. Duryea v. Lester, 75 N. 
 Y. 442. 
 
 Dusenbury v. Hoyt, 53 N. Y. 521. Dis- 
 tinguished. Wilson V. Oould; 21 Hun 446, 448. 
 
 Dutch V. Mead, 36 Superior 427. Un- 
 signed written instrument, when constitutes a 
 contract. Affirmed. Dutch v. Mead, 59 N. 
 Y. 628. 
 
 Dutcher v. Swartwood, 15 Hun 31. 
 When accompanying agreement will render 
 chattel mortgage void. Distinguished. Bain- 
 bridge V. Bichmond, 17 Hun 391, 394. 
 
488 
 
 CASES CRITICISED. 
 
 E. 
 
 Eadie v. Slimmon, 26 N. Y. 9. Policy on 
 life of husband for benefit of wife, issued under 
 Laws of 1840, ch. 277, not assignable by wife. 
 Followed. Wilson v. Lawrence, 13 Hun 238, 
 241. 
 
 Baton V. Alger, 47 N. Y. 345. Distin- 
 GTJI8HED. Bays V. Hathom, 74 N. Y. 486, 489. 
 
 Eaton V. Erie Railway Co., 51 N. Y. 
 544. Precautions required from railway com- 
 pany on approaching highway crossing. Fol- 
 lowed. Dyer v. Erie Sailway Co., 71 N. Y. 
 228, 231. * 
 
 Eokert v. Long Island R. R. Co., 57 
 Barb. 555 ; 43 N. Y. 502. A person is justifia- 
 ble in voluntarily placing himself in a place of 
 danger to preserve human life, and the law will 
 not impute negligence to an effort to preserve it, 
 unless made under circumstances constituting 
 rashness in the judgment of prudent persons. 
 Followed. BoU v. Northern Ckntral Ry. Co., 
 15 Hun 496, 502. DiSTiNGtnsHED. Beker y. 
 Starin, 73 N. Y. 601, 602. 
 
 Edgell V. Hart, 9 N. Y. 213. Chattel 
 mortgage, when fraudulent. Followed. South- 
 ard V. Benner, 72 N. Y. 424, 432. 
 
 Bdgerly v. Bush, 16 Hun 80. Eight of 
 purchaser of mortgaged chattels from mortgagor 
 in possession. Reversed, it seems, June 1st, 
 1880. 
 
 Edington v. ^tna Life Ins. Oo., 13 
 Hun 543. Evidence in defence in action on life 
 policy. Privilege of professional communica- 
 tions between physician and patient. Re- 
 versed. Edington v. JEina Life Ins. Co., 77 N. 
 Y. 564. 
 
 Edington v. Mut. Life Ins. Co., 6 Hun 
 1 ; S. C, 67 N. Y. 185. Physician cannot dis- 
 close, as a witness, information acquired from 
 patient, from others around him, or from his 
 own observation of his appearance and symp- 
 toms: Followed. Orattan v. Nat. Life Lis. 
 a., 15 Hun 74, 78. 
 
 Bdmonston v. McLoud, 16 N. Y. 543. 
 Lien acquired by supplementary proceedings is 
 lost by their discontinuance, and not revived by 
 subsequent action in the nature of a creditor's 
 bill. Followed. Ballou v. Boland, 14 Hun 
 358. Distinguished. Stanley v. Lovett, Id. 
 412, 413. 
 
 Edsall V. Brooks, 2 Robt. 29. Term " black- 
 mailing," libelous, per se. Appkoved and fol- 
 lowed. Robertson v. Bennett, 44 Superior 53, 
 70. 
 
 Eggleston v. President, &c., of Co- 
 lumbia Turnpike Co., 18 Hun 146. Lia- 
 bility of turnpike company for piling stone on 
 roadside, so as to frighten hdrses. Reversed, 
 it seems, October 5th, 1880. 
 
 Eisenlord v. DUlenback, 15 Hun 23. 
 Reasonable time within which to demand pay- 
 ment of note transferred by payee after maturity. 
 Appirmed. Eisenlord v. DiUenhaek, 79 N. Y. 
 617. 
 
 Eldridge V. Strenz, 34 Superior 491. Com- 
 position deed, when fraudulent. Aepikmed. 
 Eldridge v. Strenz, 65 N. Y. 556. 
 
 Eldridge v. ITnderhill, 17 Hun 241. 
 Costs must be paid on service of notice of appeal 
 from justice's judgment. Followed. Thomas 
 V. TAowKis, ]8Hun481, 482. 
 
 BUert V. Kelly, 4 E. D. Smith 12. Costs 
 on reversal of District Court judgment in Court 
 of Common Pleas. Explained. Boyd v. Dis- 
 brow, 58 How. Pr., 399. 
 
 Elkerson y. Vanderpoel, 41 Superior 257. 
 Summary proceedings by landlord. Testimony 
 de bene esse. Affirmed. Elverson v. Vander- 
 poel, 69 N. Y. 610. 
 
 Elwood V. "Western TTnion Teleg. Co., 
 45 N. Y. 549. Qualifications to rule that posi- 
 tive testimony of uncontradicted and nnim- 
 peached witness cannot be disregarded. Fol- 
 lowed. Koehler v. Adler, 78 N. Y. 287, 291. 
 
 Embury v. Sheldon, 68 N. Y. 227 Dis- 
 tinguished. Bvd r. Sovihvmk, 70 N. Y. 581, 
 586. ' 
 
 Emigrant, &o., Savings Bank, Matter 
 of, 75 N. Y. 388. Correcting assessments on 
 motion to vacate. Appeovbd. Matter of Fan. 
 Buren, 17 Hun 527, 533. 
 
 Empire City Bank, matter of, 18 N. Y. 
 199, 227. Liability of stockholder in manufacr 
 turing company, who is a creditor of the com- 
 pany to the full amount of his stock, to other 
 creditors of the company. Followed. Mathet 
 V. Neidig, 72 N. Y. 100, 106. 
 
 Engh V. Greenebaum, 2 Hun 136. Lia- 
 bility of principal for acts of agent in violation 
 of secret instructions. Explained. Joynson v. 
 Richard, 44 Superior 16, 20. 
 
 Equitable Life Assurance Soo. v. 
 Cuyler, 12 Hun 247. Who is a "borrower" 
 within the statute relating to usury. Pleading 
 usury as a defence, when reply unnecessary. 
 Affirmed. Equitable Life Asxarance Soc. v. 
 Owyler, 75 N. Y. 511. 
 
 Equitable Life Ins. Soo. v. Stevens, 
 63 N. Y. 341. Application for leave to sue for 
 deficiency after judgment in foreclosure. Fol- 
 lowed. Matter of CoUins, 17 Hun 289, 291. 
 
 Esmond v. Apgar, 7 Daly 379. Lijnita- 
 tion of two years within which to sue assignee 
 in bankruptcy for conversion. Affirmed. Es- 
 mond V. Apgar, 76 N. Y. 359. 
 
 Bstes V. "Wilcox, 67 N. Y. 264. Simple 
 contract creditor cannot maintain creditor's suit. 
 Followed. Evans v. Sill, 18 Hun 464, 465. 
 Exhausting legal remedy before filing credi- 
 tor's bill. Followed. Ballon v. Jones, 13 
 Hun 629, 630, 632. 
 
 Evans v. Cleveland, 12 Hun 140. Right 
 to revive action by representative of deceased 
 party, when barred by lapse of time. Revers- 
 ed. Evans V. Cleveland, 72 N. Y. 486-. 
 
 Evans v. Cleveland, 72 N. Y. 486. Can- 
 not be reconciled with Beach v. Reynolds (53 N. 
 Y. 4,) but must be followed as the latest decision 
 of the Court of Appeals. Oreene v. Mai-tine, 
 21 Hun 136, 138. 
 
 Evans v. "Wells, 22 Wend. 324. Dis- 
 tinguished. Schaefer v. Senkel, 75 N, Y. 378, 
 387. 
 
 Everingham v. "V"anderbilt, 51 How. 
 Pr. 177. Where execution returned is not nec- 
 essary before filing creditor's bill. Followed. 
 Malloy V. VanderbUt, 4 Abb. N. Cas. 127, 129. 
 Everson v. Gehrman, 10 How. Pr. 301. 
 One joint debtor cannot bind the others by con- 
 fession of judgment. Followed. IHpp v. 
 Saunders, 59 How. Pr. 379, 380. 
 
CASES CRITICISED. 
 
 489 
 
 Excelsior Pire Ins. Oo. v. Royal Ins. 
 Co. of Liverpool, 55 N. Y. 343, 359. When 
 a mortgagee, or one in like position toward 
 property, is insured therein at his ovm expense, 
 upon his motion, and for his sole benefit, and a 
 
 loss happens to it, the insurer, in maMng com- 
 pensation, is entitled to an assignment of the 
 rights of the insured. Followed. Foiter v. 
 Van Beed, 70 N. Y. 19, 24. 
 
 F. 
 
 Pairohild v. Fairohild, 64 N. Y. 471, 
 480. Rresumption of knowledge "of contents of 
 partnership hooks, by partners. Followed. 
 Gheeeer v. Lamar, 19 Hun 130, 134. 
 
 Fairfax v. New York Central, &o., 
 R. R. Co., 40 Superior 128. Liability of car- 
 riers and warehousemen. Eeveksed. Fairfax 
 v. New York Central, &c., B. B. Co., 67 N. Y. 
 11. 
 
 Fairfax v. New York Central, &o., 
 R. R. Co., 67 N. Y. 11. Liability of carrier 
 for baggage, though owner is not a passenger. 
 Followed. Flaherty v. Oreenman, 7 Daly 481, 
 484. 
 
 Fairfax v. New York Central, &o., 
 R. R. Co., 43 Superior 18. Duties and re- 
 sponsibilities of warehousemen. Burden of 
 proof to show due care in case of non-delivery 
 of goods. Affirmed. Fairfax v. New York 
 Central; &e., B. B. Co., 73 N. Y. 167. 
 
 Fake v. Smith, 7 Abb. Pr. (N. S.) 106. 
 Distinguished. Littauer v. Goldman, 72 N. Y. 
 506, 511. 
 
 Falconer v. Buffalo, &c., R. R. Co., 7 
 Hun 499, Town bonding act. Powers and du- 
 ties of commissioners appointed under, in respect 
 to issuing bonds. Termination of right to issue 
 town bonds in aid of f ailroads by constitutional 
 amendment of 1875 (art. 8, J 11.) Affirmed. 
 Falconer v. Buffalo, &c., B. B. Co., 69 N. Y. 491. 
 Followed. People, ez. rd. Hetfidd, v. Trustees 
 of Fort Edward, 70 N. Y. 28, 35; Distinguish- 
 ed. Angd V. Town o/ Hume, 17 Hun 374, 380. 
 Approved. - People, ex rd. New York and 
 Canada B. B. Co., v. Button, 18 Hun 116, 120. 
 
 Falkenau v. Fargo, 35 Superior 332. 
 Limitation of carrier's liability. Affirmed. 
 Falkenau v. Fargo, 55 N. Y. 642. 
 
 Farge v. Herter, 4 Barb. 346 ; 9 N. Y. 241. 
 Only the victim of usury, not the usurer, 
 can set up against a contract that it is 
 usurieus and void. Followed. Nat. Bank of 
 Gtooersdlle v. PUiee, 15 Hun 564, 566. 
 
 Fanners', &c., Nat. Bank v. Atkin- 
 son, 43 Superior 546. Bill of lading— effect of 
 special indorsement. Factors' act, when not ap- 
 plicable. Affirmed. Farmers', &c., Nat. Bank 
 V. Atkinsm, 74 N. Y. 587. 
 
 Farmers', &c., Nat. Bank v. Atkin- 
 son, 74 N. Y. 587 ; same v. Logan. Id. 
 568. Construction of bill of lading. Follow- 
 ed. Farmers?, &e., Nat. Bank v. tianeltine, 78 N. 
 Y. 104, 107 ; affirming 8. C. 45 Superior 576. 
 
 Farmers', &c., Nat. Bank v. Brown, 
 42 Superior 522. Eight of commercial corres- 
 pondents to retain title to goods purchased for 
 their principals until reimbursed. Affirmed. 
 Fan-meri, &e., Nat. Bank v. Brovm, 74 N. Y. 
 ■568. 
 
 Farmers', &c , Nat. Bank v. Joslyn, 
 
 37 N. Y. 353. Distinguished. Hansee v. 
 Phinney, 20 Hun 153, 154. 
 
 Farmers' Bank of Amsterdam v. 
 Blair, 44 Barb. 641. Distinguished. Penr- 
 zerbeiter v. WaydeU, 21 Hun 161, 162. 
 
 Famham v. Famham, 9 How. Pr. 231. 
 Punishment of defendant for failure to pay ali- 
 mony. Followed. Walker v. Walker, 20 Hun 
 400, 401. 
 
 Famshawe v. Lane, 16 Abb._ Pr. 71. 
 Construction of statute relating to limited part- 
 nerships. Followed. George v. Gramt, 20 
 Hun 372, 375. 
 
 Farnum, Matter of, 14 Hun 159. Juris- 
 diction of county judge on accounting by as- 
 signee for creditors. Affirmed. Matter of 
 Farnum, 75 N. Y. 187. 
 
 Fash V. Third Ave. R. R. Co., 1 Daly 
 148. Liability of railroad company, where 
 track in city street becomes an obstruction 
 through neglect of city to keep street in repair. 
 Questi6ned. Lowery v. Brooklyn City, &e., B. 
 B. Co., 76 N. Y. 28, 31. ■ 
 
 Fenton v. Folger, 21 "Wend. 676. The 
 proceeds of a valid sale, under an execution 
 against one member of a partnershijf, belong to 
 the plaintiff in that execution in preference to 
 a creditor of the partnership who bad recovered 
 a judgment agahist the latter, and had delivered 
 to the sheriff an execution thereon, but which 
 the sheriff did not execute. " That was a deci- 
 sion at law, and it can be sustained only upon 
 the ground that the sale under the execution 
 against a single partner was a sale of his interest 
 only, and that there had been no sale of the 
 property of the partnership." Biyder v. Gilbert, 
 16 Hun 163, 167. 
 
 Ferguson v. Crawford, 7 Hun 25. Ke- 
 cital in judgment-roll in foreclosure that de- 
 fendant appeared, is conclusive against him, so 
 as to preclude him in an action brought by him 
 to foreclose a junior mortgage, from showing that 
 such appearance was unauthorized and forged. 
 Kevbrsed. Ferguson v. Crawford, 70 N. Y. 253. 
 
 Ferguson v. Crawford, 70 N. Y. 253. 
 Conclusiveness of judgment records on questions 
 of jurisdition. Followed. People v. Baher, 76 
 N. Y.78, 83. Distinguished. Diossyv.West, 
 8 Daly 298. 
 
 Ferguson v. Morris, 4 Thomp. & C. 689. 
 Distinguished. Morris v. Budlong, 78 N. Y. 
 543, 561. 
 
 Feman v. Doubleday, 3 Lans. 216. Dis- 
 tinguished. Nat. Bank of Gloversville v. Place, 
 15 Hun 564, 567. 
 
 Ferrin v. Myaick, 41 N. Y. 315, 319. 
 Power of administrator to bind estate. Fol- 
 lowed. Lunt V. Lirnl, 8 Abb. N. Gas. 83, 90. 
 
 Ferris v. Van Vechten, 9 Hun 12. Mis- 
 application of trust fund. Right of creditors of 
 
490 
 
 CASES CRITICISED. 
 
 testator to Sharge lands with payment of their 
 debts, where trustee under will has misapplied 
 the personalty. Reversed. Ferris v. Van 
 Vechten, 73 N. Y. 113. 
 
 Fiebel v. Obersky, 13 Abb. Pr. (N. S.) 
 402, n. Promise to marry by infant not bind- 
 ing. FoiiLOWED. Leiehtweiss v. Treahow, 21 
 Hun 487, 488. 
 
 Field V. Stewart, 8 Abb. Pr. (K S.,) 193 ; 
 S. C, 41 How. Pr. 95. Discretionary order of 
 Special Term not reviewable on appeal by Gen- 
 eral Term. Overruled. Sprague v. JDunton, 
 14 Hun 490, 492. 
 
 Fillo V. Jones, 2 Abb. App. Dec. 121. Dia- 
 TiNGUiSHED. Heeg V. Licht, 8 Abb. N. Gas. 
 355, 362. 
 
 _ Finch V. Parker, 49 N. Y. 1, 8. Conclu- 
 siveness of verdict in action for negligence. 
 Followed. Pen-y v. Landvg, 17 Hun 34, 35. 
 
 First Baptist Otiurcli v. BrooMyn 
 Fire Ins. Co., 28 N. Y. 153. When declara- 
 lations of officer of insurance company do not 
 bind company. Distinguished. Pierspn v. 
 Atlantic Nat. Bank, 77 N. Y. 304, 310. 
 
 First Nat. Bank of Chittenango v. 
 Morgan, 6 Hun 346. Power of partner to 
 bind firm by promissory note for his individual 
 benefit. Effect of renewal note as payment of 
 original. ArriRMED. First Nat. Bank of Chit- 
 tenango v. Morgan, 73 N. Y. 593. 
 
 First Nat. Bank of Oooperstown v. 
 Tamajb, 17 Hun 240. Sufficiency of agree- 
 ment fixing referee's fees. Affirmed. First 
 Nat. Bank of Cooperstown v. Tamajo, 77 N. Y. 
 476. 
 
 First Nat. Bank of Jersey City v. 
 Leach, 52 N. Y. 350. Liability of bank on 
 check. " The rules there laid down do not a^- 
 ply to a case where, as between the parties, it 
 had not become a duty to present for payment, 
 and payment in fact had not been demanded." 
 Thcmson v. Bank of Brilisk North America, 45 
 Superior 1. 
 
 First Nat. Bank of Lyons v. Ocean 
 Nat. Bank, 60 N. Y. 278. Admissions of 
 bank president not acting within his authority, 
 not admissible against bank. Distinguished. 
 Pierson v. Atlantic Nat. Bank, 77 N, Y. 304, 310. 
 
 Liability of bank for special deposits. ' Fol- 
 lowed. Pattison v. SyraeaseNat. Bank, 17 Hun 
 419, 423. 
 
 First Nat. Bank of Meadville v. 
 Fourth Nat. Bank of New York, 16 
 Hun 332. Duty of collecting bank as to pre- 
 sentment of check taken in payment of draft 
 left for collection. Kevbksed. First Nat. Bank 
 of MeadviUe v. Fourth Nai. Bank of New York, 
 77 N. Y. 320. 
 
 Fischer v. Hope Mut. Life Ins. Co., 40 
 Superior 550. 
 
 [Reported in memorandum.] 
 Affirmed. Fischer v. Hope Mid. Life. Ins. Co., 
 
 69 N. Y. 161. 
 
 Fish V. Emerson, 44 N. Y. 376. Distin- 
 guished. Doir V. City of Troy, 19 Hun 223,- 226. 
 
 Fisher v. Marvin, 47 Biirb. 159. Renewal 
 note, when merges original debt. Followed 
 at fecial Term. Jogger Iron Co. v. Waiker, 43 
 Superior 275, 278 ; but Overruled at, General 
 Tem. Id. 282. 
 
 "We are not able to d'stinguish tins case irom 
 that nor to reconcile it with that ; nor can we 
 decide this case in accord with that." Jagger 
 Iron Co. V. Walker, 76 N. Y. 521, 526. 
 
 Fisher v. Mayor, &o., of New York, 
 67 N. Y. 73. Assessment sale, when not an ob- 
 jection to compelling purchaser to take title. 
 Followed. Jenkins v. Faftey, 73 N. Y. 355, 365. 
 
 Fisher v. New York Central, &o., R. 
 R. Co., 46 N. Y. 644. Distinguished, dro- 
 ver V. Morris, 73 N. Y. 473, 479. 
 
 Fishkill Savings Institution v. Bost- 
 wick, 19 Hun 354. Liability of corporation 
 for wrongful acts of its officers, and when charge- 
 able with their knowledge. Affirmed, it seems, 
 February 24th, 1880. 
 
 Fisk V. Albany, &c., R. R. Co., 41 How. 
 Pr. 365. A doubt expressed whether an order 
 denying a . change of venue for convenience of 
 witnesses, is appealable to the General Term. 
 Disapproved. Macdonald v. MacdonaM, 14 
 Hun 496, 497. 
 
 Fisk Pavement and Flagging Co. v. 
 Evans, 37 Superior 482. Sitoppel by silence. 
 Grounds for new trial on appeal. Affirmed. 
 Fisk Pavement and Flagging Go, v. Evans, 60 N. 
 Y. 640. 
 
 Fitzgerald, Matter of, 8 Daly 188. 
 Grounds for opposing debtor's discharge from 
 imprisonment. Limited and explained. 
 Matter of Fowler, 8 Daly 548. 
 
 Fleetwood v. City of New York, 2: 
 Sandf. 475. Remedy for illegal assessments for 
 local improvements. Distinguished. Peyser 
 V. Mayor, Sec, of New York, 70 N. Y. 497, 502. 
 
 Flemming v. People, 27 N. Y. 329. In- 
 dictment for statutory offence need not allege 
 tliat defendant's act did not come within any of 
 the exceptions in the statute. Followed. Brad- 
 ford V. People, 20 Hun 309, 310. 
 
 Flike V. Boston, &o., R. R. Co., 53 N. 
 Y. 550. Liability of master to servant for in- 
 juries caused by joint negligence of master and 
 CO servant. Followed. Booth v. Boston one? 
 Albany B. B. Co., 73 N. Y. 38, 42 ; McOosker v. 
 Long Idand B. B. Co., 21 Hun 500, 506; S. C, 
 59 How. Pr. 258, 261. Distinguished. Besel 
 V. New York Central, &c., B. B.Co., 70 N. Y. 171, 
 174. 
 
 Flynn v. Equitable Life Assur. Soc, 
 15 Hun 521. When insurance company is bound 
 by act of agent in wrongfully filling in answers 
 in application for life policy. Affirmeid. 
 Flynn v. Equitable Life Ins. Co., 78 N. Y. 568. 
 
 Flynn v. Hudson River R. R. Co., 6 
 How. Pr. 308. Who is a managing agent of a 
 corporation, within the statute as to service of 
 process in suits against corporations. "o?-- 
 LOWED. Emerson v. Avium, &c., B. B. Co., IS 
 
 ^Polso'm, Matter of, 56 N.Y. feO. Db- 
 tinguished. Matter of Burmeister, 76 N. I. 
 
 174 177 
 
 Poote V. Beecher, 12 Hun 374. Admis- 
 sion of improper evidence, when not ground of 
 reversal in equity case. Reversed. Foote v. 
 Beecher, 78 N. Y. 155. See, also, Holcomby. 
 Holcomb, 20 Hun 156, 157 ; Sehoonmali^ v. Wol- 
 ford. Id. 166, 168, 169. ^, ^^^ . , ^. 
 
 Fbote V. Morgan. 1 Hill 654, Relation- 
 tionship to person other than a party— e.j'., a 
 stockholder in a corporation party--diSauaUhes 
 a iudee. Questioned. Matter of Bodge *. ate- 
 vis<^Ma\a., \7 NY. lOl, lU- . 
 
 Foote V. People, 56 N. Y. 321^ 331. Vio- 
 lations of excise laws. Followed. People, ear 
 re(. Hislop, v. Cowles, 16 Hun 577, 579 ; j. ». m 
 this Table. 
 
CASES CEITICISED. 
 
 491 
 
 Forbes v. 'Willard, 54 Barb. 520. Order 
 finding a person guilty of contempt, and impos- 
 ing a fine, appealable as affecting a substantial 
 right. Followed. Newell v. Outler, 19 Hun 
 7175. 
 
 Ford V. Belmont, 35 Superior 135. Bight 
 to bring action to determine claims to real prop- 
 erty. Affirmed. Ford v. Belmont, 69 N. Y. 
 567. 
 
 Ford V. Ford, 53 Barb. 525. Where an 
 order is made by a referee which he has no 
 authority to make, the aggrieved party is not 
 restricted to an appeal for redress, but he may 
 move, at Special Term, to set it aside. Fol- 
 lowed. Smith V. Bathhun, 13 Hun 47, 55. 
 
 Ford V. Ford, 41 How. Pr. 169 ; 10 Abb. 
 Pr. (N. S.) 74. Commitment for non-payment 
 of alimony — jail liberties. Approved. AUen 
 V. AUen, 8 Abb. N. Cas. 175, 187 ; S. 0., 59 
 How. Pr. 27. 
 
 Ford V. "Williams, 24 N. Y. 359. If the 
 parties to a moi-tgage agree that the mortgagor 
 shall keep possession and sell the goods for cash, 
 paying over the moneys to the mortgagees, the 
 agreement may not be fraudulent in law, and if, 
 in fact, made with an honest intent, will war- 
 rant the conclusion that the mortgage is valid 
 as against the claims of other creditors. Ap- 
 proved. OUy Bank ofBoahester v. WesAury, 16 
 Hun 458, 459. 
 
 Forrest v. Forrest, 25 N. Y. 501. Power 
 of appellate court to disregard errors in admis- 
 sion of evidence in equity causes. Deemed 
 overruled. Sbkomb v.IIokomb, 20 Hun 156, 
 158; Schoonmaker v. Wolfoi-d, Id. 166, 168. 
 
 Fort V. Burch, 5 Den. 187. Eights of 
 junior mortgagee with notice of prior unre- 
 corded mortgage. Followed. Westbrook v. 
 GUason, 79 N. Y. 23, 31. 
 
 Fosgate v. Herkimer Manuf., <teo., 
 Oo., 12. N. Y. 580. Joinder of parties defend- 
 ant. Distinguished. Marenus v. Oraw/ord, 15 
 Hun 45, 47. 
 
 Foster v. People, 50 N. Y. 598. Distin- 
 guished. Bud V. People, 78 N. Y. 492, 499. 
 
 Foster v. Townshend, 2 Abb. N. Cas. 
 29. Keceiver's power to sue. Sufficiency of 
 complaint. Followed. Donnelly v. West, 17 
 Hun 564, 568. 
 
 Foster v. Van Beed, 5 Hun 321. Insur- 
 ance by mortgagee. Eight of insurer, having 
 paid the loss and taken assignment of mortgage, 
 to foreclose same. EevEbsed. Foster v. Van 
 Beed, 70 N. Y. 19. 
 
 Fougera v. Moissen, 16 Hun 237. The 
 head-note is wrong and should read the other 
 way. The opinion printed at page 238 is prob- 
 ably misprinted in the same manner. See 17 
 Hun, p. xvii. — Ed. 
 
 Fowler v. Seaman, 40 N. Y. 592. Lia- 
 bility of wife for acts of husband as her agent. 
 Followed. Treman v. AUen, 15 Hun 4, 7. 
 
 Fowler V. Westervelt, 40 Barb. 374. 
 Sufficiency of notice of appeal from justice's 
 judgment. Followed. Andrews v. Long, 19 
 Hun 303, 304. 
 
 Fox V. Moyer, 54 N. Y. 125, 130. Distin- 
 guished. Mitler V. SaU, 70 N. Y. 250, 252. 
 
 Francis v. City of Troy, 10 Hun 515.. 
 Power of common council of Troy in respect to- 
 designating newspapers in which to publish 
 notices of tax-sales. Keversbd. Francis v. 
 OUy of Troy, 74 N. Y. 338. 
 
 Frecking v. RoUand, 33 Superior 499. 
 Charging separate estate of married woman. 
 Eeveesed. Frecking v. BoUand, 53 N. Y. 422, 
 
 Freeman v. Barber, 3 Thomp. & C. 574_ 
 Nature of tenancy by husband and wife, of 
 property convpyed to them jointly. Disap- 
 proved. Meeker v. Wright, 76 N. Y. 262, 270.. 
 
 Freeman v. Oram, 3 N. Y. 305. Distin- 
 guished. Fox V. Kidd, 77 N. Y. 489. 
 
 Freethy v. Freethy, 42 Barb. 641. Dis- 
 tinguished. Howkmd v. Howland, 20 Hutt 
 472, 473. 
 
 Freligh v. Brink, 22 N. Y. 418. Suffi- 
 ciency of specification of indebtedness in state- 
 ment for confession of judgment. Followed.- 
 Harrison v. Gibbons, 71 N. Y. 58, 61. 
 
 Freund v. Importers', &c., Nat. Bank,. 
 12 Hun 537. Check payable to order transfer- 
 able by delivery without indorsement. Af- 
 firmed. Freimd v. Importer^, &e., Nat. Bank^ 
 76 N. Y. 352. 
 
 Friery v. People, 2 Abb. App. Dec. 215_ 
 Challenge to juror. Construction of statute. 
 Followed. Cox v. People, 19 Hun 430, 439. 
 
 Froas v. Beekman, 1 John Oh. 288.. 
 Mortgage for $3000 recorded by mistake as for 
 $300 IS notice to the latter amount under the 
 recording acts. Distinguished. Seiibrun v. 
 Hammond, 13 Hun 474, 480. 
 
 Frost V. Mott, 34 N. Y. 253. "The- 
 report of the case is very unsatisfactory." Tur- 
 ner V. Borthwick, 20 Hun 119, 120, 122. 
 
 Frost V. "Warren, 42 N. Y. 204. Dis- 
 tinguished. Southard v. Benner, 72 N. Y.. 
 424, 431. 
 
 Frost V. "STonkers Savings Bank, 8 
 Hun 26. Priority between senior and junior- 
 mortgages. Sufficiency of tender by junior- 
 mortgagee seeking to redeem. Eeversed in 
 part. Frost v. Yonkers Savings Bank, 70 N, Y^ 
 553. 
 
 Fudickar v. Guardian Mutual Life- 
 Ins. Co., 37 Superior 358. Action to set aside- 
 award of arbitrators. Eescission of contract. 
 Affirmed. Fudickar y. Guardian Mutual Idfe 
 Ins. Ch., 62 N. Y. 392. 
 
 FuUager v. Reville, 3 Hun 600. Dis- 
 tinguished. Boe V. Conway, 74 N. Y. 201. 
 206. 
 
 Fuller V. Scribner, 16 Hun 130. Money 
 judgment agaiast owner of equity of redemp- 
 tion recovered after filing of notice of lis-pendem 
 in foreclosure suit, but before service of sum- 
 mons on such owner, cut ofl^ by judgment of 
 foreclosure. Affirmed. Fuiier v. Scribner, 76- 
 N. Y. 190. ' 
 
 Fulton Bank v. New "york, <fco.. Canal 
 Co., 4 Paige 127. Distinguished. Holdent 
 V. New York amd Erie Bank, 72 N. Y. 286, 295- 
 
492 
 
 CASES CRITICISED. 
 
 G. 
 
 Gage V. Kendall, 15 Wend. 640. The 
 nominal plaintiff need have no interest in the 
 note sued on. "The code has changed this rule ; 
 now such a state of facts would be a good defence 
 to the suit." Hays v. Hathom, 74 N. Y. 486, 490. 
 
 Gale V. New York Central, &c., B. R. 
 Co., 13 Hun 1. Liability of railmad company 
 for injury sustained by reason of crossing being 
 •out of repair. Affirmed. Gale v. New York 
 Central, &c., B. B. Co., 76 N. Y. 594. 
 
 Gallarati v. Orser, 27 N. Y. 324. Liabil- 
 ity of sureties on replevin bond, and of sheriff 
 for failing to justify the sureties. Followed as 
 -controlling. Jogger v. Lalanee, &c., Manuf. Co., 8 
 Daly 251, 253. 
 
 Gardner v. Adams, 12 Wend. 297. Cause 
 of action for conversion of personal property 
 not assignable. Disapproved. Jiyde v. I'uffts, 
 45 Superior 56, 58. 
 
 Gardner v. McEwen, 19 N. Y. 123. 
 Chatlel mortgage — effect of agreement permit- 
 ting mortgagor to sell. Approved. Southard 
 V. Benner, 72 N. Y. 424, 432. 
 
 Gardner v. People, 62 N. Y. 299. Dis- 
 TlPOUiSHED. Byan v. People, 79 N. Y. 593, 
 ^99; S C, 19 Hun 189. 
 
 Gamsey v. Rogers, 47 N. Y. 233, 242. 
 Where grantee assumes payment of mortgage, 
 on an absolute conveyance of land, it is uncon- 
 -ditional and irrevocable. The grantor cannot 
 xetrtct his conveyance or the grantee his prom- 
 ise or undertaking. Approved. Douglass v. 
 Welli, 18 Hun 88, 93. Followed. Banney v. 
 McMullen, 5 Abb. N. Cas. 246, 258. Distin- 
 guished. Gamphdl V. Smith, 71 N. Y. 26, 28 ; 
 Pardee v. Treat, 18 Hun 298, 301. 
 
 Garrison v. Howe, 17 N. Y. 458. Liabil- 
 ity of stockholder in manufacturing company 
 who is a creditor of the company to the full 
 imount of his stock, to other creditor? of the 
 <;ompanv. Followed. Maihez v. Neidig, 72 
 N. Y. 100, 105. 
 
 Garvey v. MoDevltt, 11 Hun 457. When 
 « trust is invalid as suspending the power of 
 alienation too long, it cannot be sustained as a 
 power in trust. Affirmed. Garvey v. McDe- 
 vUt, 72 N. Y. 556. 
 
 Gasberie v. Apple, 14 Abb. 64. Threats 
 fcy debtor to make preferential assignment. 
 Followed. Anthony v. Slype, 19 Hun 265, 267, 
 268. 
 
 Gaslrin v. Meek, 42 N. Y. 186. Laws of 
 18tj9, ch. 569, a local act and void as to matters 
 not expressed in its title. " That decision did 
 not repeal that act. It condemned it so far as it 
 was a local act, as in conflict with the constitu- 
 tion ; but it still remained among the recorded 
 acts of the state. Bichards v. Bichards, 76 N. Y. 
 186,188. 
 
 Gates V. Andrews, 37 N. Y. 657. Dis- 
 tinguished. Morris v. Budlong, 78 N. Y. 643, 
 559. 
 
 Gates V. Green, 4 Paige 355. Distin- 
 guished. WHson V. Deen, 74 N. Y. 531, 536. 
 
 Gaylord Manuf. Co. v. Allen, 35 Supe- 
 rior 571, 
 
 [Keported in memorandum.] 
 Affirmed. Gaylord Manuf. Co. v. Allen, 53 
 N. Y. 515. 
 
 Geis V.-Loew, 15 Abb. Pr. (N. S.) 94, Or- 
 der compelling party to make his pleading more 
 definite and certain, not appealable to General 
 Term. Overruxed. Sprague v. Dunton, 14 
 Hun 490, 492. 
 
 Gelston v. Shields, 16 Hun 143. Mean- 
 ing of word "children" in will — ^when means 
 illegitimate children. Affirmed. Gelston v. 
 Shklds, 78 N. Y. 275. 
 
 Geraty v, Reid, 13 Hun 313. Jurisdiction 
 of justices of the peace in city of Brooklyn. Eb- 
 VERSED. Geraty v. Beid, 78 N, Y. 64. 
 
 Germania Fire Ins. Co. v. Memphis, 
 &c.,R. B. Co., 7 Hun 233. Cionclusiveness of 
 biU of lading as evidence of contract between 
 the parties. Affirmed. Germania Fire Ins. 
 a. v. Memphis, &e., B. B. Co., 72 N. Y. 90. 
 
 Germania Fire Ins. Co. v. Memphis, 
 &c., R. R. Co., 72 N. Y. 90. The receipt of a 
 bill of lading delivered to the shipper by the 
 carrier, is to be regarded as the contract between 
 the parties, instead of a parol agreement alleged 
 to have been made previously. Followed. 
 mU V. Syracuse, &c., B. B. Co., 73 N. Y. 351, 352. 
 
 Gerould v. Wilson, 16 Hun 530. Power 
 of surrogate to compel accounting. Kevocation 
 of letters of administration. Affirmed, it 
 seems, September 21st, 1880. 
 
 Geston v. People, 4 Lans. 487. Distin- 
 guished. Eighmy.y. People, 79 N. Y. 546, 557. 
 
 Getty V. DlQsse, 49 K Y. 385. Liability 
 of surety discharged by his death. Followed. 
 BandaU v. Sadeetl, 77 N. Y. 480, 482. Distin- 
 guished. First Nat. Bank Of Chittenmngo v. 
 ■Jforffon,73N.Y.593, 595. 
 
 Getty V. Donelly, 9 Hun 603. Party 
 deceived into entering into an enterprise by 
 fraudulent concealment of material fa<!ts, may 
 compel an accounting of profits, though no af- 
 firmative representations were made. Af- 
 firmed. Getty V. Deolin, 70 N. Y. 504. 
 
 Gibbs V. Queen Ins. Co., 63 N. Y. 114. 
 A statute of this state is valid that provides for 
 substituted service upon a defendant, not a citi- 
 zen of this state and absent from its jurisdiction, 
 and a judgment based thereupon is good in per- 
 sonam within our jurisdiction. FOLLOWED. 
 Huni V. Hunt, 72 N. Y. 217, 238. 
 
 Gilbert v. Priest, 65 Barb. 444. Supreme 
 Court has not jurisdiction of action by assignee 
 in bankruptcy. Overruled. Tyler v. MeCol- 
 lum, 19 Hun 622, 623. 
 
 Gilbert Elevated Ry. Co., Matter of, 
 9 Hun 303. "Kapid transit act." Constitu- 
 tionality and validity of proceedings thereunder 
 in laying out elevated railway in New York 
 city. Affirmed. Matter of Gilbert Elevated 
 By. Co., 70 N. Y. 361 ; S. C, 3 Abb. N. Cas. 
 434. „ . 
 
 Giles V. Austin, 38 Superior 215. Equi- 
 table relief against penalties. Affirmed. GHes 
 V. ^osim, 62 N. Y. 486. " 
 
 Giles V. Baremore, 5 Johns. Ch. 545. 
 Presumption of payment. Followed. MaUoy 
 V. VanderbiU, 4 Abb. N. Caa. 127, 133. 
 
 Giles V. Dugro, 1 Duer 331. Measure of 
 damages for breach of covenant against encum- 
 brances. Approved. Mohr v. Parmdee, 43 
 Suoerior 320, 331. 
 
CASES CRITICISED. 
 
 493 
 
 Qillett V. Maynard, 5 Johns. 85. Dis- 
 tinguished. Tiee V. Zinsser, 76 N. Y. 549, 553. 
 
 Gillot V. Esterbrook, 48 N. Y. 374. 
 Bight to nse numerals as trade-marks. Fol- 
 lowed. Collins V. Reynolds Card Manuf. Co., 7 
 Abh. N. Cas. 17, 18 ; India Rubber Co. v. RMer 
 Comb and Jewelry Co., 45 Superior 258, 272. 
 
 G-ilmour v. Thompson, 49 How. Pr. 198. 
 Distinguished. Salinger v. Earle, 45 Superior 
 604 ; Haynes v. RvM, 17 Hun 477, 481. 
 
 Glaoius V. Black, 50 N. Y. 145 Dis- 
 tinguished. Burroughs v. Tostevan, 75 N. Y. 
 567, 573. 
 
 G-lacius V. Black, 67 N. Y. 563. Distin- 
 guished. Fox V. Kidd, 77 N. Y. 489, 492; 
 Weyer v. Beach, 79 N. Y. 409, 412. 
 
 Glackin V. Zeller, 52 Barb. 147. Eight 
 to costs on discontinuance in justice's court for 
 want of jurisdiction of amount in controversy. 
 Followed. Bradner v. Howard, 14 Hun 420, 
 422. 
 
 Gleadell v. Thomson, 35 Superior 232. 
 Construction of bill of lading. Duty of carrier 
 in landing goods. Affirmed. GleadM v. 
 Thomson, 66 N. Y. 194. 
 
 Glen V. Hope Mut. Life Ins. Co., 56 N. 
 Y. 379. Eight of policy-holder in one life in- 
 surance company to sue another company which 
 has agreed to pay losses which first company 
 may become liable to pay. Followed. Fischer 
 V. Hope Mut. Life Ins. Co., 69 N. Y. 161, 163. 
 
 Gienney v. Stedwell, 64 N. Y. 120. 
 Eight of plaintiff to examine defendant, to ob- 
 tain facte to enable him to frame complaint. 
 Followed. Brisbane v. Brisbane, 20 Hun 48, 49. 
 
 Goddard v. Pomeroy, 36 Barb. 546. 
 When general legacy is payable from proceeds 
 of realty. Distinguished. Beam v. Cooper, 
 Ti N. Y. 317, 323. 
 
 Godfrey v. Moser, 66-N. Y. 250. Eule 
 that when there is conflicting evidence, and 
 when there is any evidence to sustain the finding^ 
 it is error in the appellate court to reverse the 
 judgment, is not applicable in a case where the 
 appellate court has a right to review the facte. 
 Followed. Greenfield v. People, 13 Hun 242, 
 246. 
 
 Goelet V. Gorl, 31 Barb. 314. Nature of 
 tenancy by husband and wife, of property con- 
 veyed to them jointly. Disapproved. Meeker 
 V. Wright, 76 N. Y. 262, 269. 
 
 Goelet V. Spofford, 35 Superior 564. 
 
 [Reported in memorandum.] 
 Affirmed. Qoelel v. Spofford, 55 N. Y. 647. 
 
 Goldenbergh v. Hoffman, 7 Hun 324. 
 Creditors who , sell their claims against failing 
 debtor, for a percentage, to purchaser for value, 
 not agent of debtor, cannot enforce balance be- 
 cause other creditors received more than the 
 percentage paid by purchaser. Affirmed. 
 Goldenbergh v. Hoffman, 69 N. Y. 322. 
 
 Goldsmith v. Bro"wii, 35 Barb. 484. Dis- 
 tinguished. McMurray v. Noyes, 72 N. Y. 
 523, 526. 
 
 Goodyear V. Phoenix Rubber Co., 48 
 Barb. 522. Corporation defendant cannot be 
 examined before trial, as a party, by ite presi- 
 dent and secretary. Followed. People v. Mu- 
 tuai Gas Light Co., 14 Hun 157, 158. 
 
 Gorham v. Gale, 7 Cow. 739. Distin- 
 guished. Ross V. Campbell, 19 Hun 615, 617. 
 
 Goraline, Matter of, 21 How. Pr. 85; S. 
 C, 10 Abb. Pr. 282. Supreme Court justice can- 
 nbt admit to bail person arrested on bench war- 
 
 rant. Distinguished and criticjised. People 
 T. Oews, 14 Hun 90, 91 ; S. C, 77 N. Y. 39, 44, 
 Gorton v. Keeler, 51 Barb. 475. Mitiga- 
 tory facts and circumstances, to be available to 
 defendant, in slander, must be such as tended ta 
 produce a belief in the truth of the defamatory 
 words existing in the mind of the party when he- 
 uttered them, Followed. Hatfield v. Lasher^ 
 
 17 Hun 23, 26. 
 
 Gosman v. Cruger, 7 Hun 60. _ Married 
 woman not liable as surety on guardian's bond 
 containing no clause charging her separate es- 
 tate. Affirmed. Gosmanv. Ontjer, 69 N.Y. 87. 
 
 Gould V. Gould, 8 Cow. 168. Joint sure- 
 ties, paying money for their principal, should 
 sue him severally for the money paid. Ex- 
 plained AND distinguished. JEkos V. Leach, 
 
 18 Hun 139, 141. 
 
 Gould V. Gould, 29 How. Pr. 441. " Wa» 
 decided by a divided court, and the learned dis- 
 senting opinion of Daly, P. J., satisfies our rea^ 
 son and commands our respect and approval." 
 Howland v. Hawland, 20 Hun 472, 473. 
 
 Gould V. Town of Oneonta, 3 Hun 401.. 
 Validity of town subscription in aid of railroad. 
 Affirmed. Gmild\.ToumofOneonta,71 N.Y.298.. 
 
 Graff V. Bonnett, 31 N. Y. 9. Eight of 
 creditor of cestui que trust to compel applicatioa 
 of surplus income to the payment of his debt. 
 Distinguished. WiUiams v. Thome, 70 N. Y. 
 270, 275. 
 
 Graham v. Phoenix Ins. Co., 12 Hun 
 446. Eemedy of mortgagee holding policy, on 
 refusal of mortgagor to furnish proofs of loss. 
 Affirmed. Graham v. Pkcenix Ins. Co., 77 N. 
 Y. 171. . 
 
 Grantman v. Thrall, 31 How. Pr. 464. 
 When payment of costs may be enforced by ca. 
 sa. Disapproved. Morrison v. Lester, 15 Hun 
 541, 542. Followed. Sehoen v. SeUesxinger,. 
 57 How. Pr. 490 ; S.O.I Abb. N. Cas. 399. 
 
 Graves v. Amer. Exch. Bank, 17 N. Y. 
 205. Conversion of bill of exchange. "The 
 court did not mean to hold by the language used 
 that, under the fads of that case, there would not 
 have been a conversion without a demand and 
 refusal." Thomson v. Bank of British North 
 America, 45 Superior 1, 15. 
 
 Gray v. Bensel, 38 Superior 447. Validity 
 of assessment lease in New York city. Eight 
 of lessee to assign the lease. Affirmed. Gray. 
 V. Bensd, 62 N. Y. 632. 
 
 Gray v. Green, 12 Hun 598. Eights of 
 assignee with notice, where property assigned is 
 given as collateral security. Eevebsed. Grau 
 V. Green, 77 N. Y. 615. 
 
 Gray v. Kendall, 10 Abb. Pr. 66. Whea 
 the code requires the verification of a pleading 
 to be made by the affidavit of the party, it re- 
 quires the affidavit to be made by every party 
 who unites in the pleading and whose interest, 
 is several, and if that is not done, the adverse 
 party cannot be required to treat it as a plead- 
 ing verified according to the provisions of the 
 code. Approved and followed. Wendi v. 
 Peyser, 14 Hun 114, 115. 
 
 Gray v. Second Ave. R. R. Co., 34 Su- 
 perior 5l 9. Contributory negligence of driver 
 of vehicle near railroad track. Affirmed. 
 Gray v. Second Ave. R. R. Co., 65 N. Y. 561. 
 
 Green v. Clark, 5 Den. 497. Eatification 
 by shipper of mis-delivery by carrier. Fol- 
 lowed. Brooks V. American Exp. Co., 14 Hun. 
 364, 368. 
 
494 
 
 CASES CRITICISED. 
 
 Green v. Eden, 2 Thomp. & C. 582. Effect 
 ■of covenant on part of lessee to keep premises in 
 good repair. Distinguished. While v. Albany 
 Railway, 17 Him 98, 100. 
 
 Green v. Green, 7 Hun 492. Conveyance 
 by son, during infancy, to father, may be disaf- 
 firmed by son at majority, without restoring the 
 ■consideration, which has been consumed during 
 minority. Acquiescence, without acts, no con- 
 firmation of infant's deed. Affirmed. Grem 
 V. Orem, 69 N. Y. 553. 
 
 Green v. Milbank, 3 Abb. N. Caa. 138. 
 Interposing- objection in equity suit that plain- 
 tiff has a remedy at law. Criticised. De 
 Bussierre v. SoUaday, 4 Abb. N. Cas. Ill, 117. 
 
 Greene v. Warnick, 64 N. Y. 220. 
 When two mortgages are executed at the same 
 time, neither to have priority, the fact that 
 one was placed upon record fifteen minutes 
 before the other, will not have the effect to 
 give to an assignee of the mortgage first re- 
 corded a preference under the recording act, 
 because the assignee, under such a state of 
 facts, cannot be regarded a subsequent purchaser 
 ■within the meaning of the act. Distinguished. 
 Heilhmn v. Hammond, 13 Hun 474, 481. 
 
 Greenfield v. People, 13 Hun 242. Opin- 
 ion of juror, when does not disqualify. Ke- 
 VBRSBD. CireenfiM v. People, 74 N. Y. 277 : S. 
 <7., 6Abb. N. Cas. 1. 
 
 " The case has recently been reversed by the 
 Oourt of Appeals, on the question of fact arising 
 upon a challenge to a juror, but we understand 
 that reversal to have been placed entirely upon 
 the ground that the juror thus challenged had 
 formed his opinion upon having read what pur- 
 ported to be a statement of the sworn evidence 
 given by the witnesses on the first triiil of ilie 
 ■case, and upon the ground that an opinion hav- 
 ing been derived from such a source was likely 
 to be more firm and less liable to be changed on 
 another trial, than in a case where the opinion 
 of a juror has no other foundation than appears 
 in tills ciise." Manke v. People, 17 Hun 410, 
 414. Distinguished. Pender v. People, 18 
 Hun 560, 565; Palho v. People, 19 Hun 424, 
 427 ; Cox V. People, 19 Hun 430, 435. 
 
 Eight to contiadict witness for purpose of 
 discrediting. Limited. People v. Cox, 21 Hun 
 47, 52. 
 
 Greenpoint Sugar Co. v. Kings 
 County Manuf. Co., 7 Hun 44. Power of 
 manufacturing company to mortgage land, or 
 sell and take back mortgage. Assent of stock- 
 holders, &e. Affirmed, svb nom. Greenpoint 
 Siigar Co. v. WMHn, 59 N. Y. 328. 
 
 Greentree v. Rosenstock, 34 Superior 
 605. Liability of bailee who pays over prop- 
 erty to sheriff on attachment against bailor, 
 after notice of assignment by bailor to third 
 person. Affirmed. Oreemtree v. 'Bosemtoclc, 
 61 N. Y. 583. 
 
 Gregory v. Cryder, 10 Abb. Pr. (N. S.) 
 289. When a referee fails to make and deliver 
 
 his report within sixty days, he loses all right 
 to make and deliver the same after that time. 
 Distinguished. Waters v. Shepherd, 14 Hun 
 223. 
 
 Griffln v. Cohen, 8 How. Pr. 451. 
 Amended complaint cannot be treated as a 
 nullity. If served in bad faith, remedy is by 
 motion to strike out. Followed. Ostranderv. 
 Conkey, 20 Hun 421, 422. 
 
 Griffln tt. Griffln, 47 N. Y. 134. When 
 aliiaony pendente lite should.be refused. Fol- 
 lowed. Bhodgqod v. Bloodgood, 59 How. Pr. 42. 
 
 Griffln v. Winne, 10 Hun 571. Injunc- 
 tion not granted for mere threats to cut plain- 
 tiff's timber. Affirmed. OriMn v. Winne, 79 
 N. Y. 637. 
 
 Grifflth V. Mangam, 42 Superior 369. 
 Liability of stockholders in corporations In New 
 Jersey. Affirmed. OriMth v. Mangam, 73 N. 
 Y. 611. 
 
 Grocers' Bank v. Penfleld, 7 Hun 279. 
 Indorsee of promissory note, made for accom- 
 modation of payee, without restriction as to its 
 use, may be a bona fide holder, notwithstanding 
 he takes it as collateral security for antecedent 
 debt of pavee. Affirmed. Grocer^ Bank v. 
 Penfield, 69 N. Y. 502. 
 
 Grover v. Morris, 73 N. Y. 473. Ke- 
 covery of money paid for lottery tickets. Tick- 
 ets purchased must be produced on trial. Fol- 
 lowed. Wilkinson v. GUI, 74 N. Y. 63, 68. 
 
 Grube, Matter of, 20 Hun 303. Sidewalk 
 flagging is "pavement" within Laws of 1873, 
 ch. 335, 757. Beversed, it seems, June 1st, 
 1880. 
 
 Guardian Mut. Life Ins. Co., Matter 
 of, 13 Hun 115. See Besene Mut. Life Ins. Co., 
 Matter of , in this Table. 
 
 Guernsey v. Guernsey, 36 N. Y. 267. 
 Distinguished. Wylie v. Lockwood, 20 Hun 
 377, 381. 
 
 Guest V. City of Brooklyn, 8 Hun 97. 
 Assessments for "Third street improvement," in 
 Brooklyn. Validity of statute taxing property 
 defectively assessed to amount of assessment for 
 local improvement. (Laws of 1869, ch. 383.) 
 Affirmed. Guest v. City of Brooklyn, 69 N. Y. 
 606. Followed. Tornisend v. City of Brooklyn, 
 73 N. Y. 589. 
 
 Guest V. City of Brooklyn, 9 Hun 198. 
 Publication of notices in assessment cases. Ef- 
 fect of laches of owner of property assessed for 
 local improvements. Eeversed. Quest v. City 
 of Brooklyn, 73 N. Y. 611, following Tawnsend 
 V. City of Brooklyn ; q. v. in this Table. 
 
 Guliok V. Guliok, 33 Barb. 92. Distin- 
 guished. Field V. Gibson, 20 Hun 274, 277. 
 
 Gurney v. Atlantic, Sec, R. R. Co., 58 
 N. Y. 358, 370. Distinguished. Krauser v. 
 Bucket, 17 Hun 463, 465. See, also, Gauiier v. 
 JDougluss Manvf. Co., 13 Hun 514, 525. 
 
 Guy V. Mead, 22 N. Y. 462. Admissibility 
 of memoranda in evidence. Followed. Mor- 
 row V. Ostrander, 13 Hun 219, 221. 
 
CASES CRITICISED. 
 
 495 
 
 H. 
 
 Haas V. O'Brien, 40 Superior 543. 
 
 [Beported in memorandum.] 
 Beversbd. Haas v. O'Brien, 66 N. Y. 597. 
 
 Hacker v. Ferrill, 66 Barb. 559. Judg- 
 ment of county court on report, of referee, not 
 ^appealable without motion for new trial in coun- 
 ty court. This rule has been changed by the 
 ■code of civil procedure. Kelmer v. O'Brien, 13 
 Hun 224. 
 
 Haden v. Coleman, 42 Superior 256. 
 Building contract, condition as to production of 
 Architect's certificate, Beyebsed, Haden \. 
 Chleman, 73 N. Y. 567. 
 
 Hagar v. Clark, 12 Hun 524. Charter- 
 party, when construed as a contract of affreight- 
 ment, and when as a hiring of the vessel. Be- 
 TER8ED. Hagar v. Clark, 78 N. Y. 45. 
 
 Haight V. Sahler, 30 Barb. 218. Distin- 
 guished. Sdmefer v. Henkel., 75 N. Y. 378, 387. 
 
 Hale V. Omaha Nat. Bank, 33 Superior 
 40. Construction of covenant in lease. Be- 
 "VERSED on question of pleading. Hale v. Omaha 
 JVat. Bank, 49 N. Y. 626. 
 
 Hale V. Omaha Nat. Bank, 49 N. Y. 
 €26. Effect of clause, in lease giving lessor a 
 lien upon property brought by lessee upon de- 
 mised premises. Distinguished. Wisner v. 
 Ccumpaugh, 71 N. Y. 113, 116. 
 
 Hale V. Omaha Nat. Bank, 39 Superior 
 207. Liability of mortgagee of chattels while 
 In possession. Equitable lien. Afeikmed. 
 Hale V. Omaha Nat. Bank, 64 N. Y. 550. 
 
 Hall V. Crouse, 13 Him 557. Mortgage to 
 secure future advance, made after attaching sub- 
 ■sequent lien. Distinguished. Ackerman v. 
 Hunsicker, 21 Hun 53, 57. 
 
 HaU V. Hall, 13 Hun 306. Devises to aliens. 
 Effect of filing deposition under Laws of 1845, 
 •ch. 115. Affirmed, it seems, June Ist, 1880. 
 
 Hall V. Hall, 18 Hnn 358. Executor not 
 -entitled to commissions both as such and as 
 trustee. Affirmed. Hall y. Hall, 78 N. Y. 
 -535. 
 
 Hall V. Robinson, 2 N. Y. 293. Assign- 
 -ability of cause of action founded in tort. Ap- 
 proved. Hyde v. Tuffts, 45 Superior 56, 58. 
 
 Hall V. Tuttle, 6 Hill 38. Distinguish- 
 ed. Dorr V. Oily of Troy, 19 Hun 223, 226. 
 
 Hallock V. Dominy, 7 Hun 52. Power 
 •of supervisors of Suffolk county to make regu- 
 lations for protection of shell and other fish. 
 Kbversed. Hallock v. Dominy, 69 N. Y. 238. 
 
 Halsey v. Sinsebaugh, 15 N. Y. 485. 
 Admissibility of memoranda in evidence. Foi- 
 lOWED. Morrow v. Ostrander, 13 Hun 219, 221, 
 
 Ham V. Mayor, &c., of New York, 37 
 Superior 458. Powers and duties of board of 
 -education in the city of New York, Affirmed, 
 Ham,'v. Mayor, &e., of New York, 70 N, Y, 459, 
 
 Hamilton v, Eno, 16 Hun 599, Eight to 
 damages for wounded feelings in action for libel. 
 Affirmed, it seems, June 1st, 1880. 
 
 Hamilton v. Lomax, 26 Barb. 615. Pro- 
 mise ot marriage by infant not binding. Fol- 
 lowed. Leichtweiss v, Treskow, 21 Hnn 487, 488, 
 
 Hamilton v. Third Avenue R. R, Co., 
 ■53 N, Y. 2-5, 30. Exemplary damages, when re- 
 fused. Followed. Parker v. Lotw Island R. 
 M. Co., 13 Hun 319, 321, 
 
 Hann v. Van Voorhls, 15 Abb, Pr, (N. 
 
 S,) 79. Action in equity to compel application 
 of surplus income of cestui que trust to payment 
 of his debts, not maintainable until afier it has ac- 
 cumulated in the hands of his trustee. OyeBt 
 RULED, Williams v. Thorn, 70 N, Y, 270, 278, 
 Harbeck v, Vanderbllt, 20 N. Y, 395, 
 Bight of one of several joint debtors, who pays 
 the debt, to contribution. Explained and dis- 
 tinguished, Hubbell V, Blakeslee, 71 N, Y, 
 63, 71 ; Marsh v, Benedict, 14 Hun 317, 319, 
 
 Hardenbrook's Case, 8 Abb. Pr, 416, 
 Distinguished, Matter of Lampert, 21 Hun 
 154, 158. 
 
 Hardmann v, Bowen, 39 N. Y, 196, Dis- 
 tinguished, Board of Education of Fairport v, 
 Fonda, 77 N, Y, 350. 
 
 Harley v. Eleventh Ward Bank, 7 
 Daly 476, What amounts to an account stated 
 between bank and depositor. Affirmed, Har- 
 ky V. Eleventh Ward Bank, 76 N. Y, 618, 
 
 Harmony Fire, &c,,Ins,Co,, Matter of, 
 45 K, Y. 310, Dissolution of insurance com- 
 pany. Bights an^ powers of receiver. Dis- 
 tinguished AND limited. People, ex rel. At- 
 torney-Qeneral, v, Seeurity Life Ins. Co., 79 N. Y, 
 267, 272, 
 
 Harrington v. Mayor, &o., of New 
 York, 10 Hun 248. Efleot of words " more or 
 less," in contract to furnish materials for de- 
 partments of docks and public works in city of 
 New York. Affirmed. Harrington v. Mayor, 
 &c., of New York, 70 N, Y, 604. 
 
 Harriott v. "Wells, 9 Bosw, 631. Amend- 
 ment of pleadings by referee. Distinguished. 
 Smith V. Raihbun, 13 Hun 47, 53. 
 
 Harris v, Bvirdett, 43 Superior 57. Es- 
 toppel by record. Liability of owner of vessel 
 for repairs and supplies. Construction of charter- 
 party. Affirmed, Harris v, Burdett, 76 N, 
 Y, 582: 
 
 Harris v, Ely, 25 N, Y, 138, 142, "The 
 intimation that a surrogate, on an accounting, 
 may try the validity of a release, was obiter." 
 Bevan v. Cooper, 72 N, Y. 317, 329. 
 
 Harris v. Prink, 49 N, Y, 24, Tenant to 
 work land on shares, for a single crop, cannot 
 mainiain trespass quare dausum. Followed, 
 Decker v. Decker, 17 Hun 13, 14, 
 
 Harris v. Panama R, R, Co., 36 Supe- 
 rior 373, Showing market value. Testimony 
 of experis. Affirmed, Harris v, Panama B. 
 B. Co., 58 N, Y. 660, 
 
 Harrison v. Close, 2 Johns, 447, Promis- 
 sory note not discharged by part payment by 
 one of two joint makers, accompanied by verbal 
 agreement that creditor would look for payment 
 of balance to other maker. Distinguished 
 Ludington v. Bell, 77 N. Y. 138, 142. 
 
 Harrison v. Q-lover, 9 Hun 196, What 
 constitutes such an offer to sell as to make a 
 binding contract, Eevebsed. Harrison v 
 Glover, 72 N, Y, 451, 
 
 Harrison v. Simons, 3 Edw, Ch, 394. 
 Necessity of revival in case of dealh of mortga- 
 gor pending foreclosure. Followed, Grant 
 V, Oriswotd, 21 Hun 509, 514, 
 
 Hart V. Hart, 2 Edw, Ch. 207. Sufficiency 
 of proof of adultery in action for divorce. Fol- 
 lowed, Pollock V. Pollock, 71 N. Y. 137 
 
496 
 
 CASES CRITICISED. 
 
 Hart V. Reynolds, 3 Cow. 42, note. 
 Amendment of judgment. Distinguished. 
 Orant v. Qrigwold, 21 Hun 509, 5U. 
 
 Hartford and N. Y. Steamboat Co. 
 V. Mayor, &c., of New York, 12 Hun 550. 
 Leases of wharves in New York city. Af- 
 FIBMED. Hartford and N. Y. Steamboat Co. v. 
 Mayor, &c., of New York, 78 N. Y. 1. 
 
 Hartley v. Harrison, 24 N. Y. 170. 
 Grantee subject to mortgage cannot set up usuiy. 
 Approved as to reason given. Knickerbocker 
 Life Ine. Co. v. Nelson, 13 Hun 321, 324: S. C, 
 78 N. Y. 137, 153. 
 
 Harvey v. Cherry, 12 Hun 354. Owner 
 of equitable interest may insure against loss by 
 fire, and sue on policy in his own name. Af- 
 firmed. Harvey v. Cherry, 76 -N. Y. 436'. 
 
 Hassan v. City of Rochester, 67 N. 
 Y. 528. Assessment sale, when not objection to 
 compelling purchaser to take title. Followed. 
 Jenkins v. Fahey, 73 N. Y. 355, 865. 
 
 Hasting's v. "Westchester Fire Ins. 
 Co., 12 Hun 416. Effect of condition in fire 
 policy payable to mortgagee, that company, on 
 payment of loss, shall be subrogated to rights of 
 mortgagee. What is double insurance. Ap- 
 PIRMBD. Hastings v. Westchester Fire Ins. Co., 
 73 N. Y. 141. See, also, HeUman v. Westches- 
 ter Fire Ins. Co., 75 N. Y. 7, 12. 
 
 Hatch V. Central Nat. Bank, 9 Week. 
 Dig. 26. Power of courts of record to vacate 
 their own judgments. Followed. Underwood 
 V. Suteliffe, 21 Hun 357, 362. 
 
 Hatfield y. Lasher, 17 Hun 23. What 
 facts are admissible in mitigation of damages in 
 in action for slander. Affirmed, it seems, June 
 1st, 1880. 
 
 Hathaway, Matter of, 9 Hun 79. Power 
 of Supreme Court justices to appoint acting sur- 
 rogate under Laws of 1830, ch. 320, § 20, not 
 taken away by constitution of 1846, art. 6, ? 8. 
 Affirmed. Matter of Hathaway, 71 N. Y. 238. 
 
 Hathaway v. Howell, 4 Hun 270. Ex- 
 ecution issued before entry of judgment. Ques- 
 tion of fact as to time of levy. Affirmed. 
 Hathaway v. Howdl, 70 N. Y. 610. 
 
 Hathaway v. Johnson, 55 N. Y. 93. 
 When partner not liable to arrest for frauds of 
 co-partner. - Followed. Hitchcock v. Peterson, 
 14 Hun 389, 390. 
 
 Hauck V. Craighead, 67 N. Y. 432. Lia- 
 bility of surety discharged by his death. Fol- 
 lowed. BandaU v. Sackelt, 77 N. Y. 480, 482. 
 
 Haughwout V. Garrison, 40 Superior 
 550. 
 
 [Eeported in memorandum.] 
 Affirmed. Haughwout v. Garrison, 69 N. Y. 
 339. 
 
 Hauselt v. Vilmar, 43 Superior 574. 
 Eight of insolvent to make general assignment 
 with preferences. What is a hindering_ and de- 
 laying of creditors such as avoids an assignment. 
 Affirmed. -Hauselt v. Vilmar, 76 N. Y. 630. 
 
 Hawkins v. Pemberton, 51 N. Y. 198. 
 Sale of a chattel bjr a particular description is a 
 warranty that article sold is of the kind speci- 
 fied. Followed. White v. MUler, 71 N. Y. 
 118, 129. 
 
 Hawley v. James, 16 Wend. 61. Dis- 
 tinguished. James v. Beasley, 14 Hun 520, 
 
 523. 
 
 Hay V. Star Fire Ins.- Co., 13 Hun 496. 
 Beformation of policy of fire insurance on 
 ground of fraud. Limitation in such case runs 
 
 from time of entry of judgment reforming pol- 
 icy. Affirmed. Hay v. Star Fire Ins. Co.,''}! 
 N. Y. 235. Distinguished. Arthur v. Hom&- 
 stead Fire Ins. Co., 78 N. Y. 462, 470. 
 
 Hayden v. Brooklyn Savings Bank, 
 15 Abb. Pr. (N. S.) 297. Liability of savings 
 bank for payments made to person other than 
 depositor. Distinguished. Allen v. WiUiams- 
 burgh Savings Bank, 69 N. Y. 314, 321. 
 
 Hayden v. Crane, 1 Lans. 181. Liabili-, 
 ties of sureties. Approved. Knowles v. Cudde- 
 baek, 19 Hun 590, 593. 
 
 Hayden v. De Mets, 34 Superior 344. 
 What is a sufficient delivery or tender of chat- 
 tels sold. Waiver of tender by refusal to ac- 
 cept. Affirmed. Hayden v. De Mets, 53 N. 
 Y. 426. 
 
 Haye v. Robertson, 38 Superior 59. 
 Powers of the clerk on taxation of costs. Crit- 
 icised. WHliams v. Cassady, 59 How. Pr. 490, 
 494. 
 
 Hayes v. Mayor, &o., of New York, 
 47 N. Y. 639. See Hum^ v. Mayor, &c., in this 
 Table. 
 
 Hayes v. Phelan, 4 Hun 733 j 5 Id. 335. 
 Damages for husband's death, alone, not recov- 
 erable under the civil damage act. Followed. 
 Brookmire v. Monaghan, 15 Hun 16, 18. 
 
 Hayner v. Am. Pop. Life Ins. Co., 36 
 Superior 211. Eight of policy-holder to have 
 lapsed policy reinstated. Affirmed. Hayner 
 V. Am. Pop. Life Ins. Co., 62 X Y. 620. 
 ■ Hays V. Hathom, 74 N. Y. 486. Dis- 
 tinguished. Freeman v. Falconer, 45 Superior 
 383, 384. See .Hays v. Southgate, infra. 
 
 Hays V. Miller, 6 Hun 320. What con- 
 stitutes negligence in setting fires on one's own 
 land. Affirmed. Hays v. Miller, 70 N. Y. 
 112. 
 
 Hays V. People, 1 Hill 351. Consent of 
 victim no defence to indictment for assault with 
 intent to commit rape upon female child under 
 ten years of age. Followed. Singer v. People, 
 13 Hun 418, 420. 
 
 Hays V. Southgate, 10 Hun 511. De- 
 fendant's offer of evidence that note in suit was 
 never transferred to plaintiff; that he was not 
 the legal owner and holder ; and that a third 
 party was legal owner and real party in interest, 
 rejected, as eonstitnting no defence. Eeversed. 
 Hays V. Hathom, 74 N. Y. 486. _ 
 
 In the absence of bad faith in a plaintiff's 
 possession of promissory notes, indorsed in 
 blank, or specially to himself or his own order, 
 the legal title is in him, and he is legally the 
 real party in interest. Followed. F-eemanv. 
 Falconer, iA Superior 132, 134. Distinguished^ 
 BeU V. Tilden, 16 Hun 346, 348. 
 
 Healey v. Utley, 1 Cow. 345. Distin- 
 guished. Boe V. Omway, 74 N. Y. 201, 206. 
 
 Heartt v. Corning, 3 Paige 566, 572. 
 Partner, when estopped by entries in books of 
 the firm. Followed. Cheever v. Lamar, 19' 
 Hun 130, 133. 
 
 Hebrew Benev. Orphan Asylum Soc. , 
 Matter of, 10 Hun 112. Where assessment 
 for local improvement in city of New York ex- 
 ceeds half the valuation of the property assess- 
 ed, the court may reduce the assessment to one- 
 half the valuation. Eeversed on this point. 
 Hebrew Benev. Orphan Asylum Soc, Matter of, 70 
 N. Y. 476. 
 
 Hebrew Benev. Orphan Asylum Soc, 
 Matter of, 70 N. Y. 476. Assessment for 
 
CASES CRITICISED. 
 
 497 
 
 local improvements over half taxable value, 
 void. Followed. Matter of Second Ave. Bap- 
 tist Ohunh, 70 N. Y. 613. 
 
 Heckmann v. Pinkney, 8 Daly_466. 
 (Jonstruction of mechanics' lien law applicable 
 to New York city. Affirmed, it seems; see 8 
 Daly 470, n. 
 
 Heeg V. Lioht, 16 Hun 257. Liability of 
 owner of powder magazine for injury to adjoin- 
 ing property. Reversed. Heeg v. I/ieht, 8 
 Abb. N. Cas. 335. 
 
 Heermans v. Robertson, 64 N. Y. 332. 
 Construction of deed as to title conveved. Fol- 
 lowed. Heermans v. Burt, 78 N. Y. 259, 263, 
 268. 
 
 Heidenlieiiuer v. Mayer, 42 Superior 
 506. Device to cover usury. Afplrmed. Heir 
 denheimer v. Mayer, 74 N. Y. 607. 
 
 Heins v. Peine, 35 Superior 568. 
 
 [Reported in memorandum.] 
 Affirmed. Bern v. Peine, 56 N. Y. 610. 
 
 Heishon v. Knickerbocker Life Ins. 
 Co., 77 N. Y. 278. Distinguished. Phinney 
 V. Broehdl, 19 Hun 116, 118. 
 
 Henderson v. New York Central 
 R. R. Co., 17 Hun 344. Damages for un- 
 authorized use of highway by railroad com- 
 pany: Restraining such use by injunction. 
 Affirmed. Henderson v. New York Central R. 
 E. Cfa., 78 N. Y. 423. 
 
 Heney v. Brooklyn Benev. Soc, 39 N. 
 Y. 333. Right of a lien to inherit laud. Dis- 
 tinguished. Hall V. Hall, 13 Hun 306, 312. 
 
 Hennequin v. Butterfleld, 43 Superior 
 411. When issues should be sent to a jury in 
 an equity cause. Evidence of good faith on 
 part of holder of negotiable paper. What is 
 using a fictitious name by a partnership under 
 the statute. Affirmed. Hemnequin v. Butter- 
 field, 76 N. Y. 598. 
 
 Hennequin v. Clews, 77 N. Y. 427. 
 Cause of action for conversion, barred by dis- 
 discharge in bankruptcy. Followed. Eowe 
 V. Guilleaume, 18 Hun 556, 558. 
 
 Hermance v. Supervisors of Ulster 
 Co., 71 N. Y. 481. When county court will 
 not order tax to be refunded wliere assessors 
 had jurisdiction. Distinguished and limit- 
 ed. Matter of Nem York Catholic Protectory, 77 
 N. Y. 342, 345. 
 
 " The views of Judge Allen have been pro- 
 nounced both obiter and unsound." Matter of 
 Ulster Co. Savings Bank, 20 Him 481, 482. 
 
 What errors in assessment rolls may be cor- 
 rected by order of county court. Followed. 
 Witliams v. Supervisors of Wayne Co., 14 Hun 
 343,347. 
 
 Herring v. Hoppook, 15 N. Y. 409. Dis- 
 tinguished. Comer v. Ounningham, 77 N. Y. 
 
 Herrington v. Robertson, 7 Hun 368. 
 Advance by father to married daughter to pur- 
 cliase separate estate for her, conditioned to be 
 returned if daughter should die in approaching 
 confinement, is recoverable by the father, in case 
 of her so dying, from her representative. Af- 
 firmed. Herrington v. Sobertson, 71 ,N. Y. 
 280. ^ 
 
 Hetfleld v. Newton, 3 Sandf. Ch. 564. 
 Overcoming defence of usury in foreclosure. 
 Approved and followed. Knickerbocker Life 
 Ins. Co. V. Nehon, 78 N. Y. 137, 152. ' 
 
 Hetzell V. Barber, 6 Hun 534. When 
 convey dnce by trustee under power in will, takes 
 
 priority over previous conveyance by cestui que 
 trust. Reversed on this point. 
 
 Purchaser at sheriff's sale who records his 
 deed, has priority over previous purchaser at 
 private sale who fails to record. Affirmed on 
 this point. Hetzell v. Barber, 69 N. Y. 1. 
 
 Hewitt V. Northrup, 9 Hun 543. Mort- 
 gage of individual property of partner in insol- 
 vent firm to secure individual debt, not void 
 under bankrupt law. Affirmed. Hewitt v- 
 Northrup, 75 N. Y. 506. 
 
 Hewlett V. 'Wood, 55 N. Y. 634. Persons 
 not experts may testify to facts and incidents 
 known or observed by them, which tend to show 
 soundness of mind, or the contrary ; and may 
 testify to the impression produced upon them by 
 what they beheld or heard, and whether the acts 
 and declarations thus testified to seemed to them 
 rational or irrational ; but they may not express 
 an opinion as to the general soundness or un- 
 soundness of mind of the testator, nor as to the 
 competency of the testator to execute a will. 
 Approved and followed. Matter of Arnold, 
 14 Hun 525, 528. 
 
 Hexter V. Knox, 39 Superior 109. Measure 
 of damages for breach of covenant in lease. 
 Affirmed. Hexter v. Knox, 63 N. Y. 561. 
 See Knox v. Hexter, infra. 
 
 Hier V. Grant, 47 N. Y. 278, 281. What 
 evidence is inadmissible under Code of Pro., § 
 399. Followed. Hill v. Heermans, 17 Hun 
 470, 472. 
 
 Higginbotham v. Stoddard, 9 Hun 1. 
 Exception to rule that in construing deeds, 
 courses and distanceb must yield to known land- 
 marks and monumfents. Adverse possession 
 must be founded on claim of specific title, not 
 general assertion of ownership. Affirmed. 
 Higginbotham v. Stoddard, 72 N. Y. 94. 
 
 Higgins V. PhcBnix Mut. Life Ins. Co., 
 10 Hun 459. Sufficiency of answer by appli- 
 cant for life policy, to question as to name and 
 residence of family physician. Affirmed. 
 Higgins v. Phoenix Mut. Life Ins. Co., 74 N. 
 Y. 6. 
 
 Highlands Chemical, &c., Co. v. 
 Matthews, 43 Superior 39. Measure of dam- 
 ages for non-delivery of goods sold. Modified. 
 Highlands Chemical, &c., Co. v. Matthews, 76 N. 
 Y. 145. 
 
 Hilderbrand v. People, 1 Hun 19. What 
 parting with possession by owner of chattel is a 
 defence to indictment for larceny. Distinction 
 between larceny and false pretences. Distin- 
 guished. Zink V. People, 77 N. Y. 114, 128. 
 
 Hill V. Newichawanick Co., 8 Hun 459. 
 Who deemed owner of stock so as to be entitled 
 to dividend. Affirmed. Hill v. Newichavjam- 
 ick Co., 71 N. Y. 593. 
 
 Hill V. Spencer, 61 N. Y. 274. Who is not 
 a " laborer or servant" of a manufacturing com- 
 pany, for whose wages a stockholder is liable. 
 Followed. Krauser v. Muckel, 17 Hun 463, 466. 
 
 Hill V. Syracuse, &c., R. R. Co., 8 Hun 
 296. Admissibility of previous parol negotia- 
 tion to vary terms of bill of lading. Reversed 
 Hill V Syracuse, (Sec, B. B. Co., 73 N. Y. 351. 
 
 Hilton V. Bender, 2 Hun 1. Adverse pos- 
 session under defective tax deed — when gives 
 good title. Reversed. Hilton v. Bender, 69 
 N. Y. 75. 
 
 Hinckley v. Kreitz, 58 N. Y. 583. Dis- 
 tinguished. Church V. Simmons, 19 Hun 220 
 222. ' 
 
 32 
 
498 
 
 CASES CRITICISED. 
 
 Hintermister v. First Nat. Bank of 
 Chittenango, 64 N. Y. 212. Where more 
 than lawful interest has been reserved, forfeiture 
 of the whole interest is adjudged only in actions 
 brought to enforce the usurious contract. Fol- 
 lowed. Merchants' Bank v. Freeman, 15 Hun 
 359, 360. 
 
 Hobart v. Hobart, 62 N. Y. 80. Review 
 of equity case on exceptions to rulings on evi- 
 dence. Followed. Holeomb v. mtUomh, 20 
 Hun 156, 157. Distinguished. Church v. 
 Boward, 79 N. Y. 415, 420. 
 
 Hodgman v. Smith, 13 Barb. 302. Dis- 
 tinguished. Burnett v. Snyder, 76 N. Y. 344, 
 o51. 
 
 Hodgmao v. Western R. R. Co.^ 7 How. 
 Pr. 492. Cause of action in tort, affecting pro- 
 perty, assignable. Followed. Byde v. Tufftg, 
 45 Superior 56, 58. 
 
 Hoe V. Sanborn, 21 N. Y. 552. Upon sale 
 of goods by manufacturer, a warranty is implied 
 that goods are free from latent defects growing 
 out of the ■ process of manufacture. Follow- 
 ed. While V. MiUer, 71 N. Y. 118, 131. 
 
 Hoffman v. .ffltna Fire Ins. Co., 32 N. 
 Y. 405. Condition in policy of fire insurance 
 tipon firm property, that if such property be 
 sold or conveyed, the policy should be void, re- 
 lates only to assignment and transfer to third 
 persons, and does not cover changes of interest 
 among the partners themselves. Approved 
 AND FOLLOWED. Keeney v. Some Ins. Co., 71 
 N. Y. 396, 402. 
 
 Hoffman v. Barry,' 4 Thomp. & C. 253. 
 Costs on overruling demurrer. Limited. Van 
 Gelder v. Van Gelder, 13flun 118, 120. 
 
 Hoffman v. Conner, 13 Hun 541. Duly 
 of sheriff on execution in claim and delivery, as 
 to delivery of chattels replevied, when found in 
 possession of third person not a party. Af- 
 firmed. Hoffman v. Conner, 76 N. Y. 121. 
 
 Hoffman v. HofEinan, 46 N. Y. 30. Val- 
 idity of judgment obtained in foreign state 
 without personal service of process or appear- 
 ance. DisTiNGmsHED. Hunt V. Hunt, 72 N. Y. 
 217, 240. 
 
 Hoffman v. N. Y. Central, &c., R. R. 
 Co., 13 Hun 589. When contributory negli- 
 gence is a question of fact for the jury, in action 
 for causing death. Affirmed. Hoffman v. N. 
 Y. Central, &c., B. B. Co., 75 N. Y. 6U5. 
 
 Hoffman v. Seatoii, 35 Superior 566. 
 
 [Reported in memorandum.] 
 Affirmed. Hoffman v. Seaton, 65 N. Y. 568. 
 
 Hogan V. Sborb, 24 Wend. 458. Purcha- 
 feer's right of set-ofl' in action for price. Fol- 
 lowed. Pratt V. CoUim, 20 Hun 126, 127. 
 
 Holbrook v. New Jersey Zinc Co., 57 
 N. Y. 616. In an action against a corporation 
 by a bona fide purchaser for value of certain 
 certificates of its- stock, the corporation is es- 
 topped from repudiating the terms of transfer 
 to which it has consented upon the face of the 
 certificates. Distinguished. Chapman v. 
 Phomix Nat. Bank, 44 Superior 340, 368 ; S. C, 
 5 Abb. N. Cas. 118. 
 
 Holmes, Exp., 5 Cow. 426. Power of the 
 courts to review proceedings at corporate elec- 
 tions. Followed. Strong v. Smith, 15 Hun 
 222, 225. 
 
 Holmes v. McDowell, 15 Hun 585. 
 Priority among creditors in winding up insolvent 
 partnership. Affirmed. Holmes v. McDowell, 
 76 N. Y. 596. 
 
 Holmes v. Mead, 52 N. Y. 332. Validity 
 of bequests to charitable uses. Approved. 
 Ourren v. Fanning, 13 Huii 458, 468, 470. 
 
 Holmes v. Weed, 19 Barb. 128. Distin- 
 guished. Clark V. Dickinson, 74 N. Y. 47, 51. 
 
 Holtz V. Schmidt, 36 Superior 575. 
 
 [Reported in memorandum.] 
 Reversed. Holtz v. Schmidt, 59 N. Y. 253. 
 
 Holyoke v. Adams, 59 N. Y. 233; 1 
 Hun 223. Right to file supplemental pleading. 
 Discretionary power of court to grant or refuse 
 leave. Followed. Spears v. Mayor, &e., of 
 New York, 72. N. Y. 442, 443. Approved. 
 McCombs V. AUm, 18 Hun 190, 191. 
 
 Homan v. Brinckerhoff, 1 Denio 184. 
 Distinguished. Narthrvm v. Qaarett, 17 Hun 
 497, 499. 
 
 Homer v. Guardian Mut. Life Ins. 
 Co., 67 N. Y. 478. DiSTOiTGUisHED. Marvin 
 V. Universal Life Ins. Co., 16 Hun 494, 496. 
 
 Honegsberger v. Second Ave. R. R. 
 Co., 2 Abb. App. Dec. 378. Contributory neg- 
 ligence on part of children. Criticised. Oasey 
 V. New York Central, &c., B. B. Co., 6 Abb. N. 
 Cas. 104 128 ; S. G, 8 Daly 220. 
 
 Hook V. Pratt, 14 Hun 396. Indorsement 
 of draft for benefit of illegitimate child, when 
 valid. Affirmed. ifooA v. iVa4, 78 N. Y. 371. 
 
 Horn V. Pullman, 10 Hun 471. Contest- 
 ing probate of will. Rejection of competent 
 evidence by surrogate, when not cause for re- 
 versal of his decree admitting will to probate. 
 Affirmed. Horn v. Pullman, 72 N. Y. 269. 
 
 Horton v. Town of Thompson, 7 Hun 
 452. Invalid town bonds in aid of railroads. 
 Effect of subsequent legislation purporting to 
 legalize proceedings prior to their Issue. Re- 
 versed. Horton V. Tovm of Thompson, 71 N. 
 Y. 513. 
 
 Horton v. Town of Thompson, 71 N. 
 Y. 513. Defective consent of tax-payers in 
 town-bonding proceedings, not curable by legis- 
 lative enactment. Followed. Hardenbergh v. 
 Fa™ Kemen, 16 Hun 17, 20. Distinguished. 
 Sogers v. Bochester. &c., B. B. Co., 21 Hun 44, 46. 
 
 Hosack V. Rogers, 6 Paige 415 ; 18 
 Wend. 319. What is such an order upon a par- 
 ticular fund as will operate as an equitable as- 
 signment, pro tanto, of the fund. Distin- 
 guished. Attomey-Oeneral v, Coidinental Life 
 Ins. Co., 71 N. Y. 325, 328. 
 
 Hosford V. Nichols, 1 Paige 220. Effect 
 of law of place on rate of interest. Distin- 
 guished. Dickinson, v. Edwards, 77 K. Y. 573, 
 585. 
 
 Hotchkiss V. Clifton Air Cure, 4 
 Keyes 170. Rights of purchaser on foreclosure 
 sale. Followed. Koch v. Purcell, 45 Superior 
 162, 173. 
 
 Hotchkiss V. Oliphant. 2 Hill 510. Evi- 
 dence in action for libel. Followed. Daly v. 
 Bynie, 77 iV. r. 182, 190. 
 
 Hovey V. Rubber Tip Pencil Co., 33 
 Superior 522. Injunction does not lie to re- 
 strain publication, by patentee, of circulars, 
 warning the public against purchasing from 
 others than licensees under the patent. Af- 
 firmed. Hovey v. Bvhber Tip Pencil Co., 57 N. 
 Y. 119. 
 
 Hovey v. Rubber Tip Pencil Co., 35 
 Superior 81. Allowance of counsel fees and 
 disbursements on dissolution-of injunction. Af- 
 firmed. Hovey v. Eubber Tip Pencil Co., 50 N. 
 Y. 335. 
 
CASES CRITICISED. 
 
 499 
 
 Howard v. McDonough, 8 Daly 365. 
 Evidence in action of trover. Eefreshing the 
 memory. Affirmed. Howard v. McDonough, 
 77N.Y. 592. ^ ,.,. 
 
 Howe, Matter of, 1 Paige 214. Validity 
 of legacy to religious corporation. Appboyed. 
 Owrrin v. Fanning, 13 Hun 458, 468. 
 
 Howe Machine Co. v. Farrlngton, 16 
 Hun 591. Liability of surety on bond of coUec- 
 .tion agent. Admissibility of declarations as 
 part of the res gestae. Affibmed, it seems, Sep- 
 tember 21st, 1880. 
 
 Howe Machine Co. v. Pettibone, 74 
 N. Y. 68. Sufficiency of service by publication 
 to give jurisdiction. Followed. Dunlop v. 
 Patterson Fire Ins. Co., 74 N. Y. 145, 153. 
 
 Howell V. People, 5 Hun 620. Court has 
 not power to direct verdict of guilty in criminal 
 ■case. Affibmed. People x.Eowdl, 69 S.Y. 607. 
 Howell V. Van Siolen, 4 Abb. N. Cas. 1. 
 ■Costs on new trial after reversal on appeal. 
 Followed. Flynn v. Equitable Life Ass. Soe., 
 18 Hun 212, 213. 
 
 Howell V. Van Slclen, 6 Hun 115. In 
 action on note made by deceased person, it is 
 «rror, under Code of Pro., ? 399, to allow plain- 
 tiff to answer the question, " Has it ever been 
 paid ? " New trial, when granted because of 
 admission of improper evidence. Affibmed. 
 HaiveU v. Van Swim, 70 N. Y. 595. 
 
 Howell V. Van Slclen, 8 Hun 524. Eight 
 ito costs of first trial, of one who prevails on sec- 
 ond trial, after reversal of judgment entered on 
 verdict rendered at first trial. Followed. 
 Isaacs v. New York Plaster Works, 43 Superior 
 397, 400 ; S. C, 4 Abb. N. Cas. 4. 
 
 Howland v. Eldredge, 43 N. Y. 457, 461. 
 Mandamus to public olficers. Followed. 
 People, ex rd. Francis, v. Common Council, 78 N. 
 Y. 33, 39. 
 
 Hoyt V. Quicksilver Mining Co., 17 
 Hun 169. See Kent v. /Same, in this Table. » 
 Hoyt V. Thompson, 5 N. Y. 320, 351. 
 Eights of foreign assignee in bankruptcy. Fol- 
 lowed. Hibernia Nat. Bank v. Merchants', &c.. 
 Bank of New Orleans, 21 Hun 166, 175. 
 
 Hubbell V. Blakeslee, 8 Hun 603. No 
 Xrust can be created and attached to a mortgage 
 <;ontinuing its efficacy as security for an addi- 
 tional indebtedness, after that to secure which 
 it is actually given shall ha^ been paid. Ee- 
 VJiESED. HubbfM V. Blakesley, 71 N. Y. 63. 
 
 Hubbell V. Denieon, 'J.0 Wend. 181. En- 
 forcement of liens upon vessels. "Arose under 
 the provisions of the Eevised Statutes, and the 
 decision has no application to a case originating 
 under the statutes above cited, [LawH of 1862, 
 ch 482 ; Laws of 1863, ch. 422,] which contain 
 different language." Distinguished. King v. 
 Oreenway, 71 N. Y. 413, 416. 
 
 Hubbell V. Gt. Western Ins. Co., 10 
 Hun 167. What constitutes a total loss of 
 "freight, and right to abandon therefor. Er- 
 VKESKD. Hubbell v. Gt. Western Ins. Co., 74 N. 
 Y. 246. 
 
 Hubbell V. Moulson, 53 N. Y. 225. Dis- 
 tinguished. Morris v. Budlong, 78 N. Y. 543, 
 559. 
 
 Hudson V. Caryl, 44 N. Y. 553. Action 
 to rt^stiain nuisance, and for damages, triable by 
 jury. FoLLOWKD. Dorr v. Danville Oas 
 Light Co, 18 Hun 274, 275. 
 
 Hudson City Savings Inst., Matter 
 of, 5 Hun 612. County court cannot order tax 
 
 to be refunded until assessment has been ad- 
 judged illegal by Bome competent tribunal. 
 OvEBBULED. Matter of New York Catholic Pro- 
 tectory, 17 'S.Y. 3^,3^. ^ ^ ^^ 
 
 Hudson River Bridge Co. v. Patter- 
 son, 11 Hun 525. Eeal estate of toll-bridge 
 company taxable in town where situated. Af- 
 fibmed. Hudson River Bridge Co. v, Patterson, 
 74N. Y. 365. .„ „ ^ 
 
 Hughes V. New York, &o., R. R. Co., 
 36 Superior 222. Liability of railroad company 
 for act of brakeman in ejecting passenger while 
 train is in motion. Not followed. Hoffnum v. 
 New York Central, &c., B. B. Co., 44 Superior 1, 5. 
 Hughes V. Vermont Copper Mining 
 Co., 7 Hun 677. Stockholder, not recognized 
 by corporation, who sues corporation for con- 
 version of his shares, cannot, nor can his assig- 
 nees sue for dividends during the pendency of 
 the former suit. Affibmed. Hughes v. Ver- 
 mont Copper Mining Co., 72 N. Y. 207. 
 
 Hull V. City of Buffalo, 1 Keyes 193. 
 What is such an order u^on a particular fund 
 as will operate as an equitable assignment pro 
 tanto of the fund. Distinguished. Attorn^- 
 Oenerai v. Continental Life Ins. Co., 71 N. Y. 
 325 328 
 
 Hull "v. Ruggles, 56 N. Y. 424. What facts 
 are necessary to constitute a lottery. Followed. 
 WUHnson v. Gill, 74 N. Y. 63, 66. See, also, 
 Haynes v. Budd, 17 Hun 477, 479. 
 
 Hume V. Mayor, &o., of New York, 
 9 Hun 674. Liability of city of New York for 
 damages sustained by reason of defective awn- 
 ing in street. Eevebsed. Hume v. Mayor, &e., 
 of New York, 74 N. Y. 264 ; S. C, 57 How. Pr. 
 359. 
 
 Hume V. Mayor, &c., of New York, 
 47 N. Y. 639. Distinguished. Hume v. Mayor, 
 &c., of New York, 74 N. Y. 264, 276; S. C, 57 
 How. Pr. 359. 
 
 Hunt V. Chapman, 51 N. Y. 555. Coun- 
 ter-claim may be set up in action for foreclosure. 
 Distinguished. Losseey. Ellis, 13 Hun 655, 657. 
 Hunt V. Chapman, 62 N. Y. 333. Allow- 
 ance in addition to costs in foreclosure suits. 
 Distinguished. Bockes v. Haihom, 17 Hun 
 87, 90. 
 
 Huntv. Hunt, 9 Hun 622. Validity of 
 divorce granted in Louisiana, defendant being a 
 non-resident, a guardian ad hoc appointed, and 
 no personal service of process made. Affibmed. 
 Hunt V. Hunt, 72 N. Y. 217. Followed. Pafei- 
 V. People, 15 Hun 256, 262, g. v. supra; Chap- 
 man V. Phoenix Nat. Bank, 4A: Superior 340, 365 ; 
 S. C, 5 Abb. N. Cas. 118, 127. 
 
 "That case was close. It went upon the 
 ground, built up with elaboration, that both par- 
 ties to the judgment were domiciled in Louisiana 
 when the judicial proceedings were there begun 
 and continued and the judgment was rendered, 
 and were subject to its laws, including those for 
 the substituted service of process. We meant 
 to keep the reach of our judgment within the 
 bounds fixed by the facts in that case." People 
 V. Baker, 76 N. Y. 78, 83. 
 
 Hunt V. Peake, 5 Cow. 475. Promise of 
 marri.ige by infant. Followed. iMchtweiss v. 
 Treskow, 21 Hun 487, 488. 
 
 Hunter v. American Pop. Life Ins. 
 Co., 4 Hun 794. Eight to open and close in 
 action on life insurance policy. Affibmed. 
 Hunter v. Ammcan Pop. Life Ins. Co., 71 N. Y. 
 604. 
 
600 
 
 CASES CRITICISED. 
 
 Hunter v. Hatfield, 12 Hun 381. Supreme 
 Court may appoint committee or guardian for 
 insane person, ex parte, and without issuing a 
 commission. Affirmed. (?) Hunter \. HatMd, 
 73 N. Y. 600. 
 
 Hunter v. Wetsell, 57 N. Y. 375. What 
 payment will take a sale out of the statute of 
 frauds. Foi.iX)WED. HaUenheck v. Cochran, 20 
 Hun 416, 419. 
 
 Hurd V. Green, 17 Hun 327. Considera- 
 tion to support bond given to strengthen credit 
 of bank. Affibmed, sub. nom. mird v. KeUv, 
 78 N. Y. 588. 
 
 Hurst V. Harper, 14 Hun 280. Eesulting 
 trust where consideration is furnished by one 
 person and title taken in name of another. Dia- 
 TiNGUiSHED. Moyer v. Moyer, 21 Hun ^67, 
 70. 
 
 Hyatt V. 'Wagenright, 18 How. Pr. 248. 
 Requisites of older for publication of summons. 
 
 Followed. McOool v. SoUer, 14 Hun 73, 
 75. 
 
 Hyde, Matter of, 15 Hun 477. Certificate- 
 of commissioners appointed under Laws of 1872, 
 ch. 580, that contract for repaving is free from 
 fraud, cures failure to publish resolution for the- 
 improvement, though the work was done before- 
 the passage of the act. Eevbbsed. Matter of 
 Hyde, 76 N. Y. 629. 
 
 Hyde v. Goodnow, 3 N. Y. 266. Efiect 
 of law of place on contracts. Distinguished. 
 Dickinson v. Edwards, 77 N. Y. 573, 583. 
 
 Hynes v. MoDermott, 7 Abb. N. Cas. 98. 
 Validity of foreign marriage. Presumption a» 
 to foreign law. Affibmed. Hynes v. McDer- 
 mott, 22 Alb. L. J. 367. 
 
 Hynes v. McDermott, 55 How. Pr. 259. 
 lUght to order for examination of adverse party 
 before trial. Commented on. Chapin v. Thomp- 
 son, 16 Hun 53, 55. 
 
 I. 
 
 Indig V. Nat. City Bank of BrooJciyn, 
 16 Hun 200. Liability of bank taking note for 
 collection. Eevebsed,** seems, Feb. 24th, 1880. 
 
 Ingallsbee v. "Wood, 33 N. Y. 577. Trav- 
 eler does not become a guest by simply leaving 
 his horse and wagon to be cared for at an inn. 
 distinouished. Hancock v. JRand, 17 Hun 
 279, 284. 
 
 Ingraham, Matter of, 4 Hun 495 ; 64 N. 
 Y. 310. Express assent of land-owners not 
 necessary to authorize city to construct sewer. 
 Followed. Matter of McGoum, 18 Hun 434, 
 436. 
 
 Ingraham v. Hammond, 1 Hill 353. In 
 replevin, an answer of title in third person is 
 good, without allegations connecting defendant 
 with right of such third person. Doubted and 
 Distinguished. StoweU v. Otis, 71 N. Y. 36, 
 38. 
 
 Inman v. Western Fire Ins. Co., 12 
 Wend. 452. Conditions precedent in fire poli- 
 cies. Followed. CHlligan v. Gommercial Fire 
 Ins. Co., 20 Hun 93, 96. 
 
 Innes v. Lansing, 7 Paige 683. Dis-solu- 
 tion of limited partnership. Followed. Whit- 
 comb V. FoaU, 7 Abb. N. Cas. 295, 297. 
 
 Innes v. Pviroell, 2 Thomp. & C. 538. Ref- 
 
 eree to sell in foreclosure entitled to same fees 
 as sheriff. Approved and followed. Wat- 
 bridge v. James, 16 Hun 8, 12. 
 
 Irvine v. Millbank, 36 Superior 264. 
 When release of one joint wrong-doer will not 
 discharge the others. Affirmed. Irvine v. 
 Millbank, 56 N. Y. 635. 
 
 Irving -v. De Kay, 9 Paige 521 ; 5 Den. 646^ 
 Distinguished. Provost v. Provost, 70 N. Y. 
 141, 145. 
 
 Irving V. RanMne, 13 Hun 117. Appor- 
 tionment of annuity. (Laws of 1875, ch. 542.) 
 Affirmed. Irving v. Bankine, 79 N. Y. 636. 
 ■ Isaacs V. Ne-w York Plaster "Works, 
 40 Superior 277. Construction of contract to 
 deliver stone during the season. Reversed. 
 Isaacs v. New York Plaster Works, 67 N. Y. 124. 
 
 Isaacs V. Third Ave. B. R. Co., 47 N. Y. 
 122. Master's liability for servant's acts. What 
 acts of servant are outside of his employment, 
 and not binding on master. Criticised. Mote 
 V. Qmsumers' Ice Co., 73 N. Y. 643, 548. Dis- 
 tinguished AND NOT FOLLOWED. Hoffman V. 
 New York Central, &c., B. R. Go., 44 Superior 1, 
 5,6. 
 
 Iselin, Matter of, 16 Hun 349. See TTee&c 
 V. Tomes, in this Table. 
 
 J. 
 
 Jackson v. Ambler, 14 Johns. 96. Arbi- 
 tration favored bv the courts. Approved. 
 Locke V. FiUey, 14 Hun 139, 143. 
 
 Jackson v. Andrews, 59 N. Y. 244. 
 What must be shown to entitle party to have 
 contract reformed. Distinguished. Kilmer 
 V. SmUh, 77 N. Y. 226, 231. 
 
 Jackson v. Brookins, 5 Hun 530. Eight 
 to damages for husband's death, under civU 
 damage act. Not followed. Brookmire v. 
 Monaghan, 15 Hun 16, 18. 
 
 Jackson v. De Lancey, 11 Johns. 365 ;- 
 13 Id. 537, 551. Sufficiency of description in 
 deed of conveyance. Distinguished. SeMy- 
 V. Sanders, 4A Superior 89, 92. 
 
 Jackson v. Harsen, 7 Cow. 323. Eule 
 that tenant cannot dispute title of lessor does- 
 not apply beiwe^n grantor in fee of tenant for 
 life and remainderman or reversioner. Fol- 
 lowed. Christie V. Gage, 71 N. Y. 189, 192. 
 
 Jackson v. Johnson, 11 Hun 509. Ac- 
 counting between partners, one of whom con- 
 
CASES CRITICISED. 
 
 501 
 
 tributes capital, the other skill and lahor. Mod- 
 ified. Jackson v. Johnson, 74 N. Y. 607. Dis- 
 tinguished, Ch^ever v. Lamar, 19 Hun 130, 
 135. 
 
 Jackson v.'Lunn, 3 Johns. Cas. 109. Dis- 
 TING0ISHED. Thompson y. Burhans, 79 N. Y. 
 ■«3, 94, 101. „ , , 
 
 Jackson v. Phillips, 9 Cow. 94. Proof of 
 :genuineness of signature in controversy, by 
 comparison with other writings. Oveebtiled 
 in part. Miles v. Loomis, 75 N. Y. 288, 293. 
 
 Jackson v. Van Valkenburgh, 8 Cow. 
 560. Explained and distinguished. West- 
 ■brook V. G!easo7i,79 N. Y. 23, 31. 
 
 S&gger Iron Oo. v. Walker, 43 Superior 
 275. Liability of stockholder in manufactur- 
 ing company for debts of the company, and how 
 •extinguished. Affirmed. Jaeger Iron Co. v. 
 Walker, 76 N. Y. 521. 
 
 James v. "Walker, 63 N. Y. 612. "Where 
 <!ontract is made with husband, an agency for 
 wife must be shown before she can be held lia- 
 ble. Distinguished. Treman v. AUm, 15 
 Hun 4, 8. 
 
 Jenkins v. Fahey, 11 Hun 351. Estates 
 an remainder cannot be sold under the statute 
 jjroviding for the sale of the interest of an infant 
 in real estate. (2 Eev. Stat. 194, I 70.) Kb- 
 VEBSEb. Jenkins v. Fahey, 73 N. Y. 355. 
 •OvEBBirLED. Matter of Haight, 14 Hun 176. 
 
 Jennings v. Oonboy, 10 Hun 77. Tes- 
 'tamentary power to sell, when invalid because 
 neither beneficial nor in trust. Ebveesed. 
 -Jennings v. Canboy, 73 N. Y. 230. 
 
 Jennings v. Conboy, 73 N. Y. 230. 
 Power given by will, when beneficial. Fol- 
 lowed. Chitting v. Cutting, 20 Hun 360, 364. 
 
 Jetter, Matter of, 14 Hun 93. Practice 
 ■on motion to vacate assessments in New York 
 Kiity. B.EVEKSED. Matter of Jetter, 78 N. Y. 
 ■602. 
 
 Jewell V. "Wright, 30 N. Y. 259. "Where 
 ■■& note is signed in this state, by a resident 
 thereof, at his place of business here, bearing 
 ■date here, a place here fixed in it as the place 
 of payment of it; no rate of interest named in 
 it, no intention of the maker existing that it 
 will be taken elsewhere for discount, it is invalid 
 by the law of this state, when it was first nego- 
 itiated in another state at a rate of discount 
 greater than that allowed by the usury laws of 
 this state. Explained and followed. Dick- 
 inson V. Edwards, 77 N. Y. 573, 576; S. C, 58 
 How. Pr. 24; 13 Hun 405, 407. Distin- 
 "GUISHED. Wayne County Savings Bank v. Low, 
 22 Alb.L. J. 346; S. C, 6 Abb. N. Cas. 76, 84. 
 
 Jex v. Board of Education, 1 Hun 157. 
 Distinguished. Pierson v. Atlantic Nat. Bank, 
 77 N. Y. 304, 310. 
 
 Joannes V. Jennings, 4 Hun 66. ""What 
 ■was there held was, that a decision upon a mere 
 formal motion for a new trial at the Circuit could 
 not be reviewed by an appeal to the General 
 .term. It was intended simply to disapprove of 
 .the practice, which had become quite common, 
 ■ot formally moving for a new trial on the ren- 
 .dition of a verdict, without any intention that it 
 -fihould be considered or reflectingly decided by 
 *he courts" Distinguished. Cowles\. Watson, 
 14 Him 41, 46. 
 
 Johnson v. Conger, 14 Abb. Pr. 195. 
 Distinguished. Bmce v. Fulton Jfal. Bank, 1 6 
 Hun 615, 620. 
 
 Johnson v. Dixon, 1 Daily Eeg. 178. 
 Landlord's liability under agreement to repair. 
 " "Was overruled in the later case, in the same 
 court, of Flynn v. Hattan, 43 How. Pr. 333." 
 Arnold Y. Clark, 45 Superior 252, 257. 
 
 Johnson v. Hunt, 23 "Wend 87. Powers 
 of foreign assignee in bankruptcy. Explained. 
 Hibernia Nat. Bank v. Merchant^, &e., Bank of 
 New Orleans, 21 Hun 166, 176. 
 
 Johnson v. Martin, 1 Thomp. & C. 504. 
 Distinguished. Morgan v. Potter, 17 Hun 
 403, 405 ; Northrup v. Garrett, Id. 497, 498. 
 
 Johnson v. Oppenheim, 35 Superior 
 440. Summary proceedings to dispossess tenant, 
 effect of, on subsequent rights of lessor. Ar- 
 FIBMED. Johnson v. Oppenheim, 55 N. Y. 280. 
 
 Johnson v. Oppenheim, 55 N. Y. 280. 
 Distinguished. Leuris v. Seabury, 74 N. Y. 
 409, 413. 
 
 Johnson v. Second Ave. B. R. Co., 
 47 N. Y. 274. "Whether act of conductor in 
 using unnecessary viblence in ejecting passenger 
 was willful or malicious, a question for the jury. 
 Followed. Hoffman v. New York Central, &c., 
 B. B. Co., 44 Superior 1, 4. 
 
 Johnson v. "Williams, 39 Superior 547. 
 When undisputed testimony may be disre- 
 garded. Affirmed. Johnson v. Williams, 63 
 N. Y. 622. 
 
 Johnston V. Johnston, 1 Robt. 642. 
 "Writ of me exeat abolished. Disapproved. 
 Collins V. Collins, 17 Hun 598. 
 
 Jones V. Barlow, 38 Superior 142. Lia- 
 bility of trustees of manufacturing company for 
 failure to file annual report. Modified. Jones 
 V. Barlow, 62 N". Y. 202. 
 
 Jones V. Barlow, 62 N. Y. 202. Distin- 
 guished. Anderson v. Speers, 21 Hun 568, 571. 
 
 Jones V. Kent, 45 Superior 66. "What 
 amoun ts to contract of sale of stock. Eeversed. 
 Jones V. Kent, 8 Abb. N. Cas. 300. 
 
 Jones V. Norw^ood, 37 Superior 276. 
 Striking out irrelevant allegations in complaint. 
 Affirmed. Jones v. Norwood, 66 N. Y. 616. 
 
 Jones V. People, 20 Hun 545. Proof of 
 conviction of principal entered on his plea of 
 guilty during trial of the accessory admissible 
 against the latter. Affirmed, it seems, June 
 1st, 1880. 
 
 Jones V. Seligman, 16 Hun 230. Duties 
 of railroad mortgage trustees in possession, in re- 
 spect to building fences and farm crossings. 
 Affirmed, it seems, June 1st, 1880. 
 
 Jones V. Smith, 48 Barb. 552. " The de- 
 cision was made on the strength of Eodes v. 
 Bronson, 34 N. Y. 649, which was reversed in 
 the United States Court, (7 "Wall. 229.") 
 Church V. Howard, 17 Hun 5, 7 ; q. v. in this 
 Table. See, also, 12 "Wall. 459. 
 
 Jones V. Smith, 64 N. Y. 180. Evidence 
 of acquiescence in location of fence. Fol- 
 lowed. Jones V. Smith, 73 N. Y. 205, 211. 
 
 Jones V. "Walker, 63 N. Y. 61 2. Liability 
 of married woman under mechanics' lien laws. 
 Distinguished. Husted v. Mathes, 77 N. Y. 
 388, 390. 
 
 Jones V. "Welwood, 9 Hun 166. Partial 
 award of arbitrators founded upon general sub- 
 mission, invalid. Affirmed. Jones v. Wel- 
 wood, 71 N. Y. 208. 
 
 Jordan v. Nat. Shoe and Leather 
 Bank, 12 Hun 512. Set-oif in action by ad- 
 ministrator — ^when demand sought to be set off 
 
502 
 
 CASES CRITICISED. 
 
 must have been due and payable in lifetime of 
 intestate. Appibmed. Jordan v. Nat. Shoe and 
 Leather Bank, 74 N. Y. 467. 
 
 Jordan v. Poillon, 77 N. Y. 518. Eights 
 of purchaser on partition sale. What title he 
 should be compelled to accept. FoMiOWED. 
 ArgaU v. Eaynor, 20 Hun 267, 270, 273. 
 
 Judge V. Hall, 5 Lans. 69. Necessity of 
 averment of jurisdictional facts in complaint in 
 action in county court. OvEREtTLED. Holbrook 
 V. Balcer, 16 Hun 176. 
 
 Judson V. StUwell, 26 How. Pr. 513. 
 Eight of purchaser of goods of undisclosed prin- 
 cipal to set off debt due to him from agent. 
 Followed. PraU v. CoUins, 20 Hun 126, 127. 
 
 Juliand y. Bathbone, 39 N. Y. 369. 
 Neglect of assignee for creditors to file inventory 
 and schedule within time prescribed, renders 
 assignment void. This rule has never been ab- 
 rogated by statute. Worthy v. Beaham, 13 Hun 
 176, 177. 
 
 Necessity of filing bond as condition preced- 
 ent to vesting of title in assignee for benefit of 
 creditors. Criticised and limited. Brennan 
 V. WUhm, 71 N. Y. 502, 506; S. C, 4 Abb. N 
 Cas. 279 ; 7 Daly 59, 60. 
 
 Justh V. Nat. . Bank of Oommon- 
 ■wealtll, 36 Superior 273. Liability of bank for 
 money deposited by borrower from plaintiff on 
 the faith of forged securities. Appibmed. Jmtlt 
 V. Nat. Bamk of GommonwealtK, 56 N. Y. 478. 
 
 Justh V. Nat. Bank of Oommon- 
 ■wealth, 56 N. Y. 478. Distinguished^ 
 Southwkk V. First Nat. Bank, 20 Hun 349, 353. 
 
 Justice V. Lang, 39 Superior 283. What 
 amounts to such an acceptance as will complete 
 a contiact. Affirmed. Justice v. Lana. 63- 
 N. Y. 633. . '^ 
 
 .Justice V. Lang, 42 N. Y. 493. Distin- 
 guished. Ghbe Mut. Life Ins. Co. v. /Snefl, Ift 
 Hun 560, 563. 
 
 K. 
 
 Kain v. Smith, 11 Hun 552. Liability of 
 railroad receiver, to employees, for negligence. 
 Reversed, it seems, April 6tli, 1880. 
 
 Kamp V. Kamp, 37 Superior 241. Eight 
 to alimony, and time to apply for it. Ap- 
 Firmed. ICamp v. Kamp, 59 N. Y. 212. 
 
 Kamp V. Kamp, 59 N. Y. 212. The final 
 decree in an action for divorce determines con- 
 clusively the right of the parties in regard to 
 alimony ; the claim of the wife for support is to 
 be determined by her situation and the ability 
 of her husband at the time of making the decree, 
 and is not to be subsequently modified by a 
 change in the situation of either party. Fol- 
 lowed. Park V. Park, 18 Hun 466, 467; Kerr 
 v. Kerr, 59 How. Pr. 255, 256. 
 
 Kavanagh v. "Wilson, 70 N. Y. 177. 
 Evidence as to value of services, in action on 
 contract expressly fixing price to be paid there- 
 for, when admissible. Followed. Oomell v. 
 Markham 19 Hun 275. 
 
 Credibility of unimpeached witness. Distin- 
 guished. Koehler v. Adler, 78 N. Y. 287, 
 292. 
 
 Kay V. 'Whittaker, 44 N. Y. 565. De- 
 fence alleged on information and belief, when 
 properly stricken out. Disapproved. Boby 
 V. HaUock, 5 Abb. N. Cas. 86, 88. 
 
 Keating v. New York Central, &o., 
 R. R. Co., 49 N. Y. 673 ; S. C, 3 Lans. 469. 
 Where a railroad company has provided a depot 
 and conveniences for getting on and off its trains, 
 passengers have no right to get on or off at other 
 places, and to attempt to do so would be such 
 negligence as would preclude them from recov- 
 ering for an injury received thereby. Followed. 
 Plopper v. New York Ckntral, &c., B. B. Co., 13 
 Hun 625, 627, 628. 
 
 Keator v. Ulster, &o., Plank Road 
 Co., 7 How. Pr. 41. Distinguished. Ckise 
 v. James, 16 Hun 14, 15. 
 
 Keeler v. Salisbury, 33 N. Y. 648, 653. 
 Part payment not an extinguishment of debt, 
 though received as such, and receipt in full 
 
 given. Distinguished. Ludington v. Bell, IT 
 N. Y. 138, 143. 
 
 Keep V. Kauffman, 36 Superior 141. 
 Joinder of causes of action in action by tenant 
 against landlord. Appirmed. Keep v. Kauff- 
 man, 56 N. Y. 352. 
 
 Keep V. Kauffman, 38 Superior 476_ 
 Measure of damages in replevin. Affirmed. 
 Keep V. Kauffman, 63 N. Y. 643. 
 
 Kein v. Tupper, 33 Superior 465. Con- 
 struction of contract for sale of goods. Af- 
 firmed. Kein v. Tapper, 52 N. Y. 550. 
 
 Kein v. Tupper, 52 N. Y. 550. Full de- 
 livery of goods sold, when condition precedent 
 of. pavment. Distinguished. Burrows v. 
 Whita%er, 71 N. Y. 291, 295. 
 
 Kellam v. McKinstry, 6 Hun 381. Con- 
 tract for purchase of hemlock bark " on the 
 trees," construed, as to length of time withira 
 which purchasers must remove the bark from 
 the trees. Affirmed. Kellam v. McKinstry^ 
 69 N. Y. 264. 
 
 Kelley v. Mayor of Brooklyn, 4 Hill 
 263. When order to pay money does not oper- 
 ate as an equitable assignment of particular fund. 
 Followed. Briil v. Tuf.tle, 15 Hun 289, 290. 
 
 Kelly V. Arcber, 48 Barb. 68. Distin- 
 guished. Nmihrup v. Oarrett, 17 Hun 497, 499_ 
 
 Kelly V. Crapo, 45 N. Y. 86. Jurisdiction 
 of sta^Je over domestic vessel on high seas_ 
 Followed. McDonald v. Mallory, 44 Superior 
 80, 86, 88. 
 
 "Was reversed in U.S. Supreme Court, (ItJ- 
 Wall. 610.") McDonald v. Malloi-y, 77 N. Y. 546, 
 552 555 
 
 Kelly V. New York, <Steo., R. R. Co., l* 
 Hun 363. When plaintiff is entitled to costs on 
 gi-ound that title to real property was in ques- 
 tion Affirmed, it seems, June 1st, 1880. 
 
 Kelly V. Roberts, 40 N. Y. 432. Liabil- 
 ity of grantee who assumes payment of mort- 
 gage. Explained. Douglass v. Wells, 18 Hun 
 88, 92. Followed. Knickerbocker lAfe In&. 
 Co. V. Nelson, 78 N. Y. 137, 153. 
 
CASES CRITICISED. 
 
 503 
 
 Kelly V. Scripture, 9 Hun 283. Distin- 
 GOT8HED. Tnmninger v. Bvsch, 7 Daly 124, 
 126. 
 
 Kemp V. Knickerbocker Ice Oo., 69 
 N. Y. 45. Distinguished. McMkhael v. KU- 
 ruar, 76N.Y. 36, 40. 
 
 Kennedy v. City of Troy, 14 Hun 308. 
 Error of assessors in determining what property 
 shall be assessed for benefits in local improve- 
 ment cases, ground for injunction to restrain 
 collection of assessment. Kbveesbd. Kennedy 
 V. OUy of Troy, 77 N. Y. 493; 
 
 Kent V. Kent, 62 N. Y. 560. Statute of 
 frauds — contracts not to be performed within a 
 year. Followed. Smith v. OonUn, 19 Hun 
 234, 236. 
 
 Kent V. Quicksilver Mining' Co., 12 
 Hun 53 ; 17 Id. 169. Eight of corporation to 
 issue preferred stock. Affirmed. Kent v. 
 QuiekAer Mining Co., 78 N. Y. 159. 
 
 Kenyon v. New York Central, &c., 
 R. R. Co., 5 Hun 479. Rule as to contribu- 
 tory negligence in cases of injuries to children. 
 Affirmed, because of defect in record. Kenyon 
 V. New York Centred, &c., M. JR. Co., 76 N. Y. 
 607. 
 
 Kenyon v. People, 26 N. Y. 203. Suffi- 
 ciepcy of evidence to support testimony of pros- 
 ecutrix on trial for sedaction under promise of 
 marriage. Followed. Armstrong v. jReople, 
 
 70 N. Y. 38, 44. 
 
 Kerr v. Dougherty, 17 Hun 341. Power 
 of corporation to take legacy. Affiumed. 
 Kerr v. Dougherty, 79 jST. Y. 327. 
 
 Kerr v. Kerr, 41. N. Y. 272. Validity of 
 judgment obtained in foreign state without per- 
 sonal service of process or appearance. Dis- 
 tinguished. Sunt V. Sunt, 72 N. Y. 217, 
 240. 
 
 Kidder v. Horrobin, 72 N. Y. 159 ; Id. 
 600. State courts have jurisdiction of actions 
 by assignees in bankruptcy to recover assets of 
 bankrupt fraudulently transferred. Followed. 
 OlcoU V. Madean, 73 N. Y. 223, 225 ; Thompson 
 v. iSweet, Id. 622 ; Ansley v. Patterson, 77 N. Y. 
 156, 157; Tyler v. McCollum, 19 Hun 622, 624: 
 Qrimold v. Waikins, 20 Hun 114, 117. 
 
 Kiernan, Matter of, 62 N. Y. 457. Efiect 
 of a revising statute as a repeal of provision in 
 former law. Followed. Sathaway, Matter of, 
 
 71 K Y. 238, 245. Distinguished. People, ex 
 rd. Boss, V. City of Brooklyn, 69 N. Y. 605. 
 
 Kilburn v. Woodworth, 5 Johns. 37. 
 Validity of foreign judgment as dependent on 
 jurisdiction of the person. Followed. Pemle 
 V. Bolter, 76 N. Y. 78, 83. 
 
 Kilmer v. Smith, 43 Superior 461. When 
 equity will reform a deed by striking out clause 
 inserted in fraud of grantee's rights under con- 
 tract of sale. Affirmed. KUmer v. Smith, 77 
 N. Y. 226. 
 
 Kincaid v. Archibald, 10 Hun 9. Suf- 
 ficiency of written promise to pay interest to re- 
 move bar of statute of limitations as to principal. 
 Affirmed. Kincaid v. Archibald, 73 N. Y. 
 189. 
 
 Kincaid v. Dwinelle, 37 Superior 326. 
 Dissolution of corporation, what amounts to. 
 Affirmed. Kincaid v. Dwindle, 59 N. Y. 548! 
 _ King V. Liyermore, 9 Hun 298. Liabil- 
 itj; of lot-owner for injuries to building on ad- 
 joining lot, througli negligence of contractor in 
 removal of rock and earth. Affirmed. Kina 
 V. Livermore, 71 N. Y. 605. 
 
 King V. New York Central, &o., R. 
 R. Co., 66 N. Y. 181. An owner of real estate 
 is not in all cases subjected to liability for in- 
 juries resulting from negligence, done in the 
 performance of work for the benefit of the land. 
 Followed. iJi/der v. Thomas, 13 Hun 296, 
 297 ; Town of Pierrepont v. Loveless, 72 N. Y. 
 211, 216. 
 
 King V. Sarria, 7 Hun 167. Eecognition 
 of foreign laws as to limited partnership. Af- 
 firmed. King v. Sarria, 69 N. Y. 24. 
 
 King V. Talbot, 40 N. Y. 76, 90. LiabUi- 
 ty of executors to pay interest on sums improp- 
 erly invested. Followed Adair v. Brimmer, 
 74 N. Y. 539, 555. 
 
 King V. "West, 10 How. Pr. 333. Eefer- 
 ence as to surplus moneys. "Is a Special Term 
 decision, and is to be deemed overruled." Ba- 
 gen v. Snedeker, 8 Abb. N. Cas. 50, 57 ; S. C, sub 
 nom. Bergen v. Carman, 79 N. Y. 146, 152. 
 
 King V. Whitely, 10 Paige 465. Where 
 a grantor of an equity of redemption is not per- 
 sonally liable to pay the mortgage debt and has 
 no legal or equitable interest in such payment, 
 except so far as the mortgage may be a charge 
 upon the lands mortgaged, his grantee thereof 
 incurs no liability to the holder of the'mortgage 
 by reason of a covenant on his part contained in 
 the deed, to assume and pay the mortgage. Ap- 
 proved AND followed. Vrooman v. Jhmer, 
 69 N. Y. 280, 282 : Cashman v. Senry, 75 N. Y. 
 103, 106. 
 
 Kingsley v. City of Brooklyn, 5 Abb. 
 N. Cas. 1. Municipal contracts, how raade,(and 
 liability of city on. Affirmed. Kingsley v. 
 City of Brooklyn, 78 N. Y. 200; S. C, 7 Abb. N. 
 Cas. 28. 
 
 Kingston Bank;v. Bltinge, 40 N. Y. 
 391. Distinguished. Benedict v. Jones, 18 
 Hnn 527, 528. 
 
 Kinnier v. Kinnier, 45 N. Y. 535. Per- 
 son marrying divorced party cannot attack judg- 
 ment of divorce on ground of collusion and fraud. 
 Followed. Buyer v. Seckd, 21 Hun 489, 
 491. Distinguished. People v. Baker, 76 N. 
 Y. 78, 83. 
 
 Kip V. Merwin, 34 Superior 531. Con- 
 struction of condition in lease as to repairs in 
 case of fire, apportionment of rent, &c. Af- 
 firmed. Kip V. Merwin, 52 N. Y. 542. 
 
 Kissenger v. N. Y. and Harlem R. R. 
 Co., 36 Superior 572. 
 
 [Reported in memorandum.] 
 Affirmed. Kissenger v. iV. T. and Sarlem 
 B. B. Co., 56 N. Y. 538. 
 
 Kline v. Queen Insurance Co., 7 Hun 
 267. General agent has insurable interest 
 under policy describing property insured as 
 " their own, or held by them in trust or on com- 
 mission, or sold but not delivered." Affirmed. 
 Kline v. Queen Insurance 0)., 69 N. Y. 614. 
 
 Knapp V. Anderson, 7 Hun 295. Dis- 
 charge in bankruptcy of appellant does not re- 
 lease sureties on undertaking given to stay exe- 
 cution pending appeal. Affirmed. Knapp v 
 Andei-son, 71 N. Y. 466. Followed. Mc- 
 Combs V. Allen, 18 Hun 190, 191. 
 
 Knapp V. Brown, 45 N. Y. 207. Distin- 
 guished. Burkitt V. Sarper, 79 N Y 273 
 277;,S.C.,14Hun581,584. ' 
 
 Knapp V. Roche, 37 Superior 395. What 
 amounts to conversion. Evidence of conver- 
 sion. Eeyehsed. Knapp v. Boach, 62 N. Y. 
 
504 
 
 CASES CRITICISED. 
 
 Knapp V. Smith, 27 N. Y. 277. Eight 
 of married woman to purchase or lease real or 
 personal property and to manage the same 
 through an agent, though that agent be her hus- 
 band, and to hold to her own use the avails 
 thereof, in cases free from fraud. Followed. 
 Alvord V. Haynes, 13 Hun 26, 28. 
 
 Knickerbocker Life Ins. Oo. v. Nel- 
 son, 13 Hun 321. Eight to set up usury as a, 
 defence in foreclosure. ArriRMED. Knicker- 
 bocker Life Ins. Oo. v. Nelson, 78 N. Y. 137 : S. 
 C, 7 Abb. N. Cas. 170. 
 
 Knickerbocker Life Ins. Co., v. Pat- 
 terson, 43 Superior 547. Liability of assignee 
 for creditors of corporation, for rent of premises 
 leased by corporation before the assignment. 
 Affirmed. Knickerbocker Life Ins. Co. v. Pat- 
 terson, 75 N. Y. 589. 
 
 Knoepfelv. Kings County Fire Ins. 
 Co., 39 Superior 553. Agreement between 
 landlord and tenant respecting signs. Af- 
 FIBUED. Knoepfel v. Kings Cmmtu Fire Ins. 
 Co,66N. Y. 639. 
 
 Knolls V. Barnhart, 9 Hun 443. Widow 
 of grantee in possession under contract of sale, is 
 trustee for her children and cannot purchase out- 
 standing title, and hold it adversely to them. 
 Affirmed. Knolk v. Sarnhart, 71 N. Y. 474. 
 
 Kno-wlton v. Providence, &o., Steam- 
 boat Co., 35 Superior 572. 
 
 [Eeported in memorandum.] 
 Eeveesed. Knowlton v. Providence, Ac, Steam- 
 boat Co., 53 N. Y. 76. 
 
 Knox V. Hexter, 42 Superior 8; Id. 
 496. Landlord and tenant. Stav of pro- 
 ceedings. Eevbrsed. Knox v. 'Eexter, 71 
 N. Y. 461. See Hexter v. Knox, supra.' 
 
 Koenig v. Steckel, 36 Superior 167. Lia- 
 bility of sureties on undertaking to remove 
 cause from Marine Court to Court of Common 
 Pleas. Affirmed. Koenig v. Steckel, 58 N. Y. 
 475. '^ ' 
 
 Kohler v. Knapp, 1 Bradf. 241, 247. Debt 
 is assets where debtor resides. Criticised. 
 Beers v. Shannon, 73 N. Y. 292, 299. 
 
 Kohler v. Matlage, 42 Superior 247. 
 Distinction between bond to pay certain debts 
 and hold harmless the obligee therefrom, and 
 common indemnity bond. Affirmed. Koh- 
 ler V. Matlage, 72 N. Y. 259. 
 
 Kortrig-ht v. Cady, 21 N. Y. 343. Dis- 
 TiNomSHED. Dodge v. Fearey, 19 Hun 277, 
 278. 
 
 Krender v. 'Woloott, 1 Hilt. 223. Dis- 
 TINGT7ISHED. Bobinson V. Chittenden, 69 N. Y. 
 525, 535. 
 
 Kromer v. Heim, 44 Superior 237. What 
 is suflScient performance and tender of perform- 
 ance to sustain a plea of accord and satisfaction. 
 Affirmed. Kromer v. Heim, 75 N. Y. 674. 
 
 L. 
 
 Ladd V. Moore, 3 Sandf. 589. Distin- 
 guished AND Criticised. Oovld v. Cayuga, 
 &c., Nat. Bank of Auburn, 21 Hun 293, 301. 
 
 La Farge v. Herter, 11 Barb. 159. Giving 
 of individual note by one partner, after dissolu- 
 tion, for firm debt, releases remaining partners. 
 Followed. Ludington v. Bell; 77 N. Y. 138, 
 141. 
 
 Lafond v. Deems, 1 Abb. N. Cas. 318. 
 Dissolution of voluntary association. Ee- 
 VERSED. Lafond v. Deems, 8 Abb. N. Cas. 344. 
 
 Lake V. Artisans' Bank, 3 Keyes 276. 
 Eecovery back of money paid under mistaken 
 belief that party paying it was liable as indorser 
 of a note. Followed. Southwick v. First 
 Nat. Bank, 20 Hun 349, 352. 
 
 Lambert v. People, 14 Hun 512. Per- 
 jury may be predicated upon a false oath ad- 
 ministered by a non-resident notary public. 
 Eeversed. Lambert v. People, 76 N. Y. 220 ; 
 S. G., 6 Abb. N. Cas. 181. 
 
 Lambert v. Staten Island R. P.. Co.. 
 70 N. Y. 104. Eules for avoiding collision in 
 New York harbor. Followed. Thompson v. 
 StatM Island B. B. Co., 70 N. Y. 598. 
 
 Lampman v. Milks, 21 N. Y. 505. Trans- 
 fer of easements and servitudes. Commented 
 ON. Outerbridge v. Phelps, 45 Superior 555, 
 563. 
 
 Lamport v. Lamport, 4 Alb. L. J. 190. 
 Power of the court to vary allowance granted to 
 wife in divorce case. Followed. Kerr v. 
 Kerr, 59 How. Pr., 255. 
 
 Landers v. Staten Island R. R. Co., 
 £3 N. Y. 450. A general appearance is no waiver 
 
 of defence of want of jurisdiction to try the 
 cause. Followed. Wheelock v. Lee, 74 N. Y. 
 495, 497. 
 
 Lange, Exp, 18 Wall. 163. Distin- 
 guished. Nat. Bank v. Spencer, 19 Hun 569. 
 
 Lange v. Benedict, 8 Hun 362. Action 
 will not lie against judge, for false imprison- 
 ment, though the sentence was in excess of jur- 
 isdiction if the' judge had jurisdiction of the of- 
 fence for which such sentence was imposed. 
 Affirmed. Lange v. Benedict, 73 N. Y. 
 12. 
 
 Lange v. Benedict, 73 N. Y. 12. Col- 
 lateral impeachment of judgment. Followed. 
 Chapman v. Phoenix Nat. Bank, 5 Abb. N. Cas. 
 118, 127 ; S. C, 44 Superior 340, 365. 
 
 Langley v. 'Warner, 3 N. Y. 327. Dis- 
 tinguished. 3Iatter of Guardian Saving InM., 
 78 N. Y. 408, 413. 
 
 Laning v. NeTV York Central, &c., B. 
 R. Co., 49 Barb. 536. See Collim v. Albany 
 &c., B. B. Co., in this Table. 
 
 Laning v. New York Central B. R. 
 Co., 49 N. Y. 521, 533. Distinguished. Be- 
 ad V. New York Central &e., B. B. Co., 70 N. Y. 
 171, 174. 
 
 Lansing v. Lansing, 4 Lans. 377. De- 
 fendant in divorce case cannot be proceeded 
 against as for contempt, under Code of Pro., \ 
 285, for neglect to pay costs and alimony award- 
 ed by final decree. Ckiticiskd. Boucicandt v, 
 Boueicault, 21 Hun 431, 436. 
 
 Enforcing payment of alimony by proceed- 
 ings in contempt. Followed. Gane v. Oame, 
 45 Superior 35q, 360. 
 
CASES CRITICISED. 
 
 50/ 
 
 Lantz V. Budringham, 11 Abb. Pr., (N. 
 S.) 64. Mortgage of cemetery lot. Appkoved, 
 ■although reversed (4 Lans. 484.) Thompsan v. 
 Miikey, 59 How. Pr. 434, 436; S. G, 8 Abb. N. 
 •Cas. 159. 
 
 Laughran v. Smith, 11 Hun 311. Ten- 
 ant entering under unsigned lease for five years 
 and continuing in occupation more than a year, 
 becomes tenant from year to year, and liable for 
 stipulated rent for se'cond year. Affikmed. 
 Laughran v. Smith, 75 N. Y. 205. 
 
 Lawrence v. Fox, 20 N. Y. 268. Right 
 ■of promisee to discharge promissor from promise 
 •for benefit of third person. Explained. 
 JJmqUws V. Wells, 18 Hun 88, 92. 
 
 Liability of grantee who assumes payment of 
 mortgage. Explained and Limited. Beal 
 Estate Trust Co. v. Batch, 45 Superior 528, 531 ; 
 Vroaman t. Turner, 69 N. Y. 280, 284. Dis- 
 tinguished. Bdhrvap v. Bender, 75 N. Y. 446, 
 449 ; BeddingUm v. Mariposa Land Co., 19 Hun 
 405. 
 
 Lawrence v. Gallagher, 42 Superior 
 309, Power of agent to bind principal. Con- 
 struction of contract of sale of cargo " to arrive." 
 ArriRMED. Laweace v. Oallagher, 73 N. Y. 
 613. 
 
 Lawrence v. Lindsay, 68 N. Y. 108. 
 Entry in testator's books of account, without 
 evidence aliunde, not sufScient to prove ad- 
 vancement to child. Followed. Marsh v. 
 Brown, 18 Hun 319, 322. 
 
 Lawrence v. Merrifleld, 42 Superior 36. 
 Paying in of capital by special partner in lim- 
 ited partnership. ArriSMED. Lawrence v. 
 Merrifield, 73 N. Y. 590. 
 
 Lawton v. Green, 64 N. Y, 326. Making 
 an order of reference prematurely, under Code 
 of Pro., J 222, to ascertain damages upon an 
 undertaking on injunction, is a formal irregu- 
 larity, which is waived by the consent to ,the 
 order of reference. Followed. Boherls v. 
 White, 43 Superior 455, 457 ; q. v. in this 
 Table. 
 
 Learn v. Currier, 15 Hun 184. When 
 title to real property comes in question, so as to 
 give plaintiff costs, under Code of Pro., \ 304. 
 ApriBMED. Learn v. Currier, 76 N. Y. 
 «25. 
 
 Le Blanc, Matter Of, 14 Hun 8. Divi- 
 dends — when fund for payment of, is regarded 
 as a trust fund. Lien of stockholder on such 
 fund, for dividend. Affirmed. Matter of Le 
 . Blanc, 75 N. Y. 598. Distinguished. Peo- 
 ple V. Merchant^, &e., Bank, 78 N. Y. 269, 
 273. 
 
 Lee V. Selleck, 33 N. Y. 615. Effect of 
 law of place upon contract of indorser. Fol- 
 lowed. Merchants Bank of Canada v. Gm- 
 wold, 72 N. Y. 472, 481. 
 
 Lee y. Village of Sandy Hill, 40 N. Y. 
 442. Liability of municipal corporation for 
 wrongful acts of servants and agents. Dis- 
 tinguished. Smith V. City of Bochester, 13 
 Hun 214 ; S C, 76 N. Y. 506, 510. 
 
 Lefevre v. Lefevre, 59 N. Y. 434. Stat- 
 utes restricting devises to eleemosynary corpora- 
 tions. Explained. Kerr v. Douqhertiu, 59 How. 
 Pr. 44, 56, 62. *' 
 
 Leggett V. Hyde, 58 N. Y. 272. Partici- 
 pation in profits constitutes partnership. Ex- 
 plained AND DISTINGUISHED. King V. Sarna, 
 ^9 N. Y. 24, 35; Burnett v. Snyd^; 76 N. Y. 
 344, 351; Smith v. Bodine, 74 N. Y. 30, 33; 
 
 Rjehardsm v. Hughitt, 76 N. Y. 55, 58 ; Eagei 
 V. Oravford, Id. 97, 101. 
 
 Leggett V. Perkins, 2 N. Y. 297. Trus) 
 to receive rents and profits and pay them ovei 
 to cestui que (rtisf, is an active trust within 1 
 Rev. Stat. 730, j 55, subd. 3. Followed 
 Moore v. Hegeman, 72 N. Y. 876, 384. 
 
 Leonard v. Reynold^, 7 Hun 73. Me- 
 chanics' lien not enforceable against property of 
 municipal corporation held for public uses, 
 Affirmed. Leonard v. City of Brooklyn, 71 N, 
 Y. 498. 
 
 Leslie v. Knickerbocker Life Ins. 
 Co., 63 N. Y. 27. Insurance company bound 
 by promise of their agent to send notice of time 
 premium becomes due. Followed. Prentici 
 V. Knickerbocker Life Ins. Co., 43 Superior 352, 
 361 ; q. v. in this Table ; Meyer v. Same, 73 N, 
 Y. 516, 528. 
 
 Lesser v. People, 12 Hun 668. Wha( 
 amounts to obtaining goods by false pretences. 
 Affirmed. Lesser v. People, 73 N. Y. 78. 
 
 Levy, Matter of, 63 N. Y. 637. In the 
 absence of corporation newspapers, the common 
 council of New York city has no authority to 
 pass an ordinance for a local improvement, oi 
 to lay an assessment therefor. Followed, 
 Matter of Burmeister, 76 N. Y. 174, 177. 
 
 Levy V. Brush, 45 N. Y. 589. What con- 
 stitutes a partnership Equities between part- 
 ners. Followed. Chamberlin v. Chamberlin, 
 44 Superior 116, 124. 
 
 Levy V. Loeb, 44 Superior 291. What are 
 sufficient grounds for vacating, an order for ex- 
 amination of adverse party before trial. Af- 
 firmed. Levy V. Loeb, 75 N. Y. 609 ; 8. C 
 5 Abb. N. Cas. 157. 
 
 .Levy V. People, 19 Hun 383. Arson of 
 tenement-house — in whom the property may be 
 laid in the indictment. Affirmed, it seems, 
 March 9th, 1880. 
 
 Libbey v. Strasburger, 14 Hun 120. 
 Composition in bankruptcy does not discharge 
 debt fraudulently contracted. Followed 
 ArgaU v. Jacobs, 21 Hun 114, 115. 
 
 LindenmuUer v. People, 33 Barb. 548. 
 Dramatic performances on Sunday in New York 
 city, unlawful. " Has never been questioned in 
 a court of higher or equal authority." JVeuen- 
 dorff V. Duryea, 69 N. Y. 557, 561, 563. 
 
 Lister v. Wright, 2 Hill, 320. Distin- 
 guished. Palmer v. Lang, 7 Daly 33, 35. 
 
 Littauer v. Goldman, 9 Hun 231. Sale 
 of note without indorsement implies warranty 
 of validity, and the note being void for usury 
 the purchaser may recover from the seller the 
 purchase money paid. Reversed. Littauer 
 V. Goldman, 72 N. Y. 506. 
 
 Livingston v. Greene, 52 N. Y. 118. De- 
 vise in remainder, when vested. Followed 
 Drake v. Lawrence, 19 Hun 112, 115. Distin- 
 guished. Bud V. Smithwick, 70 N. Y.581 586 
 
 Livingston v. Rendall, 59 Barb. '493 
 Power to amend judgment so as to bind de- 
 ceased party's estate. Followed. Chant v 
 Orimold, 21 Hun 509, 512. 
 
 *i ^}°/^ I- ^'^^' ^^ Superior 423. Answer 
 that defendant "has not sufficient information 
 on which to form a belief," bad. Affirmed. 
 Lloyd V. Bums, 62 N. Y. 651. 
 
 Lobdell V. Lobdell, 36 N. Y 327 2S,-\ ■ 
 33 How. Pr. 347. Admissibility of tetimony 
 as to transactions with deceased person Fol 
 lowed. Holcomb v. Holcomb, 20 Hun 156, 160. 
 
506 
 
 CASES CRITICISI^). 
 
 Locke V. Mabbett, 3 Abb. App. Deo. 68 ; 
 2 Keyes 457. Surplus income of cestwi que 
 trust cannot be reached in supplementary pro- 
 ceedings. Distinguished. Williams v. Thoi"n, 
 70 N. Y. 270, 276. 
 
 Lockport, &c., R. R. Co., Matter of, 
 15 Hun 365. Requisites of petition of railroad 
 company asking leave to cross track of another 
 company, for appointment of commissioners to 
 ascertain pointe of intersection. Keveesed. 
 Matter of Lockport, &e., B. B. Co.,n N. Y.557 ; 
 Id. 632. 
 
 Lockport, &c., R. R. Co., Matter of, 
 77 N. Y. 557. Followed. Matter of Boston, 
 &e., Tunnel and B. B. Co., 79 N. Y. 69, 71. 
 
 Lookrow V. Horgan, 58 N. Y. 635. Con- 
 struction of covenant on part of lessee to keep 
 premises tenantable. Distinguished. White 
 V. Albany BaUway, 17 Hun 98, 100. 
 
 LocWwood V. Railroad Oo.j 17 Wall. 
 357. A common carrier cannot lawfully stipu- 
 late for exemption from responsibility for the 
 negligence of himself or his servants. " If we 
 felt at liberty to review the question, the reason- 
 ing of Justice Bradley in that case would be en- 
 titled to serious consideration; but the right 
 thus to stipulate has been so repeatedly afflimed 
 by this court, that the question cannot with pro- 
 priety be regarded as an open one in this state " 
 Mynard v. Syraause B. B. Co., 71 N. Y. 
 180. 
 
 Loclrwood V. Younglove, 27 Barb. 505. 
 Duty of execution debtor to claim his exemp- 
 tion. Followed. Turner v. Borikwiek, 20 Hun 
 119 122. 
 
 Loder v. Hatfield, 4 Hun 36. Where 
 payment of a legacy is postponed by the will 
 until the happening of an event named therein, 
 or for the benefit of the estate, the legacy is 
 vested and will not lapse on the death of the 
 legatee before the time of payment arrives. Af- 
 firmed. Loder v. Hatfield, 71 N. Y. 92. 
 
 Limitation of time to sue for legacies. When 
 legacy draws interest without demand. Pol- 
 lowed. De drag v. Terpenning, 14 Hun 301, 
 307 
 
 Long V. Warren, 68 N. Y. 426. Mere 
 silence not fi aud where both parties have equal 
 means of information. Followed. Savings 
 Institution v. Burdick, 20 Hun 104, 112. But 
 see dissenting opinion Id. 1 13. 
 
 Longendyke v. Longendyke, 44 Barb. 
 366 Distinguished. Howland v. Sowland, 
 20 Hun 472, 473. . , ., ^ 
 
 Long Island City v. Long Island R. 
 R. Co., 8 Hun 58. Power of city over railroad 
 crossings. Affirmed. Long Island City v. 
 Long Island B. B. Co., 79 N. Y. 561. 
 
 Long Island R. R. Co., Matter of, 19 
 Wend. 37. Power of the courts to review pro- 
 ceedings at corporate elections. Followed. 
 Strong V. Smith, 15 Hun 222, 225. 
 
 Loomis V. Cline, 4 Barb, 453. Note given 
 for unlawful consideration is void in hands of 
 payee, and its transfer will be restrained. 
 Followed. Baynes v. BvM, 17 Hun 477, 
 
 ^'Loomis V. People, 67 N. Y. 322. What 
 parting with possession by owner of chattel, is 
 a defence to indictment for larceny. Distinc- 
 tion betTveen larceny and false pretenses. Dis- 
 tinguished. Zink V. People, 77 N. Y. 114, 
 129. 
 
 Loomis V. Ruck, 56 N. Y. 462. Disriif- 
 guished. Woolsey v. Brown, 74 N. Y. 82, 85. 
 
 Loomis V. Tifft, 16 Barb. 541. Eight of 
 simple contract creditor to maintain creditor'* 
 suit. Overruled in 67 N. Y. 264, by implim- 
 tim. Evans v. Hill, 18 Hun 464, 465. Dis- 
 tinguished. Qenessee Biver Nat. Bank v. Mead,. 
 18 Hun 303, 307. 
 
 Lorillard v. Silver, 36 N. Y. 578. Dis- 
 tinguished. Jones V. Kent, 8 Abb. N. Cas. 
 300, 306. Followed. Jones v. Kent, 45 Su- 
 perior 66, 69. 
 
 Lorillard v. Town of Monroe, 11 N. Y, 
 392; 12 Barb. 161. Town not liable for mis- 
 takes or misfeasance of tax officers in discharge 
 of their duties. Followed. De Orauw. v. Sur 
 pervisors of Queens Co., 13 Hun 381, 385; Me- 
 Lanahan v. City of Syracuse, 18 Hun 259, 263. 
 
 Loughrau v. Ross, 45 N. Y. 792. Dis- 
 tinguished. Livingston v. Sulser, 19 Hun 375, 
 381. 
 
 Loveland v. Shepard, 2 Hill 139. Lia- 
 bility of guarantor of collection of note, dis- 
 charged by failure to fix indorser. Distin- 
 guished from guaranty of payment. Deck v. 
 Works, 18 Hun 266, 272. 
 
 Luce V. Dunham, 7 Hun 202. Interpre- 
 tation of "heirs" and "next of kin," in will. 
 Keversed. Luce v. Dunham, 69 N. Y. 36. 
 
 Luce V. Dunham, 69 N. Y. 36. The 
 phrase " next of kin " in a will does not include 
 the testator's widow. Followed. Keleltas v- 
 Ketellas, 72 N. Y. 312, 315. 
 
 Luddington v. Miller, 36 Superior 1. 
 Time and place to move for new trial. Lia- 
 bility of warehousemen. Affirmed. Ludding- 
 ton V. Miller, 53 N. Y. 643. 
 
 Ludewig v. Pariser, 4 Abb. N. Cas. 246. 
 Granting of order for examination of adverse 
 party before trial is obligatory, and consequeiitly 
 such order cannot be vacated or set aside. 
 Overruled. Chapman v. Thompson, 16 Hun 
 53, 54. 
 
 Ludington v. BeU, 43 Superior 557. In- 
 dividual note of partner, after dissolution, for 
 portion of partnership debt, no consideration 
 for agreement on part of creditor to release 
 maker from liability for the debt. Reversed. 
 Ludington y. BeU, 77 N. Y. 138. 
 
 Luhrs V. Eimer, 15 Hun 399. Eight of 
 aliens to take by descent. Affirmed, it seems, 
 February 24th, 1880. 
 
 Lunt V. Bank of North America, 4» 
 Barb. 221. Checks drawn in the ordinary form, 
 not describing any particular fund, or using 
 any words of transfer of the whole or any part 
 of any amount standing to the credit of the 
 drawer, but containing only the usual request, 
 are of the same legal eifect as an inland bill of 
 exchange, and do not amount to an assignment 
 of the funds of the drawer in the bank. Ap- 
 proved. Attomey-Oeneral v. Continenial Life 
 ;ns. a).,71N.Y.325,330. 
 
 Lupton V. Lupton, 2 Johns. Ch. bl4. 
 Construction of residuary clause in will. Ap- 
 proved as a leading authority. Manson v. JfoM- 
 jora. 8 Abb. N. Cas. 123, 127. 
 
 " The case has, ever since it was decided, been 
 regarded as a leading authority in such cas^, 
 and is referred to as such in all the cases on this 
 subject in this stale." Stoddard v. Johnson, 13 
 Hun 606, 609. 
 Lyle V. Murray, 4 Sandf. 590. Necessity 
 
CASES CRITICISED. 
 
 5or 
 
 of demand to set statute of limitations running. 
 Appboved. Brust v. Barreit, 16 Hun 409, 413. 
 
 Lynch v. Orary, 34 Superior 461. At- 
 tachment of property held in trust. When at- 
 tachment may be levied after judgment and 
 execution issued. Eevbbsed. Lyneh v. Orary, 
 52 N. Y. 181. 
 
 Lynob v. MoNally, 7 Daly 126. Liar 
 
 hility of owner of ferocious dog. Motion to- 
 strike out testimony elicited on cross-examina- 
 tion. ArriEMED. Lynch v. McNally, 73 N. Y. 
 347. 
 
 Lyon V. Oiark, 8 N. Y. 148. Distin- 
 guished. Been v. Shmrum, 73 N. Y. 292^ 
 301. 
 
 M. 
 
 Mackay v. New York Central R. R. 
 Co., 35 N. Y. 75. Effect of obstructions ob- 
 scuring view of track, upon liability of railroad 
 company to persons injured at crossing. Dis- 
 tinguished. Cordell v. New York Central, &c., 
 B. B. O)., 70 N. Y. 119, 123. 
 
 Macomber v. Dunham, 8 Wend. 550. 
 Parol evidence to show usury in bond, when ad- 
 missible. Followed. Mudgelt v. Ooler, 18 
 Hun 302. 
 
 Mactaggert v. Henry, 3 E. D. Smith, 
 390. Liability of charterer of vessel. Distin- 
 guished. Hager v. Clark, 78 N. Y. 45, 54. 
 
 McBride v. Farmers' Bank of Salem, 
 26 N. Y. 450. The possessor of negotiable 
 paper has no better or other title to the pro- 
 ceeds of such paper than to the paper itself, 
 and if he has no title to the latter he can be 
 made to account to the true owner for its pro- 
 ceeds or avails. Followed as controlling. Com- 
 slock V. Hier, 73 N. Y. 269, 277. 
 
 MoOall V. New York Central R. R. 
 Co., 54 N. Y. 642. Liability of railroad com- 
 pany for injury to person crossing track. Dis- 
 tinguished. Sladeus v. New York Central, &c., 
 M. R. Co., 79 N. Y. 464, 468. 
 
 McCartney v. Boatwlck", 32 N. Y. 53. 
 Eight of simple contract creditor to maintain 
 creditor's suit. Overruled m 67 N. Y. 264. 
 Evaiis V. HUl, 18 Hun 464, 465. 
 
 McClure v. Mut. Life Ins. Co., 55 N. 
 Y. 651. In action on life policy, where insured 
 committed suicide, the burden of proof to show 
 insanity is on the plaintiff. Followed. Weed 
 V. Mut. Benefit Life Ins. Co., 70 N. Y. 561. 
 _ McCoU V. Sun Mut. Ins. Co , 34 Supe- 
 rior 310. Commission to take testimony of for- 
 eign witness, not issued -after trial and judg- 
 ment. Affirmed. McCoU v. Sun Mut. Ins. 
 Co., 50 N. Y. 332. 
 
 McCoU V. Sun Mut. Ins. Co., 66 K. Y. 
 505. Mere fact that insured vessel exists in 
 specie does not prevent claim for total loss with- 
 out abandonment. Followed. Wright v. 
 WiUiams, 20 Hun 320, 324, 325. 
 
 McCoIlough'B Lead Co. v. Strong, 36 
 Superior 571. 
 
 [Eeported in memorandum.] 
 Affirmed. McCollomgh's Lead Co. v. Strong, 
 56 N. Y. 660. 
 
 McOollum V. Seward, 62 N. Y. 316. Ad- 
 missibility of opinion of witness as to value of 
 services sued for. Followed. Seymour v. 
 Fellows, 77 X. Y. 178, 180; 44 Superior 124, 
 129. ' : f 
 
 _ McCombs V. Allen, 18 Hun 190. Sure- 
 ties on undertaking given to discliarge attach- 
 
 ment (Code of Civ. Pro., ? 688,) not released by- 
 discharge of principal in bankruptcy. Af- 
 firmed, it seems, September 21st, 1880. 
 
 MoCulloch V. Norwood, 58 N. Y. 562- 
 Dissolution of corporation terminates an actioit 
 pending against it, and all subsequent proceed- 
 ings are void, unless the action is continued by 
 order of c6urt,asprovided by Laws of 1832, ch.. 
 295. Followed. Stwges v. VanderbUi, 73 N. 
 Y 384 388 
 
 McOuUough V. Hoffman, 10 Hun ■133_ 
 Defence of want of consideration in action on 
 bill of exchange. Affirmed. MeOuJlomgh v. 
 Hoffman, 73 N. Y. 615. 
 
 McDonald v. Mallory, 44 Superior 80, 
 Jurisdiction of state over domestic vessel on 
 high seas. Reversed. McDonald v. Mallory,. 
 7 Abb. N. Cas. 84. 
 
 McDonald v. Mayor, &c., of New 
 York, 68 N. Y. 23. Liability of city for ma- 
 terials furnished, in absence of contract therefor. 
 Explained. People v. Denison, 19 Hun 137,. 
 149. 
 
 McDonald v. People, 43 N. Y. 61. What 
 constitutes larceny by bailee or servant. Fol- 
 lowed. Phdps V. People, 72 N. Y. 434, 360. 
 
 McEnroe v. Decker, 58 How. Pr., 250, 
 Effect of general denial in answer, except as af- 
 terwards admitted. Criticised. Smith v. Qratz,. 
 59 How. Pr., 274, 275. 
 
 McBwen v. Brewster, 17 Hun 223, 
 Eight of receiver of cestui que trust, to surplus- 
 income of trust fund. Overruled. McEwen, 
 V. Brewster, 19 Hun 337, 339. 
 
 McParren v. St. John, 14 Hun 387. Suf- 
 ficiency of offer to allow judgment. Followed- 
 Biggs v. Waydell, 17 Hun 515, 516. 
 
 McGrinley v. United States Life Ins. 
 Co., 8 Daly, 390. Declaratious of assured, as^ 
 to his health, made after issuing of policy, not 
 admissible in action on policy. Affirmed, 
 McOinley v. United Slates Life 'ins. Co., 77 N. 
 Y. 495. 
 
 McGhiffln V. City of Cohoes, 11 Hun. 
 531. Limitation of time to sue for negligence,, 
 under charter of city of Cohoes. Affirmed. 
 McGuffin V. City of Cohoes, 74.N. Y. 387. And 
 see, also, Dubois v. City of Kingston, 20 Hun 500. 
 502. 
 
 McHarg v. Eastman, 4 Eobt. 635. Dis- 
 tinguished. Glen's Falls Paper Co. v. White. 
 18 Hun 214, 216. 
 
 Mcintosh V. Lown, 49 Barb. 550. Ee- 
 covery of part of rent due on lease no bar 
 to action for remainder. Overruled. Jex v, 
 Jacob, 19 Hun 105, 109: S. C, 7 Abb. N. Gas, 
 452, 457. 
 
508 
 
 CASES CRITICISED. 
 
 Mclntyre v. Barnard, 1 Sandf. Ch. 52. 
 bale of growing timbeiv-time within which to 
 remove it. Approved. Kellam v. McKimtry, 
 €9 N. Y. 264, 269. " 
 
 McKay v. City of Buffalo, 9 Hun 401. 
 Liability of cily for acts of police officei-s. Af- 
 firmed. McKay y. City of Buffalo, 74 N. Y. 
 619. 
 
 McKee v. Judd, 12 N. Y. 622. An as- 
 signment of the property in an article, transfers 
 a right of action for its conversion while in the 
 hands of the assignor. Followed. Weissen- 
 stein V. EUas, 14 Hun 533. 
 
 McKelvey v. Lewis, 44 Superior 561. 
 Disolution of partnership and appointment of 
 receiver, &c. Apfihmed, sub nam. McElveu v. 
 Xewm, 76 N. Y. 373. 
 
 McKenna v. People, 18 Hun 580. Evi- 
 dence of violent character of deceased on trial 
 .for murder. Eeveksed, it seems, June 8th, 
 J.880. 
 
 MoKeon v. Kearney, 57 How. Pr. 349. 
 Bequest to unincorporated society. Followed. 
 Zeonard v. Davenport, 58 How. Pr. 384. 
 
 McKinney v. MoOloskey, 8 Daly 368. 
 Statute of frauds — agreement not to be perform- 
 ■ed within a year. Affirmed. MeKinneu v. 
 McOioskey,_ 76 N. Y. 594. 
 
 McKnight v. Dunlop, 4 Barb. 36. In re- 
 plevin, an answer of title in third person, is 
 good, without allegations connecting defendant 
 with right of such person. Doubted and dis- 
 aiNQuiSHBD. Stowell v. Olia, 71 N. Y. 36, 38. 
 
 McLaren v. Hartford Fire Ins. Co., 5 
 1^. Y. 151. Property at risk of purchaser after 
 -sale by referee in foreclosure. Disapproved. 
 MutiuU Life Ins. Co. v. Baich, 4 Abb. N. Cas. 
 .200, 202. 
 
 McLean v. Freeman, 9 Hun 246. De- 
 vise for life with remainder over — when re- 
 mainder will take affect though devisee of life 
 estate dies before testator. Affirmed. Me- 
 Xean v. Freeman, 70 N. Y. 81. 
 
 McMabon v. Maoy, 51 N. Y. 155. Dia- 
 XINGUISHED. Stephens v. Fox, 17 Hun 435, 438 ; 
 Saslings v. Drew, 76 N. Y. 9, 15. 
 
 McMabon v. Second Ave. R. R. Co , 
 11 Hun 347. Where railroad company con- 
 tracts with city to keep street in repair, person 
 injured by excavation may sue company. Af- 
 j'lRMED. McMuhan v. Second Ave. R. R. Co., 75 
 J!f. Y. 231. 
 
 McMlchaela v. Kilmer, 12 Hnn 336. 
 What is such fraud in settling a mutual account 
 iy suppressing a fact which the party ought to 
 -disclose, as will warrant the opening of the set- 
 tlement. Keversed. McMiehaels v. Kilmer, 76 
 :n. Y. 36. 
 
 McMorris v. Simpson, 21 Wend. 610. 
 When trover will lie by principal against agent. 
 What is a conversion by an agent. Followed. 
 Dickinson v. Dudley, 17 Hun 569, 571. 
 
 McNeil V. Tenth Nat. Bank, 46 N. Y. 
 -325. Owner of chose in action, when estopped 
 from asserting title against bona fide purchaser 
 irom apparent owner. Distinguished. Davis 
 V. Beclislein, 69 N. Y. 440, 442 ; Merchants^ Bank 
 V. Livingston, 74 Id. 224, 226. 
 
 McNulty V. Hurd, 11 Hun 339. Power 
 of surrogate to order administrator to payjudg- 
 .ment against intestate. Modified. McNulty 
 V. Hurd, 1% N. Y. 518. 
 
 McParlin v. Boynton, 8 Hun 449. War- 
 ranty of goods to be manufactured. Effect of 
 
 inspection before delivery. Affirmed. Mc- 
 Parlin v. Biryntm, 71 N.Y. 604. 
 
 McRae v. Central Nat. Bank, 66 N. Y. 
 489. What are deemed iixtures as between 
 mortgagor and mortgagee. Distinouished. 
 Wells V. Maples, 15 Hun 90, 92. 
 
 McVey v. Oantrell, 6 Hun 528. Married 
 woman's separate estate liable for money loaned 
 for its benefit, though not in fact appropriated 
 to that end. Affirmed. McVeti v. CantreU 
 70 N. Y. 295. 
 
 MoVey v.j Oantrell, 70 N. Y. 295. Suf- 
 ficiency of evidence that debt was contracted for 
 benefit of married woman's separate estate. 
 DisTiNauisHED. Nash v. Mitchell 71 N. Y 
 199, 203. 
 
 Madan v. Sherrard, 42 Superiqr 353. 
 Liability of carrier for passenger's baggage. 
 Affirmed. Madan v. SheYrard, 73 N. Y. 329. 
 Madge v. Puig, 12 Hun 15. Sufficiency 
 of complaint to sustain order of arrest. Be- 
 VERSED. Madge v. Buig, 71 N. Y. 608. 
 
 Madison Ave. Baptist Church v. 
 Baptist Church in Oliver St., 41 Su- 
 perior 369. Conveyances by religious corpora- 
 tions. Eights of mortgagee in possession. Eject- 
 ment, when turned into action to redeem. 
 Modified. Madison Ave. Baptist Church v. 
 Baptist Church in Oliver St., 73 N. Y. 82. 
 
 Madison Ave. Baptist Church v. Bap- 
 tist Church in Oliver St., 73 N. Y. 82. 
 Jurisdiction in equity once obtained, will be re- 
 tained in order to give full relief. Followed^ 
 Henderson v. N. Y. Central B. B. Co., 78 N. Y. 
 423, 438. 
 
 Magnin v. Dinsmore, 35 Superior 182. 
 Eight of express company to limit its liability 
 for loss or damage to goods. Eeveksed. Mag- 
 nin V. Dinsmore, 53 N. Y. 652. 
 
 Magnin v. Dinsmore, 38 Superior 248. 
 Liability of carrier. Disclosure of value by 
 shipper. Eeveesed. Magnin v. Dinsmore, 62 
 N. Y. 35. 
 
 Magnin v. Dinsmore, 62 N. Y. 35. 
 Silence of shipper as to real value of goods de- 
 livered to express company — when discharges 
 cariier's liability for ordinary negligence, for 
 an amount exceeding $50. Ee-affirmed. 
 Magnin v. Dinsmore, 70 N. Y. 410, 415 ; affirm^ 
 ing 42 Superior 16. 
 
 " This is as far as any of the cases have gone 
 in favor of the carrier, and the doctrine * * 
 should not be extended." Baldwin v. Liverpool, 
 &c., S. S. Co., 74 N. Y..125, 131. 
 
 Magnin v. Dinsmore, 56 N. Y. 168. Suffi- 
 ciency of special contract to exempt common 
 carrier of merchandise from liability for negli- 
 gence. Followed. Mynard v. Syracuse, &c., 
 B. R. Co., 71 N. Y. 180. 
 
 Mahan, Matter of, 20 Hun 301. Proper 
 contents of advertisement for bids, prior to 
 awarding contract for public work. Affirmed, 
 ii seeww!, April 13th, 1880. 
 
 Mahon v. N. Y. Central R. R. Co., 24 
 .N. Y. 658. Distinguished. Henderson v. Nea 
 York Central R. B. Co., 78 N. Y. 423, 435. 
 
 Mallory v. Gillett, 21 N. Y.412. Distinc- 
 tion between promises to pay the debt of an- 
 other, entered into for the benefit of the original 
 debtor, and in aid of tlie original contract, and 
 promises which, though in form promises to 
 pay the debt of a third person, are not made for 
 the purpose of securing or performing the ori- 
 ginal duty, but for the benefit of the promisor. 
 
CASES CRITICISED. 
 
 509' 
 
 although such security or performance may he 
 the consequence. Approved and FOLiiOWED. 
 Prime v. Koehler, 77 N. Y. 91, 95. Distin- 
 guished. Belknap v. Bender, 75 N. Y. 446, 451. 
 Manhattan Brass and Manuf. Oo. v. 
 Sears, 45 N. Y. 7^7. Effect of agreement to 
 share profits to constitute partnership. Dis- 
 tinguished. Smith V. Bodine, 74 N. Y. 30, 33 ; 
 BumeLt V. Snyder, 76 N-. Y. 344, 351 ; BvOer v. 
 Findc, 21 Him 210, 212, 215. 
 
 Maniort v. Roberts, 4 E. D. Smith 83. 
 Construction of statute as to note made payable 
 to order of a fiditious person. Ceiticised. 
 Merchants' Loan, &c., Co. v. Barik of the Metrop- 
 olis, 7 Daly 137, 141. 
 
 _ Hanke v. People, 17 Hun 410. Admis- 
 
 Bibility of opinion of expert as to whether a 
 
 piece of paper had been used as wadding for a 
 
 , gun. ArFiBMED. People v. Manke, 78 N. Y. 
 
 611. 
 
 Mann v. Bckford, 15 Wend. 592. Kight 
 to prove want of consideration in action on 
 sealed instrument. Distinguished. Anthony 
 V. Harrism, 14 Hun 198, 207. 
 
 Mann v. People, 15 Hun 155. County 
 treasurer wlio makes an obligation of the county 
 without authority from supervisors, not guilty 
 of forgery. Afpiembd. People v. Mann, 75 
 N. Y. 484. 
 
 Manning v. Keenan, 9 Hun 686. Liabil- 
 ity of coroner acting in place of sheriff, for 
 delivery of property held in replevin, after ser- 
 vice of notice of claim. (Code of Pro., J 216.) 
 Service, of notice upon clerk in charge of cor- 
 oner's office. Affirmed. Manning v. Keenan, 
 73 N. Y. 45. 
 
 Manuel v. People, 48 Barb., 548. New 
 trials in capital cases. Distinguished. Bvd 
 V. People, 78 N. Y. 492, 502. 
 
 Many v. Uoyes, 5 HiU 34. Enforcement 
 of liens upon vessels " arose under the provisions 
 of the Kevised Statutes, and has no application 
 to a case originating under the statutes above 
 cited, [Laws of 1862, ch. 482 ; Laws of 1863, ch. 
 422,] which contain different language." Dis- 
 tinguished. King v. Oreenway, 71 N. Y. 413 
 417. 
 
 Marble v. Whitney, 28 N. Y. 297. Lia- 
 bility of adjoining towns to share expense of 
 building bridges over streams dividing them. 
 Distinguished. Beckmith v. Whalen, 70 N. Y 
 430, 436. 
 
 Margraf v. Muir, 57 N. Y. 155. Measure 
 of damages for breach of executory contract to 
 convey. Explained. Timiy v. Kinsey, 18 Hua 
 255, 258. 
 
 Marine Bank of Buffalo v. Piske, 9 
 Hun 363. Transfer of title to goods in transit 
 by indorsement of bill of lading as security for 
 draft. Affirmed. Marine Bank of Buffalo v 
 i^isfe, 71 N. Y. 353. J Jj'««y- 
 
 Marine Bank of Buffalo v. Fiske, 71 
 N. Y. 353. Owner of property tortiously taken 
 from him, not estopped from reclaiming it by 
 fraudulent act of tortious taker, to which he was 
 not a party, and which he in no way aided ; to 
 create an estoppel he must have enabled the 
 w-ong-doer to perpetrate tlie fraud. Followed. 
 Hazard v. Fiske, 18 Hun 277, 283; Zink v. Peo- 
 ple, 77 N. Y. 114, 122. 
 
 ..o^'^f ^"^f ^^^^ °^ Chicago V. ^ATright, 
 4S JN. Y. 1. Distinguished. Bank of Com- 
 merce V. Bisaell, 72 N. Y. 615. 
 
 Markey v. Brewster, 10 Hun 16. Whei» 
 value of services rendered by daughter to 
 mother during latter's last illness, is recoverable 
 from the estate. Affirmed. Markey v. Brews- 
 ter, 70 N. Y. 607. 
 
 Marquart v. La Farge, 5 Duer 559. 
 Recovery of future probable profits, when proper 
 in action for breaking up plaintiff's business. 
 Distinguished. Mitchell v. Cornell, 44 Superior 
 401, 405, 
 
 Ma,rsh, Matter of, 10 Him 49. Pro]3er 
 contents of petition in proceedings to acquire 
 easement in swamp lands, for purpose of drain- 
 age. (Laws of 1879, ch. 888.) Keveesed, 
 Mattel- of Marsh, 71 N. Y. 315. 
 
 Marsh v. Pike, 10 Paige 595. Eights of 
 mortgagor after sale of premises subject to the 
 mortgage. Followed. Marshall v. Davies, IS- 
 N. Y. 414, 421. 
 
 Marshall v. Davies, 16 Hun 606. Mort- 
 gagor's liability on bond for deficiency ; and for 
 taxes and assessments. Keversed. Marshall 
 V. Davies, 78 N. Y. 414. 
 
 Marshall v. Peters, 12 How. Pr. 218. 
 Purchaser of ice on a pond, not entitled to an in- 
 jnnction against trespasser attempting to remove 
 the ice. Overruled. Myer v. Whittcdcer, & 
 Abb. N. Cas. 172, 177. 
 
 Martin v. Famsworth, 33 Superior 246. 
 Implied authority of agent. Affirmed. Mar- 
 tin V. Famsworth, 49 N. Y. 555. 
 
 Martin v. Hill, 12 Barb. 631. Validity of 
 chattel mortgage depends on law of place where 
 made. Followed. Edgerly v. Bush, 16 Hua 
 80, 85. 
 
 Martin v. KunzmuUer, 37 N. Y. 397. 
 Distinguished. Taylor v. Mayor, &c., of N. K, 
 20 Hun 292, 294. 
 
 Martin v. Mayor, <fcc., of Brooklyn, 1 
 HiU 545. Liability of city for acts of officers. 
 Followed. New York and Brooklyn Saw Mill, 
 &c., Co. V. City of Brooklyn, 71 N. Y. 580, 587. 
 
 Martin v. Wood. 7 Wend. 132. Distin- 
 guished. Matlerr of Lampert, 21 Hun 154, 157, 
 Marvin v. Bennett, 26 Wend. 169. Dis-^ 
 tinguished. Paine v. Upton, 21 Hun 306 
 311. 
 
 Marvin v. Marvin, 3 Abb. App. Dec. 192> 
 Conclusiveness of verdict on issues framed by Su- 
 preme Court in contested probate of will. Fol- 
 lowed. Waster V. Cole, 17 Hun 507, 509. 
 
 Mason v. Anthony, 3 Keyes 609. When 
 mortgagor is estopped from setting up usury as 
 a defence in foreclosure. Followed. Smyth 
 V. Lomiardo, 15 Hun 415, 417. 
 
 Mason V. Brown, 6 How. Pr. 481. Change 
 of place of trial. Explained and distin- 
 GxnsHED. Gifford v. Toum of Gravesend, 8 Abb 
 N. Cas. 246, 248. . ' 
 
 Massoth V. Delaware, &o., Canal Co 
 64 N. Y. 524; 6 Hun 314. Contributory neg- 
 ligence, wiien for court and when for jury to de- 
 cide as to. Approved. CMara v. Delaware 
 &c.. Canal Co., 18 Hun 192, 195. ""™"-er 
 
 Masterton v. Village of Mount Ver- 
 non, 58 N. Y. 391. Distinguished. McDeirm- 
 ell V. City of Kingston, 6 Abb. N. Cas. 246 249 
 Matson v. Farm Buildings Ins. Co 9 
 Hun 41o. Condition in policy of fire insurance 
 against use of kerosene oil, construed to mean 
 the habitual use of such oil. Reversed. Mat- 
 son V. Farm Buildings Ins. Co., 73 N Y 310 
 Matteson v. Moulton, 11 Hun 268 Ac- 
 
510 
 
 CASES CRITICISED. 
 
 ■ceptance of bill of exchange by failure to re- 
 turn it (1 Kev. Stat. (2d ed.) 757, J 11.) Av- 
 PIRMED. Maiteaon v. Mcndton, 79 N. Y. 627. 
 
 Matteson v. New York Central, &c., 
 Jl. B. Co., 57 N. Y. 522. Distingthshed. 
 Matteson V. New York Centred, &c,R. M. Co., 76 
 N. Y. 381, 385. 
 
 Matteson v. New York Central, .&o., 
 E. R. Co., 62 Barb. 364. Competency of hus- 
 iand and wife as witnesses. Distinguished, 
 People V. Orandon, 17 Hun 490, 493. 
 
 Maxmilian v. Mayor, <Steo., of New 
 York, 62 N. Y. 160. Municipal corporation, 
 •when not liable for torts of its officers. Ap- 
 proved AND FOLLOWED. Sam V. Mayor, 
 ■&e., of New York, 70 N. Y. 459, 461 
 
 May V, Nat, Bank of Malone, 9 Hun 
 108, Promise to pay money to third person at 
 request of debtor, when valid, and effect of re- 
 YOoation of request to pay by debtor. Af- 
 firmed, May V, Nat. Bank of Malone, 73 N. 
 Y, 599. 
 ' Mayer, Matter of, 50 N. Y. 502. Aaaess- 
 ments for street improvements. Distin- 
 ■GUISHED. Matter of Van Buren, 17 Hun 527, 
 ^33. Matter of N. Y. Brot. Epis. Pub. School, 75 
 N, Y. 324, 328. 
 
 Mayer v. Friedman, 7 Hun 218. To bar 
 contract made out of slate, defendant must 
 prove residence in state for six -years before 
 «uit. Affirmed. Mayer v. Friedman, 69 N, 
 Y, 608. 
 
 Mayer v. Mayor, &c., of New York, 
 ■63 N. Y, 455. Distinguished. Oumen v. 
 Mayor, &c., of New York, 79 N. Y. 511, 615. 
 
 Mayor, &c., of Albany v. Cunliff, 2 
 N. Y. 165. "Some remarks are made in the 
 opinion of Cady, J., to the effect that officers of 
 a municipal corporation are limited in their legit- 
 imate action to the powers conferred upon them 
 by their charters. This rule might well apply 
 when theje was an entire want of power and the 
 ■corporate body was acting in reference to a mat- 
 ter whicli was entirely beyond its control and 
 authority. * * * But ^en the corporation 
 is vested with ample power to perform the act 
 <lone, such as the laying out of a street, it can- 
 not well be claimed thafthey are relieved from 
 liability from injury for their neglect, because 
 the act was not done stricllv accoiding to law." 
 ■Sewell V. City of Cohoes, 75 N. Y. 45, 51. 
 
 Mayor, &o., of New York v. Hamil- 
 ton Fire Ins. Co., 39 N..Y. 45. Construction 
 ■of limitation of time to sue after "hiss or dam- 
 age," in fire policv. Followed. Hay v,. Star 
 Fire Ins. Co., 77 N, Y. 235, 244. 
 
 Mayor, &c., of New York v. New 
 York and Staten Island Ferry Co,, 40 
 ■Superior 300, Violation of injunction, how 
 proved. Proceedings in contempt— interroga- 
 tories, when unnecessary. Affirmed, Mayor, 
 ■^c, of New York v. Neuo York and Staten Island 
 Ferry Co., 64 N. Y. 622, 
 
 Mead, Matter of, 13 Hun 349. Eemedy 
 by peiition to vacate void or_ voidable assess- 
 ments for local improvements in city of Brook- 
 lyn, Affirmed, Matter of Mead, 74 N, Y, 
 216. 
 
 Mead v. Mitchell, 17 N. Y. 210. Actual 
 partition or sale under a judgment in partition 
 is effectual to bar the future contingent inter- 
 ■ests of persons not in esse, though no notice is 
 published to bring in unknown parties, and 
 though such future owners ;may take as pur- 
 
 chasers under a deed or will, and not as claim- 
 ants under any parties to the action. Follow- 
 ed. Brevoort v. Brevoort, 70 N. Y. 136, 140. 
 
 Mechanics' Bank v. Minthome, 19 
 Johns. 244. Power of court to alter judgment, 
 as to amount, after entry* and satisfaction of 
 record. Distinguished, McLean v, Stewart. 
 14 Hun 472, 474. 
 
 Medbury v. Bochester Frear Stone 
 Co., 19 Hun 498. Eight of stockholder to 
 maintain actipn to dissolve corporation. Pol- 
 lowed. Kiltredge v. KeOogg Bridge Co., 8 Abb. 
 N. Cas., 168, 171. 
 
 Medbury y. Swan, 46 N, Y. 200. Right 
 to file supplemental pleading. Discretionary 
 power of court to grant or reflise leave. Fol- 
 lowed. Spib/ra V. Mayor, &c., of New York, 72 
 N. Y, 442, 443, 
 
 Meeker v. Wright, 11 Hun 533. Deed 
 from husband to wife, with mortgage back, when 
 void. Beversed. Meeker v. WrigU, 76 N. Y. 
 262 ; S. a, 7 Abb. N, Cas,, 299, 
 
 Mehan v, Syracuse, Sao., B. E. Co., 73 
 N. Y. 585. Duty of railroad company to fur- 
 nish appliances, machinery and road beds rea- 
 sonably safe for the use of its employees. Fol- 
 lowed, Oage v, Delaware, &c., R. B. Co., 14 
 Hun 446, 447, 
 
 Menges v. City of Albany, 56 N, Y. 
 374. How compensation for land taken for 
 public use must be ascertained. Distinguished. 
 People, ex rd. Kilmer, v. McDonald, 69 N, Y, 
 362, 368, 
 
 Merchants' Bank of Canada v, Gris- 
 wold, 9 Hun 561, Construction of power of 
 attorney to draw drafts on principal. Affirm- 
 ed, Merchants' Bank of Canada v, Griswold, 72 
 N. Y. 472, 
 
 Merchants' Bank of Canada v, Liv- 
 ingston, 17 Hun 321. Damages for conver- 
 sion of corporate stock. Ai'FIRMBD. Mei-ehaTtt^ 
 Bank of Gmada v. Livingston, 79 N. Y. 618, 
 
 Merchants' Bank of Canada v. Union 
 B. B. and Transp. Co., 8 Hnn 249. Rival 
 bills of lading — which holder entitled to goods. 
 Affirmed, Merchants' Bank of Canada v. 
 Union B. B. and Transp. Co., 69 N. Y. 373, 
 
 Merchants' Bank of New Haven v. 
 Bliss, 35 N, Y, 412. Limitation of suits 
 against trustees of manufacturing companies, for 
 failure to tile report. Assignability of such 
 cause of action. Doubted. Pier v. George, 14 
 Hun 568, 571, 
 
 Merchants' Bank of New York v. 
 Spaiaing, 9 N. Y. 53. Effect of law of place 
 on contracts. Distinguished, Diekinson v, 
 Edwards, 77 N. Y. 573, 583, 
 
 Merchants' Exchange Nat. Bank v. 
 Commercial Warehouse Co., 33 Superior 
 317, Application of rule tbrbidding corporation 
 to set up usury. Reversed, Merchants 
 Exchange Nat. Bank v. Commercial Warelumsc 
 Co., 49 N. Y. 635, 
 
 Merrill, Matter of, v. Anderson, 10 
 Hun 604. Check on bank, when operates as an 
 assignment, pro tanto, of deposit to credit of 
 drawer, as against his receiver appointed before 
 presentaiion of check. Reversed, suh nom. 
 Attorney-General v. Continental Life Ins. Co., 71 
 N. Y. 325. 
 
 Merrill v. Agricultural Ins. Co., 10 
 Hun 428. Breach of condition as to incum- 
 brances in fire policy on real and personal pro- 
 perty, avoids policy only as to portion incum- 
 
CASES CRITICISED. 
 
 511 
 
 i)ered. Affirmed. Merrill w. Agrievlturd Im. 
 O)., 73 N. Y. 452. 
 
 Merrill v. Agricultural Ins. Co., 73 N. 
 Y. 452. What does not amount to breach of 
 -warranty in application for fire policy. Fol- 
 lowed. Dacey v. Agneultwal Ins. Co., 21 Hun 
 •83, 87. 
 
 Merrill v. Oalkins, 10 Him 495. Right 
 •of vendee to use water from spring on land of 
 vendor, under privilege in deed. Affibmed. 
 Merritl v. Calkina 74 N. Y. 1. 
 
 Merrils v. Law, 9 Cpw. 65. Parol agree- 
 ment for usury a good defence to an action on a 
 written contract. Followed. Mvdgelt v. Ooler, 
 18 Hun 302, 303. 
 
 Merritt v. Carpenter, 3 Keyes 142. *Dis- 
 TiNGTHSHED. Welch v. TFrnto-iura, 14 Hun 518, 
 519. 
 
 Merritt v. Cole, 9 Hun 98. Even though 
 an agent have authority to receive payment of 
 an obligation, this does not authorize him to re- 
 ceive It before it is due. Distinguished. 
 Merritt v. Cole, 14 Him 324, 325. 
 
 Merritt v. Lambert, 10 Paige 352 ; affirm- 
 ed, sub nam. Wailis v. Loubat, 2 Den. 607. 
 ■" That case was governed by the rule which pre- 
 vailed before the code that an atlorney,or solici- 
 tor could not be permitted to contract with his 
 client previous to the termination of the suit 
 for a part of the demand, or subject matter of 
 the litigation, as a compensation for his ser- 
 vices." Hall V. Orouse, 13 Hun 557, 561. 
 
 Merritt v. Todd, 23 N. Y. 28. Distin- 
 «TnsHED. Eisenlord v. DiMenhaak, 15 Hun 23, 
 25. 
 
 Merritt v. Village of'Portcliester, 8 
 Hun 40. Regularity of proceedings under Laws 
 ■of 1868, ch. 818, relaiing to assessments for local 
 improvements in village of Portchester. Re- 
 VERSiiD. MerrUt v. Vdlage of Portekesler, 71 N. 
 Y. 309. 
 
 Merritt v. Village of Portchester, 71 
 N. Y. 303. Assessment illegal wheie commis- 
 -sioners of estimate and assessment fail to take 
 proper oath. Followed. Angel v. Town of 
 Hume, 17 Hun 374, 383. 
 
 Merwin v. Star Fire Ins. Co., 7 Hun 
 ^59. Warranties in fire policy. Loss payable 
 to mortgagee. No recovery by mortgagee where 
 ■owner cauuot sue. Affirmed. Merwiny. Star 
 Fire Ins. Co., 72 N. Y. 603. 
 
 Metcalf y. Baker, 34 Superior 10. Eflfect 
 ■of absence of referee during examination of 
 witness. Waiver of objection therefor. Af- 
 firmed. Metealf v. Baker, 52 N. Y. 649. 
 
 Methodist Church of New York v. 
 Barker, 18 N. Y. 463. Conclusiveness of re- 
 port of referee assessing damages in action on 
 nndertaking for injunction. Followed. Jor- 
 <lan V. Volkerming, 72 N. Y. 300, 305 
 
 Metropolitan Board of Health v. 
 -Heister, 37 N. Y. 661. Powers of board of 
 Jiealth in New York city. Re-affirmed. 
 Health Department v. Knoll, 70 N. Y. 530, 536 ; 
 .5. a, 4 Abb. N. Cas. 97, 111. 
 
 Meyer v. Lathrop, 10 Hun 66. Action 
 *o foreclose mortgage. What will support de- 
 fence of payment. Affirmed, but not an points 
 -stated in head-note. Meyer v. Lathrop, 73 N. Y. 
 -315. Overruled. -Paim v. Jones, 14 Hun 
 ■577, 580. 
 
 Milbank v. Crane, 25 How. Pr. 193. 
 Oonsiruction of will. Explained, iaree v. 
 -BroMift, 20 Hun 382, 386. 
 
 Miles V. Loomis, 10 Plun 372. Compari- 
 son of handwriting by experts, admissible in 
 suit on note where defence is forgery. Affirm- 
 ed. Miles V. Loomis, 75 N. Y. 288. 
 
 Miles V. Loomis, 75 N. Y. 288. Admissi- 
 bility of signatures for comparison of hand- 
 writing by experts. Followed. Merritt v. 
 Com/)fceii, 79N.Y. 625. 
 
 Milk V. Rich, 15 Hun 178. When guaran- 
 ty of note need not be in writing. Affirmed, 
 it seems, February 24th, 1880. 
 
 Millard v. Brown, 35 N. Y. 297. Dis- 
 tinguished. Thompson, v. iMmley, 7 Daly 74, 
 
 Millard v. Jenkins, 9 Wend. 298. Dis- 
 tinguished. Hector V. Clark, 78 N. Y. 21, 29. 
 
 Miller v. Franklin, 20 Wend. 630. As- 
 signment of claim, after action brought, merely 
 as collateral security, does not make the as- 
 signee liable for costs. Followed. Peck v. 
 Yorks, 75 N. Y. 421, 424. 
 
 Miller v. Hall, 40 Superior 262. Parties 
 to suit to recover property conveyed in fraud of 
 creditors. Affirmed. Miller v. Hall, 70 N. Y. 
 250. 
 
 Miller v. Long Island R. R. Co., 9 Hun 
 194. What is sufficient title' or possession in 
 plaintiff to maintain trespass against railroad 
 company for fires caused by negligence. Re- 
 versed. Miller v. Long Island R. sB. Co., 71 
 N. Y. 380. 
 
 Miller v. Miller, 9 Abb. Pr. (N. S.) 444. 
 Nature of. tenancy by husband and wire, of 
 property conveyed to them jointly. Disap- 
 proved. Meeker v. Wright, 76 N. Y. 262, 269. 
 
 Miller v. Montgomery, 78 N. Y. 282. 
 Examination of party or person interested as to 
 transactions with deceased person. (Code of 
 Civ. Pro., § 829.) Followed. Churchy. How- 
 ard, 79 N. Y. 415, 420. 
 
 MUler V. Scherder, 2 N. Y. 262. When 
 unsuccessful, plaintiff liable to imprisonment 
 for costs. When action sounds in tort. Fol- 
 lowed. CaMin v. Adirondack Co., 20 Hun 19, 
 22. 
 
 Miller v. Sheldon, 15 Hun 220. Order 
 sustaining or overruling demurrer not appeala- 
 ble to General Term under the code of civil 
 procedure. Followed. Laeastrine Fertilizer 
 Co. V. Lake Guano Co., 16 Hun 484, 486. 
 
 Miller v. "White, 50 N. Y. 137. In an ac- 
 tion founded on the statutory liability of trus- 
 tees of a manufacturing company, a judgment 
 against the company is not evidence against the 
 trustees. Followed. Esmond v. Bullard, 16 
 Hun 65, 67. Distinguished. Hastings v. 
 Drew, 76 N. Y. 9, 15; Stephens v. Fox, Yl Hun 
 435, 438. 
 
 Milligan v. Robinson, 58 Hqw. Pr. 380. 
 Distinguished. Williams v. Cassady, 59 How. 
 Pr. 490, 495. 
 
 MUls y. Bliss, 55 N. Y. 139. Notice of 
 suit pending, when a nullity — ^necessity of can- 
 celing of record. Followed. Jaffray v. Broum, 
 17 Hun 575, 577. 
 
 Mills V. City of Brooklyn, 32 N. Y. 
 489. Liabilities of municipal corporations. 
 Followed. Hartford, &c.. Steamboat Co. v. 
 Mayor, &e., of N. Y., 78 N. Y. 1, 5. 
 
 Mills V. Garrison, 3 Keyes 40. Distin- 
 guished. Jex v. Jacob, 19 Hun 105, 108. 
 
 Minard v. Mead, 7 Wend. 68. Distin- 
 guished. Bardin v. Stevenson, 75 N. Y. 164. 
 168. 
 
512 
 
 CASES CRITICISED. 
 
 Miner v. Beekman, 33 Superior 67. Re- 
 demption of mortgaged premises. Limitation 
 of time within which to sue. Ekyeesed. 
 Miner v. Beekman, 50 N. Y. 337. 
 
 Miner v. Beekman, 50 N. Y. 337. Dis- 
 tinguished. Matter of Lord, 78 N. Y. 109. 
 113. 
 
 Minier v. Minier, 4 Lans. 421. Eight of 
 wife to sue husband. Followed. Howland v. 
 Sowland, 20 Hun 472, 473. 
 
 Misland v. Boynton, 14 Hun 625. Party 
 may be examined on trial notwithstanding pre- 
 vious examination before trial, and the reading 
 of the deposition then taken. Affirmed. Mis- 
 land V. Boynton, 79 N. Y. 630. 
 
 Mitchell V. Mitchell, 16 Hun 97. What 
 is a sufficient signing of a will to satisfy the re- 
 quirement of the statute. Affirmed. MiteheU 
 V. Mitchell, 77 N. Y. 596.' 
 
 Mitchell y. "West, 35 Superior 565. 
 
 [Reported in memorandum.] 
 Affirmed. Mitchell v. West, 55 N. Y. 107. 
 
 Mix y. Andes Ins. Co., 9 Hun 397. A 
 corporation cannot make the affidavit necessary 
 to effect the removal of a cause from a state 
 court to the U. S. Circuit Court, under the act 
 of congress of 1867. Reversed. Mix v. Andes 
 Ins. Co., 74 N. Y. 53. 
 
 Mix V. Andes Ins. Co., 74 N. Y. 53. 
 Distinguished. People y. Mut. Gas. Light Co., 
 74 N. Y. 434, 436. 
 
 Mohawk, &c., R. R. Co., Matter of, 
 19 Wend. 135. The omission of the inspectors 
 appointed to preside at an election of directors 
 of an incorporated company, to be sworn in the 
 form prescribed by statute, is no ground for set- 
 ting aside the election upon a summary appli- 
 cation. Distinguished. Merritt v. VUlage of 
 Portchesler, 71 N. Y. 309. 
 
 Monarque v. Monarque, 19 Hun 332. 
 Illegal suspension of power of alienation. Re- 
 versed. Monarque v. Monarqae, 8 Abb. N. 
 Cas. 102. 
 
 Monarque v. Requa, 53 How. _Pr. 438. 
 Illegal suspension of power of alienation. 
 OverruIjED. Monarque v. Monarque, 8 Abb. 
 N. Cas. 102. 
 
 Moody V. Andre'ws, 39 Superior 302. 
 Rights of pledgee of promissory note. Af- 
 firmed. Moody V. Andrews, 64 N. Y. 641. 
 
 Moorers v. Smedley, 6 Johns. Ch. 28. 
 Equity will not review or control proceedings 
 of municipal boards in levying taxes, or correct 
 errors in such proceedings. Followed. Quest 
 V. Oity of Brooklyn, 69 N. Y. 506, 511. 
 
 Moore v. Fox, 10 Johns. 244. Statute of 
 frauds — agreement not to be performed within a 
 year. Followed. Smith v. Conlin, 19 Hun 
 234, 236. 
 
 Moore v. Hegeman, 6 Hun 290. Com- 
 pare Mooi-e V. Hegeman, 72 N. Y. 376. 
 
 Moore v. Littel, 41 N. Y. 66. Remainder, 
 when vested. Followed. Brake v. Lawence, 
 19 Hun 112, 114. 
 
 Moore v. Mayor, &o., of New York, 4 
 Hun 545. When failure to> publish notice of 
 ordinance directing street improvement invali- 
 dates contractoi-'s claim against city for work 
 done in perfecting the improvement. Re- 
 versed. Moore v. Mayor, &c., of New York, 73 
 N. Y. 238. 
 
 Moore v. Metropolitan Nat. Bank, 55 
 N. Y. 41. Owner of chose in action, when es- 
 tojpped from asserting title against bom fide pur- 
 
 chaser from apparent owner. Distinguished. 
 Davis V. Bechstein, 69 N. Y. 440, 442. 
 
 Moran v. McLarty, 11 Hun 66. Suf- 
 ficiency of evidence of mutual mistake to author- 
 ize reformation of assignment of mortgage. Af- 
 firmed. Moran v. McLarty, 75 N. Y. 25. 
 
 Morange v. Morris, 32 How. Pr. 178 j 
 3 Keyes 50. Distinguished. Bigler v. Mor- 
 gan, 77 N. Y. 312, 318. 
 
 Morey v. Town of Newfane, 8 Barb. 
 645. Highway officers not agents of the town. 
 " An able opinion was delivered by Selden, J." 
 People, ex rel. Van Keuren, v. Town Auditors, 74 
 N. Y. 310, 316. 
 
 Morgan, Matter of, 56 N. Y. 629. Judge 
 of N. Y. Common Pleas is a county judge. 
 Followed. * People, ex rel. Ireland, v. I>oru)hue, 
 15 Hun 446. 
 
 Morgan v.Skiddy, 36 Superior 152. Lia- 
 bility of director for circulating false prospectus 
 of corporation. Modified. Morgan v. Skiddy, 
 62 N. Y. 319. 
 
 Morgan v. Smith, 5 Hun 220. Dis- 
 tinguished. Morgan v. Smith, 70 N. Y. 537, 
 544. 
 
 Morgan v. Smith, 7 Hun 244. Surety on 
 lease cannot defend by showing thai tenant was 
 deprived of light. When new agreement be- 
 tween creditor and principal debtor will not 
 discharge surety. Affirmed. Morgan v. Smith,. 
 70 N. Y. 537. 
 
 Morris v. Budlong, 16 Hun 570. What 
 amounts to a fraudulent concealment of fact. 
 Reversed. Morris v. Budlong, 78 N. Y. 543. 
 
 Morris v. Morange, 17 Abb. Pr. 86. Suf- 
 ficiency of service of notice of appeal. Disap- 
 proved. Zinsser^ v. Seiler, 7 Daly 464, 465. 
 
 Morrow v. Morrow, 12 Hun 386. The ■ 
 insertion in an inventory of a- note theretofore 
 made by the executor to his testator, is a suf- 
 ficient acknowledgment of the indebtedness, by 
 the executor to take the case out of the statute 
 of limitations. Followed. Clark v. Van Am- 
 burgh, 14 Hun 557, 558. 
 
 Moras v. Sherrill, 63 Barb. 21. Dis- 
 tinguished. Clark V. Mechaniei^ Nat. Bank, 8 
 Daly 481. 
 
 Morton v. Weir, 5 Hun 177. Where lease 
 provides that if lessor sells during the term, it 
 should be canceled, and lessor or purchaser pay 
 for tenant's improvements, a sale gives tenant 
 as well as lessor right to terminate lease and 
 claim compensation for improvements. He 
 cannot be compelled to attorn to purchaser. 
 Affirmed. Morton v. Weir, 70 N. Y. 247. 
 
 Moses V. Mead, 1 Den. 378; 5 Id. 617. 
 No implied warranty on sale of articles com- 
 monly used for food, in bulk 08 merchandise^ 
 Distinguished. Bureh v. /Spencer, 15 Hun 504. 
 Mott V. Lansing, 57 N. Y. 112. Enforce- 
 ment of lien j^ainst canal boat' for materials- 
 furnished to builder. Who is deemed the builder. 
 Followed. King v. Qreenvxiy, 7 1 N. Y. 413, 416. 
 Moulton V. Beeoher, 11 Hun 192. Al- 
 lowance in addition to costs. Followed. Mor- 
 rison V. Agate, 20 Hun 23, 25. 
 
 Mowers v. Fethers, 61 N. Y. 34. Dis- 
 tinguished. Hancock v. Band, 17 Hun 279,. 
 284. 
 
 Mowry v. Sanborn, 11 Hun 545. De- 
 fects in affidavits in proceedings to foreclose 
 mortgages by advertisement (2 Rev. Stat. 547, 
 2 14,) cannot be supplied by parol evidence. 
 Reversed. Mourry v. Sa/nbom, 72 N. Y. 534. 
 
CASES CRITICISED. 
 
 513 
 
 Mtildoon V. Pitt, 54 N. Y. 269. Dis- 
 imGTTiSHED. BurUtt V. Harper, 79 N. Y. 273, 
 277; 14 Hun 581, 584. 
 
 MuUer v. McKesson, 10 Hun 44. Lia- 
 bility of owner for injuries inflicted by ferocious 
 i.',og. Affirmed. 'Mullet- v. McJK^esson, 73 N. 
 Y. 195. 
 
 MuUer v. McKesson, 73 N. Y. 195. Fol- 
 3.0WED. Lynch v. McNuUy, 73 N. Y. 347. 
 
 Mtomper v. Rushmore, 14 Hun 591. 
 When delivery of assignment for creditors may 
 be dispensed with. Effect of the assignment on 
 property subject to sheriff's levy. Affirmed. 
 Mumper v. Smhmore, 79 N. Y. 19. 
 
 Munger v. Shannon, 61 N. Y. 251. Or- 
 der drawn payable out of particular fund is pay- 
 able only out of that fund, and is an appropria- 
 tion of so much of jhe fund as is required to 
 make the payment. Followed. Ehrichs v. 
 De MUl, 75 N. Y. 370, 373. 
 
 Murdock v. Prospect Park, &o., R. 
 B. Co., 10 Hun 598. Injunction against use 
 of plaintiff's land by railroad company, when 
 proper. What amounts to parol license to use 
 land for such purpose. Keversbd. Murdoch 
 V. Prospect Park, &c., B. B. Co., 73 N. Y. 579. 
 
 Murdock v. -Ward, 67 N. Y. 387. The 
 phrase "next of kin " in a will does not include 
 the testator's widow. Followiid. Ketdtas v. 
 Ketdtas, 72 N. Y. 312, 315. 
 
 "Some appropriate observations werp made, 
 to the effect that the context of the will con- 
 firmed the view that the testator used the words 
 'next of kin,' in their strict legal sense. But 
 it is not to be inferred from those remarks that 
 the court deemed that such confirmation was re- 
 quired, or intended to depart from the rule that 
 the words must be construed in their strict 
 sense, unless a contrary intent appeared from the 
 context." iMce v. Dunham, 69 N. Y. 36, 40, 
 43. 
 
 Murray v. Hudson River R. R. Co., 
 47 Barb. 196; 48 N. Y. 655. See Collina v., 
 Albany, &o., B. B. Co., in this Table. 
 Murray v. Judah, 6 Cow. 484. "Ca;n 
 
 scarcely be regarded as a dictum in favor of the 
 doctrine that a check upon a bank operates as 
 an equitable assignment of the fund standing to 
 the credit of the drawer ; the case has no bear- 
 ing upon the question. It was tried and de- 
 cided upon appeal upon other grounds." Jfur- 
 raj/ V. JudoA, 71 N. Y. 325, 329. 
 
 Murray v. Smith, 1 Duer 412. Verbal 
 contract collateral to deed, when enforceable. 
 Followed. Tainlor v. Hemmmgway, 18 Hun 
 458, 460. „ 
 
 Murray v. Vanderveer, 6 Hun 302. 
 Judgment of county court on report of referee- 
 not appealable without motion for new trial in 
 county court. " This rule has been changed by 
 the Code of Civil Procedure." Kilmer y. O'Brien, 
 13 Hun 224. 
 
 Mutual Gas Light Co. v. People, 14 
 Hun 157. Officers and directors of corporation 
 defendant cannot be examined before trial, 
 under Code of Civ. Pro., § 870. Affirmed. 
 Mutuai Gas Light Co. v. Pe<rple, 74 N.. Y. 434. 
 
 Mutual Life Ins. Co. v. Hunt, 14 Hun 
 169. When insanity is not a defence to an 
 action on contract. Affirmed. Muliud Life 
 Ins. Co. V. Hunti 79 N. Y. 541. 
 
 Myers v. Davis, 22 N. Y. 489. Distin- 
 guished. Taylor v. Mayor, 20 Hun 292, 295. 
 
 Myers v. Eddy, 47 Barb. 263. Construc- 
 tion of will. Distinguished and criticised. 
 Mansm v. Mamon, 8 Abb. N. Cas. 123, 127. 
 
 Myers v. Maloohn, 6 Hil} 292. Storage 
 of gunpowder, when a nuisance. Distin- 
 guished. Heeg v. Licht, 16 Hun 257, 259. 
 
 Mynard v. Syracuse, &c., R. R. Co., 
 7 Hun 399. Sufficiency of special contract to 
 exempt common carrier of merchandise from 
 liability for negligence. Kbveesed. Mynard 
 V. Syracuse, &c., B. B. Co., 71 N. Y. 180. 
 
 Mynard v. Syracuse, &c., R. R. Co., 
 71 N. Y. 180. " Treats of liability of common 
 carriers, and is not applicable to telegraph com- 
 panies." Schwartz v. Atlantic arid Pacific Tdeg. 
 Co., 18 Hun 157, 159. 
 
 N. 
 
 Nash V. Mitchell, 8 Hun 471. Where a 
 married woman, having a separate ^tate and 
 carrying on business in relation thereto, draws a 
 check, payable at a future day, upon a bank 
 account kept in her own name, and borrows 
 money thereon, the law will presume ihat such 
 money was borrowed for the benefit of her sepa- 
 rate estate. Eeveesed. Nash v. Mitchell, 71 
 N. Y. 199; S. C, 3 Abb. N. Cas. 171. 
 
 Nash V. MitcheU, 71 N. Y. 199; 3 
 Abb. ^. Cas. 171. The management by a mar- 
 ried woman of her landed property, the receipt 
 of her rents and income and the disposition of 
 them, is not a trade or business within the mean- 
 ing of the statute. Distinguished. Smith v. 
 Kennedy, 13 Hun 9, 10. 
 
 Where a contract is made with the husband, 
 an agency for the wife must be shown before 
 she caii be held liable. Distinguished. Tre- 
 man y. Allen, 15 Hun 4, 8 
 
 Burden of proof in action on contract against 
 married woman. Distinguished. Broome v. 
 Taylor, 13 Hun 341, 343 ; q. v. in this Table. 
 
 Nasou V. Luddington, 55 How. Pr. 342. 
 When referee must be sworn. Affirmed. 
 Nason v. Luddington, 56 How. Pr. 172. 
 
 National Bank of Auburn v. Lewis, 
 10 Hun 468. What facts must be alleged in an 
 answer setting up usury. Eeversed. Nation- 
 al Bank of Auburn v. Lewis, 75 N. Y. 516. 
 Distinguished and criticised. Mavie v. 
 Crawford, 14 Him 193, 195. 
 
 National Bank of Chemung v. City 
 of Elmira, 53 N. Y. 49; Determination of 
 assessors as to fact upon which their jurisdiction 
 depends, not conclusive. Followed. Matter 
 of New York Catholic Protectory, 77 N. Y. 342, 
 343, 345. 
 
 National Bank of Gloversville v. 
 ■Wells, 15 Hun 51. Payment of note by 
 
514 
 
 CASES CRITICISED. 
 
 check. Power of national bank to indorse note 
 for accommodation of customer. Eeveebed. 
 National Bank of GloeergvUle v. Wdls, 79 N. Y. 
 498. 
 
 National Bank of New York v. Mor- 
 ris, 1 Hun 680. Effect of law of place on con- 
 tracts. DiSTiNGUlSHBD. BicHnson v. Edwards. 
 77 N. Y. 573, 584. 
 
 National Bowery Bank v. Duryea, 55 
 How. Pr. 88. When allegations of fraud in a com- 
 plaint may be stricken out as irrelevant. Dis- 
 TIKGIJISHED. Starkweather v. Bronner, 18 Hun 
 346. 
 
 National Fire Ins. Co. v. McKay, 21 
 N. Y. 191. A defendant, in a suit to foreclose a 
 mortgage, against whom no personal claim is 
 made, and who has no interest in the land to be 
 affected by the judgment demanded, cannot set 
 up a counter-claim. Distinguished. Sdig- 
 man v. Dudley, 13 Hun 186, 190. 
 
 National Trust Co. of New Tork v. 
 Gleason, 77 N. Y. 400. What must be shown 
 to maintain assumpsit for money had and re- 
 ceived. Explained and eollowed. New 
 York Qvaranty, &e., Co. v. Glecmn, 78 N. Y. 
 503, 508. 
 
 Neilv. Abel, 24 Wend. 185. Reversal of 
 verdict for reading of justices' minutes of evi- 
 dence by jurors. Followed. Mitchdl v. Car- 
 ter, 14 Hun 448, 450. 
 
 Nellis V. Clark, 20 Wend. 24; 4 Hill 424. 
 Assignor of property in fraud of creditors can- 
 not sue to recover the properly back. Distin- 
 guished. Haynea v. Bmdd, 17 Hun 477, 480. 
 
 Nelson v. Bostwick, 5 Hill 37. Ex- 
 plained AND DISTINGUISHED. National Bank 
 V. I^encer, 19 Hun 569, 573. 
 
 Nelson V. Luling, 36 Superior 544. Stock- 
 holder's right of action against incorporators and 
 directors for fraudulently inducing him to pur- 
 chase shares. Affirmed. Nelson v. I/iding, 
 
 62 N. Y. 645. 
 
 Nelson v. Mayor, &c., of New York, 
 
 63 N. Y. 535, as explained in McDonald v. 
 Same, 68 N. Y. 23. Distinguished. Smith v. 
 C^y of Newburgh, 77 N. Y. 130, 137. See, also. 
 People V. Denison, 19 Hun 137, 139. 
 
 Nelson v. Sun Mutual Ins. Co., 40 
 Superior 417. Construction of marine policy as 
 to risk covered. Affirmed. Nelson v. Sun 
 Mutual Inx. Co., 71 N. Y. 453. 
 
 New V. Nicoll, 12 Hun 431. Power of 
 trustee to bind trust estate by executory agree- 
 ment for value of repairs thereon. Affirmed. 
 Nem V. NicoU, 73 N. Y. 127. 
 
 Newbery v. Wall, 35 Superior 106. 
 Maxim caiieai emptor not applied where proper- 
 ty is sold "to arrive.'' Affirmed. Newbery 
 V. WaU, 65 N. Y. 484. 
 
 NeweU v. Nicbols, 12 Hun 604. Bur- 
 den of proof of survivorship where two or more 
 persons perish in common disaster. Construc- 
 tion of will. Affirmed. Newd v. Nichols, 75 
 N. Y. 78. Followed. Stinde v. Bidgway, 55 
 How. Pr. 301. 
 
 Newman v. Supervisors of Livings- 
 ton Co., 45 N. Y. 676. Eecovery of money 
 paid under void assessment. Distinguished. 
 Strusburgh v. Mayor, dec, of New York, 45 Super- 
 ior 508, 511 ; De Orauw v. Supervisors of Queens 
 Co., 13 Hun 381, 384. 
 
 Newton v. Mutual Benefit Life Ins. 
 Co., 15 Hun 595. Life insurance. Evidence 
 of insanity. Question in application as to her- 
 
 editary diseases. Affirmed. Newton \. Mutual 
 Benefit Life Ins. Co., 76 N. Y. 426. 
 
 Newton y. Porter, 69 N. Y. 133. Objec- 
 tion to deposition, when must be raised by mo- 
 tion to suppress, before trial. Followed. 
 ■Mason & Emnlin Organ Co. v. Pugsley, 19 Hun 
 282, 283. 
 
 New York, &c , Bank v. Gibson, 5 
 Duer, 524. Distinguished. Merchants Bank 
 of Canada v. Griswold, 72 N. Y. 472, 479. 
 
 New York, &c., B. R. Co. v. Haws, 
 35 Superior 372. Eights of finder of lost prop- 
 erty Eeversed. New York, &c., B. B. Co. v. 
 flows, 56 N. Y. 175. 
 
 New York, <feo., B. R. Co. v. Marsh, 
 12 N. Y. 308. Eecovery back of money paid 
 under illegal taxation. Distinguished. Pey- 
 ser V. Mayor, &e., of New York, 70 N. Y. 497, 
 502. 
 
 New York, Sec, B. R. Co. v. Schuyler 
 17 N. Y. 592; 34 Id. 30. Distinguished. 
 Supervisors of Saratoga Co. v. Deyoe, 15 Hun 526, 
 532. 
 
 New York, &c., R. R. Co. v. Schuyler, 
 34 N. Y. 30. When the authority of an agent 
 depends upon some fact outside the terms of his 
 power, and which, from its nature, rests pecu- 
 liarly within his knowledge, the principal is 
 bound by the representations of the agent, al- 
 though false, as to the existence of such fact. 
 Followed. Merchant^ Bank of Canada v. 
 Griswold, 72 K Y. 472. 
 
 " More fully discusses the doctrine of estoppel 
 by negligence than any other case." People v. 
 Bank of North America, 75 N. Y. 547, 562. 
 
 New York and Brooklyn Saw Mill, 
 &c., Co. V. City of Brooklyn, 8 Hun 37. 
 City not liable for acts or omissions of officers 
 not in the interest of or prescribed by the char- 
 ter of the city, or within the duty of the officer 
 as such. Affirmed. New York and Brooklyn 
 Saw Mia, &c., Co. V. City of Brooklyn, 71 N. Y. 
 580. 
 
 New York Catholic Protectory, Mat- 
 ter of, 8 Hun 91. Power of county court to 
 order tax illegally assessed upon property 
 of charitable institution to be refunded. 
 Affirmed. Matter of New York Catholic Pro- 
 tectory, 77 N. Y. 342. 
 
 NewYork Catholic Protectory, Mat- 
 ter Ot, 77 N. Y. 342. Power of county court 
 to order the refunding of tax illegally assessed 
 upon exempt property.. Followed. Matter of 
 Ulster County Savings Bank, 20 Hun 481, 482, 
 484, 485 ; Williams v. Board of Supermors, 78 
 N. Y. 561, 564. 
 
 New York Central R. R. Co., Matter 
 of, V. Marvin, 11 N. Y. 276. No appeal to 
 Court of Appeals from judgment of Supreme 
 Court on appeal from appraisers in proceedings 
 to take lands for railroad purposes. " Has been 
 followed in repeated decisions since that time, 
 and was recently re-affirmed in People v. Beits, 
 55 N. Y. 600." Matter of Ddaware and Hudson 
 Canal Co., 69 N. Y. 209, 211. 
 
 New York Central, &c., R. R. Co. v. 
 People, 12 Hun 195. Powers andduties of rail- 
 road companies in respect to crossing highways. 
 Eeversed m part. People v. N. Y. Central, 
 <6c., ii. JJ. Co., 74 N. Y. 302. 
 
 New York Dispensary v. Mayor, 
 &c., of New York, 10 Hun 1 24. See Schanck 
 V. Mayor, &c., of New York, in this Table. 
 
 New York Elevated Ry. Co., Matter 
 
CASES CRITICISED. 
 
 515 
 
 <3f, 7 Hun 239. " Rapid transit act." Consti- 
 tutionality and validity of proceedings^ there- 
 under in laying out elevated railroad in New 
 York city. Affirmed. Matter of New York 
 Mevated B. B. Co., 70 N. Y. 327; S. C, 3 Abb. 
 
 N. Cas. 401. , „ .r, ^ TIT 4. 
 
 Ne-w York Elevated R. R. Co., Mat- 
 Tter of, 70 N. Y. 327; 3 Abb. N. Cas. 
 401. Validity and constitutionality of "rapid 
 transit act." (Laws of 1875, ch. 606.) Fol- 
 lowed. Matter of Kings Co. Elevated By. Co., 
 18 Hun 378 ; Matter of Same, 20 Hun 217, 227. 
 
 New York Fire, &o., Ins. Co. v. Bur- 
 xell, 9 How. Pr. 398. Distinguished. Lock- 
 jnoJiv. Ellis, 58 How. Pr. 100. 
 
 New York Prot. Bpis. Public School, 
 Matter of, 8 Hun 457. What authorizes va- 
 cation of assessment under Laws of 1872, ch. 
 -580. Affirmed. Matter of New York Prot. 
 JEpk. Puf). Sctwol, 73 N. «. 617. 
 
 New York Sailors' Snug Harbor, 3 
 Pet. (U. S.) 99. Distinguished. Oun-en, v. 
 Panning, 13 Hun 458, 465. 
 
 New York State Life Ins. Co., Mat- 
 ter of, 13 Hun 115. See Matter of Beserve 
 Mut. Life Ins. Co., in this Table. 
 
 New York State Loan and Trust Co. 
 V. Helmer, 12 Hun 35. What constitutes 
 tanking business. Sufficiency of allegation of 
 renewal in action on note. Affirmed. New 
 York State Loan and Trust Co. v. Helmer, 77 N. 
 Y. 64. 
 
 New York State Loan and Trust Co. 
 V. Helmer, 77 N. Y. 64. Followed. Pratt 
 y.^Aort, 79N.Y.437,444. 
 
 Nichol V. Walworth, 4 Den. 385. Dis- 
 tinguished. Bennett v. Oarlock, 79 N. Y. 302, 
 318. < 
 
 Nichols V. Chapman, 9 Wend. 452. 
 Amendment of judgment — relation back to first 
 -day of preceding term. Disapproved. Grant 
 V. Gnswold, 21 Hun 509, 512. 
 
 Nicholson v. "Waful, 6 Hun 655. What 
 -evidence is admissible in action against maker 
 of note where defence is a denial that defendant 
 made the note or received the money upon it. 
 Keveesed. Nicholson v. Waful, 70 N. Y. 604. 
 
 Nicholson v. Waful, 70 N. Y. 604. Ad- 
 missibility of evidence as to pecuniary standing 
 
 of plaintiff in action on note, under plea of non 
 est factum. Distinguished. Nicholls v. Van. 
 Valkenburgh, 15 Hun 230, 233. 
 
 Nickerson v. Ruger, 43 Superior 258. 
 What is a sufficient parting with value to make 
 holder of promissory note a bom fde purchaser. 
 Burden of proof. Eeversed. Niekerson v. 
 iJuffer, 76 N. Y. 279. ^^ ,^^ 
 
 Niles V. Battershall, 2 Bobt. 146. 
 Entry of judgment against one or more of sev- 
 eral joint debtors. Distinguished. Nat.Baiftk 
 V. Speneerl 19 Hun 569, 574. 
 
 Nixon V. Palmer, 8 N. Y. 398. Distin- 
 guished. Merchantif Bank of Canada v. Oris- 
 wold, 72 N. Y. 472, 479. 
 
 Norris v. De Wolf, 12 Hun 666. What 
 is a " debt" as the term is used in Laws of 1848, 
 ch. 40, 2 12, rendering trustees of manufactur- 
 ing company liable for all the debts of the com- 
 pany in case of failure to file a report. Af- 
 firmed. Norris v. De Wolf, 76 N. Y. 597. 
 
 North America Life Ins. Co. v. Peo- 
 ple, 15 Hun 18. Bights'of intervening policy- 
 holders in proceedings to dissolve insurance 
 company. Eeversed. North Ammea Life Ins. 
 Co. V. Attorney-General, 77 N. Y. 297. 
 
 Northern Ins. Co. v. Wright, 13 Hun 
 166. When neglect to foreclose mortgage at re- 
 quest of guarantor of collection, discharges him. 
 Affirmed. Northern Ins. Co. v. Wright, 76 N. 
 Y.445. 
 
 Norton v. Coons, 3 Den. 130. One of sev- 
 eral co-sureties who pays the debt may call 
 upon the other sureties for contribution, whether 
 they were bound jointly or severally, and 
 whether by the same or different instruments. 
 " I do not find that this case has been reversed 
 or questioned. It is, therefore, our duty to fol- 
 low it." Chmes v. Wilkin, 14 Hun 428, 431. 
 
 Norton v. Norton, 2 Sandf. 296. Distin- 
 guished. Bennett v. Garloek, 79 N. Y.302, 319. 
 
 Nottebohm v. Maas, 3 Robt. 249. Dis- 
 tinguished. Carrington v. Ward, 71 N. Y. 360, 
 367. 
 
 Noyes v. Childrens' Aid Soc, 10 Hun 
 889. Power of surrogate of New \ork county 
 to allow costs and allowances. Affirmed. 
 Noyes v. GhUdrewf Aid Soc, 70 N. Y. 481 ; S. 
 a, 3 Abb. N. Cas. 36 ; 16 Alb. L. J. 224. 
 
 o. 
 
 Oakley v. Mayor, &o., of New York, 
 
 59 Superior 549. Be-levy of tax for money lost 
 by default of tax collectors in city of New York, 
 (Laws of 1837, ch. 80, pp. 59, 60.) Affirmed. 
 ■Oakley \. Mayor, &c., of New York, 70 N. Y. 612. 
 
 O'Brien v. Commercial Fire Ins. Co., 
 38 Superior 517. Construction of fire policy. 
 Beversed. (yBrien v. Commercial Fire Ins. Co. 
 m N. Y. 108. 
 
 O'Brien v. People, 36 N. Y. 276. Dis- 
 tinguished. Qreenfidd v. People, 74 N. Y 
 377, 284. 
 
 Ocean Nat. Bank v. Olcott, 46 N. Y. 
 12. Effect of discharge in bankruptcy as a de- 
 
 fence. Approved. Dewey v. Mover, 72 N. Y. 
 70,75. 
 
 Bankrupt's discharge not iilnpeachable in 
 state court for fraud which would have been 
 proper ground to oppose discharge in bank- 
 ruptcy court. Distinguished. Poillon v. Law- 
 rence, 77 N. Y. 207, 216 ; g. v. in this Table. 
 
 Odel V. Hoyt, 73 N. Y. 343. Distin- 
 guished. Lawson v. Barron, 18 Hun 414, 416. 
 
 Ogdensburg, &o., R. R. Co., v. Ver- 
 mont, &o., R. R. Co., 63 N. Y. 176. Dis- 
 tinguished. Wheehck v. Lee, 74 N. Y. 495. 
 498. 
 
 O'Donnell v. New York, &o., R. R. 
 
516 
 
 CASES CRITICISED. 
 
 Co., 8 Daly 409. Contributory negligence — 
 exceptions to instructions, and to refusal to dis- 
 miss complaint. Affirmed. ODcymidl v. New 
 York, (fee, R. JR. Go., 77 N. Y. 625. 
 
 O'Hagan v. Dillon, 42 Superior 456. 
 Competency of evidence in action for injuries 
 occasioned by unprotected excavation in city 
 street. Reversed. O'Hagan v. Dillon, 76 N. 
 Y. 170. 
 
 Olcott V. Maclean, 10 Hun 277. When 
 state courts have not jurisdiction of actions by 
 assignees in bankruptcy to recover for property 
 assigned by bankrupt in fraud of the bankrupt 
 act. Disapproved. Whedoek v. Lee, 5 Abb. 
 N. Cas. 72, 78 ; Tyler v. McaUum, 19 Hun, 
 622, 623. 
 
 Oloott V. Maclean", 11 Hun 394. Juris- 
 diction of slate courts of actions by assignees in 
 bankruptcy. Disapproved. TuUis v. Miller, 
 13 Hun 363, 365. 
 
 O'Mahoney v. Belmont, 37 Superior 
 223. Validity of appointment of receiver. Pro- 
 tection of receiver for disbursements and ex- 
 penses reasonably made. Affirmed. O'Ma- 
 hmey v. Belmont, 62 N. Y. 133. 
 
 O'Mahoney v. Belmont, 37 Superior 380. 
 Conflicting rights of rival receivers appointed 
 to take custody of same fund. Affirmed. 
 O'Mahoney v. Belmont, 62 N. Y. 147. 
 
 Ombony v. Jones, 19 N. Y. 234. What 
 erections by tenant may be removed during the 
 term. Followed. Livingston v. Sidzer, 19 Hun 
 375, 379. 
 
 Oneida Bank v. Ontario Bank, 21 K. 
 Y. 490. Effect of transfer of negotiable paper 
 to pass right of action on indebtedness for which 
 it was given. Followed. Pikher v. Brayton, 
 17 Hun 429, 431. 
 
 Ontario Bank v. Hennessey, 48 N. Y. 
 545. Under partnership agreement by virtue 
 of which one of the partners is to transact all 
 the business of the firm, an agreement that the 
 business is to be done in the name of such part- 
 ner will be inferred. " I do not complain of the 
 propriety of the inference in that case, but it is 
 left in doybt whether the court assented to it. 
 One of the commissioners agreed to the judg- 
 ment upon another ground, and a third one 
 agreed to it, but it does not appear upon what 
 ground, one dissented, and one did not sit." 
 
 Williams v. GUlies, -75 N. Y. 197, 203. See, 
 also, Burnett v. Snyder, 76 N. Y. 344, 351. 
 
 Onthank v. Lake Shore, &o., R. R. 
 Qo., 8 Hun 131. Grantee of easement to lay 
 pipes through which to draw water from spring 
 on servient estate, having laid pipes of a certain 
 size, and used them for a number of years can- 
 not take them up and lay down larger ones. 
 Affirmed. Onthank v. Lake Shore, <&c., B. B. 
 Co., 71 N. Y. 194. 
 
 Orange County Bank v. Brown, 9' 
 Wend. 85. Distinguished. Baldwin v. Liver- 
 ■pool, &e, S. S. Co., 74 N. Y. 125, 130. 
 
 O'Rourke v. People, 3 Hun 225. Power 
 to grant ale and beer licenses, in New York 
 city. Followed. Matter of Mundy, 59 How> 
 Pr. 359, 366. 
 
 Ostaom V. Gantz, 38 Superior 148. SaW 
 of chattels. When delivery and payment are 
 to be simultaneous. • Affirmed. Osbom v.- 
 Oantz, 60 N. Y. 54'0. 
 
 Osborn v. McOloskey, 55 How. Pr. 345- 
 Omission to name county of trial in summons, 
 fatal, (Code Civ. Pro. ? 417.) Not followed. 
 Wiggins v. Bichmond, 58 How. Pr. 376. 
 
 Osborne and Cheeseman Co. v, 
 Oroome, 14 Hun 164. Proof that defendant 
 is trustee of a manufacturing company, in actiom 
 to charge him as such, on failure of company to 
 file annual report. Affirmed. Osborne and 
 Cheesenum Co. v. Oroome, 77 N. Y. 629. 
 
 Osgood V. Lajrton, '3 Keyes, 521. Distin- 
 GinsHED. MeLean v. Eastman, 21 Hun 312, 315. 
 
 Ostell V. Brough, 24 How. Pr. 274. Lia- 
 bilities of factor with dd credere commission. 
 Followed. Wallace v. Castle, 14 Hun 106. 
 
 Otis V. Sill, 8 Barb. 102. Lease to partner 
 in his individual name ngt presumed partner- 
 ship assets, even though partnership business be- 
 carried on upon the demised premises. Fol- 
 lowed. Chamberlin v. Chamherlin, 44 Superior 
 116, 121. 
 
 Owen V. Farmers' Joint Stock Ins. 
 Co., 57 Barb. 518. What amounts to waiver 
 by insurance company of condition as to time of 
 furnishing proofs of loss. Followed as con- 
 troUing. Ihodwtn v. Massaehttselis Mat. Life Ins, 
 Co., 73 N. Y. 480, 494. See, also, Green v- 
 Homestead Fire Ins. Co., 17 Hun 467, 468 ; Bai^ 
 leu V. Hmiestead Fire Ins. Co., 13 Id. 503, 504_ 
 
 Pack V. Mayor, &o., of New York, 
 
 8 N. Y. 222. Master and servant — ^when the 
 relation does not exist as to third persons. Fol- 
 lowed. Town of Pierrepont v. Loveless, 72 N. 
 Y. 211, 214. . 
 
 Paige V. Cagwin, 7 Hill 361. _ Admis- 
 sions of former owner of choses in action, inad- 
 missible against those subsequently taking title 
 from him Cited as settling the rale. Chadwick 
 V. JVnner, 69 N. Y. 404, 407. 
 
 " Is a leading case in this state on the subject 
 of the admissibility of dedaradons made by the 
 former owner of personal property, while he 
 
 was the party in interest, against one deriving- 
 title from him." Van Sachs v. Kreiz, 72 N. Y.. 
 548,553. 
 
 Paige V. Fazackerly, 36 Barb. 392. 
 Where a court of review is satisfied, from the 
 general scope and tenor of the proceedings on 
 the trial, that a particular fact was not a matter 
 of contest, nor a ground of objection there, but 
 was assumed or tiiken for granted in the conduct 
 of the cause, it may and should conclude that the 
 fact was a" it wjis a.ssumed to be. Followed. 
 HUl v.^Heermans 17 Hun 470, 473. 
 
 Paine v. Agricultural Ins. Co., &• 
 
CASES CRITICISED. 
 
 517 
 
 Thomp. & C. 619. Construction of condition as 
 to occupancy in policy of fire inBurance. Dis- 
 tinguished. Wait V. Agi-kudtural Ins. Co., 13 
 Hun 371, 374. 
 
 Paine v. Bamum, 59 How. Pr. 303. Lia- 
 ibility of trustees of savings bank. Followed. 
 Paine v. Irwin, 59 How. Pr. 316, 318 ; Paine v. 
 Mead, Id. 318, 319. 
 
 Paine v. Jones, 14 Hun 577. Agreement 
 ■between grantee who has assumed a mortgage, 
 ■and the mortgagee, changing the terms of the 
 mortgage, when releases mortgagor from claims 
 for deficiency. Affirmed. Paine v. Jones, 76 
 N. Y. 294. 
 
 Palmer v. Avery, 41 Barb. 290. What 
 is a termination in plaintifi''s favor of the former 
 action so as to authorize a suit for malicious 
 prosecution. Foi-LOWED. Sailesbury v. Oes- 
 weU, 14 Hun 460, 463. 
 
 Palmer v. Foley, 42 Superior 365. Ei^ht 
 to reference to ascertain damages caused by in- 
 junction. Kevebsed. Palmer v. Foley, 71 N.Y. 
 106. 
 
 Palmer v. Port Plain, &c., Plank 
 Hoad Co., 11 N. Y. 376. A naked condition 
 in a grant will hot create a personal obligation in a 
 grantee to perform the condition. Distin- 
 <3tnsHED. Booth V. Cleveland Boiling Mill Co., 
 74 N. Y. 15, 22. 
 
 Palmer v. Gurnsey, 7 Wend. 248. Ab- 
 .solut« deed, when deemed a mortgage. Dis- 
 tinguished AND QUESTIONED. Macaulay V. 
 Porter, 71 N. Y. 173, 179. 
 Palmer v. Kelly, 36 Superior 571. 
 [Reported in memorandum.] 
 Kevebsed. Palmer v. Kelly, 56 N. Y. 637. 
 
 Palmer v. La'WTence, 3 Sandf. 161. 
 Kight of debtor contracting with corporation de 
 Jaeto, to dispute its organization. Distin- 
 otriSHED. Ne«) York Loan and Trust Co. v. 
 Helmer, 77 N. Y. 64, 70. 
 
 Palmer v. Manning, 4 Den. 131. Dis- 
 TiNauiSHED. Bardin v. Stevenson, 75 N. Y. 
 164, 168. 
 
 Palmer v. Palmer, 1 Paige 276. Power 
 of Court of Chancei-y to dissolve marriage con- 
 tract. Followed. Campbell v. Orampton, 1 
 Abb. N. Cas. 363, 374. 
 
 Pain V. Vilmar, 54 How. Pr. 235. When 
 -objection thati plaintiff has a remedy at law 
 may be taken at the hearing of an equity case. 
 Explained. De Bussierre v. HoUaday, 55 
 How. Pr. 210; S. C, 4 Abb. N. Cas. HI, 117. 
 
 Panton v. Holland, 17 Johns. 92. Liabil- 
 ity of land-owner for injury to neighboring 
 proprietor caused by lawful act of defendant on 
 his own land. Distinguished. Phelps v. 
 Jfowlem, 72 N. Y. 39, 46. 
 
 Pardee v. Fisli, 60 N. Y. 265. Distin- 
 guished. Eisenlord v. DUlenhack, 15 Hun 23, 25. 
 Parhan v. Moran, 4 Hun 717. Effect of 
 letters of administration to prove representative 
 character of party producing them. Affirmed. 
 Parhan v. Moran, 71 N. Y. 596. 
 
 Park V. Park, 18 Hun 466. Eight to final 
 alimony, and ability to pay it, how determined. 
 Atfibmed, it seems, February 24th, 1880. 
 
 Modification of amount allowed as alimony. 
 Followed. Kerr v. Keir, 59 How. Pr. 255, 
 256. . 
 
 Enforcement of payment of alimony by pro- 
 ■<«edings in contempt. Followed. Boucicavlt 
 V. Boueimvit, 21 Hun 431, 435 ; S. C, 59 How. 
 Pr. 131, 135. 
 
 Park V. Spaulding, 10 Hun 128. Social 
 club, when not liable as joint stock company. 
 Followed. Ebbivghousen v. Worth Club, 4 
 Abb. N. Cas. 300, 313. Not followed. Id. 
 317. 
 
 Parker v. Oity of Oohoes, 1*0 Hun 531. 
 Precautions required to be taken by municipal 
 corporations respecting excavations in streets. 
 Affirmed. Parker v. City of Cohaes, 74 N. Y. 
 610. 
 
 Parrott v. Colby, 6 Him 55. Individual 
 liability of stockholders in manufacturing cor- 
 porations on ground that all capital stock has 
 not been paid in. Laws of 1848, ch. 40, ? 10. 
 Affirmed. Parrott v. Colby, 71 N. Y. 597. 
 
 Giving of note for debt of manufacturing com- 
 pany, effect of on liability of stockholder. Fol- 
 lowed. Jogger Iron Co. v. Walker, 43 Superior 
 275, 280. 
 
 Parsons v. Bowdoin, 17 Wend. 14. Com- 
 missions of sheriff, when prevented by party 
 from fully executing execution. Followed. 
 Benedict v. Wright, 19 Hun 27, 29. 
 
 Parsons v. Brown, 5 Hun 112. When a 
 right of way will pass by deed. See S. C. on 
 appeal. Parsons v. Brornn, 78 N. Y. 613. 
 
 Partridge v. Commercial Fire Ins. 
 Co., 17 Hun 95. Effect of " agency clause " in 
 policy of fire insurance. Doubted. BeU v. 
 Lycoming Fire Ins. Co., 19 Hun 238, 244. 
 
 Passinger v. Thorburn, 34 N. Y. 634. 
 That where seeds are sold as, or warranted to 
 be, those of a certain vegetable, and to produce 
 that vegetable, then th» vendee, the warranty 
 failing, may recover the value of the reasona- 
 bly anticip.ated crop, less the cost of tillage and 
 the value of what was in fact raised. Distin- 
 guished. Van Wyek v. Allen, 69 N. Y. 61, 68. 
 Followed. White v. MUler, 71 N. Y. 118, 
 133. 
 
 Patrick v. Metoalf, 37 N. Y. 332. Dis- 
 tinguished. Lake v. Pevoe Manuf. Co., 7 Daly 
 161, 163. 
 
 Patterson, Matter of, 18 Hun 221. Pri- 
 ority of deposit by savings bank in insolvent 
 bank. Affirmed. Matter of Patterson, 78 i<. 
 Y. 608. 
 
 Patterson v. Patterson, 13 Johns. 379. 
 Contract to pay for services by provision in will 
 — rights of the parties. Distinguished. Bone- 
 steel V. Van Etten, 20 Him 468, 471. 
 
 Patterson v. Patterson, 59 N. Y. 574. 
 For a demand to be set off against an executor 
 or administrator, in an action brought by him, 
 it must have been due and payable from the de- 
 cedent in his lifetime. Followed. Jordan v. 
 Nat. Shoe and Leather Bank, 74 N. Y. 467, 474. 
 Distinguished. Taylor v. Mayor, &c., of Neio 
 York, 20 Hun 292, 295. 
 
 Pattison v. Adams, HiU & D. 426. In 
 replevin, an answer of title in third person, ia 
 good, without allegations connecting defendant 
 with right of such person. Doubted and dis- 
 tinguished. StowelX V. Otis, 71 N. Y. 36, 38. 
 
 Pattison v. Syracuse National Bank, 
 17 Hun 419. Power of national bank to act an 
 gratuitous bailee. Affirmed, it seems, Febru- 
 ary 24th, 1.880. 
 
 Paulding v. Cooper, 10 Hun 20. Public 
 officers, when personally liable on their con- 
 tracts. Effect of exemption clause. Affirm- 
 ed. Paulding v. Cooper, 74 N. Y. 619. 
 
 Payne v. Burnham, 62 N. Y. 69. Mort- 
 gagor, when estopped from setting up usury. 
 
518 
 
 CASES CRITICISED. 
 
 POLLO-J^ED. Smythe V. Lomhardo, 15 Hun 415, 
 
 Liability of married woman on foreclosure of 
 mortgage affecting her separate estate. Fol- 
 lowed. McKeon v. Hagan, 18 Hun 65, 66. 
 
 Pasme v. Gardiner, 29 N. Y. 146. Dis- 
 tinction between loan and deposit in bank. 
 Followed. Upton v. New York and Erie Bank 
 13 Hun 269, 272. 
 
 Payne v. Hodge, 7 Hun 612. Quantum 
 rneruit for services rendered. Evidence in ac- 
 tion for. Experts' testimony in such cases. 
 Appirmed. Payne v. Hodge, 71 N. Y. 598. 
 
 Payne v. Wilson, H Hun 302. An 
 agreement to give a mortgage has priority over 
 a mechanics' lien. Afpibmed. Payne v. Wil- 
 son, 74 N. Y. 348. 
 
 Pechner v. Phoenix Ins. Co., 65 N. Y. 
 195". Sufficiency of petition for removal of 
 cause on ground of alienage of defendant. FoL- 
 LOWJa). Tugman v. National Steamship Co., 76 
 N. Y. 207, 212. 
 
 Peck V. Acker, 20 Wend. 605. In action 
 against sheriff for wrongful levy the court can- 
 not, on special motion, substilute for the attor- 
 ney selected by the slieriff, one named by the 
 obligors in the bond of indemnity. Distin- 
 guished. Preston v. Yates, 17 Hun 92, 94. 
 
 Peck V. New York, &c.. Mail Steaija- 
 Bhip Co., 5 Bosw. 226. Wliat constitutes a 
 mutual, reciprocal account. Ceitioisbd. Oreen 
 V. Disbrow, 79 N. Y. 1, 13. 
 
 Peck V. New York Central, &c., R. 
 R. Co., 8 Hun 286. Liability of railroad com- 
 pany for excessive force used by brakemen in 
 ejecting male passenger from car set apart by 
 regulation of the company for exclusive use of 
 females. Affirmed. Peck v. New York Cen- 
 tral, &c., B. P. a., 70 N. 587. 
 
 Peck V. Von Keller, 15 Hun 470. Action 
 for balance of loan — entry in plaintiff's books, 
 when admissible. Affirmed. Peek v. Von 
 XeUer, 76 N. Y. 604. 
 
 PeU V. Ullmar, 18 N. Y. 139. Distin- 
 guished. Thompson v. Commissioners for Loan- 
 ing, &c., 79 N. Y. 54, 61. 
 
 Pelton V. "Westchester Fire Ins. Co., 
 13 Hun 23. Purchaser under contract to con- 
 vey has insurable interest, though condition in 
 contract has been violated and vendor has an 
 unexercised election to rescind. Affirmed. 
 Pelton V. Westchester Fire Irts. Co., 77 N. Y. 605. 
 
 Pender v. People, 18 Hun 560. Deter- 
 mination of challenges for cause, and to the 
 favor. Followed. Balbo v. People, 19 Hun 
 424, 428. 
 
 People V. Albany and Vermont R. R. 
 Co., 15 Hun 126. Proper parties to action to 
 dissolve corporation. (Code of Civ. Pro., ? 452.) 
 BeveesedT People v. Albany and Vermont B. 
 B. Co., 77 N. Y. 232. 
 
 People V. Baker, 15 Hun 256. Bigamy. 
 Defence of prior divorce on substituted service 
 of summons. Eeveesed. People v. Baker, 76 
 N. Y. 79. 
 
 People V. Bamesciotta, 10 Hun 137. 
 Misnomer in indictment. Evidence on trial for 
 keeping disorderly house. Affirmed. Barnes- 
 ciotta V. People, 69 N. Y. 612. 
 
 People V. Bartow, 18 Hun 22. What will 
 justify conviction for embezzlement under Laws 
 of 1874, ch. 207. Eeversed. Bartow v. Peo- 
 
 ^ People V. Bennett, 37 N. Y. 177. Dis- 
 
 tinguished. Gray v. People, 21 Hun 140,. 
 144. 
 
 People V. Bennett, 49 N. Y. 137. Dis- 
 tinguished. People V. Bork, 78 N. Y. 346, 350 
 
 People V. Brandon, 42 N. Y. 265. Dis- 
 tinguished. People V. Orapo, 76 N. Y. 288, 291 
 
 People V. Brandreth, 36 N. Y. 191 ; 3. 
 Abb. Pr. (N. S.,) 224. Counter-claim in action, 
 by the state. Followed. People v. Denison, 8 
 Abb. JSr. Cas. 128, 138 ; 8. C, 59 How. Pr. 157. 
 
 People V. Brewster, 4 Wend. 498. What 
 is carrying on banking business by corporation, 
 not specially authorized so to do. Distinguish- 
 ed. New York Loan and Trust Co. v. Helmer. IT 
 N.Y. 64, 70. 
 
 People V. Brotherton, 14 Hun 486. Re- 
 view of instructions to jury in Oyer and Ter- 
 miner. Affirmed. Brotherton v. Pemk, 7> 
 N. Y. 159. ^ ' 
 
 Pdople V. Brown, 8 Hun 562. Protection 
 of accused when witness for himself. Affirm- 
 ed. Brmn v. People, 72 N. Y. 571. 
 
 People V. Brown, 72 N. Y. 571. "The 
 dawn of a new rule seems to be suggested by 
 the forcible remarks of Chief Justice Church." 
 People V. Genei, 19 Hun 91, 102. 
 
 People V. Buel, 18 Hun 487. Uninten- 
 tional killing during commission of distinct fel- 
 ony, when murder in iirst degree. Affirmed. 
 Buel V. People, 78 N. Y. 492. 
 
 People V. Butler, 3 Park. Cr. 377. Distin- 
 guished AND CRITICISED. Bud V. People, 78. 
 N. Y. 492, 499, 500. 
 
 People V. Caryl, 2 Park. Cr. 326. Dis- 
 tinguished. Bowland v. People, 19 Hun 80, 82. 
 
 People V. easy, 72 N. Y. 393. Writ of 
 error in criminal case does not bring up for re- 
 view in Court of Appeals, proceedings subsequent 
 to the judgment and no part of the record. 
 Followed. Hunt v. People, 76 N. Y. 89, 91. 
 
 People V. Clews, 14 Hun 90. Power of 
 Supreme Court justice to admit to bail in crim- 
 inal cases. Affirmed. People v. Clews, 77 N.^ 
 Y. 39. 
 
 People V. Connors, 50 N. Y. 240. Dis- 
 tinguished. People V. Orapo, 76 N. Y. 288,. 
 291, 
 
 People V. Crapo, 76 N. Y. 288 ; 15 Hua 
 269. Laying foundation for impeachment of 
 witness. Distinguished. Stape v. People, 21 
 Hun 399, 402. 
 
 People V. Davis, 21 Wend, 309. Corrob- 
 oration of witness who has been impeached, by 
 evidence that his reputation for t^ruth and verac- 
 ity is good. Followed. Adams v. Greenwich- 
 Ins. Co., 70 N. Y. 166, 170. 
 
 People V. Denison, 19 Hun 137. Right 
 of the state to recover back money paid for un- 
 authorized work accepted by it. Affirmed, it 
 seems, April 6th, 1880. 
 
 People y. Denison, 59 How. Pr. 157. 
 Judgment against the state, for counter-claim. 
 Explained and distinguished. Bust v. Hau- 
 selt, 59 How. Pr. 389, 396 ; S. C, 8 Abb. N. Cas. 
 148. 
 
 People V. Eastwood, 14 N. Y. 562, Ad- 
 missibility of impressions or belief of ordinary 
 witnesses, in criminal cases. Followed. Blake 
 V. People, 73 N. Y. 586, 587. 
 
 People V. Fields, 58 N. Y. 491. Right 
 of municipal corporation to recover back money 
 unlawfully paid over by its comptroller. Fol- 
 lowed, OS res judicata. Wood v. Mayor, &c., of, 
 New York, 73 N. Y. 556, 558. 
 
CASES CRITICISED. 
 
 519 
 
 People V. Filkins, 1 Sheld. 504. "What 
 constitutes an assault with a sharp, "danger- 
 ous weapon." Reversed. Filkinx v. People, 
 69 N. Y. 101. 
 
 People V. Gonzalez, 35 N. Y. 49. Ex- 
 liibition to the jury of evidence which appeals 
 to the senses. Approved and followed. 
 King v. New Ymk Centred, &c., B. B. Co., 72 N. 
 Y. 607, 609. 
 
 People V. Graham, 6 Park. Cr. 135. For- 
 gery by agent — altering date of instrument exe- 
 cuted by principal. Distinguished Mann v. 
 People, 15 Hun 155, 162. 
 
 People V. Gray, 25 Wend. 465. Suffici- 
 ency of clerk's return to writs of error in crimi- 
 nal cases. " I do not find that this case has ever 
 been disapproved in the books." Manke v. 
 PeopU, 74 N. Y. 415, 419. 
 
 People V. Haynes, 55 Barb. 450. What 
 facts are admissible in corroboration o£ accom- 
 plices. Approved. Peopie v. GorAam, 16 Hun 
 Hun 93, 97. 
 
 People V. Haynes, 11 Wend. 557. What 
 false representations will av,oid contract of sale. 
 "True, the judgment of the Supreme Court was 
 reversed" in the Court of Errors, but the rever- 
 sal was solely upon the ground that the title had 
 passed before the representations were made, the 
 Court of Errors expressly declining to pass upon 
 the other questions presented by the bill of ex- 
 ceptions." Herseyv. Benedict, 15 Hun 282, 288. 
 
 People V. Herriok, 13 Johns. 82. Effect 
 of conviction for crime on convict's competency 
 as a witness. "This case is always considered 
 an authority to this point." Blaufus v. People, 
 69 N. Y. 107, 110. 
 
 People V. Holbrook, 13 Johns. 90. Ex- 
 plained AND distinguished. Phelps V. Peo- 
 ple, 72 N. Y. 334, 355. 
 
 People V. Honeyman, 3 Den. 121. Dis- 
 tinguished. Greenfield v. People, 74 N. Y. 277, 
 284. 
 
 People V, Howell, 5 Hun 620. Court has 
 not power to direct verdict of guilty in criminal 
 case, after plea of not guilty. Affirmed. 
 HaweU v. People, 69 N. Y. 607. 
 
 People V. Loomis, 4 Den. 380. Ex- 
 plained and Distinguished. Phelps v. Peo- 
 ple, 72 N. Y. 334, 355. 
 
 People V. Lord, 12 Hun 282. Extension 
 of time within which to prosecute does not apply 
 to offence committed before passage of act ex- 
 tending the time. Affirmed, it seems, January 
 15th, 1878. Explained. Dubaix v. City of 
 Kingston, 20 Hun 500, 502. 
 
 People V. Mather, 4 Wend. 229. What is 
 admissible to rebut testimony impeaching wit- 
 ness. Followed. Hagodorn v. Kearney, 13 
 Hun 236, 237. 
 
 People V. Miller, 2 Park. Cr. 197. False 
 pretences. What evidence is admissible for the 
 people to show falsity of representations as to 
 defendant's pecuniary condition. Followed. 
 Barler v. People, 17 Hun 366, 367. Distin- 
 guished. Abbott v. People, 15 Hun 437, 439. 
 
 People V. Mutual Gas Light Co., 14 
 Hun 157. In an action by or against a corpora- 
 tion, its agents, directors or officers cannot be 
 examined before trial, under Code of Civ. Pro., 
 I 870. Affirmed. People v. Mutual Oas 
 Light Co , 74 N. Y. 434. Followed. Boor- 
 man V. Atlantic, &c., B. B. Co, 78 N. Y. 599, 
 601. 
 
 People V. New York Central, &c., B. 
 B. Co., 12 Hun 195. Discretionary power of 
 railroad company, as to crossing highways. 
 (Laws of 1850, ch. 140.) Modified. New York 
 antral, &e., B. B. Co. v. People, 74 N. Y. 302. 
 
 People V. Northern R. R. Co., 42 N. Y. 
 217. Effect of denials in answer. Criticised. 
 Smith V. Oratz, 59 How. Pr. 274, 275. 
 
 People V. Norton, 9 N. Y. 176. Action 
 on bond of the trustee given to the people, must 
 he broHglit in the name of tlie people. Distin- 
 guished. Dayton v. Johnson, 69 N. Y. 419 
 428 
 
 People V. Phelps, 72 N. Y. 334. When 
 drafts for state taxes are paid into the state 
 treasurer's office, the state acquires such a title 
 to, or interest in them, as will sustain a convic- 
 tion for the larceny of the drafts under an in- 
 dictment alleging ownership in the state. 
 Followed. People v. Bank of North America, 
 75 N. Y. 547, 554. 
 
 People V. Reotor,19 Wend. 569. What 
 killing during commission of another offence is 
 murder. Followed. Bud v. People, 18 Hun 
 487, 488, 490 ; q. v. in this Table. 
 
 People V. Restenblatt, 1 Abb. Pr. 268. 
 Quashing indictment for want of evidence be- 
 fore grand jury. Commented on and ex- 
 plained. People V. Clews, 57 How..Pr. 245. 
 
 People V. Sands, 1 Johns. 78. Erection 
 of powder magazine near private dwellings not 
 per se a nuisance. Followed. Beeg v. lAeht, 
 16 Hun 257, 258. Distinguished. Heeg v. 
 Ztcht, 8 Abb. N. Cas. 355, 361. 
 
 People V. Shaw, 63 N. Y. 36. What 
 judges may hold a Court of Oyer and Terminer. 
 Followed. Hinman v. People^ 13 Hun 266, 
 268. 
 
 People V. Snyder, 41 N. Y. 397, 400. 
 Effect of denials in answer. Criticised. Smith 
 V. Gratis, 59 How. Pr. 274, 275. 
 
 People V. Spooner, 1 Den. 343. Proof of 
 genuineness of signature in controversy, by 
 comparison with other writings. Overruled 
 in part. Miles v. Loomis, 75 N. Y. 288, 293. 
 
 People V. Stephens, 71 N. Y. 527. State, 
 when bound by contracts made by public offi- 
 cers. Followed. People v. Denison, 19 Hun 
 137, 150. 
 
 People V. Stout, 3 Park. Cr. 670. Eules 
 as to privileged communications between physi- 
 cian and patient. Approved. Pierson v. Peo- 
 ple, 18 Hun 239, 248. 
 
 People V. Supervisors of Chenango 
 Co., 8 N. Y. 317. Distinguished. Matter of 
 City of Buffalo, 78 N. Y. 362, 367. 
 
 People V. Thompson, 41 N. Y. 1. Dis- 
 tinguished. Greenfield v. People, 74 N. Y. 277, 
 284. 
 
 People V. Townsend, 37 Barb. 520. Ac- 
 tion on bond of administrator, when to be 
 brought in name of the people. Followed. 
 People, ex rel. Becar, v. Struller, 16 Hun 234, 
 236. 
 
 People V. Vanderbilt, 28 N. Y. 396. 
 Unauthorized erection of a crib or pier in New 
 York harbor a public nuisance per se. Distin- 
 guished. Matter of New Yoi-k Central, &e., B. 
 B. Co., 11 N. Y. 248, 260. 
 
 People V. Wasson, 64 N. Y. 167. Dis- 
 tinguised. People, ex rel. Wasson, v. Schuyler, 
 69 N. Y. 242, 244. 
 
 People V. Wentz, 37 N. Y. 303, 309. 
 
520 
 
 CASES CEITICISED. 
 
 Admissibility of confessions made during con- 
 finement. Followed. Cox v. People, 19 Hun 
 430, 436. ^ 
 
 People V. "Wriglit, 9 Wend. 193. Whether 
 objection of duplicity in indictment is fatal on 
 motion in arrest or on writ of error. "This is 
 one of the grounds upon which the judgment in 
 that case was arrested ; but the point whether 
 duplicity was a good ground for^ arresting the 
 judgment was not particularly considered ; and 
 the consideration of it was not, perhaps, neces- 
 sary to the disposition of the case, as all the 
 counts were held to be defective in substance." 
 Polimky v. People, 73 N. Y. 65, 72. 
 
 People, ex rel., v. Sturtevant, 3 Duer 
 616. Costs upon review of special proceedings 
 on certwrari. Criticised. People, ex rel. Grem, 
 V. Smith, 13 Hun 227, 228. 
 
 People, ex rel. Ainslee, v. Howlett, 
 13 Hun 138. In ptoceedings to dispossess for 
 holding over, tenant may show that lease was 
 in fact a usurious mortgage. Affirmed. Peo- 
 ple, ex rel. Ainslee, v. Howlett, 76 N. Y. 574. 
 
 People, ex rel. Akin, v. Morgan, 65 
 Barb. 473. Conclusiveness of assessor's affida- 
 vit in town bonding proceedings. Overruled. 
 People, ex rel. New York and Canada S. B. Co., 
 V. HuUon, 18 Hun 116, 124. 
 
 People, ex rel. Albany, &c., R. R. Co., 
 V. Mitchell, 35 N. Y. 551. State legislature 
 may validate retrospectively what it might have 
 authorized in advance. Followed. Harden- 
 berg v. Van Keuren, 4 Abb. N. Cas. 43, 48 : S. 
 a, 16 Hun 17, 22. 
 
 People, ex rel. Babcock, v. Murray, 
 8 Hun 577. Quo warranto for usurping office of 
 board of excise. Keversed, but not on points 
 diseussed at General Term. People, ex rel. Bab- 
 cock, V. Murray, 70 N. Y. 521. 
 
 People, ex rel. ?ay State Shoe, &c., 
 Co., V. McLean, 17 Hun 204. Assessments 
 against foreign corporations (Laws of 1855, ch. 
 37.) Affirmed, it seems, February 24th, 1880. 
 People, ex rel. Beach, v. Seneca Com- 
 mon Pleas, 2 Wend. 265. Refusal of man- 
 damus to correct error by inferior tribunal, on 
 ground of acquiescence and lapse of time. Not 
 FOLLOWED. People, ex rel. Oas Light Co., v. 
 Common Couned, 78 N. Y. 56, 62. 
 
 People, ex rel. Bentley, v. Hanna, 3 
 How. Pr. 39. Construction of habeas corp^is act. 
 Followed. People, ex rel. Posenthal, v. Cowles, 
 59 How. Pr. 287, 291. 
 
 People, ex rel. Buffalo, &c., R. R. Co., 
 V. Barker, 48 N. Y. 76. Taxation of structures 
 erected by railroad company. Followed. Peo- 
 ple, ex rel. Elevated Railway Co., v. Commissioners, 
 19 Hun 460, 465. 
 
 People, ex rel. Burbank, v. Robinson, 
 14 Hun 226. Duty of county treasurer to pay 
 to school trustees amount of uncollected school 
 taxes against non-residents out of money raised 
 for county Contingent expenses. Affirmed. 
 People, ex rel. Burbank, v. Bobinson, 76 N. Y.422. 
 People, ex rel. Carroll, v. Smith, 17 
 Hun 286. See People, ex rel. Walsh, v. Smith, in 
 this Table. 
 
 People, ex rel. Citizens' Gas Light 
 Co., V. Board of Assessors, 39 N. Y. 81. 
 Taxation of corporate property. Distin- 
 guished. People, ex rel. New York Elevated 
 Bailway Co., v. Commissioners, 19 Hun 460, 462. 
 People, ex rel. Clapp, v. Dept. of Po- 
 lice of New York, 5 Hun 457. Certiorari 
 
 to review removal of police officer by board of 
 police commissioners. What constitutes " con- 
 duct unbecoming an officer." Eeversed. Peo- 
 ple, ex rel. Clapp, v. Board of Police of New York, 
 72 N. Y. 415. 
 
 People, ex rel. Cook, v. Board of 
 Police, 39 N. Y. 506. Costs on common law 
 certiorari. Criticised. People, ex rel. Green, v. 
 Smith, 13 Hun 227, 230. 
 
 People, ex rel. Crouse, v. Cowles, 3 
 Abb. App. Dec. 507; 4 Keyes 46. Power of 
 surrogate to punish executor for contempt in 
 disobeying order to pay over money in his hands. 
 Distinguished. Matter of Watson v. Nelson, 69 
 N. Y. 536, 545. 
 
 People, ex rel. Dailey, v. Livingston, 
 18 Hun 59. Contested election. Quo warranto 
 Eeversed. People, ex rd. Dailey, v. lAmngsUyn, 
 79 N. Y. 279. 
 
 People, ex rel. Dargin, v. Cox, 9 Hun 
 146. Defendant entitled to jury on trial for 
 violation of ordinance of village of Port Jervis. 
 Affirmed. People, ex rel. Dargh, v. Cox, 76 
 N. Y. 47. 
 
 People, ex rel. Devlin, v. Peabody, 5 
 Abb. Pr. 194. Certiorari does not lie until final 
 determination. Distinguished. People, ex 
 rel. Oilmore, v. Donohue, 59 How. Pr. 417, 418. 
 
 People, ex rel. Dilks, v. Smith, 17 Hun 
 286. See People, ex rel. Walsh, y. Smith, in this 
 Table. 
 
 People, ex rel. Draper, v. Pinkerton, 
 17 Hun 199. Conclusiveness of governor's war- 
 rant in extradition proceedings. Appismed. 
 People, ex rel. Draper, v. Pirikerton, 77 N. Y. 
 245. 
 
 People, ex rel. Dunkirk, &o., R. R. 
 Co., V. Batchellor, 53 N. Y. 128. A mu- 
 nicipal corporation cannot be compelled with- 
 out its consent, or that of its taxable inhabitants, 
 to become a stockholder in a railway corpora- 
 tion, or to incur a debt in its behalf, and a man- 
 diitoiy statute requiring it to issue its bonds 
 without such consent, and to invest the proceeds 
 of the sale thereof in the stock of a railroad, is 
 unconstitutional. Approved and followed. 
 Horton v. Toym of Thompson, 71 N. Y. 513, 521, 
 522 ; IIarderd>ergh v. Fim Keuren, 16 Hun 17, 
 21. See, also, Bogers v. Bochestei; &c., B.B. Co., 
 21 Hun 44, m. 
 
 People, ex rel. Durfee, v. Commis- 
 sioners of Emigration, 27 Barb. 562. 
 Temporary relief to paupers. Followed. 
 Gallup V. Town of Oneonta, 20 Hun 172, 173. 
 
 People, ex rel. Bgan, v. Justices of 
 Marine Court, 18 Hun 333. Marine Court in 
 New York city cannot revive action against per- 
 sonal representative of deceased party. Re- 
 versed. People, ex rd. Egan, v. Justices of 
 Marine a., 59 How. Pr. 413 ; 8. C, 8 Abb. N. 
 Cas. 377. 
 
 People, ex rel. Ennis, v. Schroeder, 
 12 Hun 413. Resolution of common council 
 of Brooklyn, confirming appointment of clerk 
 in justice's court, must be approved by the 
 mayor, or passed over his veto. Affirmed. 
 People, ex rel. Ennis, v. Schroeder, 76 N. Y. 160. 
 
 People,, ex rel. Faile, v. Ferris, 16 Hun 
 219. Mamdamus not proper remedy to restrain 
 one claiming a public office from qualifying, or 
 exercising his office. Affirmed. People, ex 
 rd. Fanie, v. Ferris, 76 N. Y. 326. 
 
 People, ex rel. Fiedler, v. Mead, 24 N. 
 Y. 114; 36 Id. 224. Evidence of consent of 
 
CASES CRITICISED. 
 
 521 
 
 tax-payers to bonding town in aid of railroad. 
 DiSTiNGTJiSHED. People, ex rd. New York and 
 Oinada B. B. Co., v. Mutton, 18- Hun 116, 121. 
 People, ex rel. Francis, v. City of 
 Troy, 17 Hun 20. Duty of common council 
 of Troy, as to designating official newspapers. 
 Eetbbsed. People, ex rd. Francis, v. Oity of 
 'Pray, 78 N. Y. 33. 
 
 People, ex rel. Francis, v. City of 
 Troy, 78 N. Y. 33. Mandamus to municipal 
 officers will not lie to compel determination of 
 question of fact in any particular manner, where 
 no particular mode for such determination is 
 prescribed by law. The exercise, merely, of the 
 power to determine, is all that can be controlled. 
 roiloWED. People, ex rel. Thurston, v. Auditors, 
 20 Hun 150, 151. 
 
 People, ex rel. Freer, v. Canal Ap- 
 praisers, 13 Hun 64. Mandamus to canal 
 appraisers, commanding them to make return 
 to canal board on appeal, when peremptory writ 
 proper. Affirmed. People, ex rel. Freer, v. 
 Carnal Appraisers, 73 N. Y. 443. 
 
 People, ex rel. Furman, v. Clute, 50 
 N. Y. 451. Constitutionality of election laws. 
 Eights of electors. Followed. People, ex t^d. 
 Saifidd, V. Comstock, 78 N. Y. 356, 362. 
 
 People, ex rel. G-aUup,- v. Green, 2 
 "Wend. 267. Weight to be given to contempo- 
 ) aneouB construction of constitutional provision. 
 AppKOVBD. People, ex rd. Joyce, v. Brundage, 
 78 N. Y. 403, 406. 
 
 People, ex rel. Garbutt, v. Rochester, 
 <&c., Ry. Co., 14 Hun 371. Mandamus to 
 •compel railway company to erect fences and 
 ■cattle-guards. Fine, and costs of prosecution 
 .iis a punishment for contempt. Affirmed, 
 People, ex rel. Oarbutt, v. Boehester, &e.. By. Co., 
 76 N. Y. 294. 
 
 People, ex rel. Garling, v. Van Allen, 
 55 N. Y. 81. Eight to be heard by counsel. 
 Followed. Matter of Nichols, 6 Abb. N. Cas. 
 474, 487; 8., C, 19 Hun 441, 452. 
 
 People, ex rel. Garret, v. Boardman, 
 4 Keyes 59, 66. Distinction between order of 
 judge, and one made at Special Term. Ap- 
 PEOVBD. Matter of Jetterr, 78 N. Y. 601, 604. 
 
 People, ex rel. Gaslight Co., v. Syra- 
 cuse, 78 N. Y. 56. Application to vacate as- 
 sessment, when barred by petitioner's laches. 
 Followed. Matter of Lord, 78 N. Y. 109, 112. 
 
 People, ex rel. Gimmel, v. Eldridge, 7 
 How. Pr. 108. DrsTiNGTJiSHED. Zinsser v. 
 ■SeUer, 7 Daly 464, 465. 
 
 People, ex rel. Green, v. Smith, 55 N. 
 Y. 135. Eequisiies of petition to coimty judge, 
 under town bonding acts. Followed. Tcmm 
 ■of Wellsboro v. New York, &c., B. B. Co., 76 N. 
 Y. 182, 184; Avery v. Toum of Hope, 78 Id. 
 •609 ; Wikan v. Town of Oaneadea, 15 Hun 218, 
 219. 
 
 People, ex rel. Haines, v. Smith, 3 Lans. 
 291. Sufficiency of petition in town bonding 
 proceedings. Explained. Angd v. Town of 
 JSume, 17 Hun 374, 381. 
 
 People, ex rel. Haneman, v. Commis- 
 •sioners of Taxes, &o., 10 Hun 255. Va- 
 lidity of state taxation of capital employed in 
 purchasing and exporting cotton. Affirmed. 
 People, ex rel. Haneman, v. Commissioners of Taxes, 
 M., 73 N. Y. 607. Followed. People, ex rd. 
 Bunge, v. Tax Commissioners, 17 Hun 596. 
 
 People, ex rel. Harvey, v. Heath, 20 
 How. Pr. 304. Costs on common law certiorari. 
 
 Criticised. People, ex rd. 6reen,\. Smith, 15 
 Hun 227, 230. 
 
 People, ex rel. Hatfield, v. Comstock, 
 18 Hun^ 311. When terra of appointee to fill 
 vacancy io elective office expires. Reversed. 
 People, ex rd. Hatfield, v. Comstock, 78 N. Y. 
 356. 
 
 People, ex rel. Hatfield, v. Comstock, 
 78 N. Y. 356. Vacancy in office of superin- 
 tendent of the poor, how filled. Followed. 
 People, ex rel. Barrett, v. Dempsey, 19 Hun 322, 
 324. 
 
 People, ex rel. Hawley, v. Bennett, 4 
 Paige 282. Eight to jail liberties of party im- 
 prisoned for non-payment of interlocutory costs. 
 DiSTiNGiriSHED. AUen v. Allen, 8 Abb. N. Cas. 
 175, 186 ; S. C, 59 How. Pr. 27 ; Matter of Oark,- 
 20 Hun 551, 554. 
 
 People, ex rel. Hermanoe, v. Super- 
 visors of Ulster Co., 10 Hun 545. _ Power 
 of county court to order board of supervisors to 
 refund taxes illegally or itnproperly assessed. 
 Affirmed. Matter of Hermtmce, 71 N. Y. 481. 
 
 People, ex rel. Hislop, v. Cowles, 16 
 Hun 577. Sale of liquor to intoxicated person 
 in violation of Laws 1857, ch. 628, J 18, is 
 not indictable as a misdemeanor. Defendant is 
 only liable to penalty of not less than $10 nor 
 more than $25. Affirmed. People v. His- 
 lop, 77 N. Y. 331. 
 
 People, ex rel. Johnson, v. Supervi- 
 sors of Dela-^are County, 45 N. Y. 196. 
 Duty of board of supervisors in auditing bills. 
 Approved. People, ex rd. Thwston, v. Audi- 
 tors, 20 Hun 150, 152. 
 
 People, ex rel. Joyce, v. Brundage, 
 18 Hun 291. Disability of county judge by 
 reason of age — election of successor. Affirm- 
 ed. People, ex rd. Joyce, v. Brundage, 78 N. Y. 
 403. 
 
 People, ex rel. Kehlbeck v. Walsh, 
 11 Hun 292. Jurisdiction of criminal proceed- 
 ings against husband for abandonment of wife. 
 (Laws, 1871, ch, 395.) Followed. Bayne v. 
 Beetle, 14 Hun 181. 
 
 People, ex rel. Keiley, v. Speir, 54 How. 
 Pr. 73. Examination in supplementary pro- 
 ceedings may be used as basis of proceedings 
 under Stilwell act. Eeversed. People, ex rd. 
 Keiley, v. Speir, 57 How. Pr. 274. 
 
 People, ex rel. Kilmer, v. McDonald, 
 4 Hun 187. Power of legislature to open high- 
 ways. Laws of 1870, ch. 623, as amendedby 
 Laws of 1872, ch. 293, laying out Union avenue, 
 in Saratoga Springs, constitutional; and costs 
 and expenses to be assessed against land-owners 
 individually, not against their land. Affirm- 
 ed. People, ex rel. Kilmer, v. McDonald, 69 N. 
 Y. 362. 
 
 People, ex rel. Kreisser, v. Pitzsim- 
 mons, 68 N. Y. 514. Validity of verbal ap- 
 pointment of excise commissioners by mayor of 
 city. What is deemed a sufficient written ap- 
 pointment. DiSTiNGtnSHED. People, ex rd. 
 Babcock, V. Murray, 70 N. Y. 521, 523. 
 
 People, ex rel. Latorre, v. O'Brien, 6 
 Abb. Pr. (N. S.) 63. Costs on common law cer- 
 tiorari. Criticised. People, ex rd. Oreen, v. 
 Smith, 13 Hun 227, 230 ; Townsend v. NebensaM. 
 20 Hun 81, 83. 
 
 People, ex rel. Lawrence, v. Brady. 
 56 N. Y. 182. Power of the courts to annul 
 action of chief executive. Followed. People, 
 ex rd. Nichols, v. Mayor, 19 Hun 4^41. 
 
822 
 
 CASES CRITICISED. 
 
 People, ex rel. Lawrence, v. Supervi- 
 sors of Westchester Co., 11 Hun 306. 
 Fees of county treasurer. Power of Supervi- 
 sors as to construction of Laws of 1855, ch. 346, 
 andLawsofl863,ch.393,§5. Modified. Peo- 
 ple, ex rel. Lawrence, v. Supervisors of Westches- 
 ter Co., 73 N. Y. 173. 
 
 People, ex rel. Lee, v. Lynch, 54 N. Y. 
 681. Distinguished. Matter of Ouardian 
 Savings Inst., 78 N. Y. 408, 411. 
 
 People, ex rel. Lookwood, v. Scrug- 
 ham, 20 Barb. 302. Mandamus to restrain in- 
 trusion into oflSce. "Was reversed at General 
 Term (25 Barb. 216.") People, ex rel. Fails v. 
 Ferris, 16 Hun 219, 222; q.v. in this Table. 
 
 People, ex rel. Lord, v. Crooks, 53 
 N. Y. 648. Is rendered nugatory by Code of 
 Civ. Pro., I 488, subd. 5. Enos v. Leach, 18 Hun 
 139, 142. 
 
 People, ex rel. McKone, v. Green, 11 
 Hun 56. Substitution of new sureties on bond 
 to fulfill contract with city of New York. Ee- 
 vocation of permission to substitute. Ar- 
 PIBMED. People, ex rel. McKone, v. Qreen, 72 
 N. Y. 612. 
 
 People, ex rel. Martin, v. Brown, 55 
 N. Y. 180, 187. Invalidity, of bonds issued 
 nnder " town bonding act," when no defence in 
 action by holder of coupons. Appboved and 
 FOLLOWED. First Nat. Bank of Oxford v. Wheel- 
 er, 72 N. Y. 201, 205. 
 
 Evidence of tax-payers' consent in town bond- 
 ing proceedings, when not conclusive.* Ap- 
 proved AND followed. People, ex rel. New 
 York and Canada £. B. Co., v. Mutton, 18 Hun 
 116, 122, 124. 
 
 People, ex rel. Mayor, &c., of New 
 York, V. Nichols, 18 Hun 530. Power of 
 mayor of New York city to remove head of 
 municipal department. Reversed. People, ex 
 rel. Mayor, &c., of New York, v. Nichols, 79 N. 
 Y. 582. 
 
 People, ex rel. Morris, v. Bandall, 73 
 N. Y. 416. Where an attorney has two clients, 
 one of whom is enjoined and the other, in an 
 independent position and having or claiming 
 different rights and interests, is not enjoined, 
 such attorney cannot ordinarily be charged with 
 violation of the injunction in advising or acting 
 professionally for tlie latter. Followed. Star 
 tftr V. Merritt, 75 N. Y. 268, 272. . 
 
 People, ex rel. Munday, v. Fire Oom- 
 missioners, 72 N. Y. 445. Eemoval of head 
 of municipal department, "for cause." Right 
 to be heard. What is cause for removal. 
 Followed. People, ex rel. Nichols, v. Mayor, 19 
 Hun 441, 447, 458 ; ^S. G, 6 Abb. N. Cas. 474, 
 481. 
 
 People, ex rel. Murray, v. Justices, 13 
 Hun 533. Right to jury trial in Special Ses- 
 sions of New York city. Affirmed. People, 
 ex rel. Murray, v. Justices, 74 N. Y. 406. 
 
 People, ex rel. Opdyke, v. Brennan, 
 39 Barb. 651. Maudamus to municipal officers 
 to compel designation of official newspapers. 
 Followed. People, ex rel. Francis, v.. Common 
 OouncU, 78 N. Y. 33, 40. 
 
 People, ex rel. Otsego County Bank, 
 V. Supervisors of Otsego County, 51 
 N. Y. 401. Taxation- of United States bonds. 
 Followed. People, ex rel. Wilherbee, v. Super- 
 visors of Essex County, 70 N. Y. 228, 234. 
 
 ♦Dissenting opinion by Allen, J. 
 
 People, ex rel. Pells, v. Supervisors; 
 of Ulster County, 65 N. Y. 300. Powers 
 of county court in reviewing assessment of taxes, 
 and to order the refunding of taxes illegally or 
 improperly assessed and levied.- Distinguishei)- 
 AND limited. Matter of Hermanee, 71 N Y 
 481, 483. 
 
 People, ex rel. Phelps, v. Delaware 
 Common Pleas, 2 Wend. 257. Mandamus 
 when refused on ground of delay. Not fol- 
 lowed. People, ex rel. Gas Light Co., v. Crnn- 
 mm Council, 78 N. Y. 56. 
 
 People, ex rel. Phelps, v. General 
 Sessions, 13 Hun 395. In false pretences,, 
 accused ;must be shown to have received the . 
 property. Followed. WiUis v. People, 19- 
 Hun 84, 86. 
 
 People, ex rel. Rhoades, v. Hum- 
 phrey, 24 Barb. 521. Power to grant writ of 
 habens corpus. Followed. St. John v. Sweemu 
 59 How. Pr. 174, 175. * 
 
 People, ex rel. Roberts, v. Bowe, 20^ 
 Hun 85. Effect on order of arrest, of reversal 
 of judgment on appeal. Reversed. People^ 
 ex rel. Roberts, v. Sowe, 8 Abb. N. Cas. 234. 
 
 People, ex rel. Rogers, v. Spencer, 5& 
 N. Y. 1. Sufficiency of petition in town bond- 
 ing proceedings. Explained. Angel v. Town- 
 of Mume, 17 Hun 374, 381. 
 
 People, ex rel. Ruggles, v. Chapman, 
 64 N. Y. 557. Eights of receiver of insolvent 
 insurance company. Followed. Matter of 
 Beierve Mutual 'Ins. Co., 13 Hun 115. 
 
 People, ex rel. Sage, v. Schuyler, 17 
 Hun 106. Legislative ratification of illegal 
 contract by canal commissioners. Reversed. 
 People, ex rel. Sage, v. Schuyler, 79 N. Y. 189. 
 
 People, ex rel. Satterlee, v. Board of 
 Police, 12 Hun 653. A police surgeon is an 
 " employee " of the board of police of New York 
 city, and they have power to fix his salary with 
 his consent at a less amount than that fixed by 
 law. Reversed. People, ex rel. Satterlee, v. 
 ,Soar.d of Police, 75 N. Y. 38. 
 
 People, ex rel. Sharkey, v. Goodwin, 
 50 Barb. 562. Election by creditor between 
 remedies to collect debt. Approved. Town- 
 send V. Nebenzahl, 20 Hun 81, 82. 
 
 People, ex rel. Sichel, v. Chapman, 
 30 How. Pr. 202. Distinguished. People v. 
 Clews, 77 N. Y. 39, 45. 
 
 People, ex rel. Skahan, v. Police 
 Commissioners of New York, 10 Hun. 
 106. Trials before board of police commission- 
 ers in New York city. Eeview by certiorari. 
 Affirmed. People, ex rel. Skahom, v. Police 
 Commissioners of New York, 76 N. Y. 613. 
 
 People, ex rel. Spencer, v. Fuller, 40 
 How. Pr. 35. Costs on common law certiorari. 
 Followed. People, ex rel. Green, v. Smith, 13- 
 Hun 227, 231. 
 
 People, ex rel. Staats, v. Tremain, IT 
 How. Pr. 142. Distinguished! People, ex rel. 
 Satterlee, v. Board of Police, 75 N. Y. 38, 44. 
 
 People, ex rel Steinert, v. Anthony, 6- • 
 Hun 142. Distinguished. People, ex rel. Gil- 
 Christ V. Murray, 73 N. Y. 535, 540. 
 
 People, ex rel. Stetson, v. Rawson, 61 
 Barb. 619. Interpretation of constitution (art. 1, 
 § 26,) as to jurisdiction to try misdemeanors. 
 Followed. Dentine v. People, 20 Hun 98, 101 ;. 
 People, ex rel. Comaford, v. butcher, Id. 241, 242. 
 
 People ex rel. Supervisors of Mun- 
 roe, V. Hadley, 1 Abb. N. Cas. 441. Juris- 
 
CASES CRITICISED. 
 
 523- 
 
 ?; 
 
 diction of board of state assessors on appeals 
 from boards of supervisors. Approved. Peo- 
 le, ex rel. Siepervisors of Westchester, v. Hadley, 
 6 N. Y. 337, 343. 
 
 People, ex rel. Supervisors of West- 
 ohester, v. Hadley, 16 Hun 113. Appellate 
 powers of board of state assessors in respect to 
 review of town valuations. Reversed. Peo- 
 ple, ex rel. Supervisors of Westchester, v. Hadley, 76 
 N. Y. 337. 
 
 People, ex rel. Supervisors of "West- 
 chester, V. Hadley, 76 N. Y. 337. Distin- 
 guished. People, ex rel. Mobison, v. Supervis- 
 ors, n Hun 501, 506. 
 
 People, ex rel. Thompson, v. Super- 
 visors of Hamilton County, 9 Hun 60. 
 Power of comptroller of Hamilton county to 
 designate newspapers in which to publish notices 
 of redemption of lands sold for taxes. Re- 
 versed. People, ex rel. Thompson, v. Supervis- 
 ors of Hamilton County, 73 N. Y. 604. 
 
 People, ex rel. Thurston, v. Board of 
 Town Auditors of Blmira, 20 Hun 150. 
 Duty of board of town auditors in passing upon 
 items of bill presented. Afeirmed, it seems, 
 September 2l8t, 1880. 
 
 People, ex rel. Tradesmen's Bank, v. 
 Commissioners of Taxes, 9 H^ 650. 
 Assessment of taxes on bank stock. Deductions 
 from market value — amount of, how determined. 
 Reversed. People, ex rel. Tradesmen's Bank v. 
 Commissioners of Taxes, 69 N. Y. 91. 
 
 People, ex rel. Tweed, v. Liscomb, 60 
 N. Y. 559, 570. Eaheas corpus. "If the judg- 
 ment is merely erroneous, the court having given 
 a wrong judgment when it had jurisdiction, the 
 party aggrieved can only have relief by writ of 
 error, or other process of review. He cannot 
 be released summarily by habeas corpus." Ap- 
 proved AND poLiowED. People, ex rel. CaUin, 
 V. Neilson, 16 Hun 214, 216. Distinguished. 
 People, ex rel. Phdps, v. Oyer and Terminer, 14 
 Hun 21, 23 ; National Bank v. Spencer, 19 Id. 
 569, 576. 
 
 People, ex rel. Van Keuren, v. Town 
 Auditors, 10 Hun 551. Commissioner of 
 highways not agent for the town so as to make 
 it responsible for his acts. Affirmed. Peo- 
 ple, ex rd. Van Keuren, v. Toim Auditors, 74 N. 
 Y. 310. 
 
 People, ex rel. Van Keuren v. Town 
 Auditors, 74 N. Y. 310. A mandamus will not 
 lie against a board of town auditors to pay the 
 costs and expenses of a suit defended by the au- 
 thority of the commissioner of highways. Fol- 
 lowed. People, ex rel. Loomis, v. Town Audi- 
 tors, 75 N. Y. 316, 320. 
 
 People, ex rel. Van Voast, v. Van 
 Slyok, 4 Cow. 297. Validity of verbal ap- 
 pointment to municipal office. Distinguished. 
 People,ex rd Babeock, v. Murray, 70 N. Y. 521,527. 
 People, ex rel. Walsh, v. Smith, 17 
 Hun 286. Salary of police captain in the city 
 of New York — effect of statutory provisions rel- 
 ative to. Affirmed. People, ex rel. Walsh, v. 
 Smith, 77 N. Y. 347. 
 
 People, ex rel. 'Wasson, v. Schuyler, 
 69 N. Y. 242. Distinguished. People, ex rd. 
 Sage, V. Schuyler, 79 IST. Y. 189, 202. 
 
 People, ex rel. Weeks, v. Board of 
 Supervisors of Queens Co., 18 Hun 4. 
 Borrowing money on credit of town, to lay out a 
 highway (Laws of 1873, cli. 323.) Modified 
 j.« sems October 5tli, 1880. 
 
 People, ex rel. Williams, v. Haines, 
 49 N. Y. 587. Assessments for drains, &c., un- 
 der Laws of 1871, oh. 566. Followed. Mat- 
 ter of Cheetbrough, 17 Hun 561, 562, 564; MaUer 
 of Van Bureii, Id. 527, 534. 
 
 People, ex rel. Willlamsburgh Gas- 
 Light Co., V. Board of Assessors, 16. 
 Hun 196. Issuing certiflca,tes to stockholders, 
 not such a dividend or division of surplus profits- 
 of a corporation as to relieve such profits from 
 liability to taxation. Apfiemed. People, ex 
 rel. Witliamsburgh Oas Light Co., v. Board of 
 Assessors, 76 N. Y. 202. 
 
 People, ex rel. Woolf, v. Jacobs, 5 
 Hun 428. Right to tax counsel fees in pro- 
 ceedings in contempt. Explained. Van Valk- 
 eiAurgh v. DoolitUe, 4 Abb. N. Cas. 72, 75. 
 
 People, ex rel. Yawger, v. Allen, 52. 
 N. Y. 540. The affidavit of an assessor indorsed, 
 on consent of tax-payers in town bonding pro- 
 ceedings is in the nature of a judgment or deci- 
 sion determining the existence of a fact. Com- 
 mented ON. People, ex rel. New York and Can- 
 ada B. B. Co., V. HutUm, 18 Hun 116, 123. 
 
 People's Bank of New York v. Bo- 
 gart, 16 Hun 270. Concealment of facts,when 
 not fraudiilent. When proof of usage cannot 
 be given to establish an implied warranty. Af- 
 firmed, it seems, June 1st, 1880. 
 ■ Perkins v. Washington Ins. Co., 4 
 Cow. 645. Distinguished. Bedfield v. Pater- 
 son Fire Ins. Co., 6 Abb. N. Cas., 456, 463. 
 
 Perry v. Chester, 36 Superior 228. Set 
 off against attorney's lien for costs. Reversed. 
 Peiry v.' Chester, 53 N. Y. 240. 
 
 Peugnet, Matter of, 67 N. Y. 441 ; 5 Huit 
 434. Validity of assessment for public im- 
 provement, in the absence of corporation news- 
 papers in which to publish the proceedings.. 
 Denied. Matter of Burmeister, 76 N. Y. 174,. 
 179. See, also, Matter of Marsh, 21 Hun 582. 
 
 Peyser v. Mayor, &c., of New York, 
 8 Hun 413. Payment of an assessment for 
 local improvement, regular on its face, a volun- 
 tary payment; and on assessment being vacated,, 
 such payment cannot be recovered back. Re- 
 versed. Peyser v. Mayor, &c., of New York, 70' 
 N.Y.497. y ' > J 
 
 Feyaer v. Mayor, &c.. New York, 70i 
 N. Y. 497. Where an assessment has been de- 
 clared void, an action is maintainable to recover 
 back money paid under it. Distinguished. 
 Matter of Lima, 77 N. Y. 170, 171 ; Strusbwrgh. 
 v. Mayor, &c., of New York, 45 Superior 608, 
 511 ; Purcdl v. Sams, 43 Id. 348, 349. 
 
 Phelps V. People, 6 Hun 401. Larceny- 
 of draft — allegation of ownership — election be. 
 tween counts — challenge to juror. Appirmed- 
 Phdps V. People, 72 N. Y. 334. 
 
 Phelps V. People, 72 N. Y. 334. Opinion, 
 of juror, when does not disqualify. Followed. 
 Pender v. People, 18 Hun 560, 564. 
 
 Philips V. Wiokham, 1 Paige 590, 598. 
 Member of corporation cannot vote by proxy, 
 unless specially authorized by law so to do. 
 Followed. Pec/ple v. Twadddl, 18 Hun 427, 430 
 
 Phillips, Matter of, 60 N. Y. 16. One 
 who was the owner of the lands when the as- 
 sessment was laid and confirmed, and who was, 
 at the time of the motion to vacate the assess- 
 ment, liable for the payment of it, is " a party 
 aggrieved " by the assessment, and may move- 
 to vacate it. Followed. Matter of Waller. 7&. 
 N. Y. 354, 358 ' 
 
■524 
 
 CASES CRITICISED. 
 
 -* ..^•'eineidental remark in the opinion that 
 •t did not distinctly appear where the work was 
 -done, does not impair the force or effect of the 
 -decision, that laying flagstones on the sidewalk, 
 IS paving the street. This decision has been since 
 recognized, and acted upon in 62 N. Y. 224." 
 Mailer of BurmeUler, 76 N. Y. 174, 180. See 
 also, Mailer of Orube, 20 Hun 303 304. ' 
 
 PMnney v. Broschell, 19 Hun 116. Or- 
 -der for publication of summons must be made 
 -out of court. Caption of order not conclusive 
 that it was made at Special Term. Afpikmbd. 
 Thinney v. SroscheU, 58 How. Pr. 492. 
 
 Reversal of judgment on referee's report does 
 not vacate order of reference. Followed. 
 ■CaUin V. AdirondaeU Co., 49 Hun 389, 890. 
 
 PhoBnix Fire Ins. Co. v. Philip, 13 
 Wend. 81. Proof of genuineness of signature 
 in controversy, by comparison with other writ- 
 ings. OfEBEULED in part. Miles v. Lotmis. 
 75 K Y. 288, 293. , 
 
 Pierce v. Keator, 9 Hun 532. Eeserva- 
 tion, in conveyence of strip of land to railroad 
 company, of right to cultivate land not used by 
 ■company, is personal to grantor, and does not 
 pass to purchaser of grantor's farm at foreclosure 
 sale. Affirmed. Pierce v. jEea(or, 70 N. Y. 419. 
 Pierce v. Pierce, 9 Hun 50. Ante-nup- 
 tual settlement relinquishing claim to dower, 
 mot enforced where husband has not performed 
 -covenants on his part. Apflrmed. Pierce v. 
 Pierce, 71 N. Y. 154. 
 
 Pierce v. "Wright, 6 Lans. 306. Conclu- 
 
 ^siveness of assessor's affidavit in town bonding 
 
 proceedings. Oveekuled. People, ex rel. New 
 
 York and Canada S. JJ. Co., v. MuUaa, 18 Hun 
 
 116, 123. 
 
 Pierrepont v. Edwards, 25 N. Y. 128. 
 Annuity made payable out of income of estate, 
 -(vlien a charge on principal. Followed. 
 Delaney v. Van Aiden, 21 Hun 274, 275. 
 
 Pierson v. People, 18 Hun 239. Waiver 
 of irregularity in summoning jurors. Evidence 
 ■on trial for murder by poison. Affirmed. 
 Pierscm v. People, 79 N. Y. 424. 
 
 Privileged communications between patient 
 and physician. Explained and followed. 
 Staunton v. Parker, 19 Hun 55, 58. 
 
 Pinckney's Case, 18 Abb. Pr. 356. Pro- 
 ceeding to vacate assessment under act of 1858, 
 is a special proceeding, in respect to recovery of 
 -costs. Followed. Matter of Jetter, 78 N. Y. 
 «01, 604. 
 
 Pitt V. Davison, 37 N. Y. 235. Order to 
 ■enforce civil remedy may be served on attorney. 
 Followed. Sossner v. New York Museum 
 Assoc, 20 Hun 182, 184.' 
 
 Place V. Butternuts Manuf. Co., 28 
 Barb. 503. Judge related to stockholder in cor- 
 poration which is a party, disqualified. "The 
 judgment of the Supreme Court was reversed 
 ty the Court of Appeals in December, 1863. 
 * * * The case is not reported, but the de- 
 •cision is among the list of decisions in 26 How. 
 Pr. 601, and is referred to in Moak's edition of 
 ■dark's Chancery Kep., (page 191, note,) and 
 :the cause of its not being reported is there ex- 
 plained." Matter of Dodge & Stevenson Manuf, 
 ■Co., 77 N. Y. 101, 107. 
 
 Place V. Mcllvain, 38 N. Y. 96. Eflfect 
 ■of receiving post-dated check in payment of 
 note to discharge indorser. Distinguished. 
 Avhurn City Nat. Bank v. Sunsiker, 72 N. Y. 
 :252. 
 
 Piatt V. Piatt, 2 Thomp. & C, 25. 
 Availability of exceptions to the admission or 
 rejection of evidence. When reception of im- 
 proper evidence may be disregarded on appeal 
 Criticised. Holcomb v. Hokomb, 20 Hun 156 
 158 ; ^choonmaker v. Wolford, Id. 166, 168 ' 
 
 Plumb V. Tubbs, 41 N. Y. 442. "Is a 
 strong case to show the right, of the owner of 
 lands, in disposing of them by grant, to prevent 
 the sale of intoxicating liquors upon the premi- 
 ses by his grantee or his assigns." People, ex rd. 
 Jay, V. Bennett, 14 Hun 58, 59. 
 
 Plumb V. "Whipples, 7 How. Pr. 411. 
 Effect of service of amended pleading. Motion 
 to strike out. Followed. OstranderY.Cmkeu, 
 20 Hun 421, 422. 
 
 Pohalski v. Mut. Life Ins. Co., 36 Su- 
 perior 234. Construction of permit to travel 
 issued by life insurance company to policy- 
 holder. Affibmed. Pohalski v. Mwt. Life Ins. 
 Cb , 56 N. Y. 207. 
 
 Poillon V. Lawrence, 43 Superior 385. 
 Impeachment of bankrupt's discharge in state 
 court.- Eeveesed. PoUlon v. Lawrence, 77 N. 
 Y. 207. 
 
 Polinsky v. People, 11 Hun 390. Judg- 
 ment on plea of guilty, where indictment con- 
 tains several counts charging distinct offences. 
 Validity of city ordinance punishing sale of 
 adulterated milk. Affirmed. Polinsky v. 
 People, 73 N. Y. 65. 
 
 Pond V. Ourtiss, 7 Wend. 45 Eight of 
 guardian to sue on lease after ward's majority. 
 Explained and distinguished; People, ex 
 rel. Hannigan, v. Ingersoll, 20 Hun 316, 318. 
 
 Ponvert v. Belmont, 42 Superior 531. 
 Eecovery on contract to share expense of de- 
 fending title to land. Followed. Ponvert v. 
 Belmont, 45 Superior 577. 
 
 Pope V. Hanmer, 8 Hun 265. Inclosure ' 
 by highway on one side, fences on two sides, 
 and line of marked trees on fourth side, insuffi- 
 cient to found claim of title by adverse posses- 
 sion. Affirmed. Pope v. Hanmer, 74 N. Y. 
 240. 
 
 Porter v. Kingsbury, 5 Hun 597. Ne- 
 cessity of averment of service of notice ofentry of 
 judgment affirming judgment appealed from in 
 action on undertaking on appeal. Affirmed. 
 Porter v. Kingsbury, 71 N. Y. 588. Followed. 
 Yates V. Burch, 13 Hun 622, 624. 
 
 Porter v. Kingsbury, 71 N. Y. 588. In 
 action on undertaking on appeal, under Old 
 Code, I 348, complaint must show service on ad- 
 verse party, ten days before suit, of notice of 
 entry of order, or judgment affirming ju(^ment, 
 appealed from. Followed. Bae v. Beach, 76 
 N. Y. 164, 168. 
 
 Porter v. Kingsbury, 13 Hun 33. Plea 
 of pendency of former action relates to the time 
 the suit in which the plea is interposed was be- 
 gun. Affirmed. Porter v. Kingsbury, 77 N. 
 Y. 164. 
 
 Porter v. Parmly, 34 Superior 398. Ef- 
 fect of omission to re-file chattel mortgage. Ee- 
 veesed. Porter v. Parmly, 52 N. Y. 185. 
 
 Porter v. Potter, 18 N. Y. 52. Distin- 
 guished. Richardson v. Warner, 13 Hun 13, 
 15. 
 
 Potts V. Mayer, 43 Superior 544. Eufusal 
 to submit to jury the question whether plaintiff 
 is a bona fide holder of notes sued on, when 
 proper. Eeversed. Potts v. Mayer, 74 N. Y. 
 594. 
 
CASES CRITICISED. 
 
 525 
 
 Poulin V. Broadway, &o., R. R. Co., 
 34 Superior 296. Wearing a hoop-skirt not 
 evidence of contributory negligence of female 
 injured in alighting from street car. Appibmed. 
 Pmdin v. Broadway, &a., B. B. Co., 61 N. Y. 
 621. 
 
 Powell V. Powell, 3 Hun 413. When act 
 of obtaining possession of note and tearing off 
 maker's name, does not amount to conversion of 
 note. Reversed. Powell v. Pawdl, 71 N. Y. 
 71. 
 
 Powell V. Preston, 1 Hun 5l3. Distin- 
 GTJISHED. Dutcher v. Swa/rtwood, 15 Hun 31, 
 35. 
 
 Pow:er V. Cassidy, 16 Hun 294. Con- 
 struction of will containing trusts — ascertaining 
 beneficiaries. Aeeibmed. Power v. Cassidy, 
 79N.Y.602. 
 
 Power V. Village of Athens, 19 Hun 
 165. Costs in proceedings to punish for con- 
 tempt. Followed. People, ex rel. Scudder, v. 
 Co(yper, 20 Hun 486, 488. 
 
 Powers V. French, 1 Hun 582. Distin- 
 guished. First Nai. Bank of Buffalo \. Wood, 
 71 N. Y. 405, 411. 
 
 Pratt V. Adams, 7 Paige 615, 636. Effect 
 of law of place on rate of interest. Distin- 
 guished. Dickimon v. Edwards, 77 N. Y. 573, 
 586. 
 
 Pratt V. Ooman, 37 N. Y. 440. Surrender 
 of past-due note, when parting with value. 
 Commented on. Phoenix Ins. Co. v. Church, 
 59 How. Pr. 293, 297, 299. 
 
 Pratt V. Eaton, 18 Hun 293. What is an 
 invalid discount of commercial paper by corpor- 
 ation not having banking powers. Eevebsed. 
 Pratt V. Eatm, 79 N. Y. 449. 
 
 Pratt V. Poote, 9 N. Y. 463. Effect of 
 taking new security to extinguish prior indebt- 
 edness. Explained and distinguished. 
 Auburn Oily Nat. Bank v. Humiker, 72 N. Y. 
 252. 
 
 Prentice v. Geiger, 9 Hun 350. Whether 
 upper mill-owner has right to throw sawdust in 
 stream, a questton of fact for the jury. Ar- 
 riEMED. Prentice v. Geiger, 74 N. Y. 341. 
 
 Prentice v. Janssen, 14 Hun 548. 
 Equitable conversion. Power of sale in will, 
 execution of. Appirmed. Prentice v. Janssen. 
 79 N. Y. 478. 
 
 Prentice v. Knickerbocker Life Ins. 
 Co., 43 Superior 352. Waiver by agent of life 
 insurance company, of condition in policy as to 
 notice of death and proof thereof. Appiemed. 
 Preniice v. Knickerbocker Life Ins. Co., 77 N. Y. 
 483. 
 
 Presbyterian Soc. of Knoxboro v. 
 Beach, 8 Hun 644. Subscriptions to build 
 church, payable to treasurer to be chosen by 
 subscribers, not enforceable by church corpora- 
 tion subsequently created. Reversed. Pres- 
 byterian Soe. of Knoxboro v. Beach, 74 N. Y. 72. 
 Presbytery of New York, Matter of. 
 When work on local improvement must be done 
 by contract, not by days' work. Followed, 
 unmUingly. Mailer of Neietm, 19 Hun 470, 
 471. 
 
 Price V. Price, 11 Hun 2^9. A cause of 
 action for inducing plaintiff to marry defendant 
 
 b^ falsely representing that the latter's first 
 wife was dead, does not survive against defend- 
 ant's executor. Appibmed. Price v. Price, 75 
 N. Y. 244. 
 
 Prior V. Williams, 2 Keyes 530. Surety 
 intending to bind himself held bound in equity,, 
 though bond informal. Distinguished. Oos~ 
 man v. Oniger, 69 N. Y. 87, 91. 
 
 Produce Bank v. Morton, 40 Superior- 
 328. Action by creditor to set aside fraudulent 
 assignment of partnership property. What i» 
 not a final judgment under Code of Pro., ?? 267,. 
 268. DiSApPBOVED. Produce Bank v. Morion,. 
 67 N. Y. 199. 
 
 Prospect Park, &c., R. R. Co., Mat- 
 ter of, 67 N. Y. 371. Distinguished. Jfai- 
 fero/JfarsA, 71N. Y. 315. 
 
 Protestant Episcopal Public School,. 
 Matter of, 75 N. Y. 324. Correction of errors- 
 in assessments for local improvements. Fol- 
 lowed. Matter of Murphy, 20 Hun 346, 347 ,- 
 Matter of Emigrant Industrial Savings Bank, 76 
 N. Y. 388, 394. 
 
 Power of court to reduce assessment for pub- 
 lic improvement. Explained and distin- 
 guished. Matter of Auchmuty, 18 Hun 324/ 
 u27. 
 
 Prouty V. Eaton, 41 Barb. 409. Usury a 
 substantive defence, and not a counter-claim 
 under ordinary circumstances. Approved^ 
 Equitable Life Assurance Soc. v. Cmler, 75 N. Y. 
 511, 515. 
 
 Provost V. Provost, 7 Hun 81. Devise- 
 in trust to pay rents and profits to widow until 
 all of testator's living children become of age> 
 When trust ceases at death of widow even, 
 though child of testator has not arrived at full 
 age. Appuimed. Provost v. Provost, 70 N. Y. 
 14.- 
 
 Public Administrator v. Ward, 3- 
 Bradf. 244. Statute giving personal representa- 
 tive right to subpoena person supposed to have- 
 goods of decedent in his possession. Laws of 
 1870, ch. 394, unconstitutional. Followed. 
 Matter of Bosenthal, 59 How. Pr. 327, 328. 
 
 Pugsley V. Aiken, 11 N. Y. 494. Lia- 
 bility of executor for rent of premises leased by- 
 testator. Distinguished. Howard v. Heiner- 
 schit, 16 Hun 177, 179. 
 
 Pulver V. Harris, 62 Barb. 500 ; 52 N. Y. 
 73. Effect of compromise between parties upon 
 attorney's lien for compensation. Followed. 
 Coughlin v. New York Central, &c., B. B. Co., 71 
 N. Y. 443, 451 ; Quincey v. Francis, 5 Abb. N. 
 Cas. 286, 288; McBratney v. Borne, &e., B. B. ' 
 Co., 17 Hun 385, 389. 
 
 Pumpelly v. Phelps, 40 N. Y. 59. Lia- 
 bility of vendor in damages for defect of title. 
 Distinguished. Cockcroft v. New York and 
 Harlem B. B. Co., 69 N. Y. 201, 206. 
 
 Measure of damages for breach of executory 
 contract to convey. Followed. limbv v. Kin- 
 sey, 18 Hun 255, 256. 
 
 Putnum V. Broadway, &c., R. R: Co 
 55 N. Y. 108 ; reversing 36 Superior 195. Duty 
 of carrier of passengers to maintain order and 
 guard passengers from violence. Followed 
 Weeks v. New York, New Haven, &o., B. B Co' 
 72 N. Y. 50, 59. ..-«■• ■«• ^., 
 
526 
 
 CASES -CRITICISED. 
 
 Q. 
 
 Quackenbos v. Edgar, 34 Superior 333. 
 Tenant contracting with plumber to repair 
 premises may sue for breach of the contract, and 
 defendant cannot question plaintiff's interest in 
 the premises. Affirmed. Quackenbos v. Edr- 
 gar, 61 N. y. 653. 
 
 Quackenbush v. Ehle, 5 Barb. 469. 
 Distinguished. Bonested v. Van Elten, 20 Hun 
 468, 471. 
 
 Quin V. Mayor, <fcc., of New York, 44 
 How. Pr. 266; 53 N. Y. 627, Justices of 
 District Courts, not local officers of the city of 
 New York within the meaning of Laws of 1873, 
 ■ch. 335, § 97. Followed. People, ex ret. 
 Phelps, V. Oenerai Sessions, 13 Hun 396, 397. 
 
 Quinlan v. City of tJtica, 11 Hun 217. 
 In action against city for defect in sidewalk, evi- 
 dence as to injuries sustained by persons other 
 than plaintiff is admissible. Appiemed. Quin- 
 Ian V. City of Uliea, 74 N. Y. 603. 
 
 Quinn v. People, 11 Hun 336. A bar- 
 room on the lower story of a building in the 
 upper story of which people reside, is part of a 
 dwelling-house, and breaking into it for the 
 purpose of committing larceny is burglary in 
 the first degree. Appiembd. Qwinn v. Pwpk, 
 71 N. Y. 561. ■ ■» e > 
 
 Quinu V. Van Pelt, 36 Superior 279. 
 Dealings between attorney and client. Re- 
 VEBSBD. Qainn v. Van PeU, 56 N. Y. 417. 
 
 R. 
 
 Radcliff V. Mayor of Brooklyn, 4 N. 
 Y. 195. Damages for land taken for public use. 
 What injury is damnum absque injuria. Fol- 
 lowed. Matter of Prospect Park, <ic., B. B. Co., 
 13 Hun 345, 347. 
 
 Radway v. Briggs, 37 N. Y. 256. Lia- 
 bility of city for horse lost through defect in 
 wharf. Followed. Kennedy v. Mayor, &e., 
 ■of New York. 73 N. Y. 365, 368. 
 
 Rae V. Harteau, 7 Daly 95. Service of no- 
 tice of entry of judgment of aflSrmance ten days 
 before suit, essential to maintenance of action 
 on undertaking on appeal to General Term. 
 Afpibmed, sm6 nom. Bae v. Beach, 76 N. Y. 164. 
 
 Rainey v. Laing, 58 Barb. 453.' Power 
 of corporations to acquire property by devise. 
 Explained and oveertjled. Belts v. Belts, 
 4 Abb. N. Cas. 317, 396, 397. 
 
 Randall v. Dusenbury, 39 Superior 174. 
 Lien on trust funds for services rendered to 
 trustee. Afpibmed. BandaU v. Dusenbury, 
 m N. Y. 645. 
 
 Randall v. Van Vechten, 19 Johns. 60. 
 Distinguished. Schaefer v. Henkel, 75 N. Y. 
 578 387 
 
 Rapalee v. Stewart, 27 N. Y. 310, Va- 
 lidity of special power conferred on assignee for 
 creditors. Distingoished. Giniher r. Bichr 
 mond, 18 Hun 232, 236. 
 
 Raplee v. Amot, 4 Hnn 423. Bights 
 •of prior mortgage. Appiemed. Baplee v. 
 Amot, 69 N. Y. 616. 
 
 Rawls V. DesMer, 3 Keyes 572. Condi- 
 tional delivery of goods sold. Eights of bona 
 Me purcliaser under factors' act. Followed. 
 Corner v. Cunningham, 77 N. Y. 391, 397, 399. 
 
 Raynor v. Hoagland, 39 Superior 11. 
 Effect of transfer of note payable to order, with- 
 out payee's indorsement. Affirmed. Baynor 
 V. Hoagland, 64 N. Y. 630. 
 
 Raynor v. Timerson, 46 Barb. 518, 525. 
 Admissibility of evidence under general denial 
 in ejectment. Doubted. Oreque v. Sears, 17 
 Hun 123, 125. 
 
 Read V. French, 28 N. Y. 285, 295. " I 
 do not understand that the remarks in regard 
 
 to the admission of service in that case, in the 
 second opinion, were necessary. At any rate, 
 the criticism that the admission of service did 
 not contain the word ' personal ' does not apply 
 to the present case." Maples v. Maekeu, 15 Hun 
 533, 538. 
 
 Reade v. Waterhouse, 35 Superior 78. 
 Liability of assignee in bankruptcy for costs. 
 Eeveesed. Bmde v. Waterhcmse, 52 N. Y. 
 587. 
 
 Real V. People, 42 N. Y. 270. Distin- 
 guished. People v. Brovm, 72 N. Y. 571, 574. 
 
 Real Estate Trust Oo. v. Keeob, 7 
 Hun 253. Valid obligation not made void by 
 usurious agreement extending time of perform- 
 ance. Appiemed, and Modifiep on another 
 found. Beal Sslale Trust Co y. Keech, 69 N. 
 . 248. 
 
 Rector v. Olark, 12 Hnn 189. Contents 
 of complaint in action for false return to certio- 
 rari in highway cases. Powers of referees on 
 appeal from highway commissioners. Bevebs- 
 ED. Bector v. Clark, 78 N. Y. 21. 
 
 Reed v. Keese, 37 Superior 269. Liabili- 
 ty of trustee of manufacturing company, on fail- 
 ure to file annual report. Affirmed. Beed r. 
 Keese, 60 N. Y. 616. 
 
 Reeder v. Sayre, 6 Hun 562. Parol lease 
 
 for more than one year enures as a tenancy from 
 
 year to year. Bight of tenant by parol of farm- 
 
 ' ing land to outgoing crop. Appiemed. Beed- 
 
 er V. Sayre, 70 N. Y. 180. 
 
 Reld V. Sprague, 9 Hun 30. Assignment 
 of trust estate by trustee. Bight of cestui que 
 trust to follow the trust property. Appiemed. 
 Beid v. Sprague, 72 N. Y. 457. 
 
 Reitz V. Reitz, 14 Hun 536. Action for • 
 misa,pplication of funds by agent. Statute of 
 limitations. BeveHsed, U seems, April 6th, 
 1880. 
 
 Remington Paper Oo., v. O'Dough- 
 erty, 16 Hun 594. When forged deed may be 
 canceled ns a cloud on title. Modified, it 
 seems, September 21st, 1880. 
 
 Rensselear, Sco., R. R. Oo., v. Davis, 
 43 N. Y. 137. Eight of railroad company to 
 
CASES CRITICISED. 
 
 527 
 
 ■condemn lands foi- ooustruotiou of wharves and 
 •slips. Distinguished and limited. Matter 
 ■of New York Central, &e., B. It. Co., 77 N. Y. 
 248, 259. 
 
 Reserve Mut. Life Ins. Oo., Matter 
 ■of, 13 Hun 115. Eeceiver of insurance com- 
 pany, appointed under Laws 1853, ch. 463, 
 not entitled to possession of securities of the 
 ■company deposited with superintendent of in- 
 surance department. APFiRirfBD. Matter of 
 Beserve Mvt. Life Ins. Co., 74 N. Y. 617. 
 
 Rezford v. Rexford, 7 Lans. 6. Con- 
 veyance hy wife, when declared void by reason 
 ■of duress of husband.. Followed. Lord v. 
 Lindmy, 18 Hun 484, 486. 
 
 Reynolds v. New York Central, Sio., 
 H. R. Co., 58 N. Y. 248. Contributory neg- 
 ligence of child killed at railroad crossing. 
 Distinguished. Mahar v. Orand Trunk Bail- 
 way Co., 19 Hun 32, 84. 
 
 Reynolds v. Robinson, 64 N. Y. 589. 
 Hypothetical question to witness to obtain his 
 ■opinion as to value. Distinguished. Seymour 
 V. Fdlowa, 44 Superior 124, 130. 
 
 Witness who has heard only a portion of the 
 testimony cannot give opinion based upon it. 
 Distinguished. Seymour v. Fellows, 77 N. Y. 
 178, 181. 
 
 Rhinelander, Matter of, 68 N. Y. 105. 
 Distinguished. Matter of MeOovm, 18 Huu 
 434, 435. 
 
 Rhoner v. First Nat. Bank of AUen- 
 i^own, 14 Hun 126. Attachments against na- 
 tional banks. Distinguished. BoHmon v. 
 JVot. Bank, 19 Hun 477, 480. 
 
 Rice V. Bhele, 55 N. Y. 518. Striking out 
 answer in divorce case for failure to pay ali- 
 ■mony. Explained. Walker v. Walker, 59 
 How. Pr. 476, 479. 
 
 Rice V. HoUenbeck, 19 Barb. 664. Where 
 the defect of parties plaintifiT in a justice's court 
 appears in the complaint, the defendant may 
 take advantage of this on a motion for a nonsuit. 
 "I cannot agree with that view, although it is 
 mot the present case. The opinion in that case 
 implies that the defendant could not have de- 
 muired successfully, because, in fact, the com- 
 plaint contained a cause of action. To say that 
 the complaint contained a cause of action seems 
 to me inconsistent with the decision that the 
 plaintiff should have been nonsuited." Frazier 
 V. Oi&son, 15 Han 37, 40. See, also. Id. 43. 
 
 Richards v. Richards, 14 Hun 25. Fees 
 of referees in partition cases. Apfiembd. 
 Hichards Y.-Biehards, 76 N. Y. 186. 
 
 " The decision is made with reference to the 
 special statute applicable to the city and county 
 •of New York." Walbridge v. Jrnies, 16 Hun 8, 
 14. 
 
 Richardson v. New York Central R. 
 -R. Co., 45 N. Y. 846. Precautions required 
 from railway company on approaching highway 
 crossing. Followed. Dyer v. Erie Bailway 
 Co., 71 N. Y. 228, 231. , 
 
 Effect of obstructions obscuring view of track, 
 upon liability of railroad company to persons in- 
 jured at crossing. Distinguished. Oarddl v. 
 New York Central, &c., B. B. Co., 70 N. Y. 119, 
 123. 
 
 Richmond v. Niagara Fire Ins. Co., 15 
 Hun 248. Sufficiency of proof of breach of con- 
 -dition in fire policy. Bevbrsbd. Bichmond v. 
 JiHagara Fire Ins. Co., 79 N. Y. 230. 
 
 Riohtmyor v. Riohtmyer, 50 Barb. 55, 
 
 Is rendered nugatory by Code of Civ. Pro., 2 488, 
 subd. 5. Enos v. Leach, 18 Hun 139, 142. 
 
 Ricketts V. Baltimore, &c,, R. R. Co., 59 
 N. Y. 637. Where a bill of lading contains a 
 provi8i(>n, in substance, tliat no connecting car- 
 rier shall be held liable for any loss or damage 
 to goods, except what occurs on its own route, 
 the defendints cannot be held responsible for 
 loss or injury arising from negligence of another 
 carrier. Followed. Shiff v. New York Cen- 
 tral, &e., B. B. Co., 16 Hun 278, 282. 
 
 Ring V. City of Cohoes, 13 Hun 76. 
 Liability of municipal corporation for injuries 
 caused by runaway horse in city street. Eb- 
 VERSED. Bin() V. City of Cohoes, 77 N. Y. 83. 
 
 Ring V. Gibhs, 26 Wend. 502. Enforce- 
 ment of bond taken in name of public officer for 
 benefit of the people. Defences by surety. 
 Commented on. People v. Lyons, 7 Daly 182, 
 185, 186. 
 
 Risley v. Brown, 67 N. Y. 160. Lia- 
 bility of surety discharged by his death. Fol- 
 lowed. Bandall v. Saekett, 77 N. Y. 480, 482. 
 Distinguished. First Nat. Bank of Chittenango 
 V. Margam, 73 N. Y. 593, 595 ; Sunt v. Church, 
 Id. 615. 
 
 Ritter v. Phillips, 34 Superior 289. 
 Eights of grantee assuming payment of morf 
 gage. AppiRMED. Bitter v. Phillips, 53 N.. Y. 
 586. 
 
 Rivenburgh v. Henness, 4 Lans. 208. 
 Disqualification of judge by reason of relation- 
 ship to party. Distinguished. Matter of 
 Dodge & Stevenson Manuf. Co., 77 N. Y. 101, 
 111. 
 
 Roach V. Cosine, 9 Wend. 227. Parol 
 evidence admissible in court of law to prove 
 absolute deed to be a mortgage. Overruled 
 in 6 Hill 219. People, ex rd. Ainslee, v. Howlell, 
 13 Huu 138, 142. 
 
 Robbins, Matter of, 20 Hun 530. Pow- 
 ers of New York commissioner of public works 
 in respect to advertisement for bids. (Laws of 
 1873, ch. 528.) Eevbrsed, it seems, September 
 21st, 1880. 
 
 Robbins v. Fuller, 24 N. Y. 570. Power 
 of partner to transfer firm property after disso- 
 lution of the firm. Followed. Van Daren v. 
 Sorton, 19 Hun 7, 9. 
 
 Roberts, Matter of, 10 Hun 253. Dis- 
 charge of insolvent debtor from imprisonment. 
 When denial of application deemed res adjudi- 
 cala. Eeversed, but not on points discussed be- 
 low. Matter of Boberts, 70 N. Y. 5. 
 
 Roberts, Matter of, 17 Hun 559. Con- 
 stitutionality of statutes relating to assessments 
 in the city of New York. Affirmed,- i{ seems, 
 June 1st, 1880. 
 
 Roberts, Matter of, 8 Daly 95. Objec- 
 tion to discharge of prisoner under insolvent 
 laws. Overruled. Mailer of Fowler, 8 Daly 
 548, 552, 557. 
 
 Roberts, Matter of, 59 How. Pr. 136. 
 Discharge of imprisoned debtor. Wiien his 
 proceedings are "just and fair." Followed. 
 Matter of Finck, 59 How. Pr 145, ^47. 
 
 Roberts v. Davids, 12 Hun 394. Code 
 of Civ. Pro., ? 1303, does not apply to appeals 
 from justice's court to county court. Follow- 
 ed. McKinstry v. Skaler, 17 Hun 136. 
 
 Roberts v. Fowler, 4 Abb. Pr. 263.- 
 Distinguished. Kramer v. Buckel, 17 Hun 
 463, 466. 
 
 Roberts V. White, 43 Superior 455. Time 
 
523 
 
 CASES CRITICISED. 
 
 to enter order of reference to ascertain damages 
 unstained by reason of injunction. Affirmed. 
 Moherts v. White, 73 N. Y. 375. 
 
 Robertson v. Atlantic Mutual Ins. 
 Co., 37 Superior 442. What amounts to a total 
 loss of freight. Affirmed. Robertson v. At- 
 lantic Mulucd Ins. Co., 68 N. Y. 192. 
 
 Robinson v. Chamberlain, 34 N. Y. 
 389. Contractor with the stale, for a valuable 
 consideration, is liable to third persons for dam- 
 ages sustained by reason of his breach of the 
 contract. FoLiiOWED. Little v. Banks, 20 Hun 
 143, 146. 
 
 Robinson v. Chittenden, 7 Hun 133. 
 Charter-party — general owner retaining posses- 
 sion and command, liability of, for goods lost on 
 voyage. Bevbesed on points not discussed in 
 court behw. Bobinson v. Chitte/nden, 69 N. Y. 
 525. 
 
 Robinson v. National Bank of New 
 Berne, 19 Hun 477. Eight to attachment 
 .against national bank before final judgment. 
 Apeirmed, it seemg, June 8th, 1880. 
 
 Robinson v. New York Central, &o., 
 R. R. Co., 66 N. Y. 11. Contributory negli- 
 gence not attributable to one riding gratuitous- 
 ly in the vehicle of another, through whose 
 ■liegligence, combined with that of the railroad 
 company, an accident occurs at a crossing 
 Followed. Dyer v. Erie Railway Co., 71 N. Y. 
 228, 234. 
 
 Robinson v. Phillips, 65 Barb. 418. Ad- 
 verse possession. " It noes not distinctly appear 
 in that case what the' character of the possession 
 or occupation was, but some of the expressions 
 of the learned judge who delivered the opinion 
 are not, I think, sustained by the authorities." 
 Pope V. Hanmer, 74 N. Y. 240, 245. 
 
 Robinson v. Plimpton, 25 N. Y. 484. 
 Distinguished. Church v. Simmons, 19 Hun 
 o-jQ 222 
 "^Robinson v. •WUliams, 22 N. Y. 380. 
 Distinguished. Ackerman v. Humicker, 21 
 Hun 53, 57. 
 
 Rochester, &o., R. R. Co. v. Clarke 
 Nat. Bank, 60 Barb. 234. Judgment of 
 ouster in quo warranto against an officer, takes 
 away from him his character as an ofiBcer de facto, 
 so far as third persons with notice of the judg- 
 ment are concerned. Distinguished. People, 
 exrel. Gilchrist, v. Murray, 73 N. Y. 535, 540. 
 
 RockefeUer v. Hoysradt, 2 HUl 616. 
 Distinguished. Northrup v. Garrett, 17 Hun 
 497 499. 
 
 Rockwell V. Brown, 33 Su^rior 380. 
 Deed given in insolvency proceedings insuf- 
 ficient to support ejectment. Ebveksed. 
 Bockwelt V. Broum, 54 N. Y. 210. 
 
 Rockwell V. Brown, 54 N. Y. 210. Dis- 
 tinguished. BockweU V. MeGovem, 69 JN. Y. 
 
 294 299 
 
 Rockwell V. McGovem, 40 Superior 118. 
 Deed of insolvent prima facie evidence of title 
 in ejectment. Affirmed. RockweU v. MeGov- 
 
 ern,69 N. Y. 294. ,„ r, i, ^7q 
 
 Rockwell V. Saunders, 19 Barb. 47i 
 In replevin, an answer of title in third person 
 is good without allegations connecting defendant 
 with right of such person. Doubted and dis- 
 tinguished. Stowdl V. Otis, 71 N. Y. 36, 88. 
 Roderigas v. Bast ■ River Savings 
 Bank, 63 N. Y. 460. Where general jurisdic- 
 tion is given to a court of any subject, and that 
 jurisdiction, in any particular case, depends 
 
 upon facts which must be brought before that 
 court for its determination upon the evidence, 
 and where it is required to act upon such evi- 
 dence, its decision upon the question of juris- 
 diction is conclusive until reversed, so far as to 
 protect its officers and all other innocent persons 
 who act upon it. Followed. Lange v. Bene- 
 dict, 73 N. Y. 12, 30 ; Chapman v. Phnceix Nat. 
 Bank, 44 Superior 340, 365; S. C, 5 Abb. N. 
 Cas. 118, 127. 
 
 Collateral impeachment of letters of adminis- 
 tration. "That decision was concurred in by a 
 majority of the court, and we do not feel justi- 
 fied in reviewing it on the merits, * * * * 
 but we do not feel justified in going further." 
 Roderigas v. East River Savings BistUution, 76 N- 
 Y. 316, 319.. 
 
 Roderigas V. Bast River Savings In- 
 stitution, 43 Superior 217. Letters of ad- 
 ministration signed, sealed and issued by the 
 surrogate's clerk, without being acted upon by 
 the surrogate himself, are void. Surrogate can- 
 not delegate his judicial authority. Affirmed. 
 Modgerigas v. East River Savings Institution, 76- 
 N. Y. 316. 
 
 Rodgers v. Bonner, 45 N. Y. 379. Dis- 
 tinguished. Futter v. Scribner, 16 Hun 130, 
 132; ,S. C, 76 N. Y. 190, 192. 
 
 Rogers v. Dill, 6 Hill 415. Construotioi* 
 of will. Followed. MuUer v. Struppman, 6 
 Abb. N. Gas. 343, 348. 
 
 Rogers v. Rathbun, 8 How. Pr. 466. 
 Amended pleading served in bad faith cannot 
 be disregarded. Proper remedy is to move to 
 strike out. Followed. Ostrander v. Conkey, ■ 
 20 Hun 421, 422. 
 
 Rohrbach v. Germania Ins. Co., 62 
 N. Y. 47. When notice to agent of insurance- 
 company is notice to the company. Followed. 
 JSeii V. Lycoming Fire Ins. Co., 19 Hun 238, 245. 
 " The ruling of the court that notice to the 
 agent, or his knowledge of facts, was immaterial 
 and did not afiect the company, was made ia 
 view of a provision in the policy, which consti- 
 tuted him the agent of the insured and not of 
 the company." Whited v. Germania Fire Ins. 
 Co., 13 Hun 191, 194; S. C, 76 N. Y. 415, 
 419. 
 
 Roll V. Northern Central R. R. Co., 
 15 Hun 496. Care required from person called 
 upon to choose between desperate alternatives. 
 Affirmed, it seems, March 19th, 1880. 
 
 RoUin V. Cross, 45 N. Y. 766. Distin- 
 guished. Krauser v. Ruckel, 17 Hun 463, 466. 
 Roosevelt v. Draper, 23 N. Y. 318. 
 Tax-payer cannot sue to restrain or redress 
 wrongful application of property by municipal 
 fiscal ofacers. "Laws of 1872, ch. 161, h^ 
 taken away the very basis of this decision. 
 Latham v. Richards, 15 Hun 129, 133. 
 
 Rosa V. Butterfleld, 33 N. Y. 665. Rule 
 prohibiting corporation from interposing defence 
 of usury. Followed. Stewart v. BramhaU,. 
 74N.Y. 85, 87. ,,= 11000 
 
 Roseboom v. Roseboom, 15 Hun duy. 
 Construction of will. Liability of tenant in 
 common respecting rents and profits. Af- 
 firmed, it seems, June 8th, 1880. 
 
 Rosenbaok v. Manufacturers, &o.. 
 Bank, 10 Him 148. Preference given to sav- 
 ing banks (Laws of 1875, ch. 371, ? 48,) over 
 other creditors of insolvent bank, for deposits- 
 made therein, does not extend to call loans 
 made on collateral, by savings bank to insolvent 
 
CASES CRITICISED. 
 
 529 
 
 bank, Affibmed. Bosenbaek v. Manufacturer^, 
 &e., Bank, 69 N. Y. 358. 
 
 Roaenbaok v. Manufacturers', ^c, 
 Bank, 69 N. Y. 358. Distinqtjished. Jlfai- 
 (er 0/ P&Jersom, 18 Hun 221, 224. 
 
 Ross V. OurtisB, 31 N. Y. 606. Invalid- 
 ity of town bonds no defence in action against 
 supervisor by holder of coupon ; defendant hav- 
 ing received money from the county treasurer 
 with which to pay interest on the bonds. Af- 
 PEOVED AND FOLLOWET. First National Bank 
 of Oxford V. WheeUr, 72 N. Y. 201, 204. 
 
 Boss V. Harden, 42 Superior 427. Exam- 
 ination of party as to transactions with deceased 
 person. (Cdde of Pro., I 399.) Follovced. 
 Freeman v. Lawreruie, 43 Superior 288, 290 ; 
 Ross V. Harden, 44 Id: 579. 
 
 Boss V. Harden, 44 Superior 26. Liabil- 
 ity of executor on contract made with decedent. 
 FoLi^owBD. JJoss V. Harden 44 Superior 579. 
 
 Boss V. Mather, 47 Barb. 582. Distin- 
 guished. JUttauer v. Ooldman, 72 N. Y. 506, 
 513. 
 
 Boss V. New York Central, &o., B. B. 
 Co., 5 Hun 488. Liability of master to servant 
 for negligence of co-servant. Who are co-ser- 
 vants. Affirmed. (?) Boss v. Nea York Central, 
 &e., B. B. a., 74 N. Y. 617. 
 
 Boss V. Boss, 6 Hun 80. Bespondent's 
 pleadings on appeal from decree of surrogate on 
 final accounting of executor. Ovebbtji.ed. 
 Cox V. Schermerhom, 18 Hun 16, 18. 
 
 Boss V. Terry, 63 N. % 613. Distin- 
 guished. lAltauer v. Ooldman, 72 N. Y. 506, 
 .511. 
 
 Boss V. 'Wood, 70 N. Y. 8. Distinoxtish- 
 ED. VerpUmck v. Van Buren, 76 N. Y. 247, 
 261. 
 
 Bounds V. .Delaware, &o., B. B. Co., 
 64 N. Y. 129. Whether violence of servant of 
 railroad company in ejecting person from bag- 
 gage car was willful or malicious, a question of 
 fact for the jury. Followed. Hoffman v. 
 New York Central, &e., B. B. Co., 44 Superior 
 
 Liability of master for wrongful and willful 
 act of servant. " In the opinion of Andrews, 
 J., is found a very thorough and satisfactory 
 consideration of the rule, and the principles 
 upon which it is founded." Cohen v. Dry Dock, 
 <Sca., B. B. Co., 69 N. Y. 170, 173. 
 
 Bountree v. Holmes, 15 Hun 585. See 
 Holmes v. MeDoweU, in this Table. 
 
 BoTvley v. Empire Ins. Co., 4 Abb. App. 
 Dec. 131. Distinguished. Landers v. Water- 
 tovm Fire Ins. Co., 19 Hun 174. 
 
 Boyoe v. Watrous, 7 Daly 87. Defence 
 
 to action by buyer, for non-delivery. Review of 
 direction of verdict. Affirmed. Boyee v. 
 Watrous, 73 N. Y. 597. 
 
 Buggies V. Chapman, 59 N. Y. 163. 
 Eight of receiver of insurance company to secu- 
 rities deposited with insurance department. 
 Followed. Matter of Reserve Ins. Co., 13 Hun 
 115. 
 
 Bunyan v. Nichols, 11 Johns. 547. De- 
 fence of negligence must be specially pleaded in 
 action by attorney for services. Doxtbted. 
 Blair V. Bartlett, 75 N. Y. 150, 155. 
 
 Bussell V. Cook, 3 Hill 504. Distin- 
 GUISHED. Fenzerbeiter ,v. Wayddl, 21 Hun 161, 
 162. 
 
 Bussell V. Mayor, &o., of New York, 
 2 Den. 461. Liability of city for acts of officers. 
 Followed. New York and Brooklyn Saw Mill, 
 &e., Co. V. OUy of Brooklyn, 71 N. Y. 580, ,587. 
 
 Bussell V. Weinberg, 2 Abb. N. Cas. 422. 
 Defences in foreclosure. Affirmed. Bussell 
 V. Weinberg, 4 Abb. N. Cas. 139. 
 
 Bussell V. Wlnne, 37 N. Y. 591. Effect 
 of agreement permitting mortgagor of chattels 
 to keep possession and sell. Appeoved. South- 
 ard V. Brnner, 72 N. Y. 424, 432. 
 
 Butter V. Puckhofer, 9 Bosw. 638. Guard- 
 ian ad litem unnecessary where infant party at- 
 tains majority during the litigation. Follow- 
 ed. Smart v. Haring, 14 Hun 276, 278. 
 
 Byall V. Kennedy, 40 Superior 847. 
 Liability of master of vessel for injury to pas- 
 senger. Contributory negligence of mother of 
 child imured. Affibmed. ByaU v. Kennedy, 
 67 N. Y. 379. 
 
 Byan v. People, 19 Hun 188. Jurisdic- 
 tion of Courts of Special Sessions. Examina- 
 tion of witnesses. Affibmed. Byan v. People, 
 79 N. Y. 593. 
 
 Byan v. "Ward, 48 N. Y. 204. Part pay- 
 ment not an extinguishment of debt, though re- 
 ceived as such and receipt in full given. Dis ■ 
 TiNGUiSHED. I/udington v. Bell, 77 N. Y. 138, 
 143. 
 
 Byers, Matter of, 10 Hun 93. _ Power of 
 county judge, when disqualified by interest, to 
 designate judge of another county to hold court. 
 Affibmed on ground that there was no disqualifica- 
 tion. Matter of Byers, 72 N. Y. 1. 
 
 Byerson v. Willis,. 8 Daly 462. Eempdy 
 of vendee, on vendoi^'s breach of agreement to 
 obtain release of outstanding claim on property 
 conveyed with covenant of title. Affibmed, 
 it seems. See 8 Daly 466, n. 
 
 Byghtmyre v. Durham, 12 Wend. 245. 
 Distinguished. Tiurniy v. Dunn, 77 N. Y. 515, 
 517. 
 
 34 
 
CASES CRITICISED. 
 
 S. 
 
 Sacia v. O'Connor, 45 Superior 633. New 
 trial in ejectment, when properly denied. Af- 
 riEMED. Saeia v. O'Connor, 79 N. Y. 260. 
 
 Sackett St., Matter of, 10 Hun 93. Dis- 
 qualified county judge may request judge of an- 
 other county to hold court. ArriEMED. 
 Matter of Sackett St., 74 N. Y. 95. 
 
 St. Joseph's Asylum, Matter of, 10 
 Hun 113, n. Assessments for local improve- 
 ments—how made. Laws of 1840, ch. 326, ? 7, 
 prohibiting assessments in New York city for 
 improvements exceeding half the taxable 
 value of property assessed, does not relieve from 
 such assessments property exempt from taxa- 
 tion. Affirmed. Matter of St. Joseph' sAsulum, 
 69N.Y. 353. 
 
 St. Joseph's Asylum, Matter of, 69 
 N. Y. 353. Power of court to reduce and modi- 
 . fy assessment. Followed. Matter of Auchr 
 muiy, 18 Hun 324, 326. 
 
 St. Mark's Church, Matter of, 11 Hun 
 381. Valuation of property in cases of local 
 - assessments. Affibmed. Mattel' of St. Marias 
 CAurch, 74 N. Y. 610. 
 
 St. Vincent Female Orphan Asylum 
 V. City of Troy, 12 Hun 317. Abandonment 
 of part of a street by municipal corporation in 
 establishing street boundary, and acquisition of 
 title to part so abandoned by adjacent owner by 
 making substantial improvements thereon. Be- 
 VERSED. St. Vincent Female Orphan Asylum v. 
 CUy of Troy, 76 N. Y. 108. 
 
 Salisbury v. Van Eoesen, 3 Hill 77. 
 Accounting by guardian a pre-requisite to action 
 on his bond. Cbiticised. Oiniin v. Hickman, 
 21 Hun 316, 317. 
 
 Salmon v. Gedney, 11 Hun 29. See, also, 
 Salmon v. Oedney, 75 N. Y. 479. 
 
 Salter v. Utioa, &c., R. R. Co., 13 Hun 
 187. Duty of person crossing railroad track. 
 Charge to jury as to contributory negligence. 
 Keversed. Salter v. Utiea, &c., B. B. Q)., 75 
 N. Y. 273. 
 
 Salter v. Utica, &c., R. R. Co., 75 N. 
 Y. 273. Distinguished. KeUogg v. New York 
 Central, &e., R. B. Co., 79 N. Y. 72, 77. 
 
 Sanunon v. Ne-w York, Sec, R. R. Co., 
 38 Superior 414. Injury to servant. What 
 amounts to contributory negligence. Affirmed. 
 Sammon v. New York, dee., B. B. Co., 62 N. Y. 
 251. 
 
 Samuels v. Evening Mail Assoc, 6 
 Hun 5. Does not hold that the jury may not, 
 in a proper ease, allow damages for wounded 
 feelings in libel. Hamilton v. Eno, 16 Hun 599, 
 601. 
 
 Samuels v. Evening Mail Assoc., 9 
 Hun 288. Evidence of actual malice in libel. 
 When exemplary damages recoverable. Be- 
 VERSED. Samuds v. Evening Mail Assoc, 75 
 N. Y. 604. 
 
 Sanborn v. Lefferts, 58 N. Y. 179. Dis- 
 tinguished. Losee v. BuUard, 79 N. Y. 404, 
 408. 
 
 Sander v. Hoffman, 39 Superior 307. 
 What amoimts to a breach of a covenant not to 
 engage in a specified business within certain 
 limits. Ebvbbsed. Sander v. Hoffman, 64 N. 
 y. 248. 
 
 Sanford v. Sanford, 5 Lans. 486. Evi- 
 dence to prove that gift from parent to child 
 was'intended as an advancement. Followed. 
 Weatherwax v. Woodin, 20 Hun 518, 519. 
 
 Sands v. Hughes, 53 N. Y. 287. Adverse 
 possession. Claim or color of title. Approved 
 AND followed. Towle V. Bemeen, 70 N. Y. 
 303, 318. 
 
 Saijeant v. Blunt, 16 Johns. 74. What 
 acts of agent, in contravention of his instruc- 
 tions, do not amount to a conversion. Fol- 
 lowed. Dickinson v. Dudley, 17 Hun 569, 
 571. 
 
 Savage v. Grill, 19 Hun 4. Wife may re- 
 lease right of dower after judgment of absolute 
 divorce procured by her. Affirmed, it seems, 
 February 3d, 1880. 
 
 Saw Mill Co. V. City of Brooklyn, 8 
 Hun 37. Liability of municipal corporation for 
 failure or refusal of its officers to perform their 
 official duties. Affirmed. Saw Mill Oo. v. 
 City of Brooklyn, 71 N. Y. 580. 
 
 Scattergood v. "Wood, 14 Hun 260. 
 Measure of damages in replevin. Affirmed. 
 Scattergood v. Wood, 79 N. Y. 263. 
 
 Schanck v. Mayor, &c., of New York, 
 10 Hun 124. Leases of real estate in New York 
 city by common council. (Laws of 1873, ch. 
 335, g 18.) What is "reasonable rent," to be 
 determined by common council. Affirmed. 
 Schanck v. Mayor, <&c., of New York, 69 N. Y. 
 444. 
 
 Schell, Matter of, 16 Hun 283. Assess- 
 ments for street improvements in the (ity 
 of New York. When valuation is established. 
 Reversed. Matter of Schell, 76 N. Y. 
 432. 
 
 Schell, Matter of, 53 N. Y. 263. Amount 
 of trustee's compensation. ^Disiingijished. 
 Matter of Shaw, 18 Hun 195, 197. 
 
 Schenck v. Andrews, 46 N. Y. 589. 
 Individual liability of trustees of manufacturing 
 company. DiSTiNGtriSHED. Brown v. Smith, 
 13 Him 408, 412. 
 
 Schenck v. Mayor, &o., of New York, 
 40 Superior 165. Powers of supervisors of New 
 York county in respect to furnishing Ludlow 
 street jail. Affirmed. Schenck v. Mayor, &c., 
 of New rori, 67 N. Y. 44. 
 
 Sohermerhom v. Talman, 14 N. Y. 93. 
 Distinguished. Knickerbocker Life Ins. Oo. v. 
 NeUon, 78 N. Y. 137, 154. 
 
 SchieffeUnv. Carpenter, 15 Wend. 400. 
 Acceptance of new lease, when implied surren- 
 der of old one. Approved. Coe v. Hobby, 72 
 N. Y. 141, 146. 
 
 Schiifer v. Pruden, 39 Superior 167. 
 Forfeiture of dower by reason of adultery. 
 Affirmed. Schiffer v. Prvden, 64 N. Y. 
 47. 
 
 Schoenwald v. Metropolitan Savings 
 Bank, 57 N. Y. 418. Liability of savings 
 bank to depositor -for amount paid on forged 
 order, accompanied by presentation of pass- 
 book. Criticised 4ND distinguished. Allen 
 V. WHMamsbnrgh Savings Bank, 69 N. Y. 314, 
 318. 
 
 Sohreyer v. Mayor, fee, of New 
 York, 40 Superior 255. What will operate as 
 
CASES CRITICISED. 
 
 531 
 
 5in assignment of an installment not yet due un- 
 •der a contract. Affiemed. Sckreyer v. Mayor, 
 ■&C., of New York, 66 N. Y. 656. 
 
 Schroeder v. Q-urney, 10 Hiin 413. ■ 
 Priority between unrecorded deed and subse- 
 •<3uent judgment. Afpibmed. Schroeder v. 
 Ourney, 73 N. Y. 430. 
 
 Schuyler v. Smith, 51 N. Y. 309. Ex- 
 plained AND DISTINGUISHED. Hozeltine V. 
 Weld, 73 N. Y. 156, 161. 
 
 Scofleldv. Dosoher, 10 Hun 582. When 
 ?eave of court necessary to maintain action for 
 deficiency against executor of grantee who as- 
 sumed payment of mortgage. Affirmed. 
 ■Scofidd V. Doscher, 72 N. Y. 491 ; which is followed 
 -in Earl v. Dowd, 20 Hun 527, 529. 
 
 Scott V. Depeyster, 1 Edw. Ch. 513. 
 Distinguished. French v. Redman, 13 Hun 
 502, 506. 
 
 Scott V. McMillan, 8 Daly 320. Cove- 
 :nant to contribute to construction of party wall 
 ■does not run with the land. Affirmed. Scott 
 V. McMiUan, 76 N. Y. 141. 
 
 Scott V. Nevius, 6 Duer 672. Eight of 
 •creditor of ceitui que trust to compel application 
 •of surplus income to the payment of his debt. 
 Distinguished. Williams v. Thorn, 70 N. Y. 
 370, 275. 
 
 Seaboard, Sco., R. R. Oo. v. "Ward, 1 
 Abb. Pr. 46. Criticised. Matter of Davis, 7 
 Daly 1, 7. 
 
 Seaman v. Duryea, 11 N. Y. 324. En- 
 forcement by surrogate of payment of balance 
 of guardian's account by process against the 
 person. Distinguished. Matter of Watson v. 
 jVefeom, 69 N. Y. 536, 545. 
 
 Seaman -v. Luce, 23 Barb. 240. Execu- 
 tion debtor must claim his exemption before he 
 can sue for a wrongful levy or sale. FoL- 
 xowED. Turner v. Borlhwidc, 20SHun il9, 
 122. 
 
 Seaman v. "WTiitehead, 18 Hun 64. 
 Power of surrogate to issue attachment for con- 
 tempt. Reversed. Seaman v. Whitehead, 78 
 JSr. Y. 306. 
 
 Second Avenue M. B. Church, Mat- 
 ter of, 66 N. Y. 395 ; reversing 5 Hun 442. 
 Where there has never been any tax valuation 
 of the property it cannot be legally assessed for 
 local improvement. Distinguished. Matter 
 ■<if Hebrew Benevolent Orphan Asylum Society, 70 
 N. Y. 476, 479. 
 
 Assessments for local improvements in New 
 York city limited to one-half value as assessed 
 .for general taxation. Distinguished. Matter 
 of St. Joseph's Amlum, 69 N. Y. 353. Fol- 
 lowed. Matter of -Oram, Id. 452, 461. 
 
 Secor V. Sturgis, 16 N. Y. 548. What 
 ■demands must be joined in action on contract, or 
 deemed waived. Followed. Jex v. Jacob, 19 
 Hun 10-5, 109. 
 
 Seeley v. New York National Ex- 
 change Bank, 8 Daly 400. Affirmed. 
 Seeley v. New York National Exchomqe Bank, 78 
 N. Y. 608. 
 
 Seixas v. "Woods, 2 Cai. 48. The sale of 
 a chattel of a particular description^when not 
 a warranty tliat the article sold is of the kind 
 specified. Overruled. White v. Miller, 71 
 N. Y. 118, 129. 
 
 Seneca County Bank v. Nears, 5 Den. 
 329. Distinguished. Holden v. New York and 
 JSrieBank, 72 N. Y. 286, 295. 
 
 Settle V. Van Evrea, 49 N. Y. 281. In- 
 
 terpretation of constitutional provisions. Fol- 
 lowed. Cauntrymmb v. Norton, 21 Hun 17, 
 19. 
 
 Seward v. Keesler, 41 Superior 539. 
 [Reported in memorandum.] 
 Affirmed. Seward v. Kessler, 69 N. Y. 623. 
 
 Sewell V. City of Oohoes, 11 Hun 626. 
 Liability of city for injuries sustained by plain- 
 tifl!" by reason of street obstruction. Affirmed. 
 Sewell V. Oity of Oohoes, 75 N. Y. 45. 
 
 Seymour v. Fellows, 44 Superior 124. 
 Transfer of chose in action directly from hus- 
 band to wife, valid. Affirmed. Seymour v. 
 Fellmvs, 77 N. Y. 178. 
 
 Shakespeare v. Markham, 10 Hun 311. 
 Surrogate has no jurisdiction to try disputed 
 claim against estate. Followed. Boughton 
 V. Flint, 13 Hun 206, 209; q. v. in this Ta- 
 ble. 
 
 Sharp V. Johnson, 4 Hill 92. _ Sale for 
 non-payment of assessment for local improve- 
 ment no objection to compelling purchaser to 
 take title. Followed. Jenkins v. Fahey, 73 
 N. Y. 355, 365. 
 
 Shaver v. Ehle, 16 Johns. 201. Distin- 
 guished. Bardin v. Sieoeason, 75 N. Y. 164, 
 168. 
 
 Shaver v. Western TTnion Teleg. Co., 
 57 N. Y. 459, 463. When order to pay money does 
 not operate as an equitable assignment. Fol- 
 lowed. Bria V. TvXtte, 15 Hun 289, 291. 
 
 Shaw V. Cock, 12 Hun 173. When an 
 action is commenced, within the purview of the 
 statute of limitations. Power of the court to 
 order amendment of summons. Affirmed. 
 Shaw V. Oock, 78 N. Y. 194. 
 
 Shearman v. Henderson, 12 Hun 170. 
 Eight to move for new trial on justice's minutes 
 — what not a waiver of the right. Followed. 
 Lucas V. McEnerna, 19 Hun 14, 16. 
 
 Shelton v. Merchants' Despatch 
 Transp. Co., 36 Superior 527. Liability of 
 common carrier, when attaches. Power of agent 
 to ship goods, to make special contract with car- 
 rier. Reversed. Shelton v. Merchants^ Des- 
 patch Transp. Co., 59 N. Y. 258. 
 
 Shepherd y. People, 19 N. Y. 537. 
 Laying ownership of building set fire to, in in- 
 dictment for arson. Followed. Levy v. Peo- 
 ple, 19 Hun 883, 386, 387. 
 
 Sheridan v. Brookljm, &o., R. R. Co., 
 36 N. Y. 39. Election to sue one or all of sev- 
 eral tortfeasors. Distinguished. Ohipmanv. 
 Palmer, 77 N. Y. 51, 54. 
 
 Sheridan v. Jackson, 10 Hun 89. Suf- 
 ficiency of complaint in action against receiver 
 by one claiming to be entitled to rents and 
 profits collected by defendant as such receiver. 
 Affirmed. Sheridan v. Jackson, 72 N. Y. 
 170. 
 
 Sheridan v. Mayor, &c. , of New York, 
 68 N. Y. 30. If plaintifl have a valid transfer 
 as against his assignor, and holds the legal title 
 to the demand, payment to him will protect the 
 defendant against any claim by the assignor. 
 He is, in such case, tlie real party in interest, 
 under the code, and can maintain the action, 
 even though, as between the parties thereto, it 
 appears that the transfer is merely colorable. 
 Followed. Freeman v. Falconer, 44 Superior 
 132, 135. Distinguished. Hays v. Hathom, 
 74 N. Y. 486, 490. 
 
 Sheriden v. Genet, 12 Hun 660. Fol- 
 lowed. Bonpnge v. Field, 44 Superior 581. 
 
532 
 
 CASES CEITICISED. 
 
 Sherman v. Wells, 14 How. Pr. 522. 1 
 Distinguished. Zinsser v. Seiler, 7 Daly 464, 
 465. ' ^ 
 
 Sherwood v. Agrlciiltural Ins. Co., 10 
 Hun 563. Transfer of interest in insured prop- 
 erty by will, a breach of condition against alien- 
 ation of property, in fire policy. Affirmed. 
 Sherwood v. Agrieulturcd Ins. Co., 73 N. Y. 447. 
 
 Sherwood v. Archer, 10 Hun 73. Usury 
 in original note not a defence against new note 
 in hands of bona fide holder. Reversed, sub 
 nam. Treadwdl v. Archer, 76 N. Y. 196. 
 
 Shlff V. New York Central, &o., R. R. 
 Co., 16 Hun 278. Prior verbal agreement, 
 when not merged in bill of lading. Liability 
 of carrier for injuries sustained on connecting 
 route. Affirmed, it seems, June 8th, 1880. 
 
 Shipman v. Shafer, 14 Abb. Pr. 449. 
 Distinguished. Trunninger v. Busch, 7 Daly, 
 124, 126. 
 
 Shipsey v. Bowery Nat. Bank, 36 Su- 
 perior 501. Eights of holder of lost check. Ap- 
 plication of payments. Eeveesed. Shipsey v. 
 Bmaery Nat. Bank, 59 N. Y. 485. 
 
 Shulman v. People, 14 Hun 516. Sub- 
 sequent statements of one accused of false pre- 
 tences ; when inadmissible to show knowledge of 
 falsity of statements on which prosecution is 
 based. Affirmed by divided court. People v. 
 Shulman, 76 N. Y. 624. 
 
 Shiunway v. Cooley, 9 Hun 131. Pay- 
 ment of amount due on judgment, when extin- 
 guishes judgment. Distinguished. Marsh v. 
 Benedict, 14 Hun 317, 320. 
 
 Shumway v. Shumway, 42 N. Y. 143. 
 Explained and distinguished. Bucher v. 
 CarroU, 19 Hun 619, 620. 
 
 Shumway v. Stillman, 4 Cow. 292; 
 6 Wend. 447. Validity of foreign judgment 
 as dependent on jurisdiction of the person. 
 Followed. Pcopie v. Baker, 76 N. Y. 78, 83. 
 
 Silver Lake Bank v. North, 4 Johns. 
 Ch. 370. Power of bank to take mortgage to 
 secure loan. Distinguished. Crocker y. Whit- 
 ney, 71 N. Y. 161, 170. 
 
 Simar v. Canaday. 53 N. Y. 298, 306. 
 What false representations of vendor will avoid 
 contract of sale. Followed. Bacon v. FriMe, 
 15 Hun 26, 29. „,„,-. 
 
 Simmons v. Law, 3 Eeyes 217. Theft 
 by servants of carrier not within exception of 
 bill of lading. Approved. Spinette v. Atlas 
 Steamship a., UB.un 100, lOi. _ 
 
 Simmons v. Lyons, 35 Superior 554. but- 
 flciency of complaint in replevin. Amendment 
 of complaint on the trial. Affirmed. Sim- 
 mons V. Luons, 55 N. Y. 671. 
 
 SimiS.ns V. SisBOn, 26 N. Y. 264, 277. 
 Admissibility of testimony as to conversations 
 with deceased persons, under Code of Pro., i 
 399. Followed. Holcombv. Hokomb, 20 Oaa 
 
 Sims' V. Sims, 12 Hun 231. Conviction 
 of felony in foreign state renders witness incom- 
 petent to testify, in this state. Such record con- 
 clusive of the fact that the offence was comtnit- 
 ted. Eeversed. Sims v. Sims, 75 N. Y. 466. 
 
 Singer v. People, 13 Hun 418. Suffi- 
 ciency of indictment for assault on fenuale child 
 under ten years of age, with intent to commit 
 race— consent of child no defence. Affirmed. 
 Sivaer v. People, 75 N. Y. 608. . 
 
 SiSBOn V Hibbard, 10 Hun 420. Engine 
 and boiler in manufactory, when deemed per- 
 
 sonal property as between holder of chattel 
 mortgage thereon, and purchaser of the premi- 
 ses. Affirmed. Sisson v. Hibbard, 75 N. Y. 
 542. 
 
 Sixth Ave. R. R. Co. v. Gilbert Ele- 
 vated R. R. Co., 71 N. Y. 430. Followed. 
 and commented upon. Troy, &c., B. R. Co. v. 
 Boston, Hoosic Tunnd, &c.. By. Co., 57 How. 
 Pr. 181. 
 
 Slater v. Mersereau, 64 N. Y. 138. Dis- 
 tinguished. Chipman v. Palmer, 77 ST. Y. 51, 
 54. 
 
 Slaughter v. Gerson, 13 Wall. 379. Dis- 
 tinguished. Savings Institution v. Burdiele, 20 
 Hun 104, 113. 
 
 Sloan V. New York Central, &o., R. 
 R. Co., 1 Hun 540. $1000 per year, when not 
 excessive damages for loss of services of wife. 
 Followed. Oreginy. Brooklyn Orosstowa B. B. 
 Co., 18 Hun 368, 370. 
 
 Smith, Matter of, 52 N. Y. 526. A reso- 
 lution of the common council of New York city, 
 for a public improvement, is unauthorized and 
 inoperative, where there are no newspapers le- 
 gally, designated in which to publish such reso- 
 lution. Followed. Matter of Burmeister, 76 
 N. Y. 174. 177. 
 
 Smith V. Acker, 23 Wend. 653, 668. Duty 
 of sheriff in levying on mortgaged chattels after 
 forfeiture, under execution against mortgagor. 
 Followed. Atkins v. Saxtou, 77 N. Y. 195, 
 200. 
 
 Smith V. Brady, 17 N. Y. 173. Before a 
 contractor can sue for money to grow due on 
 the completion of the contract, he must show 
 that he has complied with the terms of his con- 
 tract. Followed. Preusser v. Florence, 4 Abb, 
 N. Cas. 136, 137. 
 
 Smith V. Christopher, 3 Hun 585. When 
 a party interested testifies to declarations of a 
 deceased person, the prohibition contained in 
 Code of Pro., § 399, does not apply, and kin- 
 dred declarations in opposition are admissible. 
 Approved. Marsh v. Brornn, 18 Hun 319, 323. 
 Smith V. City of Rochester, 13 Hun 
 214. Municipal corporation not liable for neg- 
 ligence of servant employed by common council 
 to do an act not within the corporate powers 
 conferred by law. Affirmed. Smith v. Oityi 
 ofBochester, 76 N. Y. 506. 
 Smith V. Coe, 36 Superior 570. 
 [Eeported in memorandum.] 
 Affirmed. Smith v. Coe, 55 N. Y. 678. 
 
 Smith V. Falconer, 11 Hun 481. Liabil- 
 ity of sureties on bond given on opening inquest. 
 Affirmed. Smith v. Falconer, 79 N. Y. 633. 
 
 Smithv.Frankfleld,13Hun489. Where, 
 after entry of judgment in an action based upon 
 a former judgment, the latter is reversed na ap- 
 peal, the first-mentioned judgment will be re- 
 versed and a new trial granted on terms. Af- 
 firmed. Smith V. FrankjIM, 77 N. Y. 414. 
 
 Smith V. Frost, 42 Superior 87. Conver- 
 sion of trustee. Evidence of value of proper^ 
 converted. Affirmed. Smith v. Frost, <0 JS. 
 
 Smith V. Isaacs, 37 Superior 3. When 
 refusal to non-suit is not reversible error. Ee- 
 versed. Smith V. Isatux, 58 N. Y. 680. 
 
 Smith V. Lynes, 5 N. Y. 41. Eights of 
 purchaser from vendee under conditional sale.. 
 Followed. Comer v. Cunningham, 77 N. Y. 
 391 399. Distinguished. Farm.erif,&c.,Bank 
 V. Logan, 74 N. Y. 568, 584. 
 
CASES CRITICISED. 
 
 533 
 
 Smith V. Mayor, &o., of New York, 37 
 If. Y. 518. An officer de jure, kept from the 
 •exercise of his ofSce while waiting and willing 
 to perform the duties of it, there being an officer 
 de facto rendering the official services and re- 
 •ceiving the payi'uent authorized by law, leay 
 not recover of the municipality the compensa- 
 tion attached to the office for the time for which 
 his title to the office was in dispute and he did 
 not exercise it. Doubted. Mo Veaneyy. Mayor, 
 <fec., of New York, 59 How. Pr. 106, 109, 112. 
 
 Smith V. Mayor, &o., of New York, 
 ■68 N. y. 552. Distinction between the/rancAise 
 •of a corporation, and the structures erected by it, 
 as regards taxation. Followed. People, ex 
 rel. New York Elevated Railway Co., v. Commis- 
 «!men, 19 Hun 460, 464. 
 
 Smith V. Miller, 43 N. Y. 172 ; again 52 
 N. Y. 545. Diligence required from agent for 
 ■collection of negotiable paper. Reviewed and 
 PoiiiiOWED. First Natj Bank of Meadmlle v. 
 F<mrth Nat. Bank of New York, 77 N. Y. 320, 
 -325; 16 Hun 832, 335. 
 
 Smith v.- People, 47 N. Y. 330. When 
 an express repeal of a statute, by its title, will 
 be controlled by subsequent act passed at the 
 same session, which assumes certain provisions 
 ■of the repealed act to be still in force. Fol- 
 lowed. People, ex rel. Stiner, v. Morrison, 78 N. 
 Y. 84, 89. 
 
 Smith V. People, 53 N. Y. 111. What 
 parting with possession by owner of chattel, is 
 ■a. defence to indictment for larceny. .Distinction 
 between larceny and false pretences. DiSTDf- 
 •omSHED. Zink V. People, 77 N. Y. 114, 128. 
 
 Smith V. People, 9 Hun 446. Laws of 1857, 
 ■ch. 628, i 14, conferring upon innkeepers the 
 •exclusive right to sell liquors to be drank on the 
 premises, is repealed by Laws of 1870, ch. 175. 
 Eeversed. People v. Smith, 69 N. Y. 172. 
 
 Smith V. Pettee, 7 Hun 334. Damages 
 for refusal to accept goods sold. Time within 
 ■which vendor may re-sell. Reversed. Smith 
 ■v.Peitee, 70 N.Y. 13. 
 
 Smith V. Rathbun, 13 Hun 47. Referee 
 allowing amendment of complaint by adding 
 material allegations as to which no proof has 
 been given, cannot impose a condition allowing 
 •defendant to demur to complaint as amended. 
 Reversed. Smith v. Batlibun, 75 N. Y. 122. 
 
 Smith V. Ryan, 39 Superior 489. What 
 payment on account will take the case out of the 
 fiiatule of limitations. Affirmed. Smith v. 
 Jtyan, 66 N. Y. 352. 
 
 Smith V. Smith, 4 Paige 432. If the de- 
 fendant wishes to prove a condonation of the 
 offence, or to establish a recriminatory charge, 
 in bar of the divorce, strictly, he should urge it 
 by way of a special plea, or insist on it in his 
 •answer, as a defence. Followed. Soe v. Roe, 
 14 Hun 612, 614. 
 
 Smith V. Townsend, 25 N. Y. 479. Re- 
 lease of surety by extending time to principal. 
 DiSTiNGmSHED. Merchant^ Nat. Bank v. Hall, 
 18 Hun 176, 179. 
 
 Smith V. Velie, 60 N. Y. 106. Distin- 
 ■«TJISHED. Frane v. Vantine, 16 Hun 528, 529. 
 
 Snedeker v. Snedeker, 18 Hun 3o5. 
 Reference as to surplus moneys. Reversed 
 -sub nom. Bergen v. Snedeker, 8 Abb. N. Cas. 50. 
 
 Solinger v. Earle, 45 Superior 80. Ap- 
 plication of maxim Ex turpi causa, nan oritur 
 ■nctio. Followed. Solinger v. EgdsUm, 45 Su- 
 perior 605. 
 
 Southard v. Benner, 7 Daly 40. Chattel 
 mortgage, when fraudulent as to creditors. Ef- 
 fect 6f permission that mortgagor may sell. 
 Affirmed. Southard v. Bermer, 72 N. Y. 
 424. 
 
 Southwick V. First Nat. Batik of 
 Memphis, 7 Hun 96. Attachment may be 
 issued before final judgment, against non-resi- 
 dent national bank having property in this state. 
 Overruled. Rhoner v. First Nat. Bank of Al- 
 lentown, 14 Hun 126. 
 
 Southwick V. Southwick, 49 N. Y. 
 510, 519. Distinguished. People v. Oramdon, 
 17 Hun 490, 493. 
 
 Spelman, Matter of, v. Terry, 8 Hun 
 205. Rights and duties of special guardian to 
 sell infant's lands, who owns tax title thereto. 
 Affirmed. Mailer of Spelman v. Terry, 74 N. 
 Y. 448. 
 
 Sperry v. Reynolds, 65 N. Y. 179. Suf- 
 ficiency of grounds of error, in notice of appeal 
 from justice's judgment. Followed. Vedder 
 V. Van Buren, 14 Hun 250, 252. 
 
 Spinner v. New York Central, &c., 
 R. R. Co., 6 Hun 600; 67 N. Y. 153. The 
 mere fact that cattle are found upon the track, 
 without evidence of any right or authority from, 
 the company, does not, of itself, establish negli- 
 gence on the part of the owner of the cattle. 
 Followed. White v. Utica, &c., R. R. Co., 15 
 Hun 333, 334. 
 
 Spinnette v. Atlas Steamship Co., 
 14 Hun 100. Clause in bill of lading exempt- 
 ing carrier from liability for loss by theft, barra- 
 try by master and mariners, &c., does not cover 
 theft by purser. Reversed, it seems, February 
 24th, 1880. 
 
 Sprague v. Holland Purchase Ins. Co. , 
 69 N. Y. 128. What does not constitute a war- 
 ranty in fire insurance. Distinguished. Bdl 
 V. Lycoming Fire Ins. Co., 19 Hun 238, 244. 
 
 Squier v. Norris, 1 Lans. 282. Distin- 
 guished. Hensler v. Sefnn, 19 Hun 564, 567. 
 
 Squire's Case, 12 Abb. Pr. 38. Habeas 
 corpus to release party arrested in violation of 
 privilege. Distinguished. Matter of Lampert, 
 21 Hun 154, 158. 
 
 Squire v. Young, 1 Bosw. 690. What 
 amounts to an abandonment of supplementary 
 proceedings. Distinguished. Stanley v. Lo- 
 vett, 14 Hun 412, 413. 
 
 Staats V. Bristow, 73 N. Y. 264. At- 
 tachment against firm, when not a lien except on 
 individual property of partner served. Follow- 
 ed. DonneU v. Williams, 21 Hun 216, 218, 219 : 
 S. C, 59 How. Pr. 68, 69, 70. 
 
 Stafford v. Richardson, 15 Wend. 302. 
 Necessity of a demand to set the statute of lim- 
 itations running. Approved. Brust v. Bar- 
 rett, 16 Hun 409, 413. 
 
 Stalker v. McDonald, 6 Hill 93. Rights 
 of one taking negotiable paper as collateral, or 
 in payment of an antecedent debt. Comment- 
 ed on. Brooklyn, &c., R. R. Co. v. National 
 Bunk of Republic, 22 Alb. L. J. 189. 
 
 Standard Oil Co. v. Amazon Ins. 
 Co., 14 Hun 619. False statements in applica- 
 tion for insurance policy Affirmed on other 
 grounds. Standard Oil Co. v. Amazon Ins Co 
 79 N. Y. 506. 
 
 Stanton v. King, 8 Han 4. Cestui que 
 trust not necessary party to action for services 
 rendered to trust estate. When such services 
 give rise to a lien. Affirmed. Stanton v. 
 
534 
 
 CASES CRITICISED. 
 
 King, 69 K Y. 609. See further appeal, 76 N. 
 r. 585. 
 
 Stanton v. Miller, 14 Hun 383. Measure 
 jf damages on breach of contract to convey 
 land. Affibmed. Stanton v. Miller, 79 N. Y. 
 320. 
 
 Stapenhorst v. 'Wolff, 35 Supei-ior 25. 
 Construction of written instruments. Dissolu- 
 tion of partnership. AffieMBD. Stapenhorst 
 V. Wolff, 65 N. Y. 596. 
 
 Starbuck v. Murray, 5 Wend. 148. In 
 action on foreign judgment, defendant estopped 
 from pleading that he never appeared in the 
 former action, and that no process was served 
 upon him therein. Approved. Ferguson v. 
 Orawford, 70 N. Y. 253, 262. 
 
 Starin v. Town of Genoa, 23 N. Y. 
 439. Evidence of consent of tax-payers to 
 bonding town in aid of railroad. Distingttish- 
 ED. People, ex rel. New York and Canada B. U. 
 Co., Y. SuUon,'lS Hun 116, 121. 
 
 State of Indiana V. "Woram, 6 Hill 33. 
 Corporation cannot avoid purchase of bonds on 
 ground that purchase was vUra vires. Distin- 
 GTJISHED. New York Loan and Trust Co. v. 
 Helmer, 77 N. Y. 64, 71. 
 
 Sieam Navigation Oo. v. Weed, 17 
 Barb. 378. Loan by corporation other than 
 bank, without interest, when not a violation of 
 statutes restricting banking. Distiugtiished. 
 New York Loan and Trvst Co. v. Helmer, 77 N. 
 Y. 64, 
 
 Steinbaoh v. Lafayette Fire Ins. Co., 
 54 N. Y. 90. Kecovery for loss on stock of fire 
 works. " Is in conflict with decision of United 
 States Supreme Court." Sleinbach v. Belief Fire 
 Ins. Co., 77 N. Y. 498, 500. 
 • Steinbach. v. Relief Fire Ins. Co., 12 
 Hun 640. When adjudication in suit on policy 
 of fire insurance will bar subsequent suit to 
 have policy reformed. Affibmed. Steinbach 
 V. Edief Fire Ins. Co., 77 N. Y 498. 
 
 Steinweig v. Brie Railway Co., 43 N. 
 Y. 123. Sufficiency of speciSil contract to exempt 
 common carrier of merchandise from liability 
 for negligence. Followed. Mynard v. Syro/- 
 mae, &e., R. M. Co., 71 N. Y. 180. 
 
 Duty of railway company to adopt most ap- 
 proved modes of construction and machinery, 
 and best precautions in known practical use for 
 securing safety. Followed. Bevier v. Dela- 
 ware and Hudson Canal Co., 13 Hun 254, 258. 
 
 Stephens v. Board of Education of 
 Brooklyn, 79 N. Y. 183. Distikguished. 
 Southwick V. First National Bank, 20 Hun 349, 
 353. 
 
 Stephens v. Casbacker, 8 Hun 116. 
 Notice and acceptance by the party to be bene- 
 fited thereby, of the liability of the grantee to 
 pay an existing mortgage, does not prevent the 
 grantor from releasing the grantee from the per- 
 formance - of the agreement to pay. Oveb- 
 ETJLED. Whiting v. Oearty, 14 Hun 498, 501 ; 
 Douglass v. Welti, 18 Id. 88, 90. Criticised. 
 Banney v. McMuUen, 5 Abb. N. Cas. 246, 257. 
 Followed. Devlin v. Murphy, Id. 242, 245. 
 
 Stephens v. Santee, 49 N. Y. 35. Dis- 
 tinguished. Hurd V. Cook, 75 N. Y. 454, 459. 
 
 Sternfels v. Clark, 2 Hun 122. When 
 prospective damages are recoverable in action 
 for failure to deliver goods sold. Affibmed. 
 Sternfels v. Clark, 70 N. Y. 608. 
 
 Steuben County Bank v. Alberger, 
 14 Hun 379. Application of subsequent lienor 
 
 to vacate prior attachment — on what papers 
 made and opposed. Ebversed. Steuben, Comi- 
 ty Bank v. Alberger, 75 N. Y. 179. 
 
 Steuben County Bank v. Alberger, 
 75 N. Y. 179. Eight of subsequent lienor t» 
 vacate or modify attachment. (Code of Civ. 
 Pro., ?§ 682, 683.) Distingitished. Qodfretf 
 V. Godfrey, 75 N. Y. 434, 435: 
 
 Stevens v. Hyde, 32 Barb. 171. Neces- 
 sity of restoring consideration on rescinding' 
 contract for fraud. Explained and fol- 
 lowed. Gould V. Cayuga, &c., Nat. Bank of- 
 Aubum, 21 Hun 293, 301. 
 
 Stevenson v. Lesley, 9 Hun 637. Be- 
 quest in trust for testator's grandchildren — 
 when vested at death of testator. Modified,. 
 so- as to permit grandchild bom after testator's^ 
 death, but before distribution, to share in the estate.. 
 Stevenson v. Lesley, 70 N. Y. 512. 
 
 Stewart v. Ahrenfeldt, 4 Den. 187. Dis- 
 tikguished. Penzerbeiter v. Waydetl, 21 Hur» 
 161, 162. 
 
 Stewart v. Bramhall, 11 Hun 139. Ac- 
 commodation indorser of corporation note can- 
 not set up usury in discounting the note. Af- 
 firmed. Stewart v. Bramhall, 74 N. Y. 85. 
 
 Stewart v. Petree, 55 N. Y. 621. Com- 
 pound interest — when proper. " Seems to be 
 overruled in Young v. HiU, 67 N. Y. 162."' 
 Jones V Ennis, 18 Hun 452, 454. 
 
 Stidham v. Sanford, 36 Superior 341. 
 Statute of frauds — promise to pay debt of an- 
 other. Affirmed. Stidham v. Sanford, 58 IST- 
 Y. 674. 
 
 Stilwell V. Carpenter, 62 N. Y. 639 ; 
 2 Abb. N. Cas. 238. Sufficiency of complaint 
 in action by executor or administrator to show 
 that plaintiff sues in the representative capacity. 
 Followed. Beers v. Shannon, 73 N. Y. 292,. 
 297. 
 
 While records are sometimes received on ar- 
 gument in an appellate court to cover an omis- 
 sion through inadvertence of proof on the trial,, 
 this is only permitted to uphold the judgment,, 
 not to reverse it, as a reversal is only for error 
 committed below, and there can be no error in 
 deciding contrary to a record not produced. 
 " This case is directly in point, and decisive of 
 the question discussed." Porter v. Waring, 6i> 
 N. Y. 250, 255. 
 
 StUwell V. Mills, 19 Johns. 304. General 
 guardian must be called to account before suit 
 can be brought on his bond. Disap:proved. 
 Girvin V. Hickman, 21 Hun, 316, 317. 
 
 Stone V. Browning, 51 N. Y. 211. What is- 
 a sufficient delivery and acceptance to take a 
 contract of sale out of the statute of frauds^ 
 Followed. Heermanee v. Taylor, 14 Hun 149.. 
 150. 
 
 Stone V. Frost, 61 N. Y. 614. Distin- 
 guished. Litiauer v. Goldman, 72 N. Y. 506,. 
 514. 
 
 Stout V. Rider, 12 Hun 574. Trust fund 
 not damnified by unauthorized act of one of 
 several trustees in taking usurious interest- 
 Followed. Van Wyck v. Walters, 16 Hua ' 
 209. 
 
 Stout V. Woodward, 5 Hun 340. Con- 
 clusiveness and validity of award of arbitra- 
 tors settling private boundary line. Affirmed. 
 Stout V. Woodward, 71 N. Y. 590. 
 
 Stratton v. People, 20 Hun 288. At- 
 tempt at subornation of perjury, what con- 
 stitutes. Appiemed, it seems, June 1st, 1880. 
 
CASES CRITICISED. 
 
 535 
 
 Strauee v. Josephtlial, 8 Daly 417. 
 Affirmed. Strause v. Josephthal, 77 N. Y. 622. 
 
 Strickland v. Harger, 16 Hun 465. 
 Execution by creditors of composition deed. 
 Admissibility of parol evidence to explain such 
 deed. Affirmed, il seems, April 20th, 1880. 
 
 Striker, Matter of, 10 Hun 308. Power 
 of court to cancel assessments. Parties to ap- 
 plication to vacate. Affirmed. Matter nf 
 Striker, 7.1 N. Y. 603. 
 
 Strong V. Taylor, 2 Hill 326. Distin- 
 GtrasHED. Cfamei- V. Ounningham, 77 N. Y. 391. 
 
 Stryker v. Cassidy, 10 Hun 18. Archi- 
 tect not entitled to a lien under the me- 
 chanic's lien law of 1862, (Laws of 1862, ch. 
 478,)_ for the counties of Kings and Queens. 
 Eeversed. Stryker r. Caam!y,T6 l^.Y. 50. 
 
 Stuart V. Palmer, 10 Hun 23. In assess- 
 ments for benefits in local improvement cases, 
 no notice of time and place of assessors' meet- 
 ing, or of completion of the assessment, is ne- 
 cessary, unless required by the act under which 
 the assessment is made. The above rule an- 
 nounced by the General Term, denied to be law, 
 and an act imposing an assessment without such 
 notice held unconstitutional. On other grounds 
 the case was affirmed. Stuart v. Palmer, 74 
 N. Y. 183. 
 
 Stuart V. Palmer, 74 N. Y. 183. Tax 
 imposed under unconstitutional law not a cloud 
 on title, so as to give right to relief in equity. 
 FotrowED. Toumsend v. Mayor, &c., of New 
 York, 77 N. Y. 542, 546. 
 
 Stud-well V. Shapter, 54 N. Y. 249. 
 Fraudulent representations made by an infant 
 to induce another person to enter into a con- 
 tract with him, will not give validity to the 
 contract itself. Approved. Kobbe v. Price, 14 
 Hun 55, 56. 
 
 Sturges V. Dre-w, 11 Hun 136. Effect of 
 dissolution of corporation upon actions pending 
 against it. Modified. Sturges v. Vanderbilt, 
 73 N. Y. 384. 
 
 Sturm V. Atlantic Mutual Ins. Co., 
 38 Superior 281. Insurable interest in cargo. 
 Effect of over-valuation. Preliminary proof to 
 let in deposition on trial. Affirmed. Sturm 
 V. Atlantic Mutual Ins. Co., 63 N. Y. 77. 
 
 Sudlow V. Knox, 7 Abb. Pr. (N. S.) 411.. 
 Bight to tax counsel fees in proceedings for 
 contempt. Explained. Van Vatkenburgh v. 
 DoolUOe, 4 Abb. N. Cas. 72, 75. 
 
 Sullivan v. Sullivan, 41 Superior 519. 
 Construction of statute relating to divorces. 
 Followed. Harding v. Harding, 43 Superior 
 27, 33. 
 
 ?; 
 
 Supervisors of Chenango Co. v. 
 Birdsall, 4 Wend. 453. Distinguished. Peo- 
 ile, ex rel. Lawrence, v. Supervisors of Westchester 
 'o., 73 N. Y. 173, 178. 
 
 Supervisors of Richmond Co. v. EUie, 
 59 N. Y. 620. Distinguished. People v. Ben- 
 ison, 19 Hun 137, 148. 
 
 Supervisors of Saratoga Co. V. Deyoe, 
 15 Hun 626. "What facts must be alleged to sus- 
 tain an in(erpleadci\ Eeversed. Supervisors 
 of Saratoga Co. v. Deyoe, 77 N. Y. 219. 
 
 Supervisors of Schuyler Co. v. First 
 Nat. Bank of Havana, 5 Him 649. When 
 deposit in bank by county treasurer is the prop- 
 erty of the county. Affirmed. Supervisors of 
 Schuyler Co. v. First Nat. Bank of Havana, 76 
 JSr. Y. 598. 
 
 Sutton V. Ne-w York Central, &c., B. 
 R. Co., 66 N. Y. 243. Liability of railroad 
 company for injuries to persons crossing the 
 track. Distinguished. Cordell v. New York • 
 Central, &c., B. JR. Co., 70 N. Y. 119, 124. 
 
 Suydam v. Bartle, 9 Paige 294. Appli- 
 cation for leave to sue for deficiency after judg- 
 ment in foreclosure. Followed. Matter of 
 Collins, 17 Hun 289, 291. 
 
 Svenson v. Atlantic Mail S. S. Co., 
 33 Superior 277. Liability of master to servant 
 for negligence of co-servant. Who is not a co- 
 servant within the rule. Affirmed. Svenson 
 V. Atlantic Mail S. S. Co., 57 N. Y. 108. 
 
 S^weeneyv. Mayor, &c., of New York, 
 58 N. Y. 625 ; 5 Daly 274. Salaries of court 
 officers in New York city. Followed. Row- 
 land V. Mayor, t&c, of New York, 44 Superior 559, 
 560. 
 
 Sweet V. Buffalo, &c., R. R. Co., 13 
 Hun 643. Uses to which land acquired in fee 
 by a city may be put. Affirmed. Sweet v. 
 Buffalo, &e., B. B. Co., 79 N. Y. 293. 
 
 Swett V. Colgate, 20 Johns. 196. The 
 sale of a chattel of a particular discription, when 
 not a warranty that the article sold is of the 
 kind specified. Overruled. White v. Miller, 
 71 N. Y. 118, 129. 
 
 S^wift V. Massachusetts Mut. Life 
 Ins. Co., 63 N. Y. 186. Admissibility of de- 
 clarations of insured in action on life policy. 
 Distinguished. Edington v. Mtna Life Ins. 
 Co., 13 Hun 543, 548 ; q. v. in this Table. 
 
 S3n:acuse, &c., B. R. Co. v. Collins, 57 
 N. Y. 641 ; 1 Abb. N. Cas. 47. Giving of bond 
 by assignee for creditors not a pre-requisite to 
 vesting of title in him. Approved. Brennan 
 V. WiUson, 71 N. Y. 502, 506; S. C, 4 Abb. N. 
 Cas. 279 ! 7 Id. 59. 
 
i36 
 
 CASES CEITICISED. 
 
 T. 
 
 Taber v. Delaware, &c., B. R. Co., 4 
 lun 765. What constitutes contributory neg- 
 igence on part of passenger in alighting from 
 ailroad train. Eevbesed. Taber y. Delaware, 
 ie., M. B. Co., 71 N. Y. 489. 
 
 Taloott V. Harris, 18 Hun 567. Compo- 
 ition in bankruptcy does not discharge debt 
 raudalently contracted. Followed. ArgaU 
 ■. Jocois, 21 Hun 114, 115. 
 
 Taloott V. Holmes, 15 Hun 585. See 
 lolmes V. McDowell, in this Table. 
 
 Tallraadge v. Flshkill Iron Co., 4 Barb. 
 82. Distinguished. Oheever v. OUbert Ble- 
 ated By. Co., 43 Superior 478, 494. 
 
 Taylor v. Hoey, 36 Superior 402. Cou- 
 truotion of power of attorney to sell lands. Ar- 
 ■IBMED. Taylor v. Hoey, 58 N. Y. 677. 
 
 Taylor v. Mayor, &o., of New York, 
 10 Hun 292. Set-off in action by assignee, of 
 laim arising out of fraud of assignor. Presen- 
 ation of claim to comptroller before suit against 
 itv. Affirmed, it seems, September 21st. 
 880. 
 
 Tebo V. Baker, 16 Hun 182. Order for 
 ixamination of party before trial must be served 
 lersonallv. Service on attorney insufficient. 
 Lfpibmed. Tebo v. Baker, 77 N. Y. 33. 
 
 Tebo V. Baker, 77 N. Y. 33. Service of 
 irder for examination before trial. Followed. 
 Loop V. Qould, 17 Hun 585. 
 
 Ten Byck v. Craig, 62 N. Y. 406. Dis- 
 tinguished. Knolls V. Bamhart, 71 N. Y. 474, 
 [80. 
 
 Tbaule v. Krekeler, 17 Hun 338. Power 
 if the General Term to reduce damages. Code 
 if Civ. Pro., § 1317. Keveesed, it seems, June 
 8th, 1880. 
 
 Thayer v. Manly, 8 Hun 550. Measure 
 if damages in action for conversion of promis- 
 ory note. When nominal damages only recov- 
 irable. Modified. Thayer v. Manly, 73 N. Y. 
 105. 
 
 Thayer v. Marsh, 11 Hun 501. The 
 judgment of the General Term in this case was 
 .ffirmed by the Court of Appeals, but none of 
 he matters passed upon in the latter court 
 eem to have been raised in the former. Af- 
 fiBMED. Thayer v. Marsh, 75 N. Y. 340. 
 
 Therasson v. People, 20 Hun 55. What 
 8 an indictable false pretence. Eeveesed, it 
 eems, September 28th, 1880. 
 
 Therasson v. Peterson, 22 How. Pr. 98. 
 ^ower of referee to allow amendments of plead- 
 ngs. Followed. Smith v. Bathbun, 13 Hun 
 :7, 52. 
 
 Thomas v. Allen, 1 Hill 145. Distin- 
 roiSHED. Beers v. Shannon, 73 N. Y. 292, 302. 
 
 Thomas v. Bennett, 56 Barb. 197. Gen. 
 ral guardian may sue in his own name to re- 
 over a debt due to his ward. Followed. 
 lauenstein v. Kidl, 59 How. Pr. 24, 25. 
 
 Thomas v. Kelsey, 30 Barb. 268 Dis- 
 tinguished. Ackerman v. Sunsieker, 21 Hun 
 i3, 56. 
 
 Thomas v. Kiroher, 15 Abb. Pr. (N. S.) 
 142. Wliat amounts to an abandonment of sup- 
 dementary proceedings. Distinguished. Stan- 
 ey V. Lov'ea, 14 Hun 412, 413. 
 
 Thomas v. P eople, 67 N. Y. 218. What 
 
 "opinion" will not disqualify a juror in a 
 criminal case. Followed. Pender v. People, 
 18 Hun 560, 564. People v. Genet, 19 Hun 91, 
 98 ; Cox V. People, 19 Hun 430, 435. Distin- 
 guished. Oreenfield v. People, 74 N. Y. 277, 
 287. 
 
 Thomas v. Tanner, 14 How. Pr. 426. 
 Judgment in a case tried by the court, cannot 
 be entered on an " opinion " — a " decision " is 
 necessary. Followkd. Weyman v. Nat. Broad- 
 way Bank, 59 How. Pr. 331, 332. 
 
 Thomson v. Tayloi^ 11 Hun 274. Beim- 
 bursement of surety for expenses incurred in de- 
 fending suit. Affirmed. Thompson v. Taylor, 
 72 N. Y. 32. 
 
 Thompson v. Burhans, 61 N. Y. 52. 
 What possession of wild lands is sufficient to 
 give right of action against trespasser. Com- 
 mented ON. Thompson v. Burhans, 15 Hun 
 580, 582. 
 
 Thompson v. Burhans, 15 Hun 580. 
 What possession of wild lands is sufficient to 
 maintain ejectment against trespasser. Ee- 
 Teesed. Thompson v. Burhans, 79 N. Y. 93, 94. 
 Thompson v. Commissioners for Loan- 
 ing, &c., 16 Hun 86. Default in payment of 
 interest on mortgage given to the loan commis- 
 sioners. Eedemption Kbversed. Thompson 
 V. Commissioners for Loaning, &e., 79 N. Y. 
 54. 
 
 Thompson v. Erie Ry. Co., 45 N. Y. 468, 
 471. Striking out answer. Distinguished. 
 Walker V. Walker, 59 How. Pr. 476, 479. 
 
 Thompson v. Lumley, 7 Daly 74. Assess- 
 ment of damages in malicious prosecution. Ex- 
 plained. Bust V. Hauselt, 59 How. Pr. 389, 
 394 ; S. C, 8 Abb. N. Cas. 148. 
 
 Thompson v. Sohermerhorn, 6 N. Y. 92. 
 Validity of cily ordinance directing improve- 
 ment of streets. Ordinance must specify manner 
 in which improvement is to be made. Fol- 
 lowed. BirdsaM v. Clark, 73 N. Y. 73, 77. 
 
 Thompson v. Sweet, 73 N. Y. 622. Jur- 
 isdiction of state courts, of suits by assignees in 
 bankruptcy to recover assets transferred in fraud 
 of the bankrupt act. Followed. Ansley v. 
 Patterson, 77 N. Y. 156, 157. 
 
 Thorn v. Helmer, 4 Abb. App. Deo. 408 ; 
 2 Key es, 34. Distinguished. People y. Steph- 
 ens. 71 N. Y. 527, 556. 
 
 Thornal v. Pitt, 36 Superior 379. Eight 
 of real ~ estate broker to commissions. Ee- 
 versed. Thoi-ncd v. Pitt, 58 N. Y. 683. 
 
 Thorp V. Keokuk Coal Co., 48 N. Y. 
 253. Liability of grantee who assumes pay- 
 ment of mortgage. Criticised. Beal Estate 
 Trust Co. V. Balch, 45 Superior 528, 534., 
 
 Thorpe v. New York Central, &o., R. 
 R. Co., 13 Hun 70. Liability of railroad com- 
 pany for acts of servants of drawing-room car 
 company in wrongfidly ejecting passenger from 
 drawing-room car, the other cars being full. 
 Affirmed. Thorpe v. New York Central, &c., 
 B. B. a., 76 N. Y. 402. 
 
 Thrasher v. Bentley, 2 Thomp. & C. 309. 
 Distinguished. Tice v. Zinsser, 76 N. Y. 549, 
 553. 
 
 Thrasher v. Bentley, 59 N. Y. 649; 1 
 Abb. N. Cas. 39. Giving of bond by assignee 
 
CASES CRITICISED. 
 
 537 
 
 for creditors not a prerequisite to vesling of 
 title in him. Approved. Brennan v. WUlson, 
 71 N. Y. 502, 506; S. C, 4 Abb. N. Gas. 279; 
 7 Daly 5«, 61. 
 
 Thurber v. Chambers, 66 N. Y. 42. 
 Provision in will for support of legatee. Eights 
 ■of third person furnishing support on faith of 
 such provision. FoiiiowED. McEweny.Breuia- 
 ier, 19 Him 337, 339. 
 
 Thurber v. Harlem, See, R. R. Co., 60 
 N. Y. 326. When negligence is a question of 
 fact for the jury, and tlieir finding consequently 
 •not reviewable ou appeal. Followed. Says 
 7. JkB«er, 70 N. Y. 112, 117. 
 
 When non-suits should be granted in actions 
 for negligence. Followed. Cornwall v. Milk, 
 44 Superior 45, 50. 
 
 Tice V. Zinsser, 13 Hun 366. Eecovery 
 of purchase money paid by vendee, on rescission 
 of contract of sale, not barred by surrender of 
 all claims under the contract by vendee. Ee- 
 VEESED. Tice V. Zinsser, 76 N. Y. 549. 
 
 Tierney v. Ne-w York Central, &o., R. 
 R. Co., 10 Hun 569. Duty and liability of 
 railroad company in respect to transporlation 
 of perishable property. Affirmed. I'ierny 
 V. Nm York Centred, &c., M. M. Co., 76 N. Y. 
 505. 
 
 Tiffany v. Lord, 65 N. Y. 310. Distin- 
 ■GtrrsHED. Northrup v. Qarrett, 17 Hun 497, 
 498. 
 
 Tifft V. Moor, 59 Barb. 619. Explained 
 AND DISTINGUISHED. Hansee V. Phinney, 20 
 Hun 153, 154. 
 
 Tilton V. Beecher, 59 N. Y. 176. When 
 liiU of particulars will be ordered in action 
 sounding in tort. Followed. Stiebeling v. 
 Lockhavs, 21 Hun 457, 458. 
 
 Tilton V. Ormsby, 10 Hun 7. Proceed- 
 ings before surrogate in inquiry as to efiects of 
 deceased withheld from representative. Evi- 
 dence inadmissible under Code of Pro., § 399. 
 Order for delivery. Affirmed. Tilton v. 
 Ormsby, 70 N. Y. 609. 
 
 Tinney v. Boston, &c., R. R. Co., 52 
 N. Y. 632. Liability of railroad company for 
 negligence, where insufficient number of switch- 
 men are employed. Distinguished. Harvey 
 V. New York Central, &c., B. B. Co., 19 Hun 
 ■556, 558. 
 
 Tinson v. "Welsh, 51 N. Y. 244. Distin- 
 guished. Clark V. Merchants' Nat. Bank, 8 
 Daly 481. 
 
 Tooley v. Bacon, 8 Hun 176. Testimony 
 as to transactions with deceased person. (Code 
 of Pro., J 399.) Affirmed. 2'oo/e« v. Bacon, 70 
 N. Y. 34. 
 
 Torrey v. Torrey, 14 N. Y. 430. Dis- 
 tinguished. Meeker v. Wright, 76 N. Y. 262, 
 269. 
 
 Tower v. trtica, &c., R. R. Co., 7 Hill 
 47. Effect of retaining custody of baggage by 
 passenger. Distinguished. Weeks v. New 
 York, New Haven, &c., B. B. Co., 72 N. Y. 50, 62. 
 
 Towle V. Covert, 15 Abb. Pr. (N. S.) 193. 
 Distinguished. Gemp v. Pratt, 7 Daly 197, 
 200. 
 
 Town of Duanesburgh v. Jenkins, 57 
 N. Y. 177. The issuing of town bonds in aid 
 of a railroad .by the commissioners is a consent 
 by the town to the incurring of the debt. Com- 
 mented ON. Hardenbergh v. Van Keuren, 16 
 Hun 17, 22. 
 
 Legislature has power to cure defective con- 
 
 sent. Deemed OVERRULED. lb. 23. See, also, 
 Bogers v. Bochester, &c., B. B. Co'., 21 Hun 44, 46. 
 
 Town of Guilford, v. Cooley, 58 N. Y. 
 116. Action against former supervisor to re- 
 cover moneys received by him while in office, 
 should be brought in the name of the town. 
 Followed. Hagadarn v. Bawx, 72 N. Y. 583. 
 
 Town of Guilford v. Supervisors of 
 Chenango Co., 13 N. Y. 143. Constitutional 
 restrictions of the power of taxation. Follow- 
 ed. Townsend v. Mayor, &c., of New York, 16 
 Hun 362, 363 ; q. v. in this Table ; People, ex 
 rel. Witherbee, v. Smerviaors of Essex Co., 70 N. 
 Y. 228, 235. 
 
 Town of Pierrepont v. Loveless, 4 Hun 
 696. Eights of towns relative to bridges. Ee- 
 VEESED. Town of Pierrepont v. Loveless, 72 N. 
 Y. 211. 
 
 Town of Venice v. 'Woodruflf, 62 N. Y. 
 462. " What is said in reference to the protec- 
 tion against loss of evidence afforded by the 
 statute for perpetuating testimony, is subject to 
 the criticism that that proceeding might be in- 
 sufficient in the case of negotiable paper, but it 
 was not a ground of decision in that case and is 
 not very material." Town of Springport v. Teu- 
 ttmia Savings Bank, 75 N. Y. 397, 403. 
 
 Town of "Wayne v. Sherwood, 14 Hun 
 423. Power of commissioners to impose condi- 
 tions on issue of town bonds in aid of railroads. 
 Affirmed. (7) Town of Wayne v. Sherwood, 76 
 N. Y. 599. 
 
 ToTvn of Wellsborough v. New York, 
 «fec., R. R. Co., 76 N. Y. 182. Eequisites of 
 petition to county judge under town bonding 
 acts. Followed. Avery v. Town of Hope, 78 
 N. Y. 609. 
 
 Townsend v. City of Brooklyn, 73 N. 
 Y. 589. Validity of assessments for local im- 
 provements in Brooklyn. Followed. Q-uest 
 V. City of Brooklyn, 73 N. Y. 611. 
 
 Townsend v. Goelet, 11 Abb. Pr. 187. 
 Grantor who has no longer any interest in land 
 sold cannot maintain an action to remove an ap- 
 parent lien thereon, on the ground that he 
 agreed with his grantee that he would procure 
 the lien to be discharged. Distinguished. 
 Lety V. Merrill, 14 Hun 145, 146. 
 
 Townsend v. Keenan, 2 Hilt. 544. How 
 appeal from justice's court to county court Qn 
 questions of law may be brought on for argu- 
 ment. (Code of Pro., I 364.) Overruled. 
 Matthews v. Arnold, 14 Hun 376, 378. 
 
 Townsend v. Mayor, &o., of New 
 York, 16 Hun 362. Laws 1873, ch. 779, ? 1, 
 creating board of estimate and apportionment 
 in New York city, constitutional. Affirmed. 
 Townsend v. Mayor, &c., of New York, 77 N. Y. 542. 
 
 Townsend v. Merchants' Ins. Co., 36 
 Superior 172. Evidence to show over-state- 
 ment of loss, in proofs of loss under fire policy. 
 Affirmed. Townsend v. Merchant^ Ins, Co., 56 
 N. Y. 655. 
 
 Townsend v. Narragansett Fire, &c., 
 Ins. Co., 36 Superior 170. Error in reception 
 of evidence, when not ground for reversal, not- 
 withstanding due exception taken. Affirmed. 
 Townsend v. Narragansett Fire, &c., Ins. Co., 56 
 N. Y. 655. 
 
 Townsend v. "Whitney, 15 Hun 93. 
 Eight of administrator's surety who has paid 
 judgment on bond, to enforce such judgment 
 against his principal, and to proceed against 
 him by attachment out of surrogate's courL 
 
•638 
 
 CASES CRITICISED. 
 
 Affirmed. Towmend v. Whitney, 75 N. Y. 
 
 Towsley v. McDonald, 32 Barb. 604. 
 Requisites of order for publication of summons. 
 FoLljOWED. McCool V. Boiler, 14 Hun 73, 75. 
 
 Tracy v. Talmage, 14 N. Y. 162. Dis- 
 tinguished. Saynes v. Rudd, 17 Hun 477, 
 479. 
 
 Traphagen v. Burt, 67 K. Y. 30. Part- 
 nership to speculate in real estate, valid ; and 
 may be created by parol agreement. Fol- 
 lowed. Bissell V. Harrington, 18 Hun 81, 84, 
 86. 
 
 Trench, v. Chenango Co. Mut. Ins. 
 Co., 7 Hill 122. Condition in fire policy on 
 both real and personal property, when not ap- 
 plicable to personality. "Must be considered 
 as practically overruled in Wilson v. Herkimer 
 Co. Mut. Bis. Co., 6 N. Y. 53." Mewill v. Agri- 
 cultural Ins. Co., 73 N.-Y. 452, 461. 
 
 Trolan y. Fagan, 48 How. Pr. 240. " That 
 case was disapproved in Peck v. Richardson, 9 
 Hun 567." Maples v. Mackey, 15 Hun 533, 
 
 Trotter v. Hughes, 12 N. Y. 74. Lia- 
 bility of grantee who assumes mortgage, for de- 
 ficiency on foreclosure sale. DiSTiuGniSHED 
 AND CRITICISED. Vrooman v. Turner, 69 N. Y. 
 280, 283. 
 
 Trow V. Shannon, 8 Daly 239. What 
 constitutes a gift. Effect of release. Afpiembd. 
 Trow V. Shannon. 78 N. Y. 446. 
 
 Troy, &o., R. R. Co. v. Kane, 9 Hnn 
 506. Assessment for local improvement may be 
 imposed upon railroad traclc under charter of 
 city of Troy. Affiemed. Troy, &c., R. R. 
 Co. V. Kane, 72 N. Y. 614. 
 
 Troy City Bank v. Grant, Hill & D. 
 119. Distinguished. Whiting v. City Bank 
 of Rochester, 77 N. Y. 363, 367. 
 
 Trusoott V. King, 6 Barb. 346. The re- 
 ceiving of a subsequent mortgage is not construc- 
 tive notice to a creditor who has taken a prior 
 judgment as security for future advances, and 
 such judgment creditor is to be protected in his 
 advances made after the recording of the mort- 
 gage and before he had actual notice of such 
 mortgage. Distinguished. Ackerman v. Hun- 
 sicker, 21 Hun 53, 56. 
 
 Truscott V. King, 6 N. Y. 147. Objection 
 in equity suit that plaintiff has remedy at law 
 cannot be taken at the hearing. Followed. 
 De Bussierre v. HoUaday, 4 Abb. N. Cas. Ill, 
 117. 
 
 Trustees v. Brooklyn Fire Ins. Co., 
 19 N. Y. 305 ; 28 Id. 153. Parol contract when 
 not void, as not to be performed within a year. 
 Followed. Smithy. Conlin, 19 Hun 234, 236, 
 238. 
 
 Trustees of Columbia College v. 
 Lynch, 39 Superior 372. Specific perform- 
 ance of covenant restricting the kind of build- 
 ings to be erected on the land covered by the 
 covenant. Eeveesed. Trustees of Columbia 
 allege v. Lynch, 70 N. Y. 440. 
 
 Trustees of Delhi v. Youmans, 50 
 Barb. 316. " The doctrine laid down in the 
 opinion is obiter, and is not upheld by the au- 
 thorities relied upon." Criticised and lim- 
 ited. , Phelps V. Nowleti, 72 N. Y. 39, 46. 
 
 Trustees, &c., of East Hampton v. 
 Kirk, 68 N. Y. 459. Where the court directs 
 a verdict, an exception to the ruling of the 
 
 judge, in the absence of anything from whicit 
 it may be implied that the right to go to the- 
 jury had been waived, is sufficient to present 
 the objection upon appeal that there were ques- 
 tions of fact for the jury ; and it is not necessary 
 to request that every fact be so submitted. " This- 
 case is decisive." First Nat. Bank of Springfield 
 V. Dana, 79 N. Y. 108, 116. 
 
 Tucker v. Bishop, 16 N. Y. 402. Con- 
 struction of will — when remainder is vested. 
 Followed. Drake v. Lawrence, 19 Hun 112^ 
 114. 
 
 Tucker v. Rankin, 15 Barb. 471. A sur- 
 vey of a road signed by the highway commis- 
 sioners fs a valid order laying out the roaiL 
 OvEEEULED. Pratt V. People, 13 Hun 664, 
 667. 
 
 Tucker v. Tucker, 4 Keyes 136. Distin- 
 guished. Shakespeflre v. Markham, 72 N. Y. 
 400, 407. 
 
 Tugman v. National Steamship Co., 
 13 Hun 332. Construction of contract of af- 
 freightment. Recovery for increase in freights^ 
 Sufficiency of petition for removal of cause. 
 Affirmed. Tugman v. National Steamship Co.^ 
 76 N. Y. 207. 
 
 Turk V. Ridge, 41 N. Y. 201. "Was de- 
 cided by a divided court, a majority of the- 
 court not assenting to the reasons assigned in 
 the opinion published as the prevailing opinion. 
 It was well decided upon other grounds than 
 those stated in the opinion." Booth v. Cleve- 
 land Mill Co , 74 N. Y. 15. 
 
 Turley v. North America Fire Ins- 
 ,Co., 25 Wend. 374. Distinguished. GUligan 
 V. Commercial Fire Tns. Co., 20 Hun 93, 96. 
 
 Turner v. Bank of Fox Lake, 4 Abb.. 
 App. Dec. 434. What is sufficient diligence to 
 charge drawer of bill of exchange. Distin- 
 guished. First Nat. Bank of MeadmUe v. 
 Fourth Nat. Bank of JVot York, 77 N. Y. 320,. 
 326." 
 
 Turner v. Jaycox, 40 N. Y. 470. " The 
 reporter's note does not seem to be warranted by 
 the case. One of the questions therein consid- 
 ered was whetlier a note made by the members 
 of a firm, though not in the firm name, and 
 given for money used by the firm, was a part- 
 nership debt, and it was declared to be of that 
 character. The doctrine that a joint note of in- 
 dividual partners was not per se a partnership- 
 debt was doubtless appended to prevent any mis- 
 understanding of the opinion delivered. If such 
 was not its object, then the reporter's note seema 
 to have been unnecessary." Berkshire Woolen 
 Co. V. JuiOdrd, 13 Hun 506, 512. Distin- 
 guished. Berkshire Woolen Co. v. Juillard, 75- 
 N. Y. 535, 540. 
 
 Tuthill V. Bogart, 14 Hun 487. Sale — 
 when title vests. Affirmed. Tuthill v. Bogart, 
 79 N. Y. 215. 
 
 Twinam v. Swart, 4 Lans. 263. Alt 
 personal property is liable, in the fii-st instance, 
 to levy under execution, and, in some form, th& 
 execution debtor must make his claim to ex- 
 emption to the officer making the levy. Fol- 
 lowed. Turner v. Borrhwick, 20 Hun 119, 
 121. 
 
 Twombly v. Cassidy, 21 Hun 277. 
 [Reported in memorandum.] 
 Affirmed, it seems, September 28th, 1880. 
 
 Twomley -t. Central Park, &o., R. R. 
 Co., 69 N. Y. 158. Evidence of oonversationa 
 
CASES CRITICISED. 
 
 53^ 
 
 ampng passengere, wnen competent as part of 
 the res gestce, in action for personal injuries 
 against railroad company. Followed. Ouy 
 lery. Decker, 20 Hun 173, 175, 
 
 Tyler v. Q-ardiner, 35 N. Y. 559. Dis- 
 tinguished. SvUon V. Bay, 72 N. Y. 482, 
 485. 
 
 u. 
 
 Ulster County Saving Inst. v. Deck- 
 er, 11 Hun 515. When insurance company en- 
 titled to be subrogated to rights of mortgagee 
 holding policy as collateral to mortgage. Ee- 
 VEESED s«6 ncym. Ulster County Swmgs Inst. v. 
 LeaJce, 73 N. Y. 161. 
 
 Underbill v. Taylor, 2 Barb. 348. Dis- 
 tinguished. Palmer v. Lang, 7 Daly 33, 35. 
 
 Underwood v. Farmers' Joint Stock 
 Ins. Co., 57 N. Y. 500. While the party 
 bound to perform has still time and opportunity 
 for so doing, if something be said or done by the 
 other party by which the former is induced to 
 believe that the condition is waived, or that 
 strict compliance will not be insisted upon, the 
 latter is estopped -from claiming non-perform- 
 ance of the condition; but an estoppel can- 
 not be founded on facts occurring after forfeiture 
 of the contract because of non-performance. 
 Followed. Bell v. Ijycoming Fire Ins. Co., 19 
 Hun 238, 240. Distinguished. Ooodvdn v. 
 Massachusetls Mut. Life Ins. Co., 73 N. Y. 480, 
 494. 
 
 Underwood v. Sutoliffe, 10 Hun 453. 
 Power of receiver appointed in supplementary 
 proceedings to sue to enforce trust. Eeveesed. 
 Underwood v. Sutdiffe, 77 N. Y. 58. 
 
 Union Bank v. Mott, 11 Abb. Pr. 42; 
 19 How. Pr. 267. Power of referee in allow- 
 ing amendments. Distinguished. Smith v. 
 Eathbun, 13 Hun 47, 53. 
 
 Union Hotel Co. v. Hersee, 15 Hun 371. 
 Bights of subscriber for corporate stock. Ke- 
 
 vbrsed. Union Sold Co. v, Hersee, 79 N. Y^ 
 454. 
 
 Union National Bank of Pittsburg v.. 
 "Wheeler, 36 Superior 536. Presumption iri. 
 favor of sufficiency of consideration of negotia- 
 ble paper. Affirmed. Union National £ank- 
 of Pittsburgh v. Wheeler, 60 N. Y. 612. 
 
 Utter V. Stuart, 30 Barb. 20. Distin- 
 guished. Tice V. Zinsser, 76 N. Y. 549, 552. 
 
 Utica Ins. Co. v. Bloodgood, 4 Wend. 
 652 ; Same v. Caldwell, 3 Id. 296 ; Same 
 V. Kipp, 8 Cow. 20 ; Same v. Scott, 19' 
 Johns. 1. "The soundness of those decisions 
 has been repeatedly questioned, inasmuch as 
 they permitted the violator of the law to recov- 
 er upon a contract constituting that violation. 
 [25 Wend. 650 ; 14 N. Y. 189 ; 15 Id. 98."] 
 Pratt V. £;aton, 18 Hun 293, 295 ; q. v. in this- 
 Table. 
 
 " These cases have been criticised, but have- 
 never been overruled." Pratt v. Short, 79 N. Y. 
 437, 447. 
 
 Utica Ins. Co. v. Scott, 8 Cow. 709. 
 Power of corporation other than bank, to ad- 
 vance money on promissory notes. Distin- 
 guished. New York Loan and 2^Ttsi Co. v^ 
 Mdmer, 77 N. Y. 64, 70. 
 
 Utica R. R. Co., Matter of, 56 Barb. 456. 
 Rules of valuation in assessment of damages for^ 
 land taken for railroad. Approved. Matter- 
 of New York Central, &e., B. B. Co., 15 Huoi 
 63, 69. 
 
 V. 
 
 Valentine, Matter of, 10 Hun 83. In 
 proceedings to obtain sale of lands of insane 
 person, under 2 Eev. Stat. 54, ? 12, a reference 
 to ascertain the truth of the facts set forth in the 
 petition need not be ordered if the court is sat- 
 isfied that such facts are true. Eeversed. 
 Matter of Valentine, 72 N. Y. 184. 
 
 Van Allen v. Farmers' Joint Stock 
 Ins. Co., 64 N. Y. 469. Power of agent of in- 
 surance company to waive proofs of loss. Dis- 
 tinguished. Goodwin V. Massachusetts Mutual 
 lAfe Ins. Co., 73 N. Y. 480, 491. 
 
 Van Allen v. Farmers' Joint Stock 
 Ins. Co., 10 Hun 397. Waiver of condition in 
 policy by agent of insurance company. Af- 
 firmed. Van Allen v. Farmeri Joint Stock Ins. 
 Co., 72 N. Y. 604. 
 
 Van Allen v. Farmers' Joint Stock 
 Ins. Co., 72 N. Y. 604. Waiver by insurance 
 
 company of condition as to time of presenting- 
 proofs of loss. Followed. Ooodmn v. Mas- 
 sachusetts Mutual Life Ins. Co., 73 N. Y. 480, 
 495. 
 
 Van Amburgh v. Baker, H Hun 615. 
 When trustees of a corporation cease to be such, 
 so as to free them from personal liability for 
 corporate debts. Affirmed, it seems, April 
 20th, 1880. 
 
 Van BrUnt v. Applegate, 44 N. Y. 544. 
 Distinguished. Staats v. Bristow, 73 N. Y. 
 264, 268. 
 
 Van Brunt v. Day, 17 Hun 166. Parol 
 evidence to vary covenant in assignment of 
 mortgage. Reversed. Van Brunt v. Day, 8 
 Abb. N. Cas. 336. 
 
 Van Buren, Matter of, 17 Hun 527. 
 Powers of board of health in New York city_ 
 Affirmed. Matter of Van Buren, 79 N. Y. 384^ 
 
540 
 
 CASES CRITICISED. 
 
 Van Cortlandt v. Kip, 1 Hill 590. Dae 
 •execution and publication of a codicil is, under 
 the Revised Statutes, as it was at common law, a 
 irepublioation of the will. Followed. Brown v. 
 KJiark, 77 N. Y. 369, 377. 
 
 Vandenburgh. v. Briggs, 7 Cow. 366. 
 Judicial sale not set aside because plaintiff's 
 -agent to buy bid less than he was instructed to 
 hi& by his principal. Followed. Sheldon y. 
 Saera, 59 How. Pr. 377. 
 
 Vanderheyden v. Orandall, 2 Den. 9. 
 ■Construction of will — when a remainder is 
 vested. Followed. Drake v. Lawrence 19 
 Hun 112, 114. 
 
 Van Dolsen v. Abendrotli, 43 Superior 
 470. Conclusions or bankruptcy proceedings as 
 ■res adjvdicata. Followed. Durant v. Aben- 
 ■droth, 44 Superior 463, 468. 
 
 Van Eeusen v. Kirkpatrick, 5 How. 
 Pr. 422. Distinguished. Thojnas v. Thomas, 
 18 Hun 481, 482. 
 
 Van Keuren v. Oorkins, 66 N. Y. 77. 
 Eecording acts do not apply to case where mort- 
 gagor makes payments on the mortgage without 
 notice of its assignment. Distinguished. Heii- 
 ■bniM V. Hammond, 13 Hun 474, 480. 
 
 Van Keuren v. Pannelee, 2. N. Y. 523. 
 ■" There has been some controversy about that 
 ■case, respectins; what it really does decide, and 
 *here will probably be more; but it does not 
 stand in the way of this judgment at all, and 
 therefore requires no special notice here." 
 Haight v. Avery, 16 Hun 252, 254. 
 
 Van Leuven v. First Nat. Bank of 
 Kingston, 54 N. Y. 671. National bank has 
 3)ower to engage in business of dealing in, and 
 •exchanging government seouriiies. Followed. 
 Yerkes v. Nai. Bank of Port Jervis, 69 N. Y. 382. 
 388. 
 
 Parol evidence admissible to show that loan 
 was made to bank, and not to cashier. Fol- 
 lowed. Pienon v. Ailantic Nat. Bank, 77 N. 
 Y. 304, 310. 
 
 Van Bensselaer v. Aiken, 44 Barb. 547. 
 Sufficiency of consideration to support contract. 
 Followed. Beynolds v. Ouilbert, 13 Hun 301, 
 502. 
 
 Van Santen v. Standard Oil Oo., 17 
 Hun 140. When an action lies for money had 
 .and received. Apeirmed, it seems, June 1st, 
 1880. 
 
 Van Schoiok v. Niagara Fire Ins. 
 ■Co., 68 N. Y. 434. Knowledge of agent of in- 
 surance company, when imputed to company. 
 Followed. Broadhead v. I/ycoming Ins. Co., 
 14 Hun 452, 455 ; Chase v. People's Fire Ins. Co., 
 14 Hun 456, 459. 
 
 Who is an agent of a fire insurance company, 
 with power to waive conditions in policy. FoL- 
 xowed. Davis V. Lamar Ins. Co., of New York, 
 18 Hun 230 ; McCabe v. Farm Buildings Fire 
 Ins. Co., 14 Id. 602, 604. See, also, Holmes v. 
 Drew, 16 Id. 491, 493; Sentell v. Oswego Co., 
 .^S;c., Ins. Co., Li. 516, 518; Bell v. Ly earning Fire 
 Ins. Co., 19 Id. 2.38, 245. 
 
 Van Tassell v. "Wood, 12 Hun 388. 
 Bonus on loan on mortgage, when usurious. 
 Prepayment of bonus, when does not cure the 
 usury. Reversed. Van Tassd v. Wood, 76 
 ISr. Y. 614. 
 
 Van Valkenburgh v. Am. Pop. Life 
 Tns. Co., 9 Hun 583. Effect of condition in 
 Kfe policy as to use of intoxicating liquors. 
 Burden of proof on insurers to show forfeiture. 
 
 Aefibmed. Van Valkenburgh v. Am. Pup. Life 
 Ins. Co., 70 N. Y. 605. > 
 
 Van "Wezel v. "Wyokoff, 3 Sandf. Ch. 
 528. Statute of limitations. Actions against 
 heirs. Distinguished. MaMoy v. Vanderbill, 
 4 Abb. N. Cas. 127, 130. 
 
 Van "Wyck v. Walters, 16 Hun 209. 
 When taking of bonus by one of two or more 
 trustees, will not render a mortgage held by the 
 estate usurious, Afeibmed, it seems, June 8th, 
 1880. 
 
 Veeder v. Fonda, 3 Paige 94. Distin- 
 guished. Paine v. Upton, 21 Hun 306, 311. 
 
 Verdin v. Slooum, 9 Hun 150. Validity 
 of provision in will creating trust to receive 
 rents, with remainder over. Reversed. Ver- 
 din V. Sloernn, 71 N. Y. 345. Distinguished. 
 Donovan v. Vandemark, 78 N. Y. 244, 248. 
 
 Vernon v. Manhattan Co., 22 Wend. 
 183, 190. Sufficiency of notice of dissolution to 
 exempt retiring partner from liability on con- 
 tracts with previous dealers with firm. Ap- 
 proved AND followed. Auslin v. Holland, 
 69 N. Y. 571. 
 
 Verplanck v. Van Buren, 11 Hun 328. 
 Former judgment founded upon false evidence 
 a bar to subsequent suit for same cause of action. 
 Reversed. Vea-planck v. Van Buren, 76 N. 
 Y. 247. 
 
 Victory "Webb, &o., 06., v. Beecber, 
 55 How. Pr. 193. Liability of trustee of manu- 
 facturing corporation. Followed. Anderson 
 V. Speers, 58 How. Pr. 68 ; S. C, 8 Abb. N. Cas. 
 382 384 
 
 , Viele V. Judson, 15 Hun 328. _ Effect of 
 neglect by county clerk to note assignment of 
 mortgage on margin of record of mortgage as- 
 signed. Reversed, it seems, September 21st, 
 1880. 
 
 Vilas V. Nevsr York Central Ins. Co., 
 9 Hun 121. What is a sufficient reference to 
 the application for insurance to make it a part 
 of the policy. Affirmed. Vilas v. New Yorh 
 Central Ins. Co., 72 N. Y. 590. 
 
 Village of Grloversville v. Howell, 7 
 H'jn 345. Provisions in plaintiff's charter rela- 
 ting to licenses for sale of liquor, and penalties 
 for selling without license, are constitutional; 
 as is also provision for local option as to license 
 or no license. Affirmed. V'dlage of Olovers- 
 viUe V. Howell, 70 N. Y. 287. 
 
 Vilnaar v. Schall, 35 Superior 67. Mo- 
 tion to suppress deposition, when should be 
 made, or objection is waived. Ledger not ad- 
 missible in evidence, when book of original en- 
 tries can be produced. Affirmed. Vilmar v. 
 SohaU, 61 N. Y. 564. 
 
 Vincent v. Sands, 33 Superior 511. Lia- 
 bility of trustees of mining company for failure 
 to file annual report. Affirmed. Vinceat v. 
 Sands, 58 N. Y. 673. 
 
 Volans V. Owen, 9 Hun 558. Father 
 may sue under civil damage act for damages 
 sustained by reason of loss of services of, and 
 ' expenses of medical attendance on son. Re- 
 versed. Volans V. Owen, 74 N. Y. 526. 
 
 Volans V. Owen, 74 N. Y. 526. Eight 
 of wife to sue under civil damage act for loss 
 of means of support in consequence of intoxi- 
 cation of husband. Followed. Hilly. Berry, 
 75 N. Y. 229. 
 
 Voorhees v. MoG-tnnis, 48 K. Y. 278. 
 DiSTiNQtnsHED. Sisson v. Hibbard, 75 N. Y. 
 542, 547. 
 
CASES CRITICISED. 
 
 541 
 
 Von Sachs y. Kretz, 10 Hun 95. Effect 
 of adjudication in bankruptcy to stop running 
 of statute of limitations. Aefibmbd. VonSachs 
 V. Kretz, 72 N. Y. 548. 
 
 Vreeland v. Blunt, 6 Barb. 182. What 
 is such an order upon a particular fund as will 
 operate as an equitable assignment pro tanto of 
 the fund. Distinguished. Attorney- Oenerai 
 V. Omtinental Life Ins. Co., 71 N. Y. 325, 328. 
 
 Vrooman v. Turner, 8 Hun 78. Grantee 
 
 who assumes mortgage, liable to pay though 
 immediate grantor was not. Modified as to- 
 deficiency upon foreclosure. Vrooman v. Turner,. 
 69 N. Y. 280. 
 
 Break in chain of covenant, does not neces- 
 sarily render a subsequent covenant by a grantee- 
 to pay the mortage inoperative. Foli,owei> 
 doiAlingly. Red, Estate Trust Co. v. Batch, 45 Su- 
 perior 528, 535. 
 
 w. 
 
 Wade V. Baker, 14 Hun 615. Sea Van 
 Amburgh v. Baker, in this Table. 
 
 Wade V. Kalbfleisoli, 58 N. Y. 282. 
 Distinguished. Oregin v. BrooUyn Oroa^vm 
 R. R. a., 75 N. Y. 192, 196. 
 
 Waffle V. New York Central, &o., R. 
 R. Co., 53 N. Y. 11. Distinguished. Noorum 
 V. City of Albany, 79 N. Y. 470, 476. 
 
 Wagner v. Long Island R. R. Co., 5 
 Thomp. & 0. 163. Watercourses. Action for 
 flowing lands. Eights of land-owner as to sur- 
 face water. Followed. BarUey-v. Wilcox, 19 
 Hun 320, 321. 
 
 Wait V. Green, 36 N. Y. 556. Right of 
 bona fide purchaser from buyer to whom chattel 
 is conditionally delivered. Distinguished. 
 Comer V. Cunningham, 77 N. Y. 391, 396. 
 
 Walden v. Sherburne, 15 Johns. 409. 
 Distinguished. Burnett v. Snyder, 76 N. Y. 
 344, 351. 
 
 Walker v. Walker, 20 Hun 400. Strik- 
 ing out answer for failure to pay alimony. 
 ■Order to show cause may be served upon attor- 
 ney. AppiKMED, it seems, October 5th, 1880. 
 
 Wallace v. Castle, 68 N. Y. 370. " Al- 
 though the order in that case was affirmed in 
 this court, it would have been quite as proper to 
 have dismissed the appeal.'' Allen v. Meyer, 73 
 N. Y. 1, 4. 
 
 Wallis V. Randall, 16 Hun 33. Evidence 
 to show that transfer of mortgage was intended 
 as a payment, and not as a security. Affirmed, 
 it seems, June Ist, 1880. 
 
 Walrod v. Shuler, 2 K. Y. 134. Distin- 
 guished. Dorr V. City of Troy, 19 Hun 223, 
 226. 
 
 Walsh V. Hartford Fire Ins. Co., 9 
 Hun 421. Power of general agent to waive 
 condition in policy. What amounts to such 
 waiver. Reversed. Walsh v. Hartford Fire 
 Ins. a., 73 N. Y. 5. 
 
 Walsh V. Hartford Fire Ins. Co., 73 
 N. Y. 5. Power of insurance agent to waive 
 conditions. When company not estopped by 
 agent's act. Followed. Belly. Lycoming Fire 
 Ins. Co., 19 Hun 238, 240. 
 
 Walsh V. New York Floating Dock 
 Co., 8 Daly 387. Construction of statutes rela- 
 tive to wharves and piers in the city of New 
 York. Affirmed. Walsh v. New York Float- 
 ing Lock Co., 77 N. Y. 448. 
 
 Walter, Matter of, 14 Hun 148. Paving 
 a street and grading, curbing and flagging the 
 street, are separate improvemenls, warranting 
 two distinct assessnients of half the value of the 
 
 property each. Reyebseo. Mailer of Walter^ 
 75 N. Y. 354. 
 
 Walter, Matter of, 75 N. Y. 354. In 
 proceedings to vacate assessments, under Laws 
 of 1874, ch. 312, 313, proof of fraud is necessary- 
 only where the error or irregularity complained 
 of is one of those enumerate in the act, and not 
 where the error is not one of those thus enume- 
 rated, and is substantial. Followed. Matter 
 of Emigrant Industrial Savings Bank, 75 N. Y. 
 388, 394. 
 
 Wanzer v. Cary, 12 Hun 403. Whett 
 payment by mortgagor, without notice of as- 
 signment of the mortgage, extinguishes mort- 
 gage. Affirmed. Wanzer v. Cary, 76 N. Y. 
 526. Distinguished. Miller v. Lindsey, 19' 
 Hun 207, 208. 
 
 Wanzer v. De Baun, 1 E. D. Smith 261, 
 Eight of action for deceit in falsely justifying, 
 as surety to undertaking, not waived by suit on. 
 undertaking. Doubted. Cormier v. Hawkins, 
 69 N. Y. 188, 190. 
 
 Ward V. Atlantic, &o., Teleg. Co., 71 
 N. Y. 81. Liability of telegraph company for 
 injury occasioned by defective pole. Followed. 
 Allen V. AUantic, &c., Teleg. Co., 21 Hun 22, 23. 
 
 Ward V. Benson, 31 How. Pr. 411. Im 
 action against sheriff for wrongful sale under 
 execution, the rule of damages is the actual 
 value of the property at the time of the taking,, 
 less the amount which it produced at the sale. 
 Followed. Parker v. Conner, 44 Superior 416^ 
 422. 
 
 Ward V. Warren, 15 Hun 600. Verdict 
 on feigned issues. Acquisition of easement by 
 prescription. Affirmed, it seems, October 5th,. 
 1880. 
 
 Waring v. Loder, 53 N. Y. 581. Distin- 
 guished. Ulster Co. Savings Inst, v. Leake, IS- 
 N. Y. 161, 166. 
 
 Waring v. Robinson, 1 Hoffm. 524. " If 
 that case does decide that insolvent partners 
 cannot in good faith come into a court of equity 
 and ask it to make a just and equal distributioni 
 of the partnership property among creditors, 
 and when the .court has entered upon the exe- 
 cution of the trust with the consent of all the- 
 owners, by.tlie appointment of its receiver 
 thereof, that its jurisdiction and power can be 
 thwarted by the action of one or more creditors 
 seeking a priority by judgment and execution, 
 then it cannot be acquiesced in and followed by 
 this court." Holmes v. McLoweU, 15 Hun 585,. 
 590 ; and see, also, page 593. 
 Warner v. Durant, 15 Hun 450. Legacy 
 
542 
 
 CASES CJEITICISED. 
 
 in trust, payable to cestui que trmt at specified 
 ■time, when vested at death of testator, so as to 
 ;pass to representatives of legatee dying before 
 termination of trust. Affirmed. Warner v. 
 Durant, 76 N. Y. 133. 
 
 Warren v. Leland, 2 Barb. 613. Sale of 
 growing timber — time within which to remove 
 it.' AppBOVED. Kellam v. MeKinstry, 69 N. Y. 
 264, 270. 
 
 Warren v. Tiffany, 17 How. Pr. 106. Re- 
 •quisites of order for publication of summons. 
 IToLLOWED. McCool V. BoUer, 14 Hun 73, 75. 
 Washburn v. Herrick, 4 How. Pr. 15. 
 If a party notice his cause for trial before the 
 ' time allowed to his adversary to amend shall 
 Slave expired, he does so at his peril ; that is, at 
 . ihe peril of having his notice of trial go for 
 nothing in case of an ameUdment of the plead- 
 ing, by his adversary in good faith. Approved. 
 Ostrander v. Gonkey, 20 Hun 421, 422. 
 
 Washington Cemetery v. Prospect 
 Park, &c., B. R. Co., 68 N. Y. 591. Title 
 •or interest acquired by railroad company in 
 highway on which its tracks are laid. FoL- 
 JLOWED. Murdock V. Prospect Park, &e., S,. R. 
 Co., 73 N. Y. 579, 5g2. 
 
 Washington Ins. Oo. v. Price, Hopk. 
 1. '■ This decision probably resulted from a 
 feeling of delicacy on the part of the Chancellor, 
 who was called upon to hear a cause against a 
 corporation in which he was himself a stock- 
 holder. The statute then provided that where 
 the Chancellor should be a party to a suit, the 
 bill should be filed before the Chief Justice of 
 ■the state, who should proceed in the cause as 
 ■Chancellor. Chancellor Kent had previously 
 (19 Johns. 501) held that he was bound to hear 
 -a similar cause on the ground that he was not a 
 party, but Chancellor Sandford declined to fol- 
 low his decision," Matterr of Dodije & Stevenson 
 Manuf. Co., 77 N. Y. 101, 108. 
 
 Washington Life Ins. Oo. v. Pleisch- 
 «,uer, 10 Himll7. Distinguished. Banney 
 V. Peyser, 20 Hun 11, 13. 
 
 Water Commissioners v. Burr, 35 
 Superior 522. Construction of contractto build 
 .and erect machinery. E<|;ht3 of the parties. 
 Affirmed. Water Commissioners v. Burr, 56 
 N. Y.^665. 
 
 Waters v. Langdon, 40 Barb. 408. Dis- 
 tinguished. Geraty v. Reid, 78 K Y. 64, 67. 
 Watson, Matter of, 2 E. D. Smith 429. 
 Eight of imprisoned debtor to discharge. When 
 his proceedings are not "just and fair." FoL- 
 lOVCED. Matter of Egberts, 59 How. Pr. 136. 
 139, 143. 
 
 Watson V. Brennan, 39 Superior 81. 
 Burden of proof in action against sheriff for 
 false return. Kevbrsed. Watson v. Brennan, 
 €6 N. Y. 621. 
 
 Waydell v. Luer, 3 Den. 410. The giv- 
 ing of promissory note for co-partnership debt 
 by one of several partners after dissolution, un- 
 der agreement by creditor to accept it in pay- 
 ment of the debt, extinguishes the liability of 
 the other copartners. Followed. Ludington 
 v. Bell, 77 N. Y. 188, 140. 
 
 Wayland v. Tysen, 45 N. Y. 281. Strik- 
 ling out answer. Distinguished. Walker y. 
 Walker, 59 How. Pr. 476, 479. 
 
 Wayne Co. Savings Bank v. Lo-w, 6 
 Abb. N. Cas. 76. Effect of law of place on rate 
 •of interest. Overruled. Dickinson v. JEd- 
 Jioards, 77 N. Y. 573, 584; S. C, 58 How. Pr. 
 
 24. Reversed. Wnyne Co. Savings Bank v. 
 Low, 22 Alb. L. J. 346. 
 
 Weaver v. Barden, 49 N. Y. 286. See 
 Wood V. Chapin, in this Table. 
 
 Webb V. Odell, 49 N. Y. 583. Distin- 
 guished. Littauer v; Goldman, 72 N. Y. 506, 510. 
 Weber v. New York Central, &c., R. 
 R. Co., 58 N. Y. 451. Precautions required 
 from railway company on approaching highway 
 crossing. Followed. Dyer v. Sne Bailway 
 Co.. 71 N. Y. 228, 230. 
 
 Webster v. Hudson River R. R. Co., 
 38 N. Y. 260. Election to sue one or all of 
 several tort-feasors. Distinguished. Chipman 
 v. Palmer, 77 N. Y. 51, 54. 
 
 Webster v. Stockwell, 3 Abb. N. Cas. 
 115. Granting of order for examination of ad- 
 verse party before trial is obligatory, and con- 
 sequently such order cannot be vacated or set 
 aside. Overruled. Chapin v. Thompson, 16 
 Hun 53, 54. 
 
 Weed V. Mut. Benefit Life Ins. Co., 
 41 Superior 476. Evidence for plaintiff on plea 
 of suicide, in action on life policy. Atfirmed. 
 Weed V. Mut. Benefit Life Ins. Co., 70 N. Y. 561. 
 
 Weed V. People, 31 N. Y. 465. "Not an 
 authority for the position, that a writ of error 
 in a criminal case, to receive the attention of an 
 appellate court, must bring up a formal com- 
 mon law record of the judgment of the trial 
 court." Manke v. People, 74 N. Y. 415, 423. 
 
 Weeks v. New York, &o., R. R. Co., 9 
 Hun 669. What will be deemed to be baggage 
 so as to make a railroad company liable to a 
 passenger who is robbed while on a train. Af- 
 firmed. Weeks v. New York, &c., M. B. Co., 72 
 N. Y 50. 
 
 Weeks v. Tomes, 16 Hun 349. Lis pen- 
 dens not effective until complaint filed. Affirm- 
 ed. Weeks v. Tmies, 76 N. Y. 601. 
 
 Wegman v. Childs. 41 N. Y. 159. Dis- 
 tinguished. Porter v. Kingsbury, 77 N. Y. 
 164, 168. 
 
 Wehle V. Butler, 35 Superior 1. Proof 
 of value in trespass and trover. Affirmed, 
 WeUe V. Butler, 61 N. Y. 245. 
 
 Wehle V. Butler, 61 N. Y. 245. Evidence 
 of retail value of goods taken, admissible in 
 trespass de bonis and trover, on question of 
 market value. Criticised and limited. Wehle 
 V. Haviland, 69 N. Y. 448, 450. 
 
 Wehle V. Conner, 40 Superior 24. Liar 
 bility of sheriff for failure to return execution. 
 Affirmed. Wehle v. Conner, 63 N. Y. 258. 
 
 Wehle V. Conner, 63 N. Y. 258. In ac- 
 tion against sheriff for failure to return execu- 
 tion, it is no defence that prior to return day 
 defendant received warrants of attachment 
 against plaintiff and levied same. Distin- 
 guished. Wehle V. Conner, 69 N. Y. 546, 549. 
 
 Wehle V. Conner, 41 Superior 201. Lia- 
 bility of sheriff for failure to return execution. 
 Reversed. Wehle v. Conner, 69 N. Y. 546. 
 
 Wehrkamp v. Willet, 1 Daly 4. New 
 trial for newly-discovered evidence. Approved. 
 May V. Strauss, 8 Abb. N. Cas. 274, 279. 
 
 Wehrum v. Kuhn, 34 Superior 336. 
 When a new trial will be granted for error on 
 trial by referee. Affirmed. Wehrum v. Kuhn, 
 61 N. Y. 623. 
 
 Weisser v. Denison, 10 N. Y. 68. Lia- 
 bility of bank to depositor on payment of 
 forged check. Approved. Frank v. Chemical 
 Nat. Bank, 45 Superior 452, 457. 
 
CASES CRITICISED. 
 
 543 
 
 Depositor in bank not bound to examine pass- 
 took and returned checks to detect possible for- 
 geries of his name. Followed, as controlling. 
 Welsh V. Oerman-American Bank, 73 N. Y. 424, 
 428. 
 
 Welch V. Smith, 13 Hun 403. Eights 
 and liabilities of stockholders ia manufacturing 
 corporations. Affiemed, it seems, March 19th, 
 1880. 
 
 Welland Canal Co. v. Hathaway, 8 
 Wend. 480. Evidence resting in records can- 
 not he supplied by proof of admission of the 
 party sought to be affected by such eyidence of 
 the existence of the facts appearing by such 
 records. Followed. Sherman v. People, 13 
 Hun 575, 577. 
 
 Wells V. City of Buffalo, 14 Hnn 438. 
 Construction of Const., art 3, § 17, and of char- 
 ter of city of Buffalo. Affibmed, it seems, Feb- 
 ruary 24th, 1880. 
 
 Wells V. Steam Nav. Co., 8 N. Y. 375. 
 SufSciency of special contract to exempt common 
 ■carrier of merchandise from liability for negli- 
 gence. Followed. Maynard v. Syracuse, die.. 
 It. B. Co., 71 N. Y. 180, 184. 
 
 Welsh V. Q-erman-Am.erican Bank, 
 42 Superior 462. Liability of bank to depositor 
 for money paid on forged indorsement of check 
 drawn by depositor. Affirmed, Wehh v. Ger- 
 man-American Bank, 73 N. Y. 424. 
 
 Wemple v. Stewart, 22 Barb. 154. Dis- 
 tingtiished. Jones v. Kent, 8 Abb. N. Cas. 
 300, 307. 
 
 Wente v. Yoxing, 12 Hun 220. Juris- 
 diction of state courts of actions by assignees in 
 fcankruptcy. Appboved. Tntlis v. Miller, 13 
 Hun 3t)3, 365 ; Tyler v. McCoUum, 19 Id. 622, 
 «24. 
 
 Westbrook v. Gleason, 14 Hun 245. 
 Mortgage lien, how divested. ' Reversed. 
 Westbrook v. Gleason, 79 N. Y. 23. 
 
 Westcott V. Fargo, 61 N. Y. 542. Eight 
 ■of member of joint stock association to sue the 
 association for negligence. Approved and 
 followed. SaUsman v. Schultz, 14 Hun 256, 
 257. 
 
 Westervelt v. Gregg, 1 Barb. Ch. 469. 
 ■Contesting executor's accounts in surrogate's 
 •court. Appointment of auditor. Doubted. 
 Buchan v. Bintaid, 70 N. Y. 1, 4. 
 
 Western Bank v. City of Columbus,. 
 7 How. Pr. 238. Distinguished and ap- 
 proved. Hibemia Nat. Bank v. Merchant^, &c., 
 Bank of New Orleans, 21 Hun 166, 174. 
 
 Western R. B. Co. v. Bayne, 11 Hun 
 166. Modification of contract made by corpora- 
 tion. Assignment to director. Affirmed. 
 Western R. B. Co. v. Bayne, 75 N. Y. 1. 
 
 Weston V. City of Syracuse, 17 N. Y. 
 110. Distinguished, Smith v. City of New- 
 ■burgh, 77 N. Y. 130, 134. 
 
 Wetmore v. Truslow, 51 N. Y. 338. 
 Liability of trust estate for debts of cestui que 
 ■trust. Distinguished. Williams v. Thorn, 70 
 N. Y. 270, 278. 
 
 Weyer v. Beach, 14 Hun 231. Personal 
 judgment, when not recoverable in mechanics' 
 lien case. Affirmed. Weyer v. Beach, 79 N. 
 Y. 409. 
 
 WeyBian v. People, 4 Hun 511. Dis- 
 tinction between larceny and false pretences. 
 Distinguished. Zink v. People, 77 N. Y. 114, 
 129. 
 
 Wheeler, Matter of, 2 Abb. Pr. (N. S.) 
 361. Validity of corporate election where in 
 specters refuse to preside. Followed. Peopl 
 V. Twaddell, 18 Hnn 427, 432. 
 
 Wheeler v. Allen, 51 N. Y. 37. Distin 
 quished. Western B. B. Co. v. Bayne, 75 N. 
 Y. 1, 4. 
 
 Wheeler v. McFarland, 10 Wend. 318. 
 Duty of sheriff in levying on property subject 
 to lien of third person. "This case was re- 
 versed on another point (26 Wend. 467,) but is 
 approved so far as the part to wliich it is now 
 cited, in 23 Wend. 669." Atkins v. Saxton, 77 
 N. Y.195, 200. 
 
 Wheeler v. Ruthven, 13 Hun 530. Leg- 
 acy payable out of particular fund, the exist- 
 ence of which depends on the happening of a 
 contingency, is payable, unless the will other- 
 wise provides, on the happening of the contin- 
 gency, and bears interest from that time, not 
 from time of testator's death. Affirmed. 
 Wheeler v. Buthven, 74 N. Y. 428. 
 
 Whipple V. Christian. 15 Hun 321. 
 Mechanics' lien law of 1844 (Laws of 1844, ch. 
 305,) not affected by Laws of 18.'i4, ch. 402, or 
 by Laws of 1858, ch. 204. Filing notice of lien. 
 Affirmed, it seems, April 6th, 1880. 
 
 Wliitbeck v. New York Central, 
 R. R. Co., 36 Barb. 644. Liability of railroad 
 company for injury to fruit trees near track. 
 " That case was decided in 1862, and if the case 
 is in conflict with that of Vam Deusen v. Young, 
 29 N. Y. 36, then it is overruled by that case." 
 Beider v. Delaware and Hudson Canal Co., 13 
 Hun 254, 260. 
 
 White V. Baxter, 41 Superior 358. What 
 consideration is sufficient to support contract 
 to indemnify stock-broker for all loss, if he 
 will refuse to appear before board of arbitra- 
 tion. Affirmed. White v. Baxter, 71 N. 
 Y. 254. 
 
 White V. Continental Bank, 64 N. Y. 
 316. Distinguished. Susquehanna Valley 
 Bank V. Pickering, 19 Hun 230, 232. 
 
 White V. Hoyt, 7 Daly 232. Construction 
 of contract. Surrender of doubtful claim a 
 good consideration!. Affirmed. White v. 
 Hoyt, 73 N. Y. 505. 
 
 White V. Lester, 1 Keyes, 316. Distin- 
 guished. Thompson v. Commissioners for Loan- 
 ing, &e., 79 N. Y. 54, 62. 
 
 White V. Mealio, 37 Superior 72. Eight 
 of landlord to shore up demised building, and 
 insert " needles " through basement to strength- 
 en the building. Duty to repair as between 
 landlord and tenant. Eeversed. White v. 
 Mealio, 63 N. Y. 609. 
 
 White V. Miller, 7 Hun 427. Declarations 
 of agents, when admissible in action against 
 principals. Eeversed. White v. Miller, 71 N. 
 Y. 118. 
 
 Wliited V. Germania Fire Ins. Co., 13 
 Hun 191. Who will be deemed agent of insur- 
 ers, and his power as such, to waive condition in 
 fire policy. Affirmed. Whited v. Germania 
 Fire Ins. Co., 76 N. Y. 415. 
 
 Whited V. Germania Fire Ins. Co., 76 
 N. Y. 415. Waiver of condition in fire policy. 
 Followed. Bell v. Lycoming Fire Ins. Co., 19 
 Hun 238, 245. 
 
 WTiitehead v. Kennedy, 7 Hun 230. 
 Transactions between attorney and client. Bur- 
 den of proof on attorney to show fairness. 
 
bU 
 
 CASES CRITICISED. 
 
 Compensation of attorney. Rkvbrsed. *White- 
 head v. Kennedy, 69 N. Y. 462. 
 
 Whitehead v. Smith, 14 Hun 531. Ad- 
 missibility of testimony under Code of Civ. Pro., 
 § 829. Affirmed, U seems, June 1st, 1880. 
 
 "Whitford v. Panama R. R. Co., 23 N. 
 Y. 465, 474. The right of action for causing 
 death is personal, and if given by statute in state 
 where accident occurs, it may be enforc- 
 ed in this state by personal representative of 
 party killed. Followed. Stadlknecht v. Penn-' 
 sylvania R. M. Co., 13 Hun 451, 453. . 
 
 Whiting V. Gearty, 7 Week. Dig. 97. In 
 the absence of notice to mortgagee, of assump- 
 tion of mortgage by grantee, or in the absence 
 of acceptance by mortgagee of such assumption, 
 grantee may be released by mortgagor. Disap- 
 proved. Douglass Y. Wells, 18 Hun 88, 91. 
 
 WTiitney v. Allaire, 4 Den. 554; 1 N. Y. 
 305. Where a lessor falsely and fraudulently 
 represents that the. premises described in his 
 contract embraced lands which they do not in f^ct 
 embrace, the lessee, by taking possession of the 
 premises actually embraced in the lease, does 
 not preclude himself from claiming from his 
 landlord compensation for the lands which are 
 deficient, or what he reasonably pays to hire 
 them. Distinguished. People v. Stephens, 71 
 71 N. Y. 527, 541, 553. 
 
 WTiitney v. Black River Ins. Co., 9 
 Hun 37. Meaning of phrase " vacant and unoc- 
 cupied," in fire policies. What ia not such an in- 
 crease of risk as to avoid a policy. Affirmed. 
 Whitney v. Black River Ins. Co., 72 N. Y. 117. 
 
 Construction of condition as to occupancy in 
 policy of fire insurance. Distinguished. Wail 
 V. AgrieidturaX Ins. Co., 13 Hun 371, 374. 
 
 Whitney v. National Bank of Pots- 
 dam, 45 N. Y. 303. Distinguished. Lit- 
 tauer v. Goldman, 72 N. Y. 506, 511. 
 
 Whitney v. Snyder, 2 Lans. 477. Estop- 
 pel of maker of note from denying its genuine- 
 ness. Approved and distinguished. Mosh- 
 er V. Carpenter, 13 Hun 602, 604. 
 
 Whitney Arms Co. v. Barlow, 38 
 Superior 554. Liability of trustees in manufac- 
 turing corporation for failure to file annual re- 
 port. Reversed. Whitney Arms Co. v. Barlow, 
 63N.Y. 62. 
 
 Whitney Arms Co. v. Barlow, 63 N. 
 Y. 62. What is a sufficient annual report under 
 the manufacturing companies act. Plea of ultra 
 vires, when may not be set up by corporation. 
 Followed. Whitney Arms 0>. v. Brooks, 69 N. 
 Y. 620. Distinguished. Ohn's Falls Paper 
 Co.y. While, 18 Hun 214, 216.' 
 
 Whitney Arms Co. v. Barlow, 41 
 Superior 220. Burden of proof in action to 
 enforce liability of trustee of manufacturing 
 company for failure to file annual report. Af- 
 firmed. Whitney Arms Co. v. Barlow, 68 N. 
 Y.34. 
 
 WTiittemore v. Parrington, 12 Hun 
 349. Purchaser neglecting to have covenants 
 of title inserted in his deed — when not entitled 
 to relief. Affirmed. Whiltemore v. Farring- 
 ton, 76 N. Y. 452. 
 Weibert v. New York and Erie Rail- 
 
 [•The reversal was -because the General Term, hav- 
 ing subverted the g:rouiids on which the referee decid- 
 ed the case, proceeded to determine, in a case of con- 
 llictinfi: evidence, what amount plaintiff ought to re- 
 cover, and directed judgment accordingly.— Ed.] 
 
 way Co., 12 N. Y. 245. Distinguished, 
 Tierney v. New York, Central &c., R. R. Co., 7S 
 N. Y. 305, 311. 
 
 Wioks V. Hatch, 38 Superior 95. Liabil- 
 ity of married woman carrying on business, for 
 acts of husband as her agent. Affirmed, 
 Wieks V. iSalch, 62 N. Y. 535. 
 
 Widening Oarlton Street, Matter of,. 
 16 Hun 497. Construction of charter of BuflMa 
 in respect to taking land for local improvements. 
 Affirmed. Matter of Widening CarlUm street, 
 78 N. Y. 362. 
 
 W^idows", &o., Life Ins. Co., Matter of, 
 13 Hun 115, see Reserve Mutual Life Ins. Co., 
 Matter of, in this Table. 
 
 Wright V. Wood, 57 Barb. 471. Distin- 
 guished. Jones V. Kent, 45 Superior 66, 69. 
 
 W^ilcox Silver Plate Co. v. Green, 9 
 Hun 347. Presumption as to statutes of fraud 
 of foreign state being similar to domestic statute. 
 Memorandum order for goods, effect of as evi- 
 dence. Affirmed. Wilcox Silver Plate Co. v, 
 Oieen, 72 N. Y. 17. 
 
 Wiles V. Suydam, 10 Hun 578. Liabil- 
 it;y of trustees of manufacturing corporation for 
 failure to file annual report. Distinguished. 
 Anderson v. Speers, 59 How. Pr. 421, 424 ; S. C, 
 21 Hun 568, 571. 
 
 Wilkes V. Mayor, &c., of New York. 
 
 8 Daly 407. Affirmed. Wilkes v. Mayor, &c., 
 of New York, 79 N. Y. 621. 
 
 WiUrinson V. First Nat. Fire Ins. Co., 
 
 9 Hun 522. Special limitation of time to sue 
 in policy of insurance will bar action, even 
 though plaintiff was enjoined from suing dur- 
 ing a part of the time limited. Affirmed. 
 Wilkinson v. First Nat. Fire Ins. Co., 72 N. Y. 
 499. 
 
 Wilkinson v. Gill, 10 Hun 156. Selling 
 "policy slips" is a sale of an interest in, or 
 " portion of an illegal lottery " set on foot by 
 defendant, within 1 Kev. Stat. 667, ? 32, which 
 authorizes the purchaser to recover back double 
 the sum paid therefor. Affirmed. Wilkinson 
 V. Gill, 74 N. Y. 63. 
 
 Williams v. Gillies, 13 Hun 422. What 
 constitutes a partnership in real estate purchased 
 for speculative purposes. Reversed. Williams- 
 V. Gillies, 75 N. Y. 197. 
 
 Williams v. Glenny, 16 N. Y. 389. Ren- 
 dering account for services, when does not pre- 
 vent recovery of actual value of such services. 
 Followed. Harrison v. Avers, 18 Hun 336. 
 337. 
 
 Williams v. Littlefleld, 12 Wend. 362. 
 Distinguished. Farmer^, &c.. Bank v. Logan, 
 74 N. Y. 568, 583. 
 
 Williams v. Supervisors of Wayne 
 Co., 14 Hun 343. Correction of errors in as- 
 sessments by board of supervisors. Reversed. 
 Williams v. Supervisors of Wayne Co., 78 N. Y. 
 562, 
 
 Williams v. Town of Duanesburgh, 
 66 N. Y. 129. Where, in pursuance of legisla- 
 tive enactment, municipal bonds have been is- 
 sued and transferred to purchasers for value, 
 prior to the decision in People v. Batchellor, 
 53 N. Y. 128, they are protected by the earlier 
 decisions, and, so far as their validity depends 
 upon the constitutional power of the legislature, 
 will be sustained. Doubted. Hardenbergh v. 
 Van Keuren, 16 Hun 17, 23. See, also, Soge)s 
 V. Rochester, &c., R. R. Co., 21 Hun 44, 46. 
 
 Williams v. Tradesmen's Fire Ins. 
 
CASES CRITICISED. 
 
 545- 
 
 Co., 1 Daly 322. Followed. Zinsser^. Seller, 
 7 Daly 464, 466. 
 
 "Williams v. "Williams, 8 N. Y. 525, 548. 
 Eequisite certainty in charitable bequest. " Al- 
 though the authority of Williams v. Williams, so 
 far as it favors the existence of the law of chari- 
 table uses in this state, has been overruled by 
 later cases in the Court of Appeals; still, the 
 conclusion as to the validity of the gift under 
 consideration in that case has not been dis- 
 turbed." Power V. Ocmidy, 16 Hun 294, 298. 
 
 "Williamson v.'Champlin, 8 Paige 70. 
 Distinguished. Schaafv. O'Brien, 8 Daly 181. 
 
 •WUlover V. HiU, 72 N. Y. 36. What facts 
 may be shown in mitigation of damages, in 
 slander. Followed. Hatfield v. Lasher, 17 
 Hun 23, 26. 
 
 "Wiilsey v. Hutohins, 10 Hun 502. Suf- 
 ficiency of complaint in action against married 
 woman. Followed. Broome v. Taylor, 13 Hun 
 341, 342 ; q. v. in this Table. 
 
 "WUsOA V. Britton, 26 Barb. 562. [Is 
 properly commented on in Oasherie v. Apple, 14 
 Abb. Pr. 64 ; q. v. in this Table ] Doubted. 
 Anthony v. Slype, 19 Hun 265, 267. 
 
 "Wilson V. Deen, 74 N. Y. 531. Admissi- 
 bility of oral agreement to vary lease. Cancel- 
 lation of lease. Explained. C kapin y. Dob- 
 son, 78 N. Y. 74, 80 ; Funch v. Ahenheim, 20 
 Hun 1, 7. 
 
 "Wilson V. Knapp, 42 Superior 25. Kela- 
 tivr rights of mortgagor and mortgagee of ves- 
 sel, in respect to suing for damages to the vessel, 
 ,by collision. Affirmed. Wilson v. Knapp, 
 70 N. Y. 596. 
 
 "Wilson V. Lawrence, 13 Hun 238. 
 Policy on husband's life in favor of wife, not as- 
 signable by her prior to Laws of 1873, ch. 821. 
 Affibmed. Wilson v. Lawrence, 76 N. Y. 585. 
 
 "Wilson V. RandaU, 7 Hun 15; 67 N. Y. 
 338. "Seems to be an authority for holding 
 that a court of equity willcorrect a mistake in a 
 deed as to quantity." Paine v. Upton, 21 Hun 
 306 312. 
 
 Winchell v. Hicks, 18 N. Y. 558. When 
 payment of interest on joint obligation, by the 
 principal obligor, will stop running of statute 
 of limitations as against the sureties. Fol- 
 lowed. Kaight v. Avery, 16 Hun 252, 254. 
 
 "Wines V. Mayor, &c., of New "STork, 
 9 Hun 659. Power of board of supervisors re- 
 specting salaries of attendants upon Marine 
 Court in New York city. Afptrmed. TTiTies 
 V. Mayor, &e., of New York, 70 N. Y. 613. 
 
 "Wing V. Schramm, 13 Hun 377. Ne- 
 cessity of husband's assent to conveyance by 
 married woman. Affirmed. Wing v. Schramm, 
 79 N. Y. 619. 
 
 "Winsted Bank v. "Webb, 39 N. Y. 325. 
 Distinguished. Mansee y. Phimney, 20 Hun 
 153, 154. 
 
 "Winston v. English, 44 How. Pr. 398. 
 Examination of party before trial. " The rules 
 laid down in the case may still be followed with 
 safety." Levy v. Loeb, 44 Superior 291, 304; 
 S. C, 5 Abb. N. Cas. 157, 168. 
 
 "Winter v. Drury, 5 N. Y. 525. Bi^ht of 
 holder of check or bill of exchange, to a hen on 
 funds in hands of drawee. Distinguished. 
 Watts V. Shipman, 21 Hun 598, 605. 
 
 "Wintermute v. Cooke, 7 Hun 476. 
 Construction of contract to deliver railroad 
 bonds. Action for accounting. Bevebsed. 
 Wintermute v. Cooke, 73 N. Y. 107. 
 
 "Winterson v. Eighth Ave. R. R. Co., 
 2 Hilt. 389. Joinder of distinct causes of action. 
 Distinguished. Morenus v. Crawford, 15 Hun 
 45, 47. 
 
 "Wiser v. Blaohly, 1 Johns. Ch. 607. 
 Surety intending to bind himself held bound in' 
 equity, though bond informal. Distinguished. 
 Oosman v. Oi-uger, 69 N. Y. 87, 90; Cfirvin v. 
 Hickman, 21 Hun 316, 317. 
 
 Wolf V. Goodhue Fire Ins. Co., 43 
 Barb. 400 ; 41 N. Y. 620. A verdict will not be 
 set aside because it does not give the plaintiff 
 all he claims, or all his evidence tends to show 
 to be owing, if the theory of the defendant be 
 rejected. Followed. Scheider v. Corby, 15 
 Hun 493. 
 
 Wood V. Ohapin, 13 N. Y. 509. A pur- 
 chaser under an execution is a purchaser for a 
 valuable consideration, if he pays in cash the 
 expenses of the proceedings, though the re- 
 mainder of the purchase price is directly applied 
 to a precedent debt. " 'That case has been very 
 keenly criticised by the plaintiff's counsel, but 
 it is recognized, and the principle reiterated in 
 Wood V. Morehouse, 45 N. Y. 368. Judge 
 Allen, it is true, in the late case of Weaver v. 
 Barden, 49 N. Y. 265, expresses the opinion 
 that the purchaser is a purchaser for a valuable 
 consideration only to the extent of the new 
 value parted with by him, and to that extent he 
 would be entitled to a lien on the property 
 bought. But this view does not appear to have 
 been concurred in by the court. Judge Grover 
 expressly dissented, and the other judges con- 
 curred only in the result of Judge Allen's 
 opinion." Barlo v. Tompkins Co. Nat. Bank, 15 
 Hiin 11, 13. 
 
 Wood V. City of Brooklyn, 14 Barb. 425. 
 Injunction granted to prevent enforcement of 
 void city ordinance. " It is but a Special Term 
 decision, and yet it is by an able judge ; and I 
 will refer to it only to point out more clearly 
 the distinction I make." Davis v. Amer. Soc. 
 for Prevention of Cruelty to Animals, 75 N. Y. 
 362, 369. 
 
 "Wood V. Erie Railway Co., 9 Hun 648. 
 The fact that shipper of goods is doing business 
 in fictitious name is no defence to an action by 
 him against carrier for loss or damage. Af- 
 firmed. 'Wood V. Erie Bmlway Co., 72 N. Y. 
 196. 
 
 Wood V. Pisk, 63 N. Y. 245. Liability 
 of surety discharged by his death. Followed. 
 Bandall v. Aackett, 77 N. Y. 480, 482; Davis 
 V. Van Burrn, 72 N. Y. 587, 589. 
 
 Wood V. Hoeft, 9 Hun 182. Bi^ht of 
 riparian land-owners to wharfage in city of 
 Brooklyn. Affirmed, suh. nom Wood v. Tonges, 
 74 N. Y. 612. 
 
 "Wood V. Hubbell, 10 N. Y. 479. Distin- 
 guished. Wilson V. Deen, 74 N. Y. 531, 536. 
 
 "Wood V. Mather, 38 Barb. 473 ; 44 N. Y. 
 249. Legal title to property conveyed in trust. 
 Power of chancery to compel conveyance by 
 cestuis que trust. Followed. Bennett v. Oar- 
 lock, 79 N. Y. 302, 320. 
 
 "Wood V. Morehouse, 45 N. Y. 368, 375. 
 Effect of sheriff's deed to raise presumption of 
 regularity in proceedings preliminary to the 
 sale. Followed. Clute v. Emmerich, 21 Hun 
 122, 128. 
 
 "Wood V. People, 59 N. Y. 117. Distin- 
 guished. Phelps V. People, 72 N. Y. 365, 373. 
 
 "Wood V. Shultis, 4 Hun 309. An amend- 
 
 35 
 
546 
 
 CASES CRITICISED. 
 
 ment of a pleading is not only authorized, but 
 must be granted by the court if it can be seen 
 *hat substantial justice will be promoted there- 
 by. Followed. Walsh v. Comett, 17 Hun 
 27 29 
 
 Wood V. 'Wood, 26 Barb. 356, 364. Statute 
 of limitations. Actions against heirs. Distin- 
 guished. MaUoy v. Vanderbilt, 4 Abb. N. Cas. 
 127, 130. 
 
 "Woodliull V. Rosenthal, 61 N. Y. 382. 
 Where lessee, by written instrument, transfers 
 to another, either with or without condition, all 
 of his interest in a portion of the demised prem- 
 ises, it is an assignment pro tanto, and not a sub- 
 lease. DiSTiNatnsHED. Oanson v. Tifft, 71 N. 
 Y. 48, 54. 
 
 ■Woodmansee v. Rogers, 20 Hun 285 ; 
 58 How. Pr. 439 ; and at Special Term, Id. 98. 
 Motion by subsequent lienor to vacate attach- 
 ment. (Code of Civ. Pro., § 682.) Apfibmed. 
 Woodmansee v. Rogers, 59 How. Pr. 401. 
 
 "Woods V. De Figauiere, 1 Eobt. 607 ; 
 16 Abb. Pr. 1. Who is a |' party," as the term 
 IS used in a statutory provision authorizing the 
 «xamination of a party, before trial. Appboved. 
 People V. Mutual Oas Light Cfa , 74 N. Y. 434, 
 436 ; 14 Hun 157, 158. 
 
 Woods V. Pangbom, 14 Hun 540. Judg- 
 ment and satisfaction for one libel a bar to a 
 suit for additional libel uttered during pendency 
 of first action. Revebsed. Woods v. Pang- 
 bom, 75 N. Y. 495. 
 
 Wood-worth v. Bennett, 43 N. Y. 273. 
 Explained and distinguished. Haynes v. 
 Rudd., 17 Hun 477, 480, 
 
 Woolsey v. Bro-wn, 11 Hun 52. Mar- 
 ried woman may bind her separate estate by be- 
 coming surety ou an , undertaking on appeal. 
 Affirmed. Woolsey v. Brawn, 74 N. Y. 82. 
 
 World's Safe Ins. Co., Matter of, 40 
 Barb. 499. What authorizes an insurance com- 
 pany to commence business, authorizes it to con- 
 tinue ; and if its funds substantially equal the 
 amount of its capital, it should continue, so far 
 as respects the sufficiency of its funds. Criti- 
 cised. PeopU V. Atlantic Mut. Life Ins. Co., 74 
 N. Y. 177. 
 
 Wright V. Bennett, 3 Barb. 451. In re- 
 plevin, an answer of title in third person, is 
 
 good, without allegations connecting defendant 
 with right of such person. Doubted and dis- 
 tinguished. Stmoell V. Otis, 71 N. Y. 36, 38. 
 
 Wright V. Douglass, 10 Barb. 97. In a 
 court of general jurisdiction, it is to be presumed 
 that the court has jurisdiction till the contrary 
 appears, but the want of jurisdiction may always 
 be shown by evidence, except in one solitary 
 case, viz. : When jurisdiction depends on a 
 fact that is litigated in a suit, and is adjudged in 
 favor of the party who avers jurisdiction, then 
 the question of jurisdiction is judicially decided, 
 and the judgment record is conclusive evidence 
 of jurisdiction until set aside or reversed by a 
 direct proceeding. "The judgment was re- 
 versed (7 N. Y., 564,) but not upon the point re- 
 ferred to here. It cannot, liowever, be held to 
 be an adjudication upon that point, because the 
 judgment was not rendered in the exercise of 
 the general powers of the court, but in pursu- 
 ance of a special statutory authority." Ferguson 
 V. Orawford, 70 N. Y. 253, 265. 
 
 Wright V. Fleming, 7 Hun 608 Powers 
 of, surrogate on accounting of administrator. 
 Eeveesed. Wright v. Fleming, 71 N. Y. 612. 
 
 ■Wright V. Fleming, 12 Hun 469. Equity 
 will not slay entry of decree in snirogate's 
 court, against executor, when he can have re- 
 lief upon appeal. Affirmed. Wrighty. Flem- 
 ing, 76 N. Y. 517. 
 
 W^right V. MUbank, 9 Bosw. 672, Eight 
 to second new trial in ejectment. Followed. 
 Phyfe V. Masterson, 45 Superior 338, 343. 
 
 "Wright V. Nostrand, 58 How. Pr. 184. 
 StenSgraphers' fees, and payment thereof, how 
 compelled. Followed in part. Guth v. Lal- 
 ton, 58 How. Pr. 289. 
 
 "Wright V. Ritterman, 1 Abb. Pr. (N. S.) 
 428. Party cannot be arrested twice for the 
 same cause. Followed. Tomisend v. NebenaM, 
 20 Hun 81, 83. 
 
 Wright V. Wright, 7 Daly 62. Attor- 
 ney's lieu for costs. Effect of settlement by 
 parties. Affirmed. Wright v. Wright, 70 N. 
 Y. 98. 
 
 Wyman v. Wyman, 26 N. Y. 253. 
 Transfer of interest in fire policy, when fatal to 
 recover in case of loss. Distinguished. SAer- 
 wood V. Agricultural Ins. Co., 73 K. Y. 447, 451. 
 
 Y. 
 
 ITale V. Dederer, 22 N. Y. 450. Agree- 
 ment to charge separate estate of married woman 
 must be included in original contract, out of 
 ■which the indebtedness is claimed to arise. 
 Followed. Eiscnhrd v. Snyder, 71 N. Y. 45, 47. 
 
 Yale V. Dederer, 68 N. Y. 329. Liability 
 of married woman upon contracts for benefit of 
 ■separate estate. Distinguished. Husted v. 
 Malhes, 77 N. Y. 388, 390. 
 
 Yates V. People, 32 N. Y. 509. Distin- 
 ■GUISHED. King v. New York Centred, &c., R. R. 
 •O)., 72 N. Y. 607, 610. 
 
 Ynguanzo v. Salomon, 3 Daly 153. 
 •Conclusiveness of verdict in action involving 
 .fi:aud. Followed. Cohn v. Goldman, 43 Su- 
 jierior 436, 449. 
 
 Sufficiency of complaint in action for con- 
 spiracy to cheat and defraud. Disapproved. 
 Cohn V. Goldman, 76 N. Y. 284. 
 
 Young V. Bush, 36 How. Pr. 240. Ap- 
 proved. Matter of Davis, 7 Daly 1, 7. 
 
 Young V. Hill, 67 N. Y. 162. Compound 
 interest — wlien proper. Followed. Jones v. 
 Ennis, 18 Hun 452, 4.54. 
 
 Younghause v. Pingar, 47 N. Y. 99. 
 Sufficiency of notice of appeal from justice's 
 judgment. Followed. Loron v. McLaughlin, 
 \i Hun 628, 629. 
 
 Youngs V. Lee, 12 N. Y. 551. What is a 
 parting with value in the law of negotiable 
 paper. Limited. Phenix Ins. Co. v. Church, 59 
 How. Pr. 293, 296, 299, 300. " 
 
CASES CRITICISED. 
 
 547 
 
 ZabrisMe v. Smith, 13 N. Y. 322. Dis- 
 TUsrauiSHED. Syde v. Taffie, 45 Superior 56, 
 60. 
 
 Zborowaky, Matter of, 68 N. Y. 88. 
 Power of city to construct sewers. (Laws of 
 1865, ch. 381.) PoiiLOWED. Matter of Roberts, 
 17 Hun 659, 660. See, also, ifatter of Be Pey- 
 tier, 18 Id. 445. 
 
 Zink V. People, 16 Hun 396. What facta 
 will authorize a conviction of larceny. Be- 
 VEBSED. Zink V. People, 77 N. Y. 114; S- C, 
 6 Abb. N. Cas. 413. 
 
 Zogbavun v. Parker, 55 N. Y. 120. Dis- 
 TtNOuisHEO. Davidson t. Alfairo, 16 Han 863, 
 359, 861. 
 
CASES DIGESTED. 
 
 A TABLE OF CASES 
 
 DIGESTED IN THIS VOLUME. 
 
 A. 
 
 Abbett V. Frederick, 56 How. Pr. 68. 
 <Bailm.) 51. 
 
 Abbott, Matter of, 3 Eedf. 303. (Leg.) 259. 
 
 Abbott V. People, 75 N. Y. 602; 15 Hun 
 437. (False Pret.) 178, 179 ; (Gas. Cr.) 467. 
 
 AbecaBis v. Gray, 43 Superior 573. 
 <Waieh.) 446. 
 
 Abham v. Boyd, 7 Daly 30. (Mech. Lien) 
 280. 
 
 Abrahams v. Bensen, 76 N. Y. 629. 
 (App.) 11, 22. 
 
 Acker v. Acker, 16 Hun 173. (Lim. of 
 Ac.) 264; (Gas. Cr.) 467. 
 
 Ackerman v. Hunsicker, 21 Hun 63. 
 (Mort.) 285. 
 
 Adair v. Brimmer, 74 N. Y. 539. (Ex. 
 A Ad.) 168, 169, 172, 173; (Trusts) 437. 
 
 Adams, Matter of, 13 Hun 355. (B'klyn) 
 €8. 
 
 Adams v. Adams, 7 Abb. N. Gas. 292. 
 (Partners.) 338. 
 
 Adams v. Greenwich Ins. Co., 70 N. 
 Y. 166. (App.)14; (Witn.)459. 
 
 Adams v. Nellis, 59 How. Pr. 385. 
 <Judgm't) 238 ; (Prac.) 349. 
 
 Adams v. Popham, 76 N. Y. 410. (In- 
 junc.) 208 ; (Nuisance) 329. 
 • Adams v. Welsh, 43 Superior 52. (Dr. 
 ■& Cr.) 115 ; (Exec.) 162, 164. 
 
 Adee v. Adee, 16 Hun 46. (Bail) 50. 
 
 Adee v. Campbell, 14 Hun 551, (Distr. 
 ib.) 130 ; (Gas. Cr.) 467. 
 
 Adee v. Howe, 15 Hun 20. (Evid.) 157 ; 
 <Gas: Cr.) 467. 
 
 Adee v. Howe, 59 How. Pr. 459. (Pen- 
 aons) 340. 
 
 Adolphe V. Central Park, &c., R. R. 
 
 Co., 76 N. Y. 530. (Highw.) 194; (E. E. Co.) 
 378, 381. 
 
 Adolphe V. Central Park, &c., R. R. 
 Co., 43 Superior 199. (Negl.) 310; (Witn.) 
 457 ; (Gas. Gr.) 467. 
 
 Agate V. Sands, 73 N. Y. 620. (Manuf. 
 Go.) 275. 
 
 Agate V. Sands, 8 Daly 66. (Judgm't) 
 239; (Q. ofL. &. F.)367. 
 
 Ahern v. Goodspeed, 72 N. Y. 108. 
 (Estop.) 149 ; (Pr. & Agt.) 350, 353. 
 
 Albany, &o., R. R. Co. v. People, 15 
 Hun 126. (Gas. Cr.) 467. 
 
 Albany City Savings Bank v. Mar- 
 tin, 56 How. Pr. 500. (Mort.) 287. 
 
 Albany City Savings Inst. v. Bur- 
 dick, 20 Hun 104. (Eq.) 144. 
 
 Alden v. Diossy, 16 Hun 311. (Husb. & 
 W.) 200. 
 
 Alexander v. Dutcher, 70 N. Y. 385 ; 7 
 Hun 439. (Witn.) 455. 
 
 Alexander v. Meyers, 8 Daly 112. 
 (Costs) 98. 
 
 Alger V. Conger, 17 Hun 45; 79 N. Y. 
 633. (Trusts) 438 ; {Cos. Gr.) 468. 
 
 Algie V. "Wood, 43 Superior 46. (Evid.) 
 153 ; (Vend. & P.) 443. 
 
 Alleghany Oil Co. v. Bradford Oil 
 Co., 21 Hun 26. (Injunc.) 209 ; (Land. & T.) 250. 
 
 Allen V. Allen, 58 How. Pr. 381 ; 8 Abb. 
 N. Gas. 175; 59 How. Pr. 27. (Divorce) 133 ; 
 (Impris.) 204; (Gas. Cr.) 468. 
 
 Allen V. Atlantic, &o., Telegraph Co., 
 21 Hun 22. (Teleg. Go.) 421. 
 
 Allen V. Bighmie, 14 Hun 559. (Guar.) 
 188 ; (Gas. Gr.) 468. 
 
 Allen V. James, 7 Daly 13. (Evid.) 150. 
 .540 
 
550 
 
 CASES DIGESTED. 
 
 AUen V. Judson, 71 N. Y. 77. (Eeplev.) 393. 
 AUen V. Meyer, 7 Daly 229 ; 73 N. Y. 1. 
 (App.) 22 ; (Attach.) 43, 44, 45 ; (Caa. Cr.) 468. 
 Allen* V. Utioa, &o., B. R. Co., 15 Hun 
 80. (B. B. Co.) 371. 
 Allen v.'Welch, 18 Hun 226. (Adv.Poss.)7. 
 Allen V. 'WilUamsburgli Saving's 
 Bank, 69 N. Y. 314. (Banks) 60 ; (Defin.) 121. 
 Ailing V. Fahy, 70 N. Y. 571. (App.) 25. 
 AllisT. Leonard, 22Alb.L. J. 28. (Prom. 
 N.) 365. 
 Allis V.Stafford, 14 Hun 418. (Witn.)455. 
 ALvord V. Haynes, 13 Hun 26. (Sheriffi) 
 404. 
 Ambler V. Cox, 13 Hun 295. (Bound.) 66. 
 American Medicine Co. v. Keisler, 44 
 Superior 557. (App.) 18. 
 
 American Nat. Bank v. Wheelook, 45 
 
 Superior 205. (Mon. Eeo'd) 283; (New Tr.) 
 
 314; (Witn.)457. 
 
 Ames V. Jones, 77 N. Y. 614. (Sales) 398. 
 
 Amore v. La Mothe, 5 Abb. K Cas. 146. 
 
 (Att'y & Ca.) 47. 
 
 Amsdell v. McCaffrey, 16 Hun 255. 
 (Jufet. P.) 247 ; (Cas. Cr.) 468. 
 
 Anderson v. Hunt, 55 How. Pr. 336. 
 (Arrest) 36. 
 
 Anderson v. Speers, 59 How. Pr. 421 ; 21 
 Hun 568 ; 58 How. Pr. 68 ; 8 Abb. N. Cas. 382. 
 (Manuf. Co.) 272, 273.' 
 
 Andrews V. .^tna Life Ins. Co., 18 Hun 
 163. (Ins.) 231. 
 
 Andrews v. Keeler, 19 Hun 87. (Inter- 
 est) 236. 
 
 Andrews v. Long, 19 Hun 303. (App.) 
 29 ; (Just. P.) 247; (Cas. Cr.) 468. 
 
 Andrews v. Schwartz, 55 How. Pr. 
 190. (Attach.) 42. 
 Anonym.ous, 4 Abb. N. Cas. 11. (App.) 12. 
 Angel V. Town of Hume, 17 Hun 374. 
 (Mun. Corp.) 301. 
 
 Angell V. Lawton, 76 N. Y. 540; 14 Hun 
 70. (Accfg) 3; (Parties) 332; (Cas. Cr.) 468. 
 Ansley v. Patterson, 77 N. Y. 156. 
 (Banko'y) 53. 
 
 Ansonia Brass, &c., Co. v. Babbitt, 
 74 N. Y. 395. (Sheriffs) 405. 
 
 Anthony v. Harrison, 14 Hun 198 ; 74 
 N. Y. 613. (Prom. N.) 363 ; (Cas. Cr.) 469. 
 
 Anthony v. Stype, 19 Hun 265. (Attach.) 
 43. 
 
 Arctic Fire Ins. Co. v. Austin, 69 N. 
 
 Y. 470; 3 Hun 195. (Evid.) 152 ; (Prom. N.) 
 
 864 ; (Q. of L. & F.) 367 ; (Shipp.) 407, 408, 409. 
 
 Argall V. Jacobs, 21 Hun 115 ; 56 How. 
 
 Pr.l67. (New Tr.) 316. 
 
 Argall V. Pitts, 78 N. Y. 239, (App.) 
 25; (Judgm't) 239; (Mort.) 286, 295. 
 Argall v.Raynor, 20 Hun 267. (Mort.) 294. 
 
 Arkell v. Commerce Ins. Co., 69 N. Y. 
 191 ; 7 Hun 455. (Defin.) 121 ; (Ins.) 216. 
 
 Armstrong v. Cummings, 20 Hun 313 ; 
 58 How. Pr. 331. (Evid.) 151; (Land. & T.) 
 252, 253. 
 
 Armstrong v. People, 70 N. Y. 38. 
 (Att'y & a.) 48; (Seduction) 401; (Trial) 
 431; (Witn.)456,460. 
 
 Arnold, Matter of, 14 Hun 525. (Witu.) 
 462,464. 
 
 Arnold v. Clark, 45 Superior 252. (Land' 
 
 6 T.) 249. 
 
 Arnold V. Morris, 7 Daly 498. (Assig'nts) 
 41. 
 
 Arnold v. Pacific Mut. Ins. Co., 14 
 Hun 83 ; 78 N.Y. 7. (Ins.) 225,226 ; (Cas.Cr.) 469'. 
 
 Arnold V. People, 75 N. Y. 603. (Error) 
 145; (Except's) 161. 
 
 Arosemena v. Hinckley, 43 Superior 43. 
 (Eeplev.) 392; (Trusts) 437. 
 
 Arrex v. Broadhead,, 19 Hun 269. 
 (Mort.) 293. 
 
 Arrowsmith v. O'Sullivan, 44 Superior 
 573. (App.) 15; (Cred. S.) 110. 
 
 Arthur v. Homestead Fire Ins. Co., 
 78 N.Y. 462. (Att'y & CI.) 46; (Ins.) 229? 
 (Plead.) 345. 
 
 Asendorf v. Meyer, 8 Daly 278. (Mort.) 
 293. 
 
 Aspinwall v. Balch, 4 Abb. N. Cas. 193 j 
 
 7 Daly 200. (Moit.) 294. 
 
 Atkins V. Saxton, 77 N. Y. 195. (Attach.) 
 43,44; (Partners.) 337. 
 
 Atlantic Mut. Life Ins. Co., Matter 
 of, 55 How. Pr. 77. (Ins.) 234. 
 
 Atlantic State Bank v. Savery, 18 
 Hun 36. (Partners.) 336. 
 
 Attorney-General v. Atlantic Mut. 
 Life Ins. Co., 77 N. Y. 336 ; 15 Hun 84 ; 5ft 
 How. Pr. 391. (App.) 24; (Ins.) 234, 235; 
 (Cas. Cr.) 469. 
 
 Attorney-General v. Continental Life^ 
 Ins. Co., 71 N. Y. 325. 10 Hun 604. (Assign.) 
 38 ; (Banks) 57 ; (Cas. Cr.) 469. 
 
 Attorney-General v. Guardian Mut. 
 Life Ins. Co., 77 N. Y. 272. (Action) 5 ; 
 (Corp.) 98; (Ins.) 234; (Eeceivers) 385. 
 
 Attorney-General v. North Ameri- 
 ca Life Ins. Co., 77 N. Y. 297; 15 Hun 80- 
 (App.) 17 ; (Cas. Cr.) 469. 
 
 Attorney-General v. North Ameri- 
 ca Life Ins. Co., 56 How. Pr. 160 ; 6 Abb. 
 N. Cas. 293; (Corp.) 98; (Ins.) 234. 
 
 Attorney-General v. North America 
 Life Ins. Co., 58 How. Pr. 197; 18 Hun 
 470. (Ins.) 234; (Cas. Cr.) 469. 
 
 Attorney-General, Matter of, v- 
 North America Life Ins. Co., 21 Hun 283. 
 (Cas. Cr.) 469. 
 
CASES DIGESTED. 
 
 551 
 
 Auburn City Nat. Bank v. Hun- 
 siker, 72 N. Y. 252. (Q. of L. & F.) 367. 
 
 Auchmuty, Matter of, 18 Hun 324. 
 (Man. Corp.) 300. 
 
 Augustine v. Britt, 15 Hun 395. (Deeds) 
 119; (Caa. Cr.) 469. 
 
 Austin V. Holland, 69 N. Y. 571. (Evid.) 
 151; (Partners.) 338. 
 
 Ayerv.Rusliton,7 Daly 9. (Tradem'ks) 
 423. 
 
 Ayers v. Dixon, 78 N. Y. 318. (Mort.) 
 288 ; (Vend. & P.) 443. 
 
 B. 
 
 Babcock v. Bonnell, 44 Superior 568. 
 (Dr. &Cr.) 116; (Sales) 397. 
 
 Babcock v. Libbey, 17 Hun 131. 
 (Fraud) 182 ; (Cas. Cr.) 470. 
 
 Babcock v. People, 15 Hun 347. (Cert.) 
 76; (False Pret.) 179; (Phys. & S.) 342; 
 (Trial) 430 ; (Witn.) 454. 
 
 Bacon v. Frisbie, 15 Hun 26. (Att'y & 
 CI.) 48; (Vend, and P.) 442. 
 
 Bacon v. Van Schoonhoven, 19 Hun 
 158. (Mort.) 288, 297. 
 
 Baggerly v. Farmers' Joint Stock Ins. 
 Co., 72 N. Y. 607. (Cas. Cr.) 470. 
 
 Bailey, Matter of, 58 How. Pr. 446. 
 (Assign'ts) 41. 
 
 Bailey v. Buffalo Orossto-wn Ry. Co., 
 14 Hun 483. (K. R. Co.) 373. 
 
 Bailey v. Gardner, 6 Abb. N. Cas. 147. 
 (Contracts) 87 ; (Pr. & Agt.) 355. 
 
 Bailey v. Hilton, 14 Hun 3. (Courts) 
 106; (Wills) 448. 
 
 Bailey v. Homestead Fire Ins. Co., 16 
 Hun 503. (Ins.) 216 ; (Cas. Cr.) 470. 
 
 Bailey v. Lee, 14 Hun 524. (Amend.) 9. 
 
 Bailey v. Spofford, 14 Hun 86. (Ex. & 
 Ad.) 169. 
 
 Bainbridge v. Richmond, 17 Hun 391 ; 
 78 N. Y. 618. (Evid.) 156 ; (Cas. Cr.) 470. 
 
 Baird v. Mayor, &c., of New York, 74 
 N. Y. 382. (App.) 25; (Trial) 425; (Cas. Cr.) 
 470. 
 
 Baker v. Disbrow, 18 Hun 29 ; 79 N. Y. 
 631. (Trusts) 439; (Cas. Cr.) 470. 
 
 Baker v. Disbrow, 3 Eedf. 348. (Trusts) 
 439. 
 
 Baker v. People, 15 Hun 256. (Cas. Cr.) 
 470. 
 
 Baldwin v. Liverpool, &c., S. S. Co., 
 74 N. Y. 125 ; 11 Hun 496. (Carriers) 72 ; 
 (Caa. Cr.) 470. 
 
 Balbo V. People, 19 Hun 424. (Evid.) 
 158 ; (Trial) 431 ; (Cas. Cr.) 470. 
 
 Balheimer v. Reichardt, 55 How. Pr. 
 414. (Contracts) 89; (Pr. & Agt.) 355; 
 (Spec. Perf.) 412. 
 
 Ballon V. Ballou, 78 N. Y. 325. (Descent) 
 127 ; (Witn.) 454. 
 
 Ballou V. Boland, 14 Hun 355. (Assign. ) 
 38; (Bills of Exch.) 62; (Exec.) 167. 
 
 Ballou V. Jones, 13 Hun 629. (Cred. S.) 
 109. 
 
 Bamberg' v. Stem, 76 N. Y. 555. (App.> 
 28; (Defin.) 122. 
 
 Bamberg v. Stern, 57 How. Pr. 262. 
 (Courts) 105. 
 
 Bancroft v. Sheehan, 21 Hun 551- 
 (Trial) 426. 
 
 Banfleld v. Haeger, 45 Superior 428; 7 
 Abb. N. Cas. 318. (Plead.) 343; (Eeplev.) 392, 
 393; (Wareh.) 446. 
 
 Bank of Commerce v. Bissell, 72 N. 
 Y. 615. (Carriers) 72; (Custom) 112. 
 
 Bank for Savings v. Frank, 45 Supe- 
 rior 404; 56 How. Pr. 403. (Defin.) 121, 124; 
 (Mort.) 289. 
 
 Bank for Savings v. Hope, 8 Daly 316. 
 (Exec.) 165. 
 
 Banks v. Carter, 7 Daly 417. (App.) 
 16; (Land.&T.) 249. 
 
 Bannon v. McG-rane, 45 Superior 517. 
 (App.) 12; (Plead.) 343. 
 
 Barberv. Barber, 17 Hun 72. (Wills) 447. 
 
 Barber v. Goodell, 56 How. Pr. 364. 
 (Process) 359. 
 
 Barber v. Oould, 20 Hun 446. (Mai. 
 Pros.) 268. 
 
 Barber v. People, 17 Hun 366. (False 
 Pret.) 179. 
 
 Barber v. Sflettheimer, 13 Hun 198. 
 (Just. P.) 247. 
 
 Bardin v. Stevenson, 75 N. Y. 165. 
 (App.) 14; (Prom. N.) 365; (Witn.) 460,461. 
 
 Barkley v. Rensselaer, &o., R. R. Co., 
 71 N. Y. 205. (Pr. & Agt.) 352. 
 
 Barkley v. Wilcox, 19 Hun 320. (Eeal 
 Prop.) 383. 
 
 Barnes v. Atlantic Mut. Life Ins. Co., 
 59 How. Pr. 239. (Ins.) 235; 
 
 Barnes v. Barnes, 13 Hun 233. (Ex. & 
 Ad.) 171. 
 
552 
 
 CASES DIGESTED. 
 
 Barnes v. West, 16'Huii 68. (Eef.) 386; 
 
 Barnett v. Selling, 70 N. Y. 492 ; 3 Abb. 
 N. Cas. 83 ; 9 Hun 236. (Arrest) 33 ; (Eeplev.) 
 392. 
 
 Barney v. Northern Pacific R. R. Co., 
 56 How. Pr. 23. (Plead.) 343. 
 
 Barringer v. DelaTvare, &c., Canal 
 Co., 19 Hun 216. (E. E. Co.) 380; (Cas. Cr.) 
 471. 
 
 Barringer v. Ne'w York Central, &c., 
 R. R. Co., 18 Hun 398. (E. E. Co.) 377. 
 
 Barrowcliflfe v. La Oaisse G-enerale,^ 
 58 How. Pr. 131. (Eem. of C.) 391. 
 
 Barry v. Brune, 71 N. Y. 261 ; 8 Hun 
 395. (Ins.) 228; (Judgm't) 239. 
 
 Bartels v. Cunningham, 59 How. Pr. 
 129. (Exec.) 163. 
 
 Bartlett v. Spicer, 75 N. Y. 528 ; 12 Hun 
 398. (Courts) 105; (Evid.) 158; (Judgm't) 
 238. 
 
 Barto V. Tompkins Co. Nat. Bank, 15 
 Hun 11. (Deeds) 118. 
 
 Barton v. Speis, 73 N. Y. 133. (Costs) 
 102. 
 
 Bartow v. People, 78 N. Y. 377 ; 18 Hun 
 22. (Embez.) 140; (Cas. Cr.) 471. 
 
 Bassett v. Fish, 75 N. Y. 303; 12 Hun 
 209. (Amend.)'9; (Negl.) 311, 313; (Schools) 
 401. 
 
 Bassett v. Pitts, 15 Hun 464. (Arrest) 
 33. 
 
 Bastable v. City of Syracuse, 72 N. 
 Y. 64. (App.) 21, 26. 
 
 Bates V. Underhill, 3 Eedf. 365. (Ex. 
 & Ad.) 169; (Trusts) 438. 
 
 Batterman v. Morford, 76 N. Y. 622. 
 (Contracts) 86. 
 
 Battersby v. Mayor, &o., of Ne-w 
 York, 7 Daly 16. (N. Y.) 328. 
 
 Batterson v. Sanford, 45 Superior 127. 
 (Depos.) 127. 
 
 Baxter v. Bell, 19 Hun 367. (Partners.) 
 336. 
 
 Baylis v. Prentice, 75 N. Y. 604. (Leases) 
 257. 
 
 Bayne v. People, 14 Hun 181. (Husb. 
 & W.) 198. 
 
 Beach v. Hayes, 58 H^. Pr. 17. (Taxes) 
 420. 
 
 Beach v. Mayor, &c., of New York, 
 14 Hun 79 ; 4 Abb. N. Cas. 236. (Depos.) 127 ; 
 (Cas. Cr.) 472. 
 
 Beards v. WTieeler, 76 N. Y. 213 ; 11 
 Hun 539. (Action) 4; (App.) 24 ; (Dr. & Cr.) 
 117. 
 
 Beardsley v. Dimtley, 69 N. Y. 577. 
 (Contracts) 88 ; (Fraud) 182 ; (Husb. & W.) 202 ; 
 (Vend. & P.) 442. 
 
 Beams v. Gould, 77 N. Y. 455 ; 8 Daly 
 
 384. (App.) 30 ; (Courts) 106 ; (Judgm't) 241 ; 
 (Cas. Cr.) 472. 
 
 Bech V. Buggies, 6 Abb. N. Cas. 69. 
 (Action) 6. 
 
 Beck V. Phcenix Ins. Co., 16 Hun 344. 
 (Ins.) 226. 
 
 Becker v. Sitterly, 58 How. Pr. 38. (Just. 
 P.) 246. 
 
 Beckwith, Matter of, 15 Hun 326. (App.) 
 29. 
 
 Beckwith v. "Whalen, 70 N. Y. 430 ; 9 
 Hun 408. (Bridges) 67 ; (Highw.) 193. 
 
 Bedell v. Barnes, 17 Hun 353. (Schools) 
 400. 
 
 Bedell v. North America Life Ins. 
 Co., 7 Daly 273. (Ins.) 234. 
 
 Beebe, Matter of, 20 Hun 462. (Ex. & 
 Ad.) 169. 
 
 Beebe v. Pyle, 71 N. Y. 20. (Bank'cy) 
 54. 
 
 Beecher v. Kendall, 14 Hun 327. (Just. 
 P.) 246. 
 
 Beers v. Shannon, 73 N. Y. 292 ; 12 Hun 
 161. (Amend.) 10 ; (Bonds) 66 ; (Ex. & Ad.) 
 167, 174. 
 
 Belding v. Floyd, 17 Hun 208. (Ins.) 232. 
 
 Belknap v. Bender, 75 N. Y. 446. (Con- 
 tracts) 87. 
 
 Belknap v. Sickles, 7 Daly 249. (Lim. 
 of Ac.) 263. 
 
 Bell V. Lycoming Fire Ins. Co., 19 Hnn 
 238. (Ins.) 220, 232, 233. 
 
 Bell V. Tilden, 16 Hun 346. (Bills of 
 Exch.) 63. 
 
 Bell v. Vernooy, 18 Hun 125. (Courts) 
 105. 
 
 Benedict v. Benedict, 76 N. Y. 600 ; 15 
 Hun 305. (Injunc.) 210 ; (Cas. Cr.) 472. 
 
 Benedict v. Jones, 18 Hun 527. (Exec.) 
 163. 
 
 Benedict v. "Wright, 19 Hun 27. (Sher 
 iffs) 404. 
 
 Benedict, &c., Manuf. Co., v. Thayer, 
 20 Hun 547 ; 59 How. Pr. 552. (Exec.) 164. 
 
 Benham v. Pennook, 13 Hun 103. 
 (Assign.) 39. 
 
 Bennett v. Buchan, 76 N. Y. 386. 
 (Evid.) 155; (Pr. & Agt.) 354; (Eef.) 387. 
 
 Bennett v. New York Central, &o., 
 B. R. Co., 69 N. Y. 594. (E. E. Co.) 374. 
 
 Bennett v. North British, &o., Ins. 
 Co., 8 Daly 471. (Evid.) 151; (Ins.) 216; 
 (Cas. Cr.) 472. 
 
 Bensel v. Gray, 44 Superior 372. (Cov'ts) 
 108 ; (Spec. Perf.) 412 ; (Taxes) 419. 
 
 Bensen v. Perry, 17 Hun 16; 77 N. Y 
 625. (Exec.) 165 ; (Cas. Cr.) 473. 
 
 Bentley v. 'Waterman, 78 N. Y. 623. 
 (App.) 24. 
 
CASES DIGESTED. 
 
 553 
 
 Berdell v. Berdell, 58 How. Pr. 102. 
 (Husb. & W.) 202. 
 
 Berdell v. Parkhurst, 19 Hun 358. 
 (Husb. & W.) 202. 
 
 Berenbroiok v. Stephens, 8 Daly 249. 
 (Prom. N.) 364.- 
 
 Berger v. Snedeker, 8 Abb. N. Cas. 50. 
 (App.) 22; (Fraud. Conv.) 184; (Mort.) 294; 
 (Cas. Cr.) 473. 
 
 Berkshire Woolen Co. v. Juillard, 75 
 N.Y. 535; 13 Hun 506. (Partners.) 335 ; (Cas. 
 dr.) 473. 
 
 Bernstein, Matter of, 3 Eedf. 20. (Courts) 
 106. 
 
 Bertholf v. O'Reilly, 74 N. Y. 509 ; 8 
 Hun 16. (Defin.) 121 ; (Liq. Sell.) 266 ; (Stat.) 
 413. 
 
 Beselv.Ne-w York Central, &c., R. R. 
 Co., 70 N. Y. 171 ; 9 Hun 457. (Mast. & S.) 
 278 ; (K. E. Co.) 380; (Cas. Cr.) 473. 
 
 Best V. Vedder, 58 How. Pr. 187. 
 (Abate.) 2. 
 
 Betts V. Betts, 4 Abb. N. Cas. 317. (Defin.) 
 120; (Dower) 317; (Ex. & Ad.) 174; (N.Y.) 
 325; (Leg.) 258; (Soc. & Assoc.) 411 ; (Wills) 
 451. 
 
 Betz V. Conner, 7 Daly 550. (Except" s) 
 161 ; (Exec.) 162. 
 
 Bevan v. Cooper, 72 N. Y. 317. (Courts) 
 107; (Ex. & Ad.) 172; (Leg.) 259; (Wills) 
 452. 
 
 Bevier v. Dela^ware and Hudson 
 Canal Co., 13 Hun 254. (E. E. Co.) 375. 
 
 Biokett V. Taylor, 55 How. Pr. 126. 
 (Evid.)155; (Trial) 427. 
 
 Biddlecom v. Newton, 13 Hun 582. 
 (Mun. Corp.) 302. 
 
 Bierbauer v. New York Central, &c., 
 R. B. Co., 15 Hun 559 ; 77 N. Y. 588. (Defin.) 
 124; (Horn.) 196; (Cas. Cr.) 473. 
 
 Bigelow V. Benedict, 70 N. Y. 202 ; 9 
 Hun 429. (Contracts) 89. 
 
 Bigler v. Mayor, &o., of New York, 
 5 Abb. N. Cas. 51. (Mun. Corp.) 301 ; (N. Y.) 
 324. 
 
 Bigler v. Morgan, 77 N. Y. 312. (Dam.) 
 113; (Vend. & P.) 442, 444. 
 
 Birdsall v. Clark, 73 N. Y. 73 ; 7 Hun 
 351. (Mun. Corp.) 307, 308. 
 
 Birdsell v. Twenty-third St. Ry. Co., 
 « Daly 419. (Dam.) 112. 
 
 Birge v. Ainsworth, 59 How. Pr. 473. 
 (Eef.) 388. 
 
 Birkbeck v. Ackroyd, 74 N. Y. 356 ; 11 
 Hun 365. (Husb. & W.) 197. 
 
 Birmingham Iron Foundry v. Glen 
 Cove Starch Manuf. Co., 78 N. Y. 30. 
 (Mech. Lien) 279. 
 
 Birmingham Nat. Bank v. Keck, 55 
 How. Pr. 222. (Bank'cy) 53. 
 
 Birmingham Nat. Bank v. Mosser, 14 
 Hun 605. (Manuf. Co.) 274. 
 
 Bissell V. Harrington, 18 Hun 81. 
 (Partners.) 335. 
 
 Biesell v. Saxton, 77 N. Y. 191. (Off.) 
 330. 
 
 Bixby V. Drexel, 56 How. Pr. 478. (Pr. 
 & Agt.) 352. 
 
 Black River Ins. Co. v. New York 
 Loan and Trust Co., 73 N. Y. 282. (Corp.) 
 95. 
 
 Blair v. Bartlett, 75 N. Y. 150. (Judgm't) 
 241 ; (Phys. & S.) 342. 
 
 Blair v. "Wait, 69 N. Y. 113. (Estop.) 149 ; 
 (Judgm't) 242. 
 
 Blake v. Lyon, &o., Manuf. Co., 75 N. 
 Y. 611. (App.) 25. 
 
 Blake v. Lyon, &o., Manuf. Co., 77 N. 
 Y. 626. (App.) 14. 
 
 Blake v. People, 73 N. Y. 586. (Trial) 
 432 ; (Witn.) 463. 
 
 Blake v. Sands, 3 Eedf. 168. (Trusts) 
 438. 
 
 Blake v. "Wheeler, 18 Hun 496. (Manuf. 
 Co.) 273. 
 
 Blakely v. City of Troy, 18 Hun 167. 
 (Mun. Corp.) 305. 
 
 Blaufus V. People, 69 N.Y. 107. (Defin.) 
 121 ; (Witn.) 456. 
 
 Blaut V. Gabler, 77 N. Y. 461 ; 8 Daly 
 48. (App.) 15; (Fraud. Conv.) 184; (Q. of L. 
 
 6 F.) 367 ; (Witn.) 462 ; (Cas. Cr.) 473. 
 Bleecker v. Johnston, 69 N. Y. 309. 
 
 (App.) 12; (Evid.) 151. 
 Bleecker v. Mayor, &o., of New York, 
 
 7 Daly 439. (N. Y.) 324. 
 
 Bliss V. Johnson, 73 N. Y. 529. (As- 
 sault) 37 ; (Eeal Prop.) 384. 
 
 Bliss V. Molter, 58 How. Pr. 112. (At- 
 tach.) 44. 
 
 Blodgett V. Race, 18 Hun 132. (Ar- 
 rest) 36. 
 
 Bloodgood V. Bloodgood, 59 How. Pr. 
 42. (Divorce) 133. 
 
 Blossom V. Bstes, 59 How. Pr. 381. 
 (Attach.) 45. 
 
 Board of Education of Pairport v. 
 Fonda, 77 N. Y. 350. (Off.) 330; (Pay't) 
 340 ; (Schools) 400. ^ ' ^ 
 
 Board of Supervisors of Totnpkins 
 County V. Bristol, 58 How. Pr. 3. (Costs) 100. 
 
 Bock V. Healy, 8 Daly 156. (Sales) 396. 
 
 Bockes V. Hathorn, 78 N. Y. 222. (App.) 
 17. 
 
 Bockes V. Hathorn, 17 Hun 87. (Costs) 
 101. 
 
554 
 
 CASES DIGESTED. 
 
 Bookes V. Hathorn, 20 Hun 503. (Bonds) 
 65. 
 
 Bookes V. Lansing, 74 N. Y. 437 ; 13 
 Hun 38. (Action) 5; (CI. on T.) 80; (Eef.) 
 387 ; (Cas. Cr.) 474. 
 
 Bockover v. Harris, 43 Superior 548. 
 (Set off) 403. 
 
 Boese V. King, 78 N. Y. 471 ; 17 Hun 270 j 
 (Bank'cjr) 51 ; (Cas. Cr.) 474. 
 
 Bommer v. American Spiral Spring, 
 &o., Co., 44 Superior 454. (Estop.) 149; 
 (Lim of Ac.) 263. 
 
 Boneeteel v. Van Etten, 20 Hun 468. 
 (Services) 402. 
 
 Bonn V. Steiger, 21 Hun 219. (Trial) 430 . 
 
 Bonner, Matter of, 8 Daly 75. (Assig'nts) 
 41. 
 
 T, Bonynge v. Field, 44 Superior 581. 
 (Att'y & CI.) 46. 
 
 Boon V. Moss, 70 N. Y. 465. (Defin.) 122 ; 
 ( Judgm't) 240 ; (Sales) 397. 
 
 Boorman v. Atlantic, &c., R. R. Co., 
 78 N. Y. 599 ; 17 Hun 555. (Depos.) 126 ; 
 (Discov.) 130; (Cas. Cr.) 474. 
 
 Boorman v. Pierce, 56 How. Pr. 251. 
 (Depos.) 127. 
 
 Booth V. Boston and Albany R. R. 
 Co., 73 K Y.38. (Mast. & S.) 278; (E. B. 
 Co.) 380; (Trial) 428; (Cas. Cr.) 474. 
 
 Booth V. Cleveland Mill Co., 74 N. Y. 
 15; 11 Hun 278. (Action) 4; (Contracts) 88, 
 89; (Witn.)462. 
 
 Booth V. Farmers', &c., National 
 Bank, 74 N. Y. 228; 11 Hun 258. (Assign.) 
 39 ; (Partners.) 334. 
 
 Booth V. Kehoe, 71 N. Y. 341. (Leases) 
 257. 
 
 Booth V. Kitchen, 3 Eedf. 52. (Wills) 453. 
 
 Borkv. People, 16 Hun 476. (Embez.) 140. 
 
 Borland v. AUeond, 8 Daly 126. (Mort.) 
 294. 
 
 Borries v. Horton, 16 Hun 139. (Highw.) 
 194. 
 
 Borst V. Crommie, 19 Hun 209. (Devise) 
 129; (Evid.)150. 
 
 Borst V. 'Wrinckel, 14 Hun 138. (Evid.) 
 159. 
 
 Boston, &c., Ry. Co., Matter of, 79 
 N. Y. 64. (E. E. Co.) 372. 
 
 Boston, &c., Ry. Co., Matter of, 79 N. 
 Y. 69. (E. E. Co.) 372. 
 
 Boston, &c., R. R. Co. v. Troy, &o., R. 
 B. Co., 58 How. Pr. 167. (B. E. Co.) 372. 
 
 Bostwick V. Barlow, 14 Hun 177. 
 (Bridges) 67. 
 
 Bostwick V. Brown, 15 Hun 308 (Ex. 
 & Ad.) 175. 
 
 Bostwick V. Burnett, 74 N. Y. 317 ; 11 
 Hun 301. (Assig'nts) 40. 
 
 Bostwick V. Frankfleld, 74 N. Y. 207. 
 (Estates) 147 ; (Vend. & P.) 442. 
 
 Boucicault V. Boucicault, 59 How. Pr. 
 131. (Arrest) 35; (Divorce) .131 ; (Motions- 
 & O.) 298. 
 
 Boughton V. Flint, 74 N. Y. 476 ; 5 AbB.. 
 N. Cas. 215 ; 13 Hun 206. (App.) 30 ; (Bailm.) 
 50; (Courts) 107; (Ex. & Ad.) '173, 174; (In- 
 terest) 236; (Leg.) 259; (Lim of Ac.) 263;. 
 (Cas. Cr.) 474. 
 
 Bourgeois Case, 7 Abb. N. Cas; 260: 
 (Husb. & W.) 198. 
 
 Bowers v. Beekman, 16 Hun 268.. 
 (Wills) 449. 
 
 Bowery National Bank v. Duryea, 74 
 N. Y; 491 ; 56 How. Pr. 42 ; 55 Id. 88 ; 54 Id. 
 450. (Arrest) 34, 35 ; (Cas. Cr.) 474. 
 
 BoTvery Savings Bank v. Mahler, 45' 
 Superior 619. (Interpl.) 237. 
 
 Bowlsby V. Tompkins, 18 Hun 219. 
 (Fraud. Conv.) 184. 
 
 Boyd V. Belmont, 58 How. Pr. 513. 
 (Assign.) 37 ; (Cov'ts) 108. 
 
 Boyd V. De La Montagnie, 73 N. Y. 
 498. (Fraud. Conv.) 185 ; (Gift) 187. 
 
 Boyd V. Disbrow, 58 How Pr. 399. 
 (Costs) 100. 
 
 Boyle V. City of Brooklyn, 71 N. Y. 1 
 8 Hun 32. (Brooklyn) 69; (CI. on T.) 80. 
 
 Bradbury v. Winterbottom, 13 Hun 
 536. (Action) 5. 
 
 Bradtordv.People, 20 Hun 809. (CrimL.) 
 110 ; (Impris.) 204. 
 
 Bradley v. Bradley, 3 Eedf. 512. (Ex. 
 & Ad.) 168. 
 
 Bradley v. Second Avenue R. R. Co.,. 
 8 Daly 289. (E. E. Co.) 381. 
 
 Bradner v. Howard, 75 N. Y. 417 ; 14 
 Hun 420. (Just. P.) 246 ; (Cas. Cr.) 475. 
 
 Brady, Mat1?er of, 69 N. Y. 215; 8 Hun. 
 437. (App.) 17 ; (Exec.) 164. 
 
 Bragelman v. Dane, 69 N. Y. 69 (Chat. 
 Mt'ge) 77 ; (Partners.) 339. 
 
 Brainard v. Bertram, 5 Abb. N. Cas. 102. 
 (Partners.) 335. 
 
 Brake, Matter of, 59 How. Pr. 329. (Mo- 
 tions & O.) 298. 
 
 Bramley v. Forman, 15 Hun 144. (Ex. 
 & Ad.) 176. 
 Branch v.Levy,44 Superior 507. (Trial) 427_ 
 
 Brandon Manuf. Co. v. Bridgman, 14 
 Hun 122. (Depos.) 126 ; (Cas. Cr.) 475. 
 
 Brandreth, Matter of, 14 Hun 585. 
 (Bank'cy) 53. 
 
 Breiman v. Paasch, 7 Abb. N. Caa. 249. 
 (Husb & W.) 202. 
 
 Brennan v. 'Willson, 71 N. Y. 502 ; 4 
 Abb. N. Cas. 279; 7 Daly 59. (Assig'nts)' 40, 
 41, 42 ; (Trusts) 437 ; (Cas. Cr.) 475. 
 
CASES DIGESTED. 
 
 555 
 
 Brevoort v. Brevoort, 70 N. Y. 136. 
 (Partition) 332, 333. 
 
 Brevoort v. City of Brooklyn, 18 Hun 
 383. (B'klyn) 69. 
 
 Bridge v. Swain, 3 Kedf. 487. (Ex. & 
 Ad.) 172. 
 
 Briggs V. New York Central, &o., R. 
 B. Co., 72 N. Y. 26. (Evid.) 159 ; (Negl.) 
 313 ; (Q. of L. & F.) 368. 
 
 Briggs V. "Wheeler, 16 Hun 583. (Witn.) 
 458. 
 
 Brill V. Tuttle, 15 Hun 289. (Assign.) 38 ; 
 (Cas. Cr.) 475. 
 
 Brinck v. Mayor, &o., of New York, 
 16 Hun 340. (N. Y.) 325. 
 
 Brink v. Pay, 7 Daly 562. (Mast. & S.) 277. 
 
 Brink v. Hanover Fire Ins. Co., 70 
 N. Y. 593. (Ins.) 213, 219 ; (Cas. Cr.) 475. 
 
 Brinkerhoff v. Brinkerhoff, 8 Abb. N. 
 Cas. 207. (Plead.) 345. 
 
 Brinkerlioff v. Perry, 59 How. Pr. 155. 
 (Stay of Pro.) 415. 
 
 Brisbane v. Brisbane, 20 Hun 48. 
 (Depos.) 126. 
 
 Britt V. Lawson, 15 Hun 123. (Prom. 
 N.) 362. 
 
 Broadhead V. Lycoming Fire Ins. Co., 
 14 Hun 452. (Ins.) 233 ; (Cas. Cr.) 476. 
 
 Bronner v. Loomis, 14 Hun 341. (Evid.) 
 158. 
 
 Bronner V. Loomis, 17 Hun 439. (Defin.) 
 120; (Motions &0.) 299. 
 
 Brookljm, &c., R. R. Co., Matter of, 72 
 N. Y. 245 ; 55 How. Pr. 14. (K. K. Co.) 370 ; 
 (Cas. Cr.) 476. 
 
 Brooklyn, &c., R. R. Co., Matter of, 75 
 N.Y.335. (R. E. Co.) 369. 
 
 Brooklyn, &c., R. R. Co., Matter of, 
 19 Hun 314. (Cas. Cr.) 476. 
 
 Brooklyn, Sec, B. R. Co., v. National 
 Bank of the Republic, 22 Alb. L. J. 189. 
 (Courts) 105; (Estop.) 148; (Judgm't) 241; 
 (Prom. N.) 361. 
 
 Brooklyn, &o., R. R. Co. v. Reid, 21 
 Hun 273. (Eef.) 387. 
 
 Brooklyn Crosstown R. R. Co. v. 
 Strong, 75 N. Y. 591. (Corp.) 97. 
 
 Brooklyn Steam Transit Co. v. City 
 of Brooklyn, 78 N. Y. 524. (Corp.) 97; 
 (Mun. Corp.) 299; (R. R. Co.) 383. 
 
 Brookmire v. Monaghan, 15 Hun 16- 
 (Liq. Sell.) 267. 
 
 Brooks V. American Express Co., 14 
 Hun 364. (Ex. & Ad.) 177. 
 
 Broome v. Taylor, 76 N. Y. 564 ; 13 Hun 
 341. (Husb. & W.) 202; (Plead.) 343; (Cas 
 Cr.) 476. 
 
 Brotherton v. Downey, 21 Hun 437 ; 59 
 How. Pr. 206. (Plead.) 344. 
 
 Brotherton v. People, 75 N. Y. 159 ; 14 
 Hun 486. (Error) 146; (Evid.) 154; (Except's) 
 160; (Horn.) 195; (Cas. Cr.) 476. 
 
 Brown v. Brookett, 55 How. Pr. 32. 
 (Exec.) 164; (Fraud) 183. 
 
 Brown V. Clark, 77 N. Y. 369 ; 16 Hun. 
 559. (Wills) 448, 449; (Cas. Cr.) 476. 
 
 Brown v. Cleveland, 58 How. Pr. 293. 
 (Wilis) 451. 
 
 Brown V. Curran, 14 Hun 260. (Con- 
 tracts) 89. 
 
 Brown V. GkJodwin, 75 N. Y. 409 ; 56^ 
 How. Pr. 30r. (CI. on T.) 80; (Estop.) 148 ? 
 (Evid.) 159 ; (Prac.) 349. 
 
 Brown v. Johnson, 7 Abb. N. Cas. 188.. 
 (Mort.) 289. 
 
 Brown v. Kahn, 17 Hun 599. (Costs). 
 102. 
 
 Brown v. Keifer, 71 N. Y. 610. (Chat.- 
 M'tge) 76. 
 
 Brown v. Knapp, 17 Hun 160; 79 N. Y> 
 136. (Interest) 236; (Leg.) 260; (Cas. Cr.) 
 476. 
 
 Brown v. Mayor, &c., of New York, 
 55 How. Pr. 8. (Custom) 112 ; (N. Y.) 327. 
 
 Brown v. People, 16 Hun 535. (False- 
 Pret.) 179. 
 
 Brown v. People, 75 N. Y. 437. (Pun- 
 ishment) 366. 
 
 Brown v. Sigourney, 72 N. Y. 122.. 
 (App.) 21. 
 
 Brown V. Smith, 13 Hun 408. (Manuf. 
 Co.) 271, 274. 
 
 Brown v. Thvu-ber, 77 N. Y. 613; 58- 
 How. Pr. 95. (Evid.) 155. 
 
 Brown v. Zeiss, 59 How. Pr. 345. (Mech.. 
 Lien) 279. 
 
 Browne v. Taylor, 69 N. Y. 627. (App.) 
 28. 
 
 Brownell v. Nat. Bank of Glovers- 
 ville, 20 Hun 517. (Discov.) 130. 
 
 Browning v.' Home Ins. Co., 71 N. Y- 
 508. (Ins.) 215, 216, 218, 231. 
 
 Browning v. Marvin, 5 Abb. N. Cas. 285. 
 (Eef.) 387. 
 
 Browning v. Vanderhoven, 55 How.. 
 Pr. 97 ; 4 Abb. N. Cas. 166. (Ex. & Ad.) 175,. 
 176. 
 
 Bruce v. Carter, 72 N. Y. 616 ; 7 Daly 37.. 
 (Contracts) 88 ; (Cas. Cr.) 476. 
 
 Bruce v. Fulton Nat. Bank, 16 Hun 
 615; 79 N. Y. 154. (Leases) 256; (Cas. Cr.). 
 476. 
 
 Brulo V. People, 16 Hun 119. (Trial) 432. 
 
 Brummer v. Cohen, 6 Abb. N. Cas. 409 ;; 
 57 How. Pr. 386 ; 58 How. Pr. 239. (Husb. 
 & W.) 198 ; (Cas. Cr.) 476. 
 
 Brust V. Barrett, 16 Hun 409. (Lim. or 
 Ac.) 263 ; (Cas. Cr.) 476. 
 
556 
 
 CASES DIGESTED. 
 
 Bryan v. Durrie, 6 Abb. N. Cas. 135. 
 (Att'y & CI.) 48; (Costs) 99; (Prac.) 349; 
 ■(Cas. Cr.) 476. 
 
 Bryoe, Matter of, 56 How. Pr. 359. 
 (Discov.) 130. 
 
 Br yon, v. Mayor, &c., of New York, 
 59 How. Pr. 455. (N. Y.) 327. 
 
 Buclian v. Rintoul, 70 N. Y. 1. (Courts) 
 107 ; (Ex. & Ad.) 173. 
 
 Bucherv. Carroll, 19 Hun 618. (New Tr.) 
 515. 
 
 Bucker v. Fero, 16 Hun 589. (Evid.) 159. 
 
 Buckley v. New York, &o., R. R. Co., 
 43 Superior 187. (Q. of L. & F.) 367. 
 
 Budd V. Munroe, 18 Hun 316. (Truste) 
 438. 
 
 Buddensick v. Bellmann, 56 How. Pr. 
 198. (Mech. Lien) 230. 
 
 Buel V. People, 78 N. Y. 492 ; 18 Hun 
 487. (Crim..L.)110; (Error) 146 ; (Horn.) 195; 
 (New. Tr.).3l'6; (Cas. Cr.) 477. 
 
 Buel V. Southwlck, 70 N. Y. 581. (WiUs) 
 451. 
 
 Buffalo, &c., R. R. Co., Matter of, 77 
 N. Y. 557 ; 15 Hun 365. (E. E. Co.) 372. 
 
 Buhrman v . Bay lis, 14 Hun 608. (Prom. 
 N.) 364. 
 
 BuUard v. Saratoga Victory Manuf. 
 Co., 77 N. Y. 525 ; 13 Hiin 43. (Mills) 282 ; 
 (Q. of L. & F.) 367 ; (Eip. Ets.) 394 ; (Cas. 
 -Cr.) 477. 
 
 Burch V. Spencer, 15 Hun 504. (Sales) 
 398. 
 
 Burhans v. Carter, 13 Hun 153. (Prom. 
 N.) 360. 
 
 Burk V. Ayers, 19 Hun 17. (App.) 29 ; 
 (Drains) 136 ; (Em. Dom.) 141. 
 
 Burkhitt v. Harper, 14 Hun 581 ; 79 N. 
 Y. 273. (Mech. Lien) 280 ; (Cas. Cr.) 477. 
 
 Burleigh v. Center, 74 N. Y. 608. (App.) 
 21. 
 
 Burmeister, Matter of, 76 N. Y. 174; 56 
 How. Pr. 416. (Deflu.)124; (N.Y.)319; (Cas. 
 <!r.) 477. 
 
 Burnham v. Brennan, 74 N. Y. 597. 
 (Evid.) 157. 
 
 Buinham v. Harrison, 3 Eedf. 345. (Ex. 
 & Ad.) 175. , 
 
 Bumell v."Weld, 76 N. Y. 103. (Evid.) 159. 
 
 Burnett v. Snyder, 43 Superior 238 ; 76 
 N. Y. 844. (Partners.) 334'; (Cas. Cr.) 477. 
 
 Burnett v. Snyder, 45 Superior 577. 
 (Lim. of Ac.) 265 ; (Partners.) 334. 
 
 Burnett v. Snyder, 45 Superior 682. 
 (App.) 14 ; (Eef.) 388. 
 
 Burr V. American Spiral Spring Co., 
 17 Hun 188. (Contracts) 89 ; (Cas. Cr.) 477. 
 
 Burrall v. BusTiwlck R. R. Co., 75 N. 
 Y. 211. (Corp.) 92. 
 
 Burroughs v. Tostevan, 75 N. Y. 567. 
 (Action) 5; (Mech. L.) 281. 
 
 Burroughs v. "Whitaker, 71 N. Y. 291 ; 
 8 Hun 260. (Sales) 396, 397. 
 
 Burt V. Brewers', &c., Ins. Co., 78 N. 
 Y. 400. (Ins.) 226. 
 
 Burtnett, Matter of, 8 Daly 363. (As- 
 sign'ts) 41. 
 
 Bushnell v. Chautauqua Co. Nat. 
 Bank, 74 N. Y. 290 ; 10 Hun 37S; (Banks) 
 56. 
 
 BuBwell V. Lincks, 8 Daly 518. (App.) 
 13 ; (Cred. S.) 109. 
 
 Butler V. Ballard, 43 Superior 191. (Part- 
 ners.) 337. 
 
 Butler V. Butler, 77 N. Y.472. (Contracts) 
 90. 
 
 Butler V. Finck, 21 Hun 210. (Q. of L. 
 & F.) 367. 
 
 Butler V. Flanders, 44 Superior 531 ; 56 
 How. Pr. 312. (Depos.) 126. 
 
 Butler V. Glen Cove Starch Co., 18 
 Hun 47. (Corp.) 93. 
 
 Butler V. Rice, 17 Hun 406. (Services) 
 402. 
 
 Butler V. Thompson, 4 Abb. N. Cas. 290. 
 (Insolv.) 212. 
 
 Byrne v. New York Central, <feo., R. 
 R. Co., 14 Hun 322. (Evid.) 150. 
 
CASES DIGESTED. 
 
 55T 
 
 Oady V. Jennings, 17 Hun 213. (Mort.) 
 285. 
 
 Oahen v. Continental Life Ins. Co., 69 
 N.Y300. (Ins.) 230. 
 
 Cahen v. Piatt, 69 N. Y. 348. (Dam.) 
 113 ; (Sales) 400. 
 
 Cahn, Matter of, 3 Kedf. 31. (Evid.) 
 156. _ 
 
 Oalvo V. Da vies, 73 N. Y. 211; 8 Hun 
 222. (Mort.) 287 ; (Plead.) 345. 
 
 Cambridge Valley - Nat. Bank v. 
 Lynch, 76 N. Y. 514. (App.) 16 ; (Defin.) 
 122. 
 
 Cameron v. Equitable Life Ass. Soo., 
 45 Superior 628. (App.) 11, 17. 
 
 Cameron v. Seaman, 69 N. Y. 396 ; 7 
 Hun 601. (Manuf. Co.) 273. 
 
 Camp V. Camp, 18 Hun 217. (Advance- 
 ment) 7. 
 
 Camp V. Wood, 76 N. Y. 92. (Negl.) 
 312; (Q. ofL. &F.) 368. 
 
 CampbeU v. Conner, 70 N. Y. 424. (At- 
 tach.) 45. 
 
 Campbell v. Fish, 8 Daly 162. (Exec.) 
 166. 
 
 Campbell v. Smith, 71 N. Y. 26 ; 8 Hun 
 6. (Mort.) 288. 
 
 Canandarqua Academy v. McKech- 
 nie, 19 Hun 62. (Corp.) 95, 96 ; (Deeds) 118 ; 
 (Evid.) 151. 
 
 Canavan v. MoAndre-w, 20 Hun 46. 
 (Exec.) 165. 
 
 Canfield v. Baltimore, &c., R. R. Co., 
 75 N. Y. 144 ; 43 Superior 562. (Carriers) 73 ; 
 (E. E. Co.) 374; (Trial) 428; (Cas. Cr.) 
 478. 
 
 Canzi v. Conner, 4 Abb. N. Cas. 148. 
 (App.) 18. 
 
 Canzi v. Conner, 43 Superior 569. (Prac.) 
 349. 
 
 Carleton v. Darcy, 75 N. Y. 375 ; 43 Su- 
 perior 373. (App.) 11; (Eject.) 139; (Prac.) 
 348, 349. 
 
 Carlton Street, Matter of, 16 Hun 497 ; 
 78N.Y. 362. (Buffalo) 69. 
 
 Carman, Matterof, 3 Eedf. 46. (Ex. & Ad.) 
 174. 
 
 Carpenter v. Blake, 75 N. Y. 12 ; 10 Hun 
 358. - (Pliys. & S.) 341. 
 
 CEirpenter v. Eastern Transp. Co., 71 
 N.Y.574. (Negl.) 313; (Shipp.) ^,09 ; (Witn.) 
 464. 
 
 Carpenter v. Niokerson, 7 Daly 424. 
 (Acc'ts) 4. 
 
 Carpenter v. Roberts, 56 How. Pr. 216^ 
 (Corp.) 93. 
 
 Carpenter v. Weller, 15 Hun 134. (Ser- 
 vices) 402. 
 
 Carr v. Breese, 18 Hun 134. (Fraud. 
 Conv.) 184 ; (Cas. Cr.) 478. 
 
 Carr v. Mayor, &o., of New York, 43 
 Superior 158. (App.) 13; (Trial) 428. 
 
 Carrington v. Ward, 71 N. Y. 360. 
 (Bailm.) 51. 
 
 Case V. People, 14 Hun 503 ; 76 N. Y. 
 2427 6 Abb. N. Cas. 151 ; 14 Hun 504. (Ins.) 
 232 ; (Perj.) 341 ; (Cas. Cr.) 478. 
 
 Casey v. Dwyre, 15 Hun 153. (Trial) 429. 
 
 Casey v. New York Central, <fec., R. 
 R. Co., 78 N. Y. 518 ; 6 Abb. N. Cas. 104 ; & 
 Daly 220. (Negl.) 312; (E. E. Co.) 379 f 
 (Witn.) 462. 
 
 Cashman v. Henry, 75 N. Y. 103 ; 5- 
 Abb. N. Cas. 230; 44 Supeilor 93. (Evid.) 
 153; (Husb. & W.) 200; (Mort.) 287; (Cas. 
 Cr.) 478. 
 
 Castle V. Lewis, 13 Hun 298 ; 78 N. Y. 
 131 ; (Assign.) 39; (Manuf. Co.) 272; (Cas. CrA 
 478. * 
 
 Catlin V. Adirondack Co., 19 Hun 389. 
 (App.) 20. 
 
 Catlin V. Adirondack Co., 20 Hun 19. 
 (Exec.) 164; (Cas. Cr.) 478. 
 
 Catlin V. Martin, 69 N. Y. 393. (Husb. 
 & W.) 198. 
 
 Caulfleld v. Sullivan, 21 Hun 227. (Leg.)- 
 259. 
 
 Caulkins v. Hellman, 14 Hun 330. 
 (Evid.) 155 ; (Pr. & Agt.) 350. 
 
 Cawley v. Costello, 15 Hun 303. (Prom. 
 N.) 363. 
 
 Caylus V. New York, Kingston, &c.f 
 R. R. Co., 76 N. Y. 609; 10 Hun 295; (Corp.) 
 96 ; (Cas. Cr.) 479. 
 
 Cayuga Railway Co. v. NUes, 13 Hurt 
 170. (Contracts) 88. 
 
 Ceas V. Bramley,18 Hun 187. (Bailm.) 51. 
 
 Central National Bank v. Valentine, 
 18 Hun 417. (Prom. N.) 361. 
 
 Chadwiok v. Ponner, 69 N- Y. 404. 
 (Evid.) 157 ; (Witn.) 454. 
 
 Chamberlain v. Chamberlain, 71 N. Y. 
 423. (Evid.) 152; (Husb. & W.) 197. 
 
 Chamberlain v. Oreenleaf, 4 Abb. N. 
 Cas. 178. (Bailm.) 51; (Dr. & Cr,) 116; (Ee- 
 ceivers) 385. 
 
 Chamberlain v. Reed, 14 Hun 403. 
 (Fences) 180. 
 
558 
 
 CASES DIGESTED. 
 
 Chamberlin v. Ohamberlin, 44 Supe- 
 rior 116. (Mort.) 296 ; (Partners.) 335. 
 
 Ohamplin v. Seetaer, 56 How. Pr. 46. 
 {Fraud. Conv.) 184; (Witn.) 454. 
 
 Chandler v. Allen, 20 Hun 424. (Part- 
 ners.) 387. 
 
 Chandler v. City of Pon Du Lac, 56 
 How. Pr. 449. (Corp.) 98 ; (Exec.) 165. 
 
 Chapin v. Dobson, 78 N; Y. 74. (Con- 
 tracts) 91 ; (Evid.) 155; (Eef.) 387. 
 
 Chapin v. Skeels, 20 Hun 448. (Just. P.) 
 248. 
 
 Chapin V. Thompson, 58 How. Pr. 46. 
 <Eq.) 142. 
 
 Chapin v. Thompson, 16 Hun 53- 
 <DepoB.) 126; (Cas. Cr.) 479. 
 
 Chapin v. Thompson, 18 Hun 446. 
 <App.) 15 ; (Cas. Cr.) 479. 
 
 Chapmanv. Morrill, 19 Hun 318. (Exec.) 
 162. 
 
 Chapman v. New York Central, &c., 
 R. R. Co., 14 Hun 484. (E. E. Co.) 378. 
 
 Chapman v. Phcenix National Bank, 
 44 Superior 340; 5 Abb. N. Cas. 118. (Jurisd.) 
 245 ; ( Judgm't) 239 ; (War) 445. 
 
 Chapman v. Porter, 69 N. Y. 276. 
 <Corp.) 93; (Evid.) 157, 159. 
 -, Chase v. Bibbins, 71 N. Y. 592. (App.) 
 12. 
 
 Chase v. James, 16 Hun 14. (Eef.) 388. 
 
 Chase v. Lord, 16 Hun 369 ; 77 N. Y. 1 ; 
 •6 Abb. N. Cas. 258. (Abate.) 2; (Corp.) 94; 
 <Ins.)232; (Cas. Cr.) 479. 
 
 Chase v. People's Fire Ins. Co., 14 
 Hun 456. (Ins.) 233; (Cas. Cr.) 479. 
 
 Chatham National Bank v. Shipman, 
 20 Hun 543. (Plead.) 346. 
 
 Cheesbrough, Matter of, 78 N. Y. 232 ; 
 17 Hun 561 ; 56 How. Pr. 460. (Drains) 136 ; 
 (N. Y.) 319 ; {Cas. Cr.) 479. 
 
 Cheever V. Gilbert Elevated Ry. Co., 
 43 Superior 478. (Corp.) 95, 96 ; (Evid.) 151. 
 
 Cheever v. Lamar, 19 Hun 130. (Evid.) 
 159 ; (Interest) 236. 
 
 Chemical National Bank of New 
 York V. Kohner, 58 How. Pr. 267 ; 8 Daly 
 -530. (Banks) 59. 
 
 Cheney V. New York Central, Sco-.'R. 
 R. Co., 16 Hun 415. (App.) 18; (New Tr.) 
 515 ; (E. E. Co.) 377. 
 
 Chesterman v. Eyland, 22 Alb. L. J. 
 129 ; 8 Abb. N. Cas. 92. (N. Y.) 324. 
 
 Chesterman v. Eyland, 17 Hun 620. 
 (Cas. Cr.) 479. ' 
 
 Chesterman v. Eyland, 74 N. Y. 452. 
 (App.) 22. 
 
 Children's Aid Society v. Loveridge, 
 70 N. Y. 387. (Wills) 447, 452 ; (Cas. Cr.) 
 479. 
 
 Chipman v. Palmer, 77 N. Y. 51 ; 9 Hun 
 517. (Nuis.) 329. 
 
 Ohristern, Matter of, 43 Superior 523 ; 
 56 How. Pr. 5. (Citizens) 79. 
 
 Christian v. Gouge, 58 How. Pr. 445. 
 (Costs) 98. 
 
 Christie v. Gage, 71 N. Y. 189. (Adv. 
 Poss.) 7. 
 
 Church V. Howard, 17 Hun 5. (Alt. of 
 Inst.) 9 ; (Witn.) 455; (Cas. Cr.) 479. 
 
 Church V. Maloy, 70 N. Y. 63. (Mort.) 
 292; (Cas. Cr.) 480. 
 
 Church V. Simmons, 19 Hun 220. 
 (App.) 30. 
 
 Church V. Van Buren, 55 How. Pr. 489. 
 (Judgm't) 243. 
 
 Churchill v. Bradley, 43 Superior, 170. 
 (Evid.) 156 ; (Eeceipts) 385. 
 
 Churchill v. Carter, 15 Hun 385. 
 (DepoB.) 125. 
 
 City Bank of Rochester v. "West- 
 bury, 16 Hun 458. (Chat. M'tge) 77 ; (Evid.) 
 153. 
 
 City National Bank v. Phelps, 16 Hun 
 158. (Guar.) 188. 
 
 City of Brooklyn, Matter of, 73 N. Y. 
 179. (Bound.) 66; (B'klyn) 68; (Dam.) 112; 
 (Evid.) 154. 
 
 City of Brooklyn v. Pulton Munici- 
 pal Gas Co., 7 Abb. N. Cas. 19. (Gas Co.) 
 185. 
 
 City of Brooklyn v. Jourdan, 7 Abb. 
 N. Cas. 23. (Gas Co.) 185. 
 
 City of Buffalo, Matter of, 78 N. Y. 
 362; 16 Hun 497. (Mun. Corp.) aOO; (Cas. 
 Cr.) 480. 
 
 City of Buffalo v. Bettinger, 76 N. Y. 
 393. (Bufialo) 70 ; (Mun. Corp.) 299. 
 
 City of Buffalo v. Mackay, 15 Hun 
 204. (Mun. Corp.) 307 ; (Off.) 330. 
 
 City of Rochester v. Montgomery, 
 72 N. Y. 65. (Mun. Corp.) 306. 
 
 City of Rochester v. Town of Rush, 
 15 Hun 239. (Taxes) 418 ; (Cas. Cr.) 480. 
 
 Claflinv. Baere,57How.Pr.78. (Attach.) 
 44,45. 
 
 Claflin V. Baere, 59 How. Pr. 20. (App.) 
 22. 
 
 Claflin V. Maguire, 45 Superior 521. 
 (App.) 16; (Eq.)142. 
 
 Claflin V. Meyer, 75 N. Y. 260 ; 43 Su- 
 perior 1. (Evid.) 154; (Wareh.) 446 ; (Cas. Cr.) 
 480. 
 
 Clancy v. O'Gara, 4 Abb. N. Cas. 268. 
 (Wills) 451. 
 
 Clapp V. Hawley, 69 N. Y. 625. (Evid.) 
 156; (Mort.) 290. 
 
 Clapp V. "Wright, 21 Hun 240. (Set-off) 
 403. 
 
CASES DIGESTED. 
 
 559 
 
 Clark, Matter of, 3 Eedf. 225. (Ex. & 
 Ad.) 172. 
 
 Olark, Matter of, 20 Hun 551. (Impris.) 
 204. 
 
 Clark V. Barnes, 76 N. Y. 301. (Leases) 
 255. 
 
 Clark V. Bininger, 76 N.Y.344; 43 Su- 
 perior 126. (App.) 26 ; (Contempt) 85 ; (Cas. 
 ■Cr.) 480. 
 
 Clark V. Dickinson, 74 N. Y. 47. (Con- 
 tracts) 89. 
 
 Clark V. Jacobs, 56 How. Pr. 519. (Ex. 
 A Ad.) 170; (Vend. & P.) 444; (Wills) 451. 
 
 Clark V. MoOann, 18 Hun 13. (Lim. of 
 Ac.) 264. 
 
 Clark V. Mechanics' Nat. Bank of 
 Hew York, 8 Daly 481. (App.) 16. 
 
 Clark V. St. James' Church, 21 Hun 
 "«5. (Witn.) 458. 
 
 Clark V. St. Louis, &c., R. R. Co., 58 
 How. Pr. 21. (Trusts) 435. 
 
 Clark V. Van Amburgh, 14 Hun 557. 
 <Lim.of Ac.)264. 
 
 Clark V. 'Weaver, 17 Hun 481. (Evid.) 
 356 ; (Receipts) 384. 
 
 Clark V. Woodruff, 18 Hun 419. (Evid.) 
 151. 
 
 Clarke v. Boreel, 21 Hun 595. (Process) 
 358. 
 
 Clarkson v. Millnacht, 56 How. Pr. 323. 
 {Courts) 106. 
 
 Clarkson v. Munson, 59 How. Pr. 480. 
 <Eem. ofC.)391. 
 
 Clearwater v. Decker, 13 Hun 63. 
 (Prac.) 349. 
 
 Clegg V. Aikens, 5 Abb. N. Cas. 95. 
 (Corp.) 96. 
 
 Clegg V. AmericanNewspaper Union, 
 7 Abb. N. Cas. 59. (Bills of Partic.) 64. 
 
 Clegg V. American New^spaper 
 XJnion, 59 How. Pr. 122. (Plead.) 345. 
 
 Clements v. Yturria, 14 Hun 151. (Tro- 
 'yer)432;(Cas. Cr.)480. 
 
 Clews V. Bank of New York, &c., 8 
 Daly 476. (Banks) 57, 59. 
 
 Clifford V. Dam, 44 Superior 391. (Dam.) 
 114 ; (Nuisance) 328 ; (Plead.) 346. 
 
 Clinton Liberal Inst. v. Fletcher, 55 
 How. Pr. 431. (Injunc.) 210. 
 
 Clocke V. Igglesden, 3 Eedf. 339. (Ex. & 
 jVd.) 172. 
 
 Coady v. Curry, 8 Daly 58. (Mon. Eec'd) 
 284. 
 
 Cobb V. Knapp, 71 N.Y. 348. (Pr. & 
 A.g't) 352. 
 
 Cochran v. Ingersoll, 13 Hun 368. (Con- 
 tempt) 85. 
 
 Cochrane v. Ingersoll, 73 N. Y. 613. 
 <Judgm't) 243. 
 
 Cock V. Moore, 18 Hun 31. (Guar.) 188: 
 Cockcroft V. Muller, 71 N. Y. 367. 
 
 (Auction) 48. 
 Cockcroft V. New York and Harlem 
 
 R. R. Co., 69 N. Y. 201. (Dam.) 112; (Vend. 
 
 6 P.) 443; (Cas. Cr.) 481. 
 
 Coe V. Cassidy, 72 N. Y. 133. (Land. & 
 T.) 250; (Leases) 258. 
 
 Coe V. Hobby, 72 N. Y. 141. (Contracts) 
 90; (Land. & T.) 250; (Leases) 257. 
 
 Cohen, Matter of, 58 How. Pr. 496. 
 (Courts) 106. 
 
 Cohen v. Dry Dock, &o., R. R. Co., 69 
 N. Y. 170. (Mast. & S.) 277: (Q. of L. & F.) 
 367; (R. E. Co.) 381. 
 
 Cohen, Matter of, 78 N.Y. 248. (Assign'ts) 
 42. 
 
 Cohn V. Colby, 57 How. Pr. 168. (Bank'cy) 
 54. 
 
 Cohn V. Goldman, 76 N. Y. 284; 43 Su- 
 perior 436. (App.) 27 ; (Consp.) 82 ; (Evid.) 
 157 ; (New Tr.) 315 ; (Plead.) 344 ; (Trial) 427 ; 
 (Witn.) 456; (Cas. Cr.) 481. 
 
 Coit V. Campbell, 20 Hun 50. (Abate.) 2. 
 
 Ooit V. Patchen, 77 N. Y. 533. (Wills) 
 452. 
 
 Coleman v. Crump, 70 N. Y. 573. 
 Tradem'ks) 423. 
 
 Coleman v. Phelps, 57 How. Pr. 393. 
 (Fraud. Conv.) 184. 
 
 CoUender v. Phelan, 79 N. Y. 366. (Part- 
 ners.) 337. 
 
 ColUns, Matter of, 17 Hun 289 ; 6 Abb. 
 N. Cas. 227. (Mort.) 295. 
 
 Collins V. Collins, 71 N. Y.269. (Divorce) 
 133, 134 ; (Cas. Cr.) 481. 
 
 Collins V. Collins, 17 Hun 598. (Cas. 
 Cr.) 481. 
 
 Collins V. PhcBnix Ins. Co., 14 Hun 534. 
 (Ins.) 232. 
 
 Collins V. Ralli, 20 Hun 246. (Larceny) 
 253 ; (Sales) 396. 
 
 Collins V. Rejmolds Card Manuf. Co., 
 
 7 Abb. N. Cas. 17. (Tradem'ks) 423. 
 Colton V. Simiaons, 14 Hun 75. (Costs) 
 
 102. 
 
 Combs V. Dimn, 59 How. Pr. 169. 
 (Arrest) 34. 
 
 Comer v. Cunningham, 77 N. Y. 391. 
 (Sales) 396. 
 
 Commercial Bank of Rochester v. 
 Spencer, 76 N. Y. 155. (App.) 22. 
 
 Commissioners of Excise v. Glennon, 
 21 Hun 244. (Liq. Sell.) 266. 
 
 Oomstock V. Drohan, 71 N. Y. 9. (Mort.) 
 288 ; (Cas. Cr.) 482. 
 
 Oomstock V. Dye, 13 Hun 113. (New 
 Tr.)316. 
 
 Comstock V. Hier, 73 N. Y. 269. (Ac- 
 
660 
 
 CASES DIGESTED. 
 
 tion) 5; (Bills of Exch.) 62, 63; (Prom. N.) 
 361, 364;(Cas. Cr.)482. ' 
 
 Cone V. Delaware, &o., R. R. Co., 
 IS Hun 172. (Mast. & S.) 278; (K. R. Co.) 
 380 ; (Cas. Cr.) 482. 
 
 Conger v. Conger, 77 N. Y. 432. (Divorce) 
 132. 
 
 Oonklin v. Conklm, 20 Hun 278. (Evid.) 
 154 ; (Gift) 187. 
 
 Conklin v. Secor Sewing Machine 
 Co., 55 How. Pr. 269. (Injunc.) 207 ; (Jud. 
 Sale) 244. 
 
 Connecticut Fire Ins. Co. v. Erie 
 Railway Co., 73 N. Y. 399; 10 Hun 59. 
 (Ins.) 221. 
 
 Conner v. Belden, 8 Daly 257. (Prac.) 
 349 ; (Eeceivers) 385. 
 
 ■ Connolly v. Kretz, 78 N. Y. 620. (App.) 
 24. 
 
 Connors v. Adams, 13 Hun 427. (N. Y.) 
 327. 
 
 Conroy v. Campbell, 45 Superior 326. 
 (Partners.) 337. 
 
 Consolidated Fruit Jar Co. v. Mason, 
 
 7 Daly 64. (App.) 14 ; (Patents) 339. 
 Converse v. Miner, 21 Hun 367. (Lira. 
 
 of Ac.) 264. 
 
 Converseville Co. v. Chambersburg 
 Woolen Co., 14 Hun 609. (Assign'ts) 41. 
 
 Conway v. Mayor, &o., of New York, 
 
 8 Daly 306. (Amend.) 9. 
 
 Cook V. Covil, 18" Hun 288. (Highw.) 
 194. 
 
 Cook V. Horwitz,14 Hun 542. (Arrest) 35. 
 
 Cook V. Jenkins, 79 N. Y. 575. (Set-off) 
 404. 
 
 Cook V. State Nat. Bank, 52 N. Y. 96. 
 (Rem. of C.) 392. 
 
 Cooke V. ^tna Ins. Co., 7 Daly 555. 
 (Ins.) 213. 
 
 Cooper V. Eastern Transportation 
 Co., 75 N. Y. 116. (Evid.) 157 ; (Hom.) 196 ; 
 (Shipp.) 409. 
 
 Cooper V. Howe, 16 Hun 502. (Plead.) 
 346. 
 
 Cooper V. Piatt, 45 Superior 242. (Estop.) 
 148. 
 
 Cooper V. Smith, 43 Superior 9. (New 
 Tr.) 316. 
 
 Copper's Case, 7 Abb. N. Cas. 121; 58 
 How. Pr. 55. (Deeds) 117; (Hand.) 270. 
 (Eelig. Soc.) 390. 
 
 Corbett v. De Comeau, 45 Superior 588; 
 Id. 637 ; 4 Abb. N. Cas. 252 ; 5 Id. 169. (App.) 
 11 ; (Discov.) 130 ; (Cas. Cr.) 482. 
 
 Corbett v. Gibson, 16 Hun 241. (Depos.) 
 126. 
 
 Corbett v. G-ibson 18 Hun 49. (Discov.) 
 130. 
 
 Corcoran v. New York Elevated 
 R. R. Co., 19 Hun 368. (Q. of L. & F.) 
 368. 
 
 Cordell v. New York Central, &c., 
 R. R. Co., 70 N. Y. 119. (R. R. Co.) 376. 
 
 Cordell v. New York Central, &o., 
 R. R. Co., 75 N. Y. 330. (Q. of L. & F.) 368 ; 
 (R. R. Co.) 378. 
 
 Cordier v. Thompson, 8 Daly 172. 
 (Ex. & Ad.) 174 ; (Guar.) 190. 
 
 Cormier v. Hawkins, 69 N. Y. 188, 
 (Arrest) 33. 
 
 Cornell v. Markham, 19 Hun 275 
 (Contracts) 91. 
 
 Cornell v. -Woodruff, 77 N. Y. 203. 
 (Mort.) 286, 295. 
 
 Cornes v. Wilkin, 14 Hun 428 ; 79 N. Y. 
 129. (App.) 31; (Lim. of Ac.) 263; (Cas. Cr.) 
 482. 
 
 Cornish v. Farm Buildings Fire Ins. 
 Co., 74 N. Y. 295; 10 Hun 466. (Ins.) 216;: 
 (Q. of L. &F.) 367; (Witn.) 463. 
 
 Cornwall v. MUls, 44 Superior 45. (Hom.) 
 196. 
 
 Corwin, Matter of, 6 Abb. N. Cas. 437, 
 (Witn.) 453. 
 
 Corwin, Matter of, 14 Hun 34. (N. Y.) 
 317. 
 
 Oosgrove v. New York Central, &c., 
 R. R. Co., 13 Hun 329. (Cas. Cr.) 482. 
 
 Costello V. Judson, 21 Hun 396. (Mast, 
 & S.) 278. 
 
 Costello V. Lawless, 45 Superior 276, 
 (App.) 15. 
 
 Costello V. Meade, 55 How. Pr. 356. 
 (Estop.) 149 ; (Mort.) 298. 
 
 Coughlin V. New York Central, &c., 
 R. R. Co., 71 N. Y. 443; 8 Hun 136. (Att'y 
 & CI.) 46, 48. 
 
 Countryman v. Norton, 21 Hnn 17, 
 (Ref.) 386. 
 
 Covell V. Hart, 14 Hun 252. (Att'y & 
 CI.) 46. 
 
 Cowee V. Cornell, 75 N. Y. 91. (Evid.) 
 160; (Fraud) 182; (Prom. N.)'365. 
 
 Cowen V. Quinn, 13 Hun 344. (Off.) 
 330. 
 
 Cowing V. Altman, 71 N. Y. 435. 
 (Checks) 78; (Evid.) 153; (Cas. Cr.) 483. 
 
 Cowing V. Altman, 21 Hun 106. (Cas.. 
 Cr.) 483. 
 
 Oowles V. Watson, 14 Hun 41. (Dam.) 
 114 ; (New Tr.) 316. 
 
 Cowley V. People, 21 Hun 415 ; 8 Abb. 
 N. Cas. 1. (Crim. L.) 110, 111 ; (Error) 146 ; 
 (Evid.) 150,154; (Indict.) 205; (Trial) 432;. 
 (Witn.) 461, 463. 
 
 Cox V. People, 19 Hun 430. (Error) 146 ;. 
 (Evid.) 158; (Hom.) 195; (Trial) 431; Cas,- 
 
 Cr.) 483. 
 
CASES DIGESTED. 
 
 661 
 
 Coxv. Sohermerhorn, 18 Hun 16. (Ex. 
 & Ad.) 174. ' 
 
 Ooykendall v. Durkee, 13 Hun 260. 
 (Highw.) 191. 
 
 Oraighed v. Peterson, 72 N. Y. 279. 
 (Powers) 348 ; (Pr. & Agt.) 350, 353. 
 
 Cram, Matter of, 69 N. Y. 452. '(N. Y.) 
 322; (Cas. Cr.) 483. 
 
 Crandall v. Brown, 18 Hun 461. (Chat. 
 M'tge) 76. 
 
 Crapo V. People, 15 Hun 269. (Cas. Cr.) 
 483. 
 
 Craske v. Christian Union Pub. Co., 
 17 Hun 319. (Land. & T.) 248. 
 
 Crawford v. Becker, 13 Hun 375. (Con- 
 tracts) 90. 
 
 Crawford v. New York Central, &o., 
 R. B. Co., 18 Hun 108. (K. E. Co.) 371. 
 
 Crawford v. O'Connor, 73 N. Y. 600. 
 (Meeh. Lien) 281. 
 
 Creesey v. Sabre, 17 Hun 120. (Chat. 
 M'tge) 76. 
 
 Cregin v. Brooklyn Crosstown B. R. 
 Co., 18 Hun 868. (New Tr.) 315. 
 
 Cregin v. Brooklyn Crosstown R. R. 
 Co., 19 Hun 341. (Husb. & W.) 198. 
 
 Cregin v. Brooklyn Crosstown R. R. 
 Co., 19 Hun 349. (Costs) 99. 
 
 Cregin v. Brooklyn Crosstown R. R. 
 Co., 75 N. Y. 192; 56 How. Pr. 32. (Abate.) 
 1; (Action) 5; (Cas. Cr.) 483. 
 
 Creigbton v. Homestead Fire Ins. 
 Co., 17 Hun 78. (Ins.) 214. 
 
 Creque v. Sears, 17 Hun 123. (Eject.) 
 139; (Estop.) 149. 
 
 Crill V. Kommeyer, 56 How. Pr. 276. 
 (Exec.) 165. 
 
 Crippen v. Baumes, 15 Hun 136. (Eq.) 
 144; (Vend. & P.) 442. 
 
 Crisfleld v. Perine, 15 Hun 200. (Coro- 
 ners) 91 ; (Cas. Cr.) 483. 
 
 Crocker v. "Wbitney, 71 N. Y. 161. 
 (Banks) 56 ; (Mort.) 297. 
 
 Croft V. King, 8 Daly 265. (Land. & T.) 
 252. 
 
 Croft V. People, 15 Hun 484. ( Judgm't) 
 241. 
 
 Croft V. Richardson, 22 Alb. L. J. 152 ; 
 59 How. Pr. 356; (Injunc.) 208. 
 
 Cromwell v. Burr, 59 How. Pr. 93. 
 (Bank'cy) 54. 
 
 Cromwell v. G-allup, 17 Hun 49. 
 (Bank'cy) 52. 
 
 Cronin v. Gundy, 16 Hun 520. <Liq. 
 Sell.) 265. 
 
 Cronin v. People, 20 Hun 137. (Man 
 Corp.) 299. 
 
 Crook V. Harper, 8 Daly 53. (Evid.) 
 153 ; (Just. P.) 247. 
 
 Crosby, Matter of, 16 Hun 291. (Ref.) 
 386. 
 
 Crow V. Colton, 7 Daly 52. (Assign' ts) 
 40. 
 
 Cuck V. Quackenbush, 13 Hun 107. 
 (Husb. & W.) 202; (Lira, of Ac.) 263. 
 
 Cuddeback v. Jewett, 20 Hun 187. (R. 
 E. Co.) 371. 
 
 Cuff V. Dorland, 7 Abb. N. Cas. 194. 
 (Assign.) 39. 
 
 Oullen V. Miller, 5 Abb. N. Cas. 282. (Ee- 
 plev.) 393. 
 
 Curnen v. Mayor, &c., of New York, 
 7 Daly 544. (N. Y.) 320. 
 
 Curnen v. Mayor, &c., of New York, 
 79 N. Y. 511. (Mun. Corp.) 305. 
 
 Currier, Matter of, 8 Daly 119. (Insolv.) 
 213; (Eef.)388. 
 
 Currin v. Panning, 13 Hun 458. (WUls) 
 448. 
 
 Curry v. Parley, 8 Daly 228. (Consta- 
 bles) 82. 
 
 Curry v. Powers, 70 N. Y. 212. (Gift) 
 186 ; (Trusts) 435. 
 
 Curtis V. Delaware, &c., R. R. Co., 74 
 N. Y. 116. (Husb. & W.) 202 ; (E. E. Co.) 
 375. 
 
 Cushing V. Vanderbilt, 7 Daly 512. 
 (App.) 29. 
 
 Cushman v. Thayer Manuf., &o., 
 Co., 76 N. Y.-365 ; 7 Daly 330. (Corp.) 92 ; 
 (Eq.) 142; (Trial) 425; (Cas. Cr.) 484. 
 
 Cushman v. United States Life Ins. 
 Co., 70 N. Y. 72. (App.) 14; (Ins.) 222; (Q. 
 of L. & F.) 367. 
 
 Cutting V. Cutting, 20 Hun 360. (Defin.) 
 120, 121, 122 ; (Powers) 348 ; (Wills) 451. 
 
 Cutting V. Marlor, 57 How. Pr. 56; 6 
 Abb. N. Cas. 388 ; 17 Hun 573; 78 N. Y. 454. 
 (Bailm.) 50; (Banks) 58, 59; (Dr. & Cr.) 116; 
 (Cas. Cr.) 484. 
 
 Ouykendall v. Douglass, 19 Hun 577. 
 (Evid.) 150 ; (Manuf. Co.) 272. 
 
 Cuyler v. Decker, 20 Hun 173. (Negl.) 
 313. 
 
 86 
 
662 
 
 CASES DIGESTED. 
 
 D. 
 
 Back V. Back, 19 Hun 630. (Wills) 448. 
 
 Dakin v. Liverpool, Sr^o., Ins. Co., 13 
 Hun 122 ; 77 N. Y. 600. (Ins.) 219, 225 ; (Cas. 
 Cr.) 484. 
 
 Dale V. Brinokerhoff, 7 Daly 45. (Bailm.) 
 -50. 
 
 Dale V. Delaware, &;o., R. B. Co., 73 
 -N. Y. 468. (E. E. Co.) 377. 
 
 Dalton V. liOUglilln, 4 Abb. N. Cas. 187. 
 <Courts) 106. 
 
 Daly V. Byrne, 77 N. Y. 182; 43 Superior 
 !261. (Except's) 160; (Libel) 261; (Sland.) 
 410 ; (Cas. Cr.) 484. 
 
 Dambmann v. Butterfleld, 15 Hun 495. 
 (Depos.) 127. 
 
 Dambmann v. Schulting, 75 N. Y. 55 ; 
 12 Hun 1. (Fraud) 182; (Mistake) 282. 
 
 Dane v. Liverpool, &o., Ins. Co., 21 
 Hun 259. (Eef.) 386. 
 
 Danser v. Jeremiali, 3 Eedf. 130. 
 :(Court8) 107. 
 
 Darling v. Mayor, &c., of New York, 
 18 Hun 340. (Mun. Corp.) 305. 
 
 Darling v. Pierce, 15 Hun 542. (Courts) 
 107. 
 
 David V. Williamsburg Oity Fire Ins. 
 •Co., 7 Abb. N. Cas. 47. (Evid.) 152 ; (Ins.) 214. 
 
 Davidson v. Alfaro, 16 Hun 353. (Set- 
 off) 403 ; (Cas. Cr.) 484. 
 
 Davidson v. Blumor, 7 Daly 205. (Land. 
 & T.) 249. 
 
 Davies v. Mayor, &o., of New York, 
 45 Superior 373. (Land. & T.) 250 ; (N. Y.) 
 316. 
 
 Davis, Matter of, 7 Daly 1. (Att'y & CI.) 
 47. 
 
 Davis V. Amer. Soc. for the Preven- 
 -tion of Cruelty to Animals, 75 N. Y. 
 S62. (Crim. L.) Ill ; (Injunc.) 205. 
 
 Davis V. Beohstein, 69 N. Y. 440. 
 (Assign.) 39 ; (Eq.) 143; (Husb. & W.) 202; 
 <Plead.) 347. 
 
 Davis V. Davis, 7 Daly 308. (Evid.) 
 a50 ; (Husb. & W.) 196, 197. 
 
 Davis V. Davis, 75 N. Y. 221. (Divorce) 
 134; (Stat.) 414. 
 
 Davis V. Lamar Ins. Co. of New 
 "York, 18 Hun 230. (Ins.) 232. 
 
 Davis V. Toulmin, 77 N. Y. 280. (Pr. & 
 ;S.) 356. 
 
 Davis V. Van Buren, 72 N. Y. 587. 
 . (Arrest) 35. 
 
 Davison v. Associates of the Jersey 
 •Co., 71 N. Y. 333 ; 6 Hun 470. (Contracts) 
 SO; (Trial) 425. 
 
 Day V. Brosnan, 6 Abb. N. Cas. 312 
 (Exec.) 165. 
 
 Day V. Flushing, &o., B. B. Co., 75 N 
 Y. 610. (K. E. Co.) 378. 
 
 Dayton v. Church, 7 Abb. N. Cas. 367 
 (New Tr.) 314, 316. 
 
 Dayton v. Johnson, 69 N. Y. 419 
 (Evid.) 151 ; (Ex. & Ad.) 176 ; (Judgm't) 239; 
 (Cas. Cr.) 484. 
 
 Dean v. Campbell, 19 Hun 534. (Exec.) 
 162. 
 
 Dean v. De Wolf, 16 Hun 186. (Defin.) 
 123; (Mining Co.) 282. 
 
 Dean v. Mace, 19 Hun 391. (Manuf. Co.) 
 275. 
 
 Dean v. WTiiton, 16 Hun 203. (Manuf. 
 Co.) 275. 
 
 De Bussierre v. HoUaday, 4 Abb. N. 
 Cas. Ill ; 55 How. Pr. 210. (Eq.) 142 ; (Trial) 
 427; (Wills) 452; (Cas. Cr.) 484. 
 
 De Castro v. Brett, 56 How. Pr. 484. 
 (Arbitr.) 32. 
 
 Deck V. Works, 57 How. Pr. 292. {Guar.) 
 187. 
 
 Deck V. Works, 18 Hun 266. (Guar.) 
 190. 
 
 Decker v. Boice, 19 Hun 152. (Mort.) 
 290. 
 
 Decker v. Decker, 17 Hun 13. (Land. & 
 T.) 250. " 
 
 Decker V. Kitchen, 21 Hun 332. (Plead.) 
 347. 
 
 Decker v. Stauring, 57 How. Pr. 495. 
 (New Tr.) 314. 
 
 De Courcy v. Stewart, 20 Hun 561. 
 (Trespass) 424. 
 
 Dederiok v. Pisk, 59 How. Pr. 73. (Stay 
 of Pro.) 415. 
 
 Deering, Matter of, 55 How. Pr. 296. 
 (N. Y.) 320. 
 
 Deering v. Metcalf, 74 N. Y. 501. (Part- 
 ners.) 339 ; (Witn.) 456. 
 
 De Forrest v. City of Utica, 69 N. Y. 
 614. (Mun. Corp.) 305. 
 
 De Forrest v. Jewett, 19 Hun 509. (E. 
 E. Co.) 379. 
 
 De G-raff v. Carmichael, 13 Hun 129. 
 (Trial) 426. 
 
 De G-raff v. New York Central, &c., 
 B. B. Co., 76 N. Y. 12-1. (Q. of L. & F.) 367 ; 
 (E.E. Co.) 379. 
 
 De G-rauw v. Supervisors of Queens 
 Co., 13 Hun 381. (Counties) 104. 
 De Groff v. Terpenning, 14 Hun 301 
 
 (Leg.) 260. 
 
CASES DIGESTED. 
 
 563 
 
 Delamater v. Byrne, 57 How. Pr. 170. 
 (App.) 18. 
 Delamater v. Byrne,^59 How. Pr. 71. 
 
 <App.) 3a 
 
 Delanoyv. Stearns, 14 Hun 50. (App.) 
 
 'so. 
 
 Delaney v. Van Aulen, 21 Hun 271. 
 <Leg.) 259. 
 
 De Lavalette v. Sha-w, 43 Supeiior 13. 
 <Eq.) 142. 
 
 De Lavallette v. "Wendt, 75 N. Y. 579. 
 <App.) 13 ; (Dam.) 113 ; (Evid.) 156 ; (Lira, 
 of Ac.) 262; (Q. of L. & F.) 367. 
 
 Delaware and Hudson Canal Co., 
 Matter of, 69 N. Y. 209. (App.) 25; (Stay 
 of Pro.) 415. 
 
 De Leon v. Echeverria, 45 Superior 610. 
 {Services) 403. 
 
 Demarestv. Mayor, &o., of New York, 
 74 N. Y. 161; 11 Hun 19. (Const. L.) 83; 
 (N. Y.) 324. 
 
 Dempsey v. People, 20 Hun 261. (Perj.) 
 341. 
 
 Dempsey v.'Willett, 16 Hun 264. (Manuf. 
 <io.) 275. 
 
 Demutb. v. American Institute, 75 
 N. Y. 502 ; 42 Superior 336. (Contracts) 86. 
 
 Denison v. Ford, 7 Daly 384. (Land. & 
 T.) 250. 
 
 Dennis v. Sipperly, 17 Hun 69. (Easem.) 
 138. 
 
 Department of Parks, Matter of, 73 
 N. Y. 560. (Adv. Poss.) 7 ; (Em. Dom.) 141 ; 
 (Cas. Cr.) 485. 
 
 Department of Public "Works, Matter 
 of, 13 Hun 483. (N. Y.) 320. 
 
 De Peyster, Matter of, 18 Hun 445. 
 <Cas. Cr.) 485. 
 
 De Peyster v. Beekman, 55 How. Pr. 
 90. (Trusts) 434. 
 
 Depierris, Matter of, 20 Hun 305. (Cas. 
 Cr.) 485. 
 
 Deraismes v. Deraismes, 72 N. Y. 154. 
 (Estates) 147 ; (Ex. & Ad.) 172. 
 
 Derby v. Yale, 13 Hun 273. (Cred. S.) 
 110; (Eq.) 142; (Plead.) 347. 
 
 Dering v. Metcalfe, 72 N. Y. 613. (App.) 
 15. 
 
 Derrenbacker v. Lehigh Valley R. 
 'R. Co., 59 How.Pr. 283. (Action) 5; (Negl.) 
 313. 
 
 Dethlefs v. Tamsen, 7 Daly 354. (Part- 
 Tier.s.) 338. 
 
 Deutsch V. Reilly, 8 Daly 132 ; 57 How. 
 Pr. 75. (Attach.) 45. 
 
 Devine v. People, 20 Hun 98. (Bail) 50 ; 
 <Coiirls) 107 ; (Larceny) 253. 
 
 Devlin v. Cooper ,'20 Hun 188. (Exec.) 
 164; (Impris.)204; (Insolv.) 212. 
 
 Devlin v. Devlin, 69 N. Y. 212. (Con- 
 tempt) 84. 
 
 Devlin v. Mayor, &o., of New York, 
 7 Daly 466. (Ref.) 388. 
 
 Devlin v. Murphy, 5 Abb. N. Cas. 242 ; 
 56 How. Pr. 326. (Mort.) 287; (Cas. Cr.) 
 485. 
 
 Dewey v. Moyer, 72 N. Y. 70. (Bank'cy) 
 53 ; (Consp.) 82. 
 
 De Witt V. Cooper, 18 Hun 67. (Wills) 
 451. 
 
 De "Witt V. Hastings, 69 N. Y. 518 ; 40 
 Superior 463. (Manuf. Co.) 271. 
 
 De "Witt V. McDonald, 58 How. Pr. 411. 
 (Actions) 4. 
 
 De Witt V. Village of Ithaca, 15 Hun 
 568. (Dedica.) 117 ; (Eject.) 139. 
 
 De "Wolf V. Capital City Ins. Co., 16 
 Hun 116. (Ins.) 214, 229; (Witn.) 460. 
 
 De "Wolf V. Williams, 69 N. Y. 621. 
 (Evid.) 157; (Trial) 428; (Trover) 433; (Witn.) 
 463. 
 
 Dickie, Matter of, 7 Abb. N. Cas. 417. 
 (Ins. Per.) 212. 
 
 Dickinson, Matter of, 58 How. Pr. 260 ; 
 (Witn.) 453. 
 
 Dickinson v. City of Poughkeepsie, 
 75 N. Y. 65; 7 Hun 1. (Contracts) 88; (Cus- 
 tom) 111 ; (Defin.) 121 ; (Mun. Corp.) 301, 309. 
 
 Dickinson v. Dickey, 14 Hun 617 ; 76 
 N. Y. 602. (Mort.) 293; (Prac.) 349. 
 
 Dickinson v. Dudley, 17 Hun 569. (Pr. 
 & Agt.) 353. 
 
 Dickinson v. Edwards, 77 N. Y. 573 ; 
 58 How. Pr. 24; 7 Abb. N. Cas. 65; 13 Hun 
 405. (Prom. N.) 363; (Cas. Cr.) 485. 
 
 Dickinson v. Onderdonk, 18 Hun 479. 
 (Exec.) 166. 
 
 Dietz V. Parish, 79 N. Y. 520. (Vend. & 
 P.) 441. 
 
 Dietz V. Parish, 43 Superior 87. (Costs) 
 101. 
 
 Dietz V. Parish, 44 Superior 190. (Deeds) 
 117, 118; (Vend. & P.) 442; (Cas. Cr.) 485. 
 
 Dilleber v. Home Life Ins. Co., 69 N. Y. 
 256. (Evid.) 157; (Ins.) 222; (Phys. & S.) 
 342 ; (Trial) 427 ; (Cas. Cr.) 486. 
 
 Dilleber v. Knickerbocker Life Ins. 
 Co., 76 N. Y. 567; 7 Daly 540. (Ins.) 224; 
 (Cas. Cr.) 486. 
 
 Dinan v. Allen, 16 Hun 407. (App.) 14. 
 
 Diossy V. Morgan, 74 N. Y. 11. (Estop.) 
 148. 
 
 Diossy V. "West, 8 Daly 298. (Action) 6 ; 
 (Exec.) 165. 
 
 Dishno v. Reynolds, 17 Hun 137i (Evid.) 
 150. 
 
 Distin V. Rose, 69 N. Y. 122. (Slarid.\ 
 409, 410 ; (Trial) 426 ; (Witn.) 462. 
 
564 
 
 CASES DIGESTED. 
 
 Dix V. Shaver, 14 Hun 392. (Contracts) 
 
 87. 
 
 Dixon V. Beach, 8 Daly 284. (Arrest) 
 36. 
 
 Dixon V. Rice, 16 Hun 422. (Spec. Perf.) 
 412. 
 
 Doctor V. Smith, 16 Hun 245. (Mort.) 
 293. 
 
 Dodd V. Dreyfuss, 17 Hun 600 ; 57 How. 
 Pr. 319. (Partners.) 338. 
 
 Dodge V. Bradstreet Co., 5*9 How. Pr. 
 104. (Plead.) 343. 
 
 Dodge V. County of Platte, 16 Han 285. 
 (Mun. Corp.) 302, 303; (Cas. Cr.) 486. 
 
 Dodge V. Fearey, 19 Hun 277. (Tender) 
 422. 
 
 Dodge & Stevenson Manuf. Co., 
 Matter of, 77 N. Y. 101; 14 Hun 440. 
 (Courts) 104 ; (Cas. Cr.) 486. 
 
 Dolan V. Dela-ware and Hudson Can- 
 al Co., 71 N. Y. 285. (E. E. Co.) 378 ; (Trial) 
 428. 
 
 Dolan V. Merritt, 18 Hun 27. (Eef.) 387. 
 
 Donahue v. O'Oonor, 45 Superior 278. 
 (Eject.) 139; (Land. & T.) 249 ; (Taxes) 418. 
 
 Donnell v. "Williams, 59 How. Pr. 68. 
 (Attach.) 45. 
 
 Donnelly V. Mayor, &c., of New York, 
 7 Daly 334. (Clerks) 79. 
 
 Donnelly v. Shaw, 7 Abb. N. Cas. 264. 
 (Divorce) 134. 
 
 Donnelly v. Town of Ossining, 18pnn 
 352. (Bridges) 67., 
 
 Donnelly v. "West, 17 Hun 564. (Di- 
 vorce) 134 ; (Plead.) 343. 
 
 Donovan v. Board of Education, 44 
 Buperior 53; 55 How. Pr. 176. (N. Y.) 325; 
 (Plead.) 345. 
 
 Donovan v. Vandemark, 78 N. Y. 244 ; 
 18 Hun 200. (Trusts) 436; (Cas. Cr.) 486. 
 
 Doran v. McLoughlin, 14 Hun 628. 
 (Just. P.) 247. 
 
 Dorr V. Dansville G-as Light Co., 18 
 Hun 275. (Trial) 425. 
 
 Dorr V. City of Troy, 19 Hun 223. 
 (Evid.) 152. 
 
 Dorrity v. Rapp, 72 N. Y. 307 ; 4 Abb. 
 N. Cas. 292 ; 11 Hun 374. (Eeal Prop.) 384. 
 
 Dougherty v. Gardner, 58 How. Pr. 
 284. (Exec.) 164. 
 
 Douglas V. Haberstro, 58 How. Pr. 276. 
 (Action) 5. 
 
 Douglas V. Haberstro, 59 How. Pr. 194. 
 (Bail) 49. 
 
 Douglas V. Knickerbocker Life Ins. 
 Co., 45 Superior 313 ; 55 How. Pr. 154. (Ins.) 
 221. 
 
 Douglass, Matter of, 3 Eedf. 538. (Ex. 
 & Ad.) 172. 
 
 Douglass V. Cross, 56 How. Pr. 330 
 
 (Mort.) 287. 
 
 Douglass V. Ireland, 73 N. Y. 100 
 (Judgm't) 240 ; (Manuf. Co.) 275. 
 
 Douglass V. Warren, 19 Hun 1; 5» 
 How. Pr. 264. (Bail) 49. 
 
 Douglass V. Wells, 18 Hun 88 ; 57 How. 
 Pr. 378. (Mort.) 287. 
 
 Dowd's Will, 8 Abb. N. Cas. 118; 58 
 How. Pr. 107. (Devise) 128; (Distrib.) 130; 
 (Wills) 447, 451. 
 
 Down V. McGovirkey, 15 Hun 444 ; 7S 
 N. Y. 614. (Costs) 101 ; (Cas. Cr.) 486. 
 
 Downey v. Downey, 1 6 Hun 48 1. (Wills) 
 448. 
 
 Doyle V. Sharpe, 74 N. Y. 154 ; 43 Su- 
 perior 545. (Bank'cy) 52 ; (Cas. Cr.) 486, 487. 
 
 Drake V.Lawrence, 19 Hun 112. (Devise) 
 129. 
 
 Drake v. Mayor, &c., of New Yorh^ 
 77 N. Y. 611. (Clerks) 80. 
 
 Drake v. Miller, 15 Hun 356. (Action) 6. 
 
 Drake v. Porter, 13 Hun 658. (Partners.) 
 339. 
 
 Draper v. President and Fellows of 
 Harvard College, 57 How. Pr..269. (Devise) 
 128. 
 
 Drinkwater v. Dinsmore, 16 Hun 250, 
 (Dam.) 113. 
 
 Dubois V. Cassidy, 75 N. Y. 298. (Exec.) 
 167 ; (Partition) 332 ; (Cas. Cr.) 487. 
 
 Dubois V. City of Kingston, 20 Hun 
 500. (Lira, of Ac.) 262. 
 
 Du Bois V. Darling, 44 Superior 436. 
 (Cov'ts) 108 ; (Easem.) 137 ; (Injunc.) 209. 
 
 Duchardt v. Kelly, 20 Hun 549. Land. 
 & T.) 252. 
 
 Duckworth v. Roach, 8 Daly 159. (Lim. 
 of Ac.) 263; (Manuf. Co.) 273. 
 
 Duden v. Waitzfelder, 16 Hun 337. 
 (Bailm.) 51. 
 
 Duffleld V. Horton, 73 K Y. 218 ; 10 Hun. 
 140. (Bank'cy) 52. 
 
 Dugan V. Brophy, 55 How. Pr. 121. 
 (Mech. Lien) 279. 
 
 Duncan, Matter of, 3 Eedf. 153. (Ex. & 
 Ad.) 174. 
 
 Duncan v. Duncan, 4 Abb. N. Cas. 275. 
 (Wills) 452. 
 
 Dunfordv. Weaver, 21 Hun 349. (Sherifis). 
 406. 
 
 Dunham v. Bower, 77 N. Y. 76. (Car- 
 riers) 73. 
 
 Dunham v. Mercantile Mut. Ins. Co., 
 56 How. Pr. 240 ; 6 Abb. N. Cas. 70. (Depos.)- 
 127. 
 
 Dunlop V. Patterson Fire Ins. Co., 74 
 N. Y. 145; 12 Hun 627. (App.) 25, 26;. 
 (Attach.) 42. 
 
CASES DIGESTED. 
 
 565 
 
 Dunn V. Hombeok, 72 N. Y. 30. (Husb. 
 A W.) 203 ; (Q. of L. & F.) 367. 
 
 Dunning v. Fisher, 20 Hun 178. (Mort.) 
 288. 
 
 Dupre V. Rein, 56 How. Pr. 228 ; 7 Abb. 
 N. Cas. 256. (Husb. & W.) 202. 
 
 Durant v. Abeiidrotli, 44 Superior 463 ; 
 «9 N. Y. 148. (App.) 19; (Exeept's) 160; 
 (Partners.) 339 ; (Trial) 427. 
 
 Durian v. Central Verein ol^ the Her- 
 man's Sohnne, 7 Daly 168. (Soc. & Assoc.) 
 
 411. 
 Duryea v. Lester, 75 N. Y. 442; 43 Su- 
 
 perior 564. (App.) 14; (Except'd) 160; (Cas. 
 Or.) 487. 
 
 Dusenbury v. Kielly, 58 How. Pr. 286 ; 
 8 Daly 537. (False Imp.) 178 ; (Lim. of Ac.) 263. 
 
 Dusseldorf v. Redlioh, 16 Hun 624. 
 (Attach.) 44. 
 
 Dutcher v. Swartwood, 15 Hun 31. 
 (Chat. M'tge) 77; (Cas. Cr.) 487. 
 
 Dutchess Co. Mut. Ins. Co. v. Hach- 
 fleld, 73 N. Y. 226. (Bonds) 65 ; (Evid.) 150 ; 
 (Witn.) 460. 
 
 Dyer v. Erie Ry. Co., 71 N. Y. 228. (Q. 
 of L. & F.) 367 ; (B. E. Co.) 377, 379. 
 
 E. 
 
 Bagan v. Tucker, 18 Hun 347. (Mast. & 
 S.) 278. 
 
 Eager v. Crawford, 76 N. Y. 97. (Evid.) 
 160 ; (Partners.) 334. 
 
 Earl V. David, 20 Hun 527. (Mort.) 296. 
 
 Earle v. Hart, 20 Hun 75. (P^ies) 332. 
 
 Earle v. Ne-w York Life Ins. Co., 7 
 Daly 303. (Bailm.) 51 ; (Ins.) 228. 
 
 Baston V. Malavazi, 7 Daly 147. (Attach.) 
 43,45. 
 
 Baston v. Pickersgill, 75 N. Y. 599. 
 <Mort.) 293 ; (Motions & O.) 298.' 
 
 Baton, Cole, (Sec, Co. v. Avery, 18 Hun 
 44. (Fraud) 183. 
 
 Bbbeta V. Martine, 19 Hun 294. (Mort.) 
 291.. 
 
 Ebbinghousen v. "Worth Club, 4 Abb. 
 N. Cas. 300. (Soc. & Assoc.) 411. 
 
 Eberhardt v. Shuster, 6 Abb. N. Cas. 141. 
 ■(Bills of Partic.) 64; (Leg.) 260. 
 
 Bddleson v. Duryee, 59 How. Pr. 326. 
 <Costs) 99. 
 
 Edgerly v. Bush, 16 Hun 80. (Chat. 
 M'tge) 78 ; (Plead.) 346 ; (Cas. Cr.) 488. 
 
 Edick v. Dake, 14 Hun 481. (Leases) 
 255. 
 
 Bdington v. .ffitna Life Ins. Co., 77 N. 
 Y. 564 ; 13 Hun 543. (Ins.) 231 ; (Witn.) 456 ; 
 (Cas. Cr.) 488. 
 
 Edminster v. Cochrane, 8 Daly 138. 
 (Contracts) 90. 
 
 Edmondsv. Abeel, 20Hun441. (Fences) 
 180. 
 
 Edmonston v. Edmonston, 13 Hun 133. 
 ^Estop.) 149. 
 
 Ed-wards v. Candy, 14 Hun 596. (Land. 
 .& T.) 250. 
 
 Egan V. Thomson, 57 How. Pr. 324. 
 {Contracts) 86. 
 
 Egan V. "Walsh, 43 Superior 572. (Dower) 
 135. 
 
 Eggleston v. Columbia Turnpike 
 Road, 18 Hun 146. (Trusts) 439 ; (Cas. Cr.) 
 488. 
 
 Ehrichs v. De Mill, 75 N. Y. 370. (App.) 
 20; (Bills of Exch.) 62. 
 
 Eighmy v. People, 78 N. Y. 330. (Error) 
 144; (Pardon) 331. 
 
 Eighmy v. People, 79 N. Y. 546. (Perj.) 
 340 ; (Trial) 430. 
 
 Eisenlord v. Dillenback, 15 Hun 23; 
 79 N. Y. 617. (Prom. :S.) 363; (Cas. Cr.) 
 488. 
 
 Eisenlord v. Snyder, 71 N. Y. 45. (Ser- 
 vices) 402. 
 
 Eldridge v. trnderhUl, 17 Hun 241. 
 (Just, p.) 247 ; (Cas. Cr.) 488. 
 
 Electro-Silicon Co. v. Levy, 59 How. 
 Pr. 469. (Injunc.) 208. 
 
 Electro-Silicon Co. v. Trask, 59 How. 
 Pr. 189. (Tradem'ks) 424. 
 
 Eleventh Ward Savings Bank v. 
 Hay, 55 How. Pr. 438; 8 Daly 328. (Ac- 
 tion) 6 ; (Mort.) 294. 
 
 Elliott v. Lewis, 16 Hun 581. (App.) 11. 
 
 Ellis V. Rice, 77 N. Y. 610. (App.) 12; 
 (Att'y & CI.) 46. 
 
 Ellsworth V. Brown, 16 Hun 1. (Prac) 
 349; (Eef.)388. 
 
 Ellsworth V. Smith, 56 How. Pr. 237. 
 (Prac.) 349 ; (Ref.) 388. 
 
 Elmendorf v. City of Albany, 17 Hun 
 81. (Mun. Corp.) 300. 
 
 Blverson v. Vanderpoel, 69 N. Y. 610; 
 41 Superior 257. (App.) 14; (Land. & T.) 
 253. 
 
 Blwell V. Johnson, 74 N. Y. 80. (App.) 
 22. 
 
566 
 
 CASES DIGESTED. 
 
 Elwell V. Skiddy, 77 N. Y. 282. (Shipp.) 
 407. 
 
 Ely V. Campbell, 59 How. Pr. 333. (Mnn. 
 Corp.) 299 ; (N. Y.) 318 ; (Nuisance) 328. 
 
 Ely V. Clute, 19 Hun 35. (Witn.) 455. 
 
 Emerson v. Auburn, &c., R. B. Co., 
 13 Hun 150. (Process) 358. 
 
 Emery v. Wilson, 79 N. Y. 78. (Partners.) 
 335. 
 
 Emigrant Industrial Savings Bank, 
 Matter of, 75 N. Y. 388. (N. Y.) 319, 321 ; 
 (Cas. Cr.) 488. 
 
 Emigrant Industrial Savings Bank 
 V. Goldman, 75 N. Y. 127. (Meeh. Lien) 
 280 ; (Mort.) 290. 
 
 England V. NewYorkPublisliingOo., 
 8 Daly 375. (Injunc.) 208 ; (Tradem'ks) 423. 
 
 Ennis v. Broderick, 45 Superior 92. 
 (App.) 29.; (Just. P.) 246. 
 
 Enoch. Morgan's Sons' Co. v. Sobw- 
 acbofer, 5 Abb. N. Cas. 265. (Injunc.)' 208. 
 
 Enocb Morgan's Sons' Co. v. Troxell, 
 57 How. Pr. 121. (Tradem'ks) 424. 
 
 Enos V. Leaeh, 18 Hun 139. (Pr. & S.) 
 356. 
 
 Eppendorf v. Brooklyn City, &c., R. 
 B. Co., 69 N. Y. 195. (Negl.) 313 • (E. R. 
 Co.) 381. 
 
 Equitable Life Assurance Society v- 
 Cuyler, 75 N. Y.-511 ; 12 Hun 247. (Mort.) 
 292; (Set-off) 403. 
 
 Erie Preserving Co. v. Pearsall, 4& 
 Superior 636. (Pr. & Agt.) 354. 
 
 Erlaoher, Matter of, 3 Bedf. 8. (Ex. & 
 Ad.) 173. 
 
 Esmond V. Apgar, 76 N. Y. 359 ; 7 Daly 
 379. (Bsnk'cy) 53 ; (Cas. Cr.) 488. 
 
 Esmond v^Bullard, 16 Hun 65. (Defln.> 
 121 ;■ (Manuf. Co.) 272. 
 
 Espie, Matter of, 3 Eedf. 270. (Ex. & Ad.> 
 171. 
 
 Bsterbrook v. Savage, 21 Hun 145. 
 (Vend. & P.) 444. 
 
 Evans v. City of Utica, 69 N. Y. 166. 
 (Negl.) 313. 
 
 Evans v. Cleveland, 72 N. Y. 486. 
 (Abate.) 2 ; (Lim. of Ac.) 262 ; (Cas. Cr.) 488. 
 
 Evans v. Hill, 18 Hun 464. (Cred. S.). 
 110., 
 
 Evers v. Hudson River Bridge Co.,. 
 18 Hun 144. (Bridges) 67. 
 
 Excelsior Grain Binding Co. v. Stay- 
 ner, 58 How. Pr. 273. (Corp.) 94. 
 
 Exchange Fire Ins. Co. v. Early, 4 
 Abb. N. Cas. 78. (Mort.) 292, 293. 
 
 Fagan v. Scott, 14 Hun 162. (Trespass) 
 424. 
 
 Fairchild v. Fairchild, 59 How. Pr. 351. 
 (Jud. Sale) 244. 
 
 Fairfax v. Nevr York Central, &o., 
 B. R. Co., 73 N. Y. 167; 43 Superioi- 18. 
 (Dam.) 113; (R. E. Co.) 375; (Wareh.) 446; 
 (Cas. Cr.) 489. 
 
 Falconer v. Buffalo, &c., R. R. Co., 69 
 N. Y. 491 ; 7 Hun 499. (Mun. Corp.) 302, 303. 
 
 Fallon V. Kelehar, 16 Hun 266. (Arbitr.) 
 32. 
 
 Fafly V. Lyddy, 8 Daly 514. (App.) 29. 
 
 Farmers' and Mechanics' Bank v. 
 Brie RaUway Co., 72 N. Y. 188. (Car- 
 riers) 71 ; (Custom) HI ; (Evid.) 159. 
 
 Farmers', &c., National Bank v. At- 
 kinson, 74 N. Y. 587 ; 43 Superior 546. (No- 
 tice) 328 ; (Pr. & Agt.) 355 ; (Cas. Cr.) 489. 
 
 Farmers', &c., National Bank v. Lo- 
 gan, 74 N. Y. 568. (Bills of La.) 64; 
 (Defin.) 121, 122; (Notice) 328; (Pr. & Agt.) 
 355. 
 
 Farmers'National Bank v. Hazeltine, 
 78 N. Y. 104 ; 45 Superior 576. (Bills of La.) 
 64; (Cas. Cr.) 489. 
 
 Parnum, Matter of, 75 N. Y. 187 ; 14 
 Hun 159. (Acct'g) 3 ; (Cas. Cr.) 489. 
 
 Parrell v. People, 21 Hun 485. (Trial) 
 431. 
 
 Farwell v. Hibner, 15 Hun 280. (Prom. 
 N.) 365. 
 
 Faulkner v. Hart, 44 Superior 471. (Car- 
 riers) 72 ; (E. E. Co.) 369. 
 
 Feeter v. Weber, 44 Superior 255; 78 
 N. Y. 334. (Compromise) 81, 82; (Prom. N.) 
 360, 364. 
 
 Feldman v. Beier, 78 N. Y. 293. (Mort.) 
 292 ; (Pr. & Agt.) 351. 
 
 Fellows V. Kittredge, 56 How. Pr. 498. 
 (Bank'cy) 53. 
 
 Fellows, V. Mayor, &c., of New- 
 York, 17 Hun 249. (Custom) 112; (Interest) 
 236; (Stat.) 414. 
 
 Ferguson v. Crawford, 70 N. Y. 253 ; T 
 Hun 25. (Judg-mt) 239 ; (Cas. Cr.) 489. 
 
CASES DIGESTED. 
 
 66T 
 
 Ferrer v. Pyne, 18 Han 411. (Leg.) 258. 
 
 Ferris v. Holmes, 8 Daly 217. (Husb. & 
 W.) 202. 
 
 Ferris v. Van Vechten, 73 N. Y. 113 ; 9 
 Hun 12. (Trusts) 439. 
 
 Field V. Bland, 59 How. Pr. 89. (Action) 5. 
 
 Field V. Field. 73 N. Y. 588. (Eef.) 388. 
 
 Field V. Field, 77 N. Y. 294. (App.) 26; 
 (Ex. & Ad.) 171. 
 
 Field V. Gibson, 20 Hun 274 ; 56 How. 
 Pr. 232. (Ex. & Ad.) 176. 
 
 Filkins v. People, 69 N. Y. 101. (As- 
 sault) 37; (Evid.) 152; (Q. of L. & F.) 367. 
 
 Finck, Matter of, 59 How. Pr. 145. 
 (Impris.) 204. 
 
 Finoke v. Roiirke, 20 Hun 264. (Plead.) 
 346. 
 
 Finley v. Fay, 17~Hun 67. (Pai-tners.) 
 339. 
 
 Fire Department of "West Troy v. 
 Ogden, 59 How. Pr. 21. ( Ins ) 232 ; (Penal- 
 ties) 340. 
 
 Fire Department of "Whitesboro v. 
 Thomas, 16 Hun 474. (Trial) 429. 
 
 First National Bemk of Buffalo v. 
 ■Wood, 71 N. Y. 405. (Pr. & S.) 356 ; (Prom. 
 K.) 360, 355. 
 
 First National Bank of Chittenango 
 V. Morgan, 73 N. Y. 593; 6 Hun 346. (Eq.) 
 142; (Partners.) 336. 
 
 First National Bank of Cooperstown 
 V. Tamajo, 77 N. Y. 476; 17 Hun 240. 
 (Eef.) 388 ; (Cas. Cr.) 490. 
 
 First National Bank of Meadville v. 
 Fourth National Bank of New York, 
 77 N. Y. 320; 16 Hun 332. (Banks) 58; 
 (Evid.) 151; (Pr. & Agt.) 352; (Cas. Cr.) 490. 
 
 First National Bank of Oxford v. 
 Wheeler, 72 N. Y. 201, 601. (Mun. Corp.) 
 302. 
 
 First National Bank of Rome v. 
 Wilson, 13 Hun 232. (Exec.) 165. 
 
 First National Bank of Springfield 
 V. Dana, 79 N. Y. 108. (Q. of L. & F.) 367 ; 
 (Trial) 427, 429. 
 
 First National Bank of "Whitehall v. 
 Tisdale, 18 Hun 151. (Prom. N.) 365. 
 
 First Nationl Bank of "Whitehall v. 
 "Whitehall Transp. Co., 18 Hun 161. 
 (Exec.) 163.' 
 
 First Presbyterian Society of Chili 
 V. Bowen, 21 Hun 389. (Leg.) 259. 
 
 Fischer v. Hope Mutual Life Ins. Co., 
 69 N. Y. 161. (Ins.) 228. 
 
 Fischer v. Raab, 56 How. Pr. 218 ; 58 Id. 
 221. (Contempt.) 84, 85; (Costs) 100; (Kef.) 
 388. 
 
 Fisher v. Raab, 57 How. Pr. 87. (Soc. & 
 Assoc.) 411. 
 
 Fish V. Benedict, 74 N. Y. 613. (Q. of 
 L. & F.) 367; (Sales) 397. 
 
 Fish V. Hose, 59 How. Pr. 238. (Plead.) 
 344. 
 
 Fisher v. Hersey, 17 Hun 370. (Auction) 
 48. 
 
 Fisher v. Hersey, 78 N. Y. 387. (App.) 
 22; (Jud. Sale) 245. 
 
 Fisher v. Murdock, 13 Hun 485. (Banks) 
 5^9. 
 
 Fisher v. "Verplanck, 17 Hun 150. 
 (Witn.) 455. 
 
 FishkUl Savings Institute v. Bost- 
 ■Wick, 19 Hun 354. (Banks) 59; (Cas. Cr.) 
 490. 
 
 Fiske V. Hibbard, 45 Superior 331. (Lim. 
 of Ac.) 264. 
 
 Fitch, Matter of, 3 Eedf. 457. (Guard. & 
 W.) 191. 
 
 Fitch V. Buffalo, cfec, R. R. Co., 13 Hun 
 668. (E. E. Co.) .376. 
 
 Fitch V. easier, 17 Hun 126. (Inns) 
 211. 
 
 Fitzgerald, Matter of, 5 Abb. N. Cas. 
 357 ; 56 How. Pr. 190 ; 8 Daly 188. (Impris.) 
 204; (Insolv.) 212; (Cas. Cr.) 490. 
 
 Fitzgerald v. Fuller, 19 Hun 180. (Sales) 
 396. 
 
 Fitzpatrick v. "Van Sbaick, 59 How. 
 Pr. 472. (Depos.) 126. 
 
 Fitzsimmons v. "Woodruff, 74 N. Y 
 621. (Sales) 395. 
 
 Flaherty v. Greenman, 7 Daly 481. 
 (Carriers) 73. 
 
 Flandrow, Matter of, .20 Hun 36. (At- 
 tach.) 44. 
 
 Fleischauer v. Doellner, 58 How Pr. 
 190. (Mort.) 287. 
 
 Fleischmann v. Bennett, 79 N. Y. 579. 
 (Plead.) 346. 
 
 Fletcher v. Cooper, 59 How. Pr. 373. 
 (Trial) 425. 
 
 Flint V. Bacon, 13 Hun 454. (Deeds) 119 ; 
 (Easem.) 137. 
 
 Flint V. Gault, 15 Hun 213. (Just. P.) 
 246. 
 
 Floyd V. Clark, 7 Abb. N. Cas. 136. 
 (Vend. & P.) 442. 
 
 Flynn v. Equita;ble Life Assur. Soc, 
 78 N. Y. 568 ; 15 Hun 521. (Ins.) 221, 230, 
 232; (Cas. Cr.) 490. 
 
 Flynn v. Equitable Life Assur. Soc, 
 18 Hun 212. (Costs) 101. 
 
 Fogg V. Edwards, 57 How Pr. 290. 
 (Costs) 100. 
 
 Fogg V. Edwards, 20 Hun 90. (Evid.) 
 158. 
 
 Foley V. Foley, 17 Hun 235. (Wills) 
 451. 
 
568 
 
 CASES DIGESTED. 
 
 Folger V. Weber, 16 Hun 512. (Shipp.) 
 406. 
 
 Ponner v. Johnson, 78 N. Y. 617. (App.) 
 27. 
 
 Foote V. Beeoher, 78 N. T. 155 ; 12 Hun 
 375; 7 Abb. N. Cas. 358. (App.) 12, 14; 
 (Evid.) 157. 
 
 Poote V. People, 17 Hun 218. (False 
 Pret.) 178. 
 
 Pord V. Belmont, 69 N. Y. 567 ; 35 Su- 
 perior 135. (Eject.) 139. 
 
 Pord V. Joyce, 78 N. Y. 618. (Eq.) 144. 
 
 Porrestville Baptist Soc. v. Pam- 
 ham, 15 Hun 381. (Prom. N.) 364. 
 
 Porster v. Civill, 20 Hun 282. (Leg.) 
 257. 
 
 Porsyth v. Campbell, 15 Hun 234. 
 (Sheriffi) 405. 
 
 Poster, Matter of, 15 Hun 387. (Trusts) 
 438. 
 
 Poster, Matter of, 3 Eedf. 532. (Ex. & 
 Ad.) 174. 
 
 Posterv. VanBeed, 70N. Y. 19. (Ins.) 
 214, 220. 
 
 Pougera v. Moissen, 16 Hun 237. (Mort.) 
 292; (Cas. Cr.) 491. 
 
 Powler, Matter of, 8 Daly 548 ; 59 How. 
 Pr. 148. (Defln.) 123; (Impiis.) 204. 
 
 Powler V. Butterly, 78 N. Y. 68. (Assign.) 
 39. 
 
 Powler V. Butterly, 44 Superior 148. 
 (Gift) 187 ; (Husb. & W.) 199. 
 
 Powler V. Kelly, 43 Superior 380. (New 
 Tr.) 315. 
 
 Powler V. Lookwood, 3 Eedf. 465. (Dis- 
 trib.) 130; (Ex. & Ad.) 173; (Gift) 187. 
 
 Pox V. Carr, 16 Hun 566. (Devise) 128; 
 (Ex. & Ad.) 168. 
 
 Pox V. Kidd, 77 N. Y. 489. (App.) 20; 
 (Mech. Lien) 281. 
 
 Poxell V. Pletcber, 59 How. Pr. 88. (Dr. 
 & Cr.) 116. 
 
 Pralick v. Betts, 13 Hun 632. (Defin.) 
 125; (Shipp.) 408. 
 
 Prancis v. City of Troy, 74 N. Y. 338 ; 
 10 Hun 515. (Mun. Coip.) 299, 310. 
 
 Frane v. Vantine, 16 Hun 528. (Ex. & 
 Ad.) 171. 
 
 Prank v. Chemical Nat. B$ink, 45 Su- 
 perior 452. (Banks) 57 ; (Eef.) 387. 
 
 Franklin v. Oatlin, 43 Superior 138. 
 (Stay of Pro.) 415. 
 
 Prazier v. Gibson, 15 Hun 37. (Just. P.) 
 246. 
 
 Freel, Matter of, 55 How. Pr. 386. (At- 
 tach.) 42. 
 
 Freeman v. Barrowcliffe, 44 Superior 
 313. (Judgm't) 238. 
 
 Freeman v. Falconer, 44 Superior 132. 
 (Partners.) 338 ; (Prom. N.) 364. 
 
 Freeman v. Falconer, 44 Superior 579. 
 (App.) 19. 
 
 Freeman V. Falconer, 45 Superior 383. 
 (Parties) 331. 
 
 Freeman v. Freeman, 8 Abb. N. Cas. 
 174. (Divorce) 133. 
 
 Freeman v. Lawrence, 43 Superior 288. 
 (Witn.) 456, 464. 
 
 Priedberg v. Branigan, 18 Hun 344. 
 (HOsb. & W.) 201. 
 
 French v. Maguire, 55 How. Pr. 471. 
 (Injunc.) 208, 209. 
 
 French v. Powers, 58 How. Pr. 389. 
 (App.) 18. 
 
 French v. Redman, 13 Hun 502. (Q. of 
 L. & F.) 367. 
 
 French v. Salter, 17 Hun 546. (Ac- 
 tion) 4. 
 
 Freund v. 'Washbum, 17 Hun 543. 
 (Guard, ad L.) 190. 
 
 Freunde v. Importers', &o., Nat. 
 Bank, 76 N. Y. 352 ; 12 Hun 637. (Banks) 
 57 ; (Checks) 78 ; (Prom. N.) 361. 
 
 Fritcher v. Anthony, 20 Hun 495. 
 (Easem.) 137. 
 
 Frost V. Yonkers Savings Bank, 70 
 N. Y. 553; 8 Hun 26. (Exec.) 163; (Mort.) 
 296. 
 
 Fuchs V. Schmidt, 8 Daly 317. (App.) 
 15 ; (Mun. Corp.) 299. 
 
 Fuentes v. Mayorga, 7 Daly 103. (Arrest) 
 34,35. 
 
 Fuller, Matter of, 21 Hun 497. (Off.) 330. 
 
 Fuller V. Scribner, 76 N. Y. 190 ; 16 Hun 
 130. (Mort.) 291 ; (Cas. Cr.) 491. 
 
 Punch V. Abenheim, 20 Hun 1. (Shipp.) 
 407. 
 
 Furst V. Second Ave. R. R. Co., 72 N. 
 Y. 542. (App.) 14 ; (Witn.) 459. . 
 
CASES DIGESTED. 
 
 569 
 
 G. 
 
 Gage V. Delaware, &o., B. B. Co., 14 
 Hun 446. (R. E. Co)379. 
 
 Gale, Matter of, 75 N. Y. 526. (Att'y & 
 CI.) 46, ' 
 
 Gale V. New York Central, &c., B. B. 
 Co., 76 N. Y. 594 ; 13 Hun 1. (App.) 23, 27 ; 
 (NewTr.) 315; (R. R. Co.) 377; (Trial) 430; 
 <Witn.) 458 ; (Gas. Cr.) 492. 
 
 Gallaudet v. Steinmetz, 45 Superior 
 239 ; 6 Abb. N. Cas. 224. (App.) 16 ; (Except's) 
 161. 
 
 Gallup V. Bell, 20 Hun 172. (Poor) 347. 
 
 Gamp V. Pratt, 7 Daly 197. (Courts) 105. 
 
 Gane v. Gane, 45 Superior 355. (Divorce) 
 133. 
 
 Gano V. MoCunn, 56 How. Pr. 337. 
 (Wills) 451. 
 
 Ganson v. Tifft, 71 N. Y. 48. (Leases) 
 256 ; (Sales) 398. 
 
 Garley V.Hodges, 19 Hun 187. (Manuf. 
 Co.) 273. 
 
 Garlock v. James, 55 How. Pr. 306. 
 (Just, p.) 246. 
 
 Garner v. Harmony Mills, 45 Superior 
 148 ; 6 Abb. N. Cas. 212. (App.) 17. 
 
 Gamer v. Thorn, 56 How. Pr. 452. 
 (Plead.) 343. 
 
 Garvey, Matter of, 77 N. Y. 523. (N. 
 Y.) 322. 
 
 Garvey v. McCue, 3 Eedf. 313. (Ex. & 
 Ad.) 170. 
 
 Garvey v. McDevitt, 72 N. Y. 556. 
 (Powers) 348 ; (Wills) 451. 
 
 Garwood v. New York Central, Sbo., 
 E. B. Co., 17 Hun 356. (Injunc.) 207. 
 
 Gates V. Buddensiok, 6 Abb. N. Cas. 
 367. (Mech. Lien) 280. 
 
 Gatfleld v. Hanson, 57 How. Pr. 331. 
 (Ex. & Ad.) 174. 
 
 Gautier v. Douglass Manuf. Co., 13 
 Hun 514. (Sales) 398 ; (Trusts) 438. 
 
 Gaylor v. Knapp, 15 Hun 87. (Mort.) 
 286 ; (Vend. & P.) 443. 
 
 Gelpcke v. Quentell, 74 N. Y. 599. 
 (Guar.) 188. 
 
 Gejston v. Shields, 16 Hun 143 ; 78 N. 
 Y.275. (Defin.) 120; (Wills) 451,452; (Cas. 
 Or.) 492. 
 
 Genesee Biver Nat. Bank v. Mead, 18 
 Hun 303. (Arrest) 35. 
 
 George v. Grant, 56 How. Pr. 244. 
 (Amend.) 9. 
 
 George v. Grant, 20 Hun 372. (Part- 
 ners.) 339. • 
 
 Geraty v. Beid, 78 N. Y. 64 ; 13 Hun 
 
 313. (Courts) 106; (Just, P.) 245; (Cas. Cr.) 
 492. 
 
 German Amer. Bank v. Morris Bun 
 Coal Co., 74 N. Y. 58; 9 Hun 205. (App.) 
 25 ; (Sheriffs) 404. 
 
 German Bxchange Bank v. Commis- 
 sioners of Excise, 6 Abb. N. Cas. 394. 
 (Banks) 56 ; (Interpl.) 236. 
 
 German Savings Bank v. Habel, 58 
 How. Pr. 336. (Injunc.) 207, 210. 
 
 Germania Bank v. Frost, 43 Superior 
 117. (Dr. & Cr.) 117 ; (Prom. N.) 362. 
 
 Germania Fire Ins. Co. v. Memphis, 
 &o., B. B. Co., 72 N. Y. 90. (Bills of La.) 
 63; (Evid.) 155; (Cas. Cr.) 492. 
 
 Gerould v. "Wilson, 16 Hun 530. (Ex. 
 & Ad.) 175, 176 ; (Cas. Cr.) 492. 
 
 Getty V. Devlin, 70 N. Y. 504 ; 9 Hun 
 603. (Action) 4 ; (Eq.) 142. 
 
 Gibbs, Matter of, 58 How. Pr. 502. 
 (Mort.) 294. 
 
 Gibbs V. Continental Ins. Co., 13 Hun 
 611. (Defin.) 125 ; (Ins.) 217, 220. 
 
 Gififord V. Sackett, 15 Hun 79. (Witn.) 
 455. 
 
 Gifford V. Town of Gravesend, 8 Abb. 
 N. Cas. 246. (Trial) 425. 
 
 Gilbert Elevated By. Co., Matter of, 
 70 N. Y. 361 ; 3 Abb. N. Cas. 434 ; 9 Hun 303. 
 (Const. L.) 83 ; (R. R. Co.) 381, 382, 383. 
 
 Gildersleeve v. Landon, 73 N. Y. 609. 
 (Chat. Mort.) 77 ; (Plead.) 345 ; (Witn.) 457. 
 
 Gilhooly v. Hart, 8 Daly 176. (Partners.) 
 337. 
 
 Gillespie v. Forrest, 18 Hun 110. 
 (Rip. Rt's) 394; (Waterc.) 446. 
 
 Gillett V. Staples, 16 Hun 587. (Cred, S.) 
 109. 
 
 Gillette v. Smith, 18 Hun 10. (Mort.) 
 290, 292. 
 
 Gilligan v. Commercial Ins. Co., 20 
 Hun 93. (Ins.) 219. 
 
 Gillilan v. Swift, 14 Hun'574. (Dower) 
 135. 
 
 Gilmore v. Barnet, 20 Hun 514. (Just. 
 P.) 246. 
 
 Ginther v. Biohmond, 18 Hun 232. (As- 
 sign'ts) 40. 
 
 Giraud v. Giraud, 58 How. Pr. 175. 
 (Estop.) 149 ; (Mon. Reo'd) 283 ; (Wills) 451. 
 
 Giraudat v. Korn, 8 Daly 406. (App.) 18. 
 
 Girvin v. Hickman, 58 How. Pr. 244. 
 (Guard. & W.) 192 ; (Plead.) 344. 
 
 Glen's Falls Paper Co. v. White, 58 
 How. Pr. 172. (Arrest) 33. 
 
670 
 
 CASES DIGESTED. 
 
 Glen's Palls Paper Co. v. White, 18 
 Hun 214. (Manuf. Co.) 272, 273. 
 
 Globe Marble Mills Co. v. Quinn, 76 
 N. Y. 23. (Fixt.) 181: 
 
 Globe Mut. Life Ins. Oo. v. Snell, 19 
 Hun 560. (Ins.) 221. 
 
 Godfrey v. Godfrey, 75 N. Y. 434. 
 (App.) 26. 
 
 Godillot V. Hazard, 44 Superior 427. 
 (Tradem'ks) 423. 
 
 Goelet V. Parley, 57 How. Pr. 174. 
 (Mort.) 287. 
 
 Gold and Stock Teleg. Co. v. Todd, 17 
 Hun 548. (Injunc.) 206. 
 
 Golden V.Romer, 20 Hun 438. (Wareh.) 
 446. 
 
 Goldenburgh v. HoJTman, 69 N. Y. 
 322 ; 7 Hun 324. (Compr.) 81 ; {Dr. & Cr.) 
 116. 
 
 Goodell V. Harrington, 76 N. Y. 547. 
 (App.) 25; (Mort.) 294. 
 
 Good-win v. MassaoliuBetts Mut. Life 
 Ins. Co., 73 N. Y.480. (Ins.) 213, 221, 224, 
 230. 
 
 Goodwin v. Simonson, 74 N. Y. 133. 
 (Mort.),294; (Pr. & S.) 357. 
 
 Goodyear Dental, &o., Co. v. Pris- 
 selle, 57 How. Pr. 255. (Judgm't) 243. 
 
 Gosman v. Cruger, 69 N. Y. 87 ; 7 Hun 
 60. (Guard. & W.) 191; (Husb. & W.) 200; 
 (Pr. & S.) 356. 
 
 Gottberg v. Conner, 44 Superior 554. 
 (Fraud. Conv.) 184. 
 
 Gottwald V. Tuttle, 7 Daly 105. (Un- 
 dertakings) 440. 
 
 Gould [v. Cayuga Co. Nat. Bank, 56 
 How. Pr. 505. (Banks) 58 ; (Release) 388. 
 
 Gould V. Central Trust Co., 6 Abb. N. 
 Gas. 381. (Bailm.) 51 ; (Dr. & Cr.) 116. 
 
 Gould V. Holland Purobase Ins. Co., 
 16 Hun 538. (Ins.) 216. 
 
 Gould V. Town of Oneonta, 71 N. Y. 
 298; 3 Hun 401. (Corp.) 94; (Mun. Corp.)' 
 302. 
 
 Gouraud v. Gouraud, 3 Eedf. 262. 
 (Evid.) 158. 
 
 Gouraud v. Trust, 17 Hun 578. (App.) 
 18. 
 
 Grafton v. "Weeks, 7 Daly 523. (Witn.) 
 453. 
 
 Grabam v. Pueman's Ins. Co., 8 Daly 
 421. (Ins.) 213, 219. 
 
 Graham v. Pirst Nat. Bank of Nor- 
 folk, 20 Hun 326. (Husb. & W.) 198. 
 
 Graham v. Luddington, 19 Hun 246. 
 (Dower) 135. 
 
 Graham v. Phoenix Ins. Co., 77 N. Y. 
 171 ; 12 Hun 446. (Ins.) 214, 219. 
 
 Grand Rapids, &o., R. R. Co. v. San- 
 ders, 17 Hun 552. (Bonds) 65. 
 
 Granger V. City of Buffalo, 6 Abb. N. Cas. 
 238. (Buffalo) 70: (Evid.) 151. 
 
 Grant v. Grant, 3 Eedf. 283. (Wills) 
 451. 
 
 Grant v .Griswold, 21 Hun 509. (Judgm.) 
 243. 
 
 Grattan v. Nat. Life Ins. Co., 15 Hun 
 74. (Ins.) 221, 228 ; (Phys. & S.) 342. 
 
 Graves v. Briggs, 6 Abb. N. Cas. 38. 
 (Dr. & Cr.) 115. 
 
 Graves v. Cameron, 58 How. Pr. 75. 
 (Land. &T.) 251. 
 
 Graves v. King, 15 Hun 367. (Evid.) 
 157. 
 
 Gray v. Dela-wrare and Hudson Canal 
 Co., 5 Abb. N. Cas. 131. (Judgm.) 244. 
 
 Gray v. Green, 14 Hun 18. (App.) 19. 
 
 Gray v. Green, 77 N. Y. 615. (Usury) 
 440. ■ 
 
 Gray v. People, 21 Hun 140. (Trial) 
 432. 
 
 Greaves v. Gouge, 69 N. Y. 154. (Corp ) 
 93. 
 
 ■Green v. Collins, 20 Hun 474. (Cov'ts) 
 109. 
 
 Green v. Disbrow, 79 N. Y. 1. (Lim. 
 of Ac.) 264. 
 
 Green v. Green, 69 N. Y. 553 ; 7 Hun 
 492. (Infants) 206 ; (Par. & Ch.) 331. 
 
 Green v. Homestead Pire Ins. Co., IT 
 Hun 467. (Ins.) 216. 
 
 Green v. Howard, 14 Hun 434. (Plead.) 
 344. 
 
 Green v. Milbank, 56 How. Pr. 382. (Pr. 
 & S.) 356. 
 
 Green v. Sanders, 18 Hun 308. (Ex. & 
 Ad.) 174. 
 
 Green v. Squires, 20 Hun 15. (Mort.) 
 291 ; (Process) 358. 
 
 Greene v. Bates, 74 N. Y. 333. (Prom. 
 N.) 363. 
 
 Greenfield v. People, 13 Hun 242- 
 (App.) 15 ; (Trial) 431 ; (Witn.) 457 ; (Cas. Cr.) 
 494. 
 
 Greenfield v. People, 74 N. Y. 277 ; 6 
 Abb. N. Cas. 1. (Error) 145 ; (Trial) 431. 
 
 Greenpoint Sugar Co. v. "WTiitin, 6!> 
 N. Y. 328; 7 Hun 44. (Evid.) 155; (Manuf. 
 Co.) 272. 
 
 Greensward v. Union Dime Sav- 
 ings Inst., 59 How. Pr. 399. (Depos.) 126,^ 
 127. 
 
 Greenwood v. Sias, 21 Hun 391. (Part- 
 ners.) 334. 
 
 Greer v. Allen, 15 Hun 432. (Depos.) 
 127. 
 
CASES DIGESTED. 
 
 571 
 
 Griffin V. Helmbold, 72N. Y.437. (App.) 
 20; (Auction) 49. 
 
 Griffith V. Mangam, 73 N. Y. 611 ; 42 
 Superior 369. (Corp.) 94. 
 
 Griffith V. Robertson, 15 Hun 344. 
 (Guar.) 189. 
 
 Grinnell v. Maclean, 16 Hun 133. (Mun. 
 Corp.) 308. 
 
 Griswold v. Tompkins, 7 Daly 214. 
 (Exec.) 166. 
 
 Griswold V. "Watkins, 20 Hun 114. 
 (Plead.) 343. 
 
 Grocers' Bank v. Penfleld, 69 N. Y. 
 602 ; 7 Hun 279. (Prom. N.) 361. 
 
 Grout, Matter of, 15 Hun 361. (Ex. & 
 Ad.) 173. 
 
 Grover v. Morris, 73 N. Y. 473. (Dam.) 
 115 ; (Lim. of Ac.) 263 ; (Lotteries) 267 ; (Cas. 
 Cr.) 494. 
 
 Grube, Matter of, 20 Hun 303. (Defin.) 
 124; (Cas. Cr.) 494. 
 
 Gruman v. Smith, 44 Superior 389. (Pr. 
 & Agt.) 355. 
 
 Gnanhut v. Kosenstein, 7 Daly 164. 
 (Par. & Ch.) 331. 
 
 Grussy v. Schneider, 55 How. Pi-. 188. 
 (Mort.) 286. 
 
 Guardian Mut. Life Ins. Co., Matter 
 of, 13 Hun 115. (Cas. Cr.) 494. 
 ■ Guardian Savings Inst., Matter of, 
 78 N. Y. 408. (App.) 25 ; (Banks) 61. 
 
 Guckenheimer v. Angevine, 16 Hun 
 453. (Costs) 102. 
 
 Guest V. City of Brooklyn, 69 N. Y. 
 506 ; 8 Hun 97. (B'klyn) 69 ; (CI. on T.) 80 ;. 
 (Injunc.) 207 ; (Mun. Corp.) 300. 
 
 Guillotel V. Mayor, &c.,of New York,. 
 55 How. Pr. 114. (Lim. of Ac.) 262. 
 
 Gulke V. tJhUg, 55 How. Pr. 434. (Ex. 
 & Ad.) 174 ; (Partners.) 334. 
 
 Gunning v. Appleton, 57 How. Pr. 510. 
 (Motions & O.) 298. 
 
 Gunning v. Appleton, 58 How. Pr. 471. 
 (Libel) 261. 
 
 Gunning v. Lockman, 3 Kedf. 273. 
 (Guard, ad L.) 190. 
 
 Guth V. Dalton, 58 How. Pr. 289. (Att'y 
 & CI.) 46. 
 
 H. 
 
 Haas V. Craighead, 19 Hun 396. (Ex. 
 & Ad.) 175 ; (Parties) 332. 
 
 Haas V. Boat, 16 Hun 526. (Partners.) 
 334. 
 
 Hadden v. St. Louis, &c., R. R. Co., 
 57 How. Pr. 390. (Abate.) 1, 2; (Plead.) 344. 
 
 Haden v. Coleman, 73 N. Y. 567; 42 Su- 
 perior 256. (Contracts) 90. 
 
 Hagadom v. Kearney, 13 Hun 236. 
 (Witn.) 459. 
 
 Hagadom v. Raux, 72 N. Y. 583. (De- 
 fin.) 123; (Towns) 423. 
 
 Hagar v. Catlin, 18 Hun 448. (Contraels) 
 86, 89. 
 
 Hager v. Clark, 78 N. Y. 45. (Siiipp.) 
 407. 
 
 Haggerty V. Brooklyn, &o., R. R.Co., 
 6 Abb. N. Cas. 129, note. (Evid.) 150; (Ex- 
 cepts.) 161. 
 
 Hahn v. North Amer. Life Ins. Co., 
 13 Hun 195. (Ins.) 233. 
 
 Haight, Matter of, 14 Hun 176. (Infants) 
 206. 
 
 Haight V. Avery, 16 Hun 252. (Lim. of 
 Ac.) 265. 
 
 Haile v. Nichols, 16 Hun 37. (Estop.) 
 148. 
 
 Hale V. Smith, 78 N. Y. 480. (Evid.) 
 153. 
 
 Hall, Matter of, 7 Abb. N. Cas. 149. (Acct'g) 
 3. 
 
 Hall V. Crouse, 13 Hun 557. (At'ty &. 
 CI.) 47; (Evid.) 156; (Mort.) 285; (Cas. Cr.) 
 495. 
 
 Hall V. Ditson, 5 Abb. N. Cas. 198 ; 55- 
 How. Pr. 19. (Chat. M'tge) 76. 
 
 HaU V. Hall, 13 Hun 306. (Aliens) 8; 
 (Partition) 332; (Trial) 428; (Cas. Cr.) 495. 
 
 Hall V. Hall, 78 N. Y. 535; 18 Hun 358.. 
 (Ex. & Ad.) 174; (Wills) 451 ; (Cas. Cr.) 495. 
 
 Hallv. Sheehan, 69 N. Y. 618. (Mech.. 
 Lien) 280. 
 
 HaU V. "Waterbury, 5 Abb. N. Cas. 356. 
 (Bank'cy) 52 ; (Costs) 100. 
 
 Hall V. "Waterbury, 5 Abb. N. Cas. 374 ; 
 57 How. Pr. 131. (Attach.) 45. 
 
 Hallenbeck v. Cochran, 20 Hun 416.. 
 (Sales.) 395. 
 
 Hallenbeck v. Company B; 17 Hun 
 234. (Just. P.) 247. 
 
 Hallett V. Carter, 19 Hun 629. (Trover) 
 434. 
 
 Hallock V. Dominy, 69 N. Y. 238 ; T 
 Hun 52. (False Imp.) 178 ; (Just. P.) 246. 
 
572 
 
 CASES DIGESTED. 
 
 Ham V. Mayor, &c., of New York, 70 
 N. Y. 459. {N. Y.) 327. 
 
 Hamilton, Matter of, 58 How. Pr. 290. 
 {Cert.) 75. 
 
 Hamilton v. Bno, 16 Hun 599. (Dam.) 
 114; (Cas. Cr.)495. 
 
 Hamilton v. New York Stock Ex- 
 change Building Co., 20 Hun 88. (Pow- 
 •trs) 348. 
 
 Hammond v. Earle, 5 Abb. N. Cas. 105. 
 (Motions &0.) 298. 
 
 Hammond v. Earle, 58 How. Pr. 426. 
 (Plead.) 343. 
 
 Hammond v. Scbultz, 45 Superior 611. 
 {Trial) 426; (Trover) 434; (Witn.) 455. 
 
 Hancock v. Rand, 17 Hun 279. (Inns) 
 211. 
 
 Hand v. Atlantic Nat. Bank, 55 How. 
 Pr. 231. (Corp.) 93. 
 
 Hand v. Burrows, 15 Hun 481. (App.) 
 13. 
 
 Hand v. Kennedy, 45 Superior 385. 
 (Mort.) 287; (Parties) 332. 
 
 Hanover, Matter of, 3 Eedf 91. (Ex. & 
 Ad.) 176. 
 
 Hansee v. Finney, 20 Hun 153. (Usury) 
 440. 
 
 Hard v. Milligan, 8 Abb. N. Cas. 58. 
 {Assignt's) 41. 
 
 Hardenberghv.Van Eeuren, 4 Abb. N. 
 Cas. 43. (Stat.) 413. 
 
 Hardenbergh. v. Van Keuren, 16 Hun 
 17. (Mun. Corp.) 301, 302. 
 
 Harding v. Harding, 43 Superior 27. 
 (Divorce) 132. 
 
 Harding v. Tifift, 75 N. Y. 461. (Dr. & 
 •Or.) 116; (Prom. N.) 366. 
 
 Hardt v. Scbulting, 59 How. Pr. 353. 
 (App.) 30. 
 
 Hardt v. Schulting, 13 Hun 537. (Witn.) 
 461. 
 
 Hardy v. City of Brooklyn, 7 Abb. N. 
 •Cas. 403. (B'klyn) 69. 
 
 Harger v. "Worrall, 69 N. Y. 370. (Bills 
 ofExch.) 62,63. 
 
 Harlem Savings Bank v. Mickels- 
 ■burgli, 57 How. Pr. 106. (Mort.) 295. 
 
 Harley v. Bleventli "Ward Bank, 76 
 N. Y. 618; 7 Daly 476. (Acc'ts) 4; (Cas. Cr.) 
 -495. 
 
 Harnickell v. Brown, 45 Superior 350. 
 (Witn.) 460. 
 
 Harrington v. Brown, 77 N. Y. 72. 
 (Prom. N.) 360. 
 
 Harris v. Burdett, 73 N. Y. 176; 43 Su- 
 perior 60. (App.) 23. 
 
 Harris v. Burdett, 43 Superior 57; 76 
 N. Y. 582. (Estop.) 147, 148 ; (Shipp.) 406, 
 ■407 ; (Cas. Cr.) 495. 
 
 Harris v. Eldridge, 5 Abb. N. Cas. 278. 
 (Guar.) 190. 
 
 Harris v. Meyer, 3 Eedf. 450. (Distrib.) 
 130. 
 
 Harris v. Todd, 16 Hun 248. (Action) 5. 
 
 Harris v. Tumbridge, 8 Abb. N. Cas. 
 291. (Pr. & Agt.) 355. 
 
 Harris v. Ubelboer, 75 N. Y. 169. (Negl.) 
 314; (Q.of L. & F.) 368; (Shipp.) 409. 
 
 Harrison v. Ayres, 18 Hun 336. (Arbitr.) 
 31 ; (Ex. & Ad.) 171 ; (Services) 403. 
 
 Harrison v. Clarke, 20 Hun 404. (Ex. 
 & Ad.) 176. 
 
 Harrison v. Gibbons, 71 N. Y. 58. 
 (Judgm't) 244. 
 
 Harrison v. G-lover, 72 N. Y. 451; 9 
 Hun 196. (Pr. & Agt.) 352 ; (Sales) 399. 
 
 Harrison v. Ross, 44 Superior 230. (Pr. 
 & Agt.) 354. 
 
 Harrison v. "Wilkin, 69 N. Y. 412. 
 (Estop.) 148; (Keplev.) 393. 
 
 Harrison v. "Wilkin, 78 N. Y. 390. 
 (Eeplev.) 393. 
 
 Harstrom, Matter of, 7 Abb. N. Cas; 
 391. (Courts) 106. 
 
 Hartford, &c.. Steamboat Co., v. 
 Mayor, &c., of New York, 78 N. Y. 1. 
 (Plead.) 343. 
 
 Harvey, Matter of, 3 Eedf. 214. (Ex. 
 & Ad.) 167. 
 
 Harvey v. Cherry, 76 N. Y. 436; 12 
 Hun 354. (Ins.) 213. 
 
 Harvey v. New York Central, &c., 
 R. R. Co., 19 Hun 556. (E. E. Co.) 380. 
 
 Harvey v. "West-side Elevated R. B. 
 Co., 13 Hun 392. (Acc'ts) 4 ; (Corp.) 96. 
 
 Haskett, Matter of, 3 Eedf. 165. 
 (Courts) 106. 
 
 Haskin, Matter of, 18 Hun 42. (Att'y 
 & CI.) 46. 
 
 Haskin v. Teller, 3 Eedf. 116. (Ex. & 
 Ad.) 173, 174. 
 
 Hasler v. Johnston, 59 How. Pr. 432. 
 (Costs) 100. 
 
 Hastings v. Drew, 76 N. Y. 9. (Corp.) 93, 
 94. 
 
 Hastings v. "Westchester Fire Ins. 
 Co., 73 N. Y. 141 ; 12 Hun 416. (Ins.) 218; 
 (Interest) 236. 
 
 Hatch, Matter of, 43 Superior 89. 
 (Courts) 105 ; (Defin.) 121. 
 
 Hatch, Matter of, 74 N. Y. 611. (App.) 
 24. 
 
 Hatch V. Bowes, 43 Superior 426. (1^. 
 Y.) 320. 
 
 Hatch V. .Central Nat. Bank, 78 N. Y. 
 487. (App.) 24. 
 
 Hatch V. Mayor, &c., of New York, 
 45 Superior 599. (N. Y.) 320. 
 
CASES DIGESTED. 
 
 575 
 
 Hatfield v. Lasher, 17 Hun 23 ; 57 How. 
 Pr. 258. (Sland.) 410 ; (Cas. Cr.) 496.' 
 
 Hathaway Matter of, 71 N. Y. 238. 
 (Courts) 107; (Defin.) 124. 
 
 Hathaway v. Russell, 45 Superior 638 ; 
 7 Abb. N. Chs. 138. (Acct'g) 4; (Judgm't) 
 238 ; (Eef.) 388. 
 
 Hattenbach v. New York Central, 
 &o., B. B. Co., 18 Huu 129. (Mun. Corp.) 307. 
 
 Hauenstein v. KuU, 59 How. Pr. 24. 
 (Evid.) 151; (Guard. &W.) 191. 
 
 Hauger v. Bernstein, 7 Daly 340. 
 (Marshals) 276. 
 
 Haughwout V. Garrison, 69 N. Y. 339 ; 
 40 Superior 550. (Evid.) 153; (Guar.) 190. 
 
 Hauselt v. Viltnar, 76 N. Y. 630 ; 43 
 Superior 574. (Assign'ts) 40 ; (Costs) 99 ; (Cas. 
 Cr.) 496. 
 
 Havemeyer v. Havemeyer, 43 Superior 
 506. (App.) 14; (Corp.) 93; (Dam.) 113. 
 
 Havemeyer v. Havemeyer, 44 Superior 
 170. (Amend.) 10 ; (App.) 11. 
 
 Havemeyer v. Havemeyer, 45 Superior 
 464. (Dam.) 112 ; (New Tr.) 315. 
 
 Haviland v. Haviland, 14 Hun 627. 
 (Prom. N.) 360. 
 
 Haviland v. Johnson, 7 Daly 297. (Mon. 
 Paid) 283. 
 
 Hawker v. People, 75 N. Y. 487. (In- 
 dict.) 205 ; (Trial) 432. 
 
 Hawkins v. Mosher, 13 Hun 563. 
 (Gov'ts) 108. 
 
 Hawley v. Northern Central By. Co., 
 17 Hun 115. (R. K. Co.) 379. 
 
 Hay V. Hay, 13 Hun 315. ' (Action) 4 ; 
 (Contr.) 91. 
 
 Hay V. Star Fire Ins. Co., 77 N. Y. 235 ; 
 13 Hun 496. (Eq.) 144; (Fraud) 182; (Ins.) 
 219, 229 ; (Cas. Cr.) 496. 
 
 Hayes v. Ball, 72 N. Y. 418. (App.) 22 ; 
 (Slander) 409, 410. 
 
 Hayner v. Am. Pop. Life Ins. Co., 69 
 N. Y. 435. (Ins.) 223. 
 
 Haynes v. Budd. 17 Hun 477. (Mon. 
 Paid) 283. 
 
 Hays V. Hathom, 74 N. Y. 486 ; 10 Hun 
 511 ; (Prom. N.) 363, 365 ; (Cas. Cr.) 496. 
 
 Hays V. Hibbard, 3 Kedf. 28. (Advance- 
 ment) 6. 
 
 Hays V. Miller, 70 N. Y. 112. (App.) 
 27 ; (Q. of L. & F.) 368 ; (Keal Prop.) 384. 
 
 Hazard v. Caswell, 57 How. Pr. 1. 
 (Partners.) 338 ; (Tradem'lss) 423. 
 
 Hazard v. Fiske, 18 Hun 277. (Pr. & 
 Agt.) 355. 
 
 Hazeltine v. Moore, 21 Hun 355. 
 (Vend. & P.) 443. 
 
 Hazeltine v. Weld, 73 N. Y. 156. 
 (Wareh.) 445. 
 
 Hazewell v. Coursen, 45 Superior 22, 
 (Pr. & Agt.) 353 ; (Trial) 426 ; (Trover) 433. 
 
 Health Dept. of New York v. Knoll, 
 70 N. Y. 530 ; 4 Abb. N. Cas. 97. (N. Y.) 
 326 ; (Stat.) 414. 
 
 Health Dept. of New York y. Piriok- 
 ney, 7 Daly 260. (N. Y.) 326. 
 
 Heartt v. Livingston, 14 Hun 285. 
 (Wills) 451. 
 
 Heath v. Cole, 15 Hun 100. (Wills) 
 447. 
 
 Hebbard v. Haughian, 70 N. Y. 54. 
 (Att'y & CI.) 48 ; (Deeds) 118; (Depos.)125; 
 (Evid.) 154 ; (Vend. & P.) 443. 
 
 Hebrew Benev. Orphan Asylum, 
 Matter of, 70 N. Y. 476; 10 Hun 112. 
 (N. Y.)322; (Cas. Cr.) 496. 
 
 Hecht V. Levy, 20 Hun 53. (Arrest) 34, 
 35. 
 
 Heckmann v. Pinkney, 6 Abb. N. Cas. 
 371; 8 Daly 466. (Meoh. Lien) 279; (Stat.) 
 415 ; (Cas. Cr.) 497. 
 
 Heeg V. Licht, 8 Abb. N. Cas. 355 ; 16 
 Hun 257. (Negl.) 312 ; (Nuisance) 328 ; (Cas. 
 Cr.) 497. 
 
 Heermance v. Taylor, 14 Hun 149. 
 (Sales) 395. 
 
 Heermans v. Burt, 78 N. Y. 259. (Trusts) 
 435. 
 
 Hegeman v. Hegemau, - 8 Daly 1. 
 (Assign'ts) 40. 
 
 Heilbrun v. Hammond, 13 Hun 474. 
 (Mort.) 289. 
 
 Heilmann v. "Westchester Fire Ins. 
 Co., 75 N. Y. 7. (Ins.) 228. 
 
 Helm V. Davenport, 45 Superior 523. 
 (App.) 16; (Eq.)142. 
 
 Heim v. Metropolitan Life Ins. Co. , 
 7 Daly 536. (Ins.) 224. 
 
 Heiner v. Heuvelman, 45 Superior 88. 
 (Mast. & S.) 278. , , 
 
 Heishon v. Knickerbocker Life Ins. 
 Co., 77 N. Y. 278. (App.) 21 ; (Depos.) 126 ; 
 (Cas. Cr.) 497. 
 
 Heishon v. Knickerbocker Life Ins. 
 Co., 45 Superior 34. (Depos.) 126. 
 
 Hemmenway v. Mulock, 56 How. Pr. 
 38. (Mort.) 285. 
 
 Henderson v. New York Central B. 
 B. Co., 78 N. Y. 423 ; 17 Hun 344. (Injunc.) 
 208 ; (R. R. Co.) 371 ; (Cas. Cr.) 497. 
 
 Hendricks v. Sixth Ave. R. R. Co., 
 44 Superior 8. (Evid.) 152; (Mast. & S.) 
 277 ; (R. R. Co.) 381. 
 
 Hendrickson, Matter of, v. Dickson, 
 19 Hun 290. (Ex. & Ad.) 171. 
 
 Hennequin v. Butterfleld, 43 Superior 
 411 ; 76 N. Y. 598. (Partners.) 336 ; (Trial) 
 425 ; (Cas. Cr.) 497. 
 
574 
 
 CASES DIGESTED. 
 
 Hennequin v. Clews, 45 Superior 108. 
 <Arrest) 33. 
 
 Hennequin v. Clews, 77 N, Y. 427. 
 <Bank'cy) 53; (Defin.) 122; (Cas. Cr.) 497. 
 
 Hennessey v. Hennessey, 58 How. Pr. 
 504. (Witn.) 456. 
 
 Hennessy v. Connolly, 13 Hun 173. 
 (Arrest) 36. 
 
 Hennessy v. "Wheeler, 69 N. Y. 271. 
 (Injunc.) 209. 
 
 Henry v. Daley, 17 Hun 210. (Salea) 
 399. 
 
 Hensler v. Sefrin, 19 Hun 564. (Husb. 
 <&W.) 201. 
 
 Hepburn V. Archer, 20 Hun 535. (Discov.) 
 130. 
 
 Herbert v. Herbert, 57 How. Pr. 333. 
 (Mech. Lien) 280. 
 
 Hercules Mut. Life Assur. Soc. v. 
 Brinker, 77 N. Y. 435. (Evid.) 154 ; (Ins.) 
 233. 
 
 Hermance v. Supervisors of Ulster 
 Co., 71 N. Y. 481. (Defin.) 123; (Taxes) 420; 
 (Cas. Cr.) 497. 
 
 Hernandez v. Stilwall, 7 Daly 360. 
 (Guar.) 190. 
 
 Herrick v. Smith, 13 Hun 446. (Witn.) 
 459. 
 
 Herries v. Piatt, 21 Hun 132. (Manuf. 
 Co.) 275. 
 
 Herries v. Wesley, 13 Hun 492. (Manuf. 
 Co.) 275. 
 
 Herrington v. Robertson, 71 N. Y. 280. 
 (App.)23; (Husb. &W.) 199. 
 
 Herrman v. Adriatic Fire Ins. Co., 
 45 Supeiior 394. (Defin.) 121 ; (Ins.) 217. 
 
 Herrman v. Merchants' Ins. Co.,' 44 
 Superior 444. (Defin.) 125; (Ins.) 216. 
 
 Hersey V. Benedict, 15 Huu 282. (Evid.) 
 158; (Fraud) 183; (Keplev.) 393; (Sales) 
 399. 
 
 Hesse V. Briggs, 45Superior417. (Costs) 
 100 ; (Depos.) 127. 
 
 Hetzel V. Barber, 69 N. Y. 1 ; 6 Hun 
 534; (Deeds) 118; (Exec.) 163; (Land. & T.) 
 249, 251 ; (Powers) 348. 
 
 Hetzel V. Tannehill Silver Mining 
 Co., 4 Abb. N. Cas. 40. (Corp.) 95. 
 
 Hewitt V. Morris, 44 Superior 557. 
 {Witn.) 457. 
 
 Hewitt V. Northrup, 75 N. Y. 506; 9 
 Hun 543. (Bank'cy) 52, 55 ; (Jurisd.) 245. 
 
 Heydeoker v. Lombard, 7 Daly 19. 
 (Sales) 399. 
 
 Heyl V. Inman Steamship Co., 14 Hun 
 564. (Carriers) 71. 
 
 Hickey v. O'Connor, 45 Superior 614. 
 (Depos.) 126. 
 
 Hickler v. Leighton, 70 N. Y. 610. (Ser- 
 vices) 403. 
 
 Hickox V. "Weaver, 15 Hun 375. (Att'y 
 & CI.) 47. 
 
 Hicks V. Chaffee, 13 Hun 293. (Bridges) 
 67. 
 
 Hier v. Odell, 18 Hun 314. (Partners.) 
 338. 
 
 Higgins v. McAdam, 58 How. Pr. 442. 
 (Land. & T.) 253. 
 
 Higgins v. Murray, 73 N. Y. 262. (Con- 
 tracts) 87. 
 
 Higgins V. Phcsnix Mut. Life Ins. Co., 
 74 N. Y. 6 ; 10 Hun 459. (Ins.) 222. 
 
 Higham v. Gault, 15 Hun 383. (Witn.) 
 458. '^ 
 
 Highlands Chemical, &c., Co. v. Mat- 
 thews, 76 N. Y. 145 ; 43 Superior 39. (Con- 
 tracts) 89; (Dam.) 114; (Evid.) 154; (Cas. Cr.) 
 497. 
 
 Higinbotham v. Stoddard, 72 N. Y. 
 94. (Adv. Poss.) 7 ; (Deeds) 119. 
 
 Hill V. Alvord, 19 Hun 77. (Action) 5 ; 
 (App.) 18. 
 
 Hill V. Berry, 75 N. Y. 229. (Liq. Sell.) 
 266. 
 
 Hill V. Conkling, 7 Daly 397. (Manuf. 
 Co.) 275. 
 
 Hill V. Heermans, 17 Hun 470. (Witn.) 
 454. 
 
 Hill V. Miller, 76 N. Y. 32. (Contracts) 
 88 ; (Pr. & Agt.) 350, 353 ; (Sales) 395. * 
 
 Hill V. Nye, 17 Hun 457. (Descent) 128; 
 (Par. & Ch.)"331. 
 
 Hill V. Syracuse, &c., R. R. Co., 73 N. 
 Y. 351 ; 8 Hun 296. (Bills of La.) 63. 
 
 Hiller v. Burlington, &o., R. R. Co., 70 
 N. Y. 223. (Corp.) 98 ; (Process) -358. 
 
 Hillis V. Hillis, 16 Hun 76. (Devise) 
 129 ; (Leg ) 258. 
 
 Hilsen v. Libby, 44 Superior 12. (Fraud) 
 183 ; (Tradem'ks) 424. 
 
 Hilton V. Bender, 69 N. Y. 75 ; 2 Hun 1. 
 (Defin.) 124; (Descent) 128; (Evid.) 151; 
 (Mun. Corp.) 307 ; (Taxes) 419. 
 
 Hinckley v. Miles, 15 Hun 170. (Exec.) 
 165. 
 
 Hinman v. People, 13 Hun 266. (Trial) 
 432. 
 
 Hinman V. Ryder, 44 Superior 330. (Costs) 
 101. 
 
 Hiscock V. Harris, 74 N. Y. 108. (Arbitr.) 
 31, 32. 
 
 Hitchcock V. Baer, 17 Hun 604. (Amend. ) 
 10. 
 
 Hitchcock V. Linsley, 17 Hun 556. 
 (Parties) 332. 
 
 Hitchcock V. Peterson, 14 Hun 389. 
 .(Arrest) 34. 
 
CASES DIGESTED. 
 
 575 
 
 Hoag V. Parr, 13 Hun 95. (Vend. & V.) 
 442. 
 
 Hodge V. Hoppock, 75 N. Y. 491. (Gift) 
 186. 
 
 Hceffler v. "Westoott, 15 Hun 243. 
 <Mort.) 292. 
 
 Hoffman v. Burke, 21 Hun 580. (Mort.) 
 294. 
 
 HofiEinan v. Conner, 76 N. Y. 121 ; 13 
 Hun 541. (Exec.) 162 ; (Plead.) 346 ; (Trover) 
 434; (Cas. Cr.) 498. 
 
 Hofiinan v. New York Central, &c., 
 B. B. Co., 75 N. Y. 605 ; 13 Hun 589. (Q. 
 of L. & F.) 368 J (E. R. Co.) 376 ; (Cas. Cr.) 
 498. 
 
 Hoffman v. New York Central, &o., 
 B. B. Co., 44 Superior 1. (Evid.)151; (Mast 
 AS.) 277; (RE. Co.) 374. 
 
 Hogan, Matter of, 55 How. Pr. 458. 
 <Just. P.) 247 ; (Process) 359. 
 
 Holbrook v. Baker, 16 Hun 176. (Plead.) 
 347. 
 
 Holcomb V. Holcomb, 20 Hun 156. 
 <Witn.) 455. 
 
 Holden v. New York and Brie Bank, 
 72 N. Y 286. (App.) 13 ; (Inlerest) 236; (Pr. 
 ■& Agt.) 354 ; (Trusts) 438. 
 
 Hollembaek v. More, 44 Superior 107. 
 <Trusts) 438. 
 
 HoUey v. Van Dolsen, 65 How. Pr. 333. 
 <Mech. Lien) 279. 
 
 Holllday v. Lewis, 14 Hun 478. (Prom. 
 2^.) 360. 
 
 Hollister v. Burritt, 14 Hun 291. (Ex. 
 &Ad.) 169. 
 
 Hollister v. Hopkins, 13 Hun 210. (Bills 
 of Exch.) 62. 
 
 Holmes v. Drew, 16 Hun 491. (Ins.) 
 218, 233. 
 
 Holmes v. McDowell, 15 Hun 585 ; 76 
 :Kr. Y. 596. (Partners.) 338 ; (Cas. Cr.) 498. 
 
 Holmes v., Bichmond, 19 Hun 634. 
 (Exec.) 163. 
 
 Holtz V. Schmidt, 44 Superior 327. 
 ■{New Tr.) 314. 
 
 Homoeopathic Mut. Life Ins. Co. v. 
 Sixbury, 17 Hun 424. (Mort.) 293. 
 
 Hood V. Hood, 19 Hun 300. (Acct'g) 3; 
 (Ex. & Ad.) 167, 168, 176. 
 
 Hook V. Pratt, 78 N. Y. 371 ; 14 Hun 396. 
 (Bastardy) 61; (Bills of Exch.) 62; (Cas. Cr.) 
 498. 
 
 Hooley v. Gieve, 7 Abb. N. Cas. 271. 
 <Exec.)162; (Eeceivers) 385. 
 
 Hopkins v. Van Valkenburgh, 16 Hun 
 -3. (Ex. & Ad.) 170. ' ^ 
 
 Horn V. Perry, 14 Hun 409. (Pr. & S ) 356. 
 
 Horn V. Pullman, 72 N. Y. 269 ; 10 Hun 
 471. (App.) 30 ; (Wills) 447, 453. 
 
 Horsfall, Matter of, 8 Daly 190; 59 
 How. Pr. 265 ; 5 Abb. 2Sr. Cas. 289. (Insolv.) 
 213. 
 
 Horsfalls, Matter of, 77 N. Y. 514. 
 (App.) 22. 
 
 Horton v. Panoher, 14 Hun 172. (Just. 
 P.) 246. 
 
 Horton v. Howe, 13 Hun 57. (Con- 
 tracts) 91. 
 
 Horton v. La Due, 59 How. Pr. 454. 
 (Judgm.) 239. 
 
 Horton v. Town of Thompson, 71 N. 
 Y. 513; 7 Hun 452. (Mun. Corp.) 302,303; 
 (Towns) 423; (Cas. Cr.) 498. 
 
 Houghton, Matter of, 20 Hun 395. 
 (Mun. Corp.) 300. 
 
 Hounslea v. Hand, 21 Hun 251. (Wills) 
 450. 
 
 House V. Agate, 3 Eedf. 307. (Leg.) 
 260. 
 
 Hovey V. McDonald, 45 Superior 606. 
 (Judgm't) 240; (Jurisd.) 255; (Lien) 261. 
 
 Howard v. Dougherty, 3 Eedf. 535. 
 (Ex. & Ad.) 168. 
 
 Howard v. Heinerschit, 16 Hun 177. 
 (Ex. & Ad.) 169. 
 
 Howard v. McDonough, 77 -N. Y. 592 ; 
 8 Daly 365. (Witn.) 462 ; (Cas. Cr.) 499. 
 
 Howard v. Park, 59 How. Pr. 344. (In- 
 junc.) 210. 
 
 How^e Machine Co. v. Avery, 16 Hun 
 555. (Prom. N.) 364. 
 
 Howe Machine Co. v. Farrington, 16 
 Hun 591. (Pr. & S.) 356 ; (Cas. Cr.) 499. 
 
 How^e Machine Co. v. Haupt, 7 Daly 
 198. (Just. P.) 246. 
 
 Howe Machine Co. v. Pettibone, 74 
 N. Y 68 ; 12 Hun 657. (App.) 21 ; (Process) 
 358 ; (Cas. Cr.) 499. 
 
 Howe Machine Co. v. Bobinson, 7 
 Daly 399. (Corp.) 95. 
 
 Howell V. Earp, 21 Hun 393. (Joint 
 Stock Co.) 237. 
 
 Howell V. Van Sicklen, 4 Abb. N. Cas. 
 1 ; 8 Hun 524. (Costs) 101 ; (Cas. Cr.) 499. 
 
 Howland v. Howland, 20 Hun 472. 
 (Husb. & W.) 202. 
 
 Hoyt V. Hoyt, 17 Hun 192. (Leg.) 259. 
 
 Hoyt V. Mead, 13 Hun 327. (Prom. N.) 
 360. 
 
 Hoyt V. Quicksilver Mining Co., 17 
 Hun 169. (Cas. Cr.) 499. 
 
 Hubbell V. Blakeslee, 71 N. Y. 63 ; 8 
 Hun 603. (Mort.) 297. 
 
 Hubbell V. Great Western Ins. Co., 
 74 N. Y. 246 ; 10 Hun 167. (Ins.) 227 ; (Sal- 
 vage) 400. 
 
 Hudson V. Swan, 7 Abb. N. Cas. 324. 
 (App.) 16 ; (Eeplev.) 392. 
 
576 
 
 CASES DIGESTED. 
 
 Hudson River Bridge Co. v. Patter- 
 son, 74 N. Y. 365; 11 Hun 525. (Taxes) 
 417. 
 
 Huebner v. Roosevelt, 7 Daly 111. 
 (New Tr.) 315; (Witn.) 458. 
 
 Hughes V. Chicago, &c., Ry. Co., 45 
 Superior 114. (App.) 16; (Plead.) 347. 
 
 Hughes V. Vermont Copper Mining 
 Co., 72 N. Y. 207. (Corp.) 93. 
 
 Huguenot Nat. Bank v. Studwell, 74 
 N.Y. 621. (Manuf. Co.) 276. 
 
 Hulbert v. Niohol, 20 Hun 454. (Lim. of 
 Ac.) 265. 
 
 Hume V. Mayor, &o., of Ne'w York, 
 74N. Y. 264; 57 How. Pr. 359; 9 Hun 674. 
 (Mun. Corp.) 306 ; (N. Y.) 328 ; (Nuisance) 
 329 ; (Q. of L. & F.) 368. 
 
 Humphrey v. People, 18 Hun 893. 
 (Embez.) 140. 
 
 Humphreys v. Hurtt, 20 Hun 398. 
 (Eq.) 144. 
 
 Hun V. Cary, 59 How. Pr. 426 ; Id. 439. 
 (Corp.) 97 ; (Parties) 332. 
 
 Hungerford v. Cartwright, 13 Hun 
 647. (Fraud. Conv.) 184. 
 
 Hunt V. Chiiroh, 73 N. Y. 615. (App.) 
 16. 
 
 Hunt V. Hunt, 72 N. Y. 217 ; 9 Hun 622. 
 (Defln.) 124; (Divorce) 131, 132; (Domicile) 
 135; (Judgm't) 242, 244; (Juried.) 245. 
 
 Hunt V. Lawless, 7 Abb. N. Cas. 113. 
 (Evid.) 158. 
 
 Hunt V. People, 76 N. Y. 89. (Error) 
 145. 
 
 Hunter, Matter of, 3 Eedf. 185. (Wills) 
 452. 
 
 Hunter v. Wetsell, 17 Hun 135. (Con- 
 tracts) 88. 
 
 Hurd V. Cook, 75 N. Y. 454. (Contracts) 
 89 ; (Sales) 397 ; (Trover) 434. 
 
 Hurd V. Green, 17 Hun 327. (Bonds) 
 65; (Cas. Cr.) 500. 
 
 Hurd V. Kelly, 78 N. Y. 588. (Bonds) 
 65. 
 
 Htird V. "Warren, 16 Hun 622. (Costs) 
 101. 
 
 Hurlbut V. Durant, 21 Hun 481. (Leg.) 
 260. 
 
 Hurricane Patent Lantern Co. v. 
 Miller, 56 How. Pr. 234. (Tradem'ks) 423. 
 
 Hurst v. Harper, 14 Hun 280. (Mort.) 
 294; (Cas. Cr.) 500. 
 
 Husted V. Ingraham, 75 N. Y. 251. 
 (Sales) 396. 
 
 Husted V. Mathes, 77 N. Y. 388. 
 Mech. Lien) 279. 
 
 Hyde, Matter of, 15 Hun 477 ; 76 N. Y. 
 629. (Cas. Cr.) 500. 
 
 Hyde v. Tuffts, 45 Superior 56. (Assign.) 
 38; (Bank'cy)52. 
 
 Hydorn v. Cushman, 16 Hun '107. 
 (Evid.) 157. 
 
 Hynes v. McDermott, 7 Abb. _N. Cas. 
 98 ; 22 Alb. L. J. 367. (App.) 19 ; (Evid.) 151, 
 153, 158 ; (Husb. & W.) 197 ; (Witn.) 464 ; (Cas. 
 Cr.) 500. 
 
 Hjmes V. McDermott, 7 Daly 513 ; 55 
 How. Pr. 259. (Depos.) 127; (Cas. Cr.) 500. 
 
 Igglesden, Matter of, 3 Eedf. 375. (Ex. 
 & Ad.) 172. 
 
 Imhorst v. Bvu-ke, 7 Daly 54. (Trover) 
 434. 
 
 India Rubber Co. v. Rubber Comb, 
 «fcc., Co., 45 Superior 258. (Tradem'ks) 424. 
 
 Indig V. Nat. City Bank, 16 Hun 200 
 (Banks) 58 ; (Cas. Cr.) 500. 
 
 Inman v. McNeil, 57 How. Pr. 151. (Con- 
 stable; 82. 
 
 Ireland v. Ireland, 18 Hun 362. (Ex. & 
 Ad.) 171. 
 
 Irving V. Rankine, 13 Hun 147. (Leg.) 
 259; (Cas. Cr.) 500. 
 
 Irvin? Nat. Bank v. Alley, 79 N. Y. 
 536. (Prom. N.) 360. > 
 
 Irving Nat. Bank v. Keman, 3 Eedf. 1. 
 (Motions & O.) 298. 
 
 Irwin V. Judd, 20 Hun 562. (Amend.) 
 10. 
 
 Isaacs V. New York Plaster "Works,. 
 43 Superior 397 ; 4 Abb. N. Cas. 4. (Costs) 
 100. 
 
 Iselin, Matter of, 16 Hun 349. (Cas. Cr.) 
 500. 
 
 Isidor, Matter of, 59 How. Pr. 98. (As- 
 sign'ts) 40. 
 
 Ives V. Holden, 14 Hun 402. (Attach.) 45. 
 
CASES DIGESTED. 
 
 577 
 
 J. 
 
 Jacksou V. Atwater, 19 Hun 627. (Leg.) 
 259. 
 
 Jackson y. HoUaday, 3 Kedf. 379. (Ex. 
 &Ad.) 172. 
 
 Jackson v. McKnight, 17 Han 3. (Mon. 
 Eec'd).283. 
 
 Jacobs V. Hog an, 15 Hun 197. (Attach.) 
 44. 
 1 Jaffrayv. Brown, 17 Hun 575. (App.)ll. 
 
 Jaffray v. Brown, 74 N. Y. 393. (Prom. 
 N.) 360. 
 
 Jaggar v. Lalance, &c., Manuf. Co., 
 8 Daly 251 (Eeplev.) 393. 
 
 Jagger v. Ounningham, 8 Daly 511. 
 (Amend.) 9. 
 
 Jagger Iron Co. v. Walker, 76 N. Y. 
 521; 43 Superior 275. (Dr. & Cr.) 115; 
 (Manuf. Co.) 274; (Cas. Cr.) 501. 
 
 James v. Beasley, 14 Hun 520. (Wills) 
 451. 
 
 James v. Burchell, 7 Daly 531. (Cov'te) 
 108. 
 
 James v. Cowing, 17 Hun 256. (E. E. 
 Co.) 869. 
 
 Janinski v. Heidelberg, 21 Hun 439. 
 (Husb. & W.) 202. 
 
 Jaquiss v. Hagner, 72 N. Y. 605. (Att'y) 
 & CI.) 47. 
 
 Jarvis v. Driggs, 69 -N. Y. 143. (App.) 
 15; (Except's) 161; (Land. & T.) 252. 
 
 Jenkins v. Fahey, 73 N. Y. 355; 11 
 Hun 351. (Defln.)124; (Infants) 206; (Parti- 
 tion) 332, 333; (Process) 358 ; (Vend. & P.) 442. 
 
 Jenkins v. Smitb, 57 How. Pr. 171. 
 (Witn.) 453. 
 
 Jennings v. Conboy, 73 N. Y. 230 ; 10 
 Hun 77. (Powers) 348; (Wills) 450; (Cas. 
 Cr.) 501. 
 
 Jennings v. Davidson, 13 Hun 393. 
 (Mai. Pros.) 268. 
 
 Jessup V. Carnegie, 44 Superior 260. 
 (Contracts) 91 ; (Corp.) 92; (Stat.) 414. 
 
 Jessup V. Steurer, 75 K Y. 613. (Pr. & 
 Agt.) 354. 
 
 Jesup V. Carnegie, 45 Superior 310. 
 (App.) 18. 
 
 Jetter, Matter of, 14 Hun 93; 55 How. 
 Pr. 67. (Spec. Pro.) 411 ; (Cas. Cr.) 501. 
 
 Jetter, Matter of, 78 N. Y. 601. (Defin.) 
 123; (N.Y.)323. 
 
 Jex V. Jacobs, 7 Abb. N. Cas. 452. 
 (Abate.) 1; (Judgm't) 243; (Plead.) 346. 
 
 John Hancock Mut. Life Ins. Co. v. 
 Nichols, 55 How. Pr. 393. (Usury) 440. 
 
 Johnson v. Adams Tobacco Co., 14 
 Hun 89. { Jurisd.) 245. 
 
 Johnson v. Chappell, 7 Daly 43. (Depos.) 
 125. 
 
 Johnson v. City of Rochester, 13 Hun' 
 285. (Injunc.) 209. 
 
 Johnson v. City of Troy, 19 Hun 204. 
 (Mun. Corp.) 310. 
 
 Johnson v. Comstook, 14 Hun 238. 
 (Process) 359. 
 
 Johnson v. Dickinson, 78 N. Y. 42. 
 (Bank'cy) 52. 
 
 Johnson v. Elwood, 15 Hun 14. (Abate.) 2. 
 
 Johnson v. McConnell, 15 Hun 298. 
 (Assault) 36. 
 
 Johnson v. Myer, 17 Hun 232. (Bail) 50. 
 
 Johnson v. Nat. Bank of Q-lovers- 
 ville, 74 K Y. 329. (Banks) 58. 
 
 Johnson v. Parmely, 14 Hun 398. (Estop.) 
 148. 
 
 Johnson V. Reilly, 59 How. Pr. 354. 
 (Sheriffi) 405. 
 
 Johnston v. Peugnet, 17 Hun 540. 
 (Husb. & W.) 200. 
 
 Johnstown Cheese Manuf. Co. v. 
 Veghte, 69 N. Y. 16. (Eeal Prop.) 383. 
 
 Jones, Matter of, 3 Eedf. 257. (Ex. & 
 Ad.) 176. 
 
 Jones, Matter of, 18 Hun 327. (Mun 
 Corp.) 300. 
 
 Jones V. Anderson, 71 N. Y. 599. (App.) 
 28. 
 
 Jones V. Benedict, 17 Hun 128. (Dr. & 
 Ci>.) 116. 
 
 Jones V. City of TJtica, 16 Hun 441. 
 (Mun. Corp.) 310. 
 
 Jones V. Ennis, 18 Hun 452. (Evid.) 156 ; 
 (Interest) 236 ; (Eeceipts) 384. 
 
 Jones V. Graham,'77 N. Y. 628. (Chat. 
 M'tge) 77. 
 
 Jones V. Jones, 18 Hun 438. (Eyid.) 155 ; 
 (Plead.) 345 ; (Trial) 427. 
 
 Jones V. Kent, 45 Superior 66. (Spec. 
 Perf.)412; (Cas. Cr.) 501. 
 
 Jones V. Ludlum, 74 N. Y. 61. (App.) 
 22; (Plead.) 344. 
 
 Jones V. People, 20 Hun 545. (Crim. L.) 
 110; (Cas. Cr.) 501. 
 
 Jones V. People, 79 N. Y .45. (Rem. of C.) 
 139. 
 
 Jones V. Seligman, 16 Hun 230. (E. E. 
 Co.) 371, 372 ; (Cas. Cr.) 501. 
 
 Jones V. Smith, 73 N. Y. 205. (Deeds) 
 119 ; (Eject.) 139. 
 
 Jones V. Wellwood, 71 N. Y. 208 ; 9 Han 
 166. (Arbitr.) 31, 32. 
 
 Jordan v. Nat. Shoe and Leather 
 Bank, 74 N. Y. 467 ; 12 Hun 512. (App.) 13 ; 
 
 37 
 
578 
 
 CASES DIGESTED. 
 
 (Banks) 56; (Defiu.) 123; (Estop.) 147; (Cas. 
 Or.) 501. 
 
 Jordan v. Nat. Shoe and. Leather 
 Bank, 45 Superior 423. (Att'y & CI.) 46 ; 
 (Costs) 99. 
 
 Jordan v. Poillon, 77 N. Y. 518. (Parti- 
 tion) 333 ; (Cas. Or.) 502. 
 
 Jordan v. Van Spps, 19 Hun 626 ; 58 
 How. Pr. 338. (Dower) 135 ; (Judgm't) 241 ; 
 (Partition) 333. 
 
 " Jordan v. Volkening, 14 Hun 118. (App.) 
 31. 
 
 Jordan v. Volkenning, 72 N. Y. 300. 
 (Injunc.) 210 ; (Judgm't) 242. 
 
 Josuez V. Connor, 7 Daly 448. (Evid.) 
 152; (Sheriffs) 405. 
 
 Josuez V. Conner, 75 N. Y. 156. (App.) 
 21. 
 
 Joslyn y. Dow, 19 Hun 494. (Mun. 
 Corp.) 302." 
 
 Joynson. V. Kichard, 44 Superior 16. 
 (Pr. & Agt.) 352. 
 
 Jurgensou v. Hamilton, 5 Abb. N. Cas. 
 419. (Exec.) 165. 
 
 K. 
 
 Kaiser v. Kaiser, 16 Hun 602. (Divorce) 
 131. 
 
 Kale V. Elliott, 18 Hun 198. (Witn.) 
 454. 
 
 Kappel V. Chaari Zedek Congrega- 
 tion, 19 Hun 364. (Evid.) 154. 
 V Kathan v. Rockwell, 16 Hun 90. (Ten. 
 in C.) 421. 
 
 Kavanagh v. "Wilson, 70 N. Y. 177. 
 (App.) 13 ; (Cas. Cr.) 502. 
 
 Keeney v. Home Ins. Co., 71 N. Y. 396. 
 (Ins.) 215, 218, 220. 
 
 Keep V. Keep, 7 Abb. N. Cas. 240. (Husb. 
 & W.) 197. 
 
 Keep V. Keep, 58 How. Pr. 139. (Kef.) 
 387. 
 
 Keep V. Keep, 16 Hun 141. (App.) 11. 
 
 Keep V. Keep, 17 Hun 152. (Arbitr.) 31, 
 32. 
 
 Kellam v. McKin'stry, 69 N. Y. 264 ; 6 
 Hun 381. (Contracts) 90. 
 
 Kelley v. Case, 18 Hun 472. (Dower) 
 135; (Husb. & W.) 201. 
 
 Kellogg V. New York Central, &o., R. 
 R. Co., 79 N. Y. 72. (E. K. Co.) 379. 
 
 Kellogg V. Norman, 74 N. Y. 586. (Con- 
 tracts) 89. 
 
 Kellum V. Durfoo, 78 N. Y. 484. (App.) 
 22. 
 
 KeUum v. Knechdt, 17 Hun 583. (Shipp.) 
 406. 
 
 Kelly V. Christal, 16 Hun 342. (Attach.) 
 44; (Courts) 104. 
 
 Kelly V. Oountrymau, 15 Hun 97. (At- 
 tach.) 45. 
 
 Kelly V. Devlin, 68 How. Pr. 487. (N. Y.) 
 317. 
 
 Kelly V. Lehigh Valley Coal Co., 8 
 Daly 291. (Pr. & Agt.) 354. 
 
 Kelly V. New York, &c., Ry. Co., 19 
 
 Hun 363. (Costs) 99 ; (Cas. Cr.) 502. 
 
 Kelly V. Sheehan, 7 6 N. Y. 325. (App.) 12. 
 
 KeUy V. Sheehy, 8 Daly 29. (App.) 15 ; 
 (Trial) 430. 
 
 Kelso V. Lorillard, 8 Daly 300. (Wills) 
 451. 
 
 Kelstadt v. Reilly, 55 How. Pr. 373. 
 (Assigu'ts) 40. 
 
 Kemp V. Knickerbocker Ice Co., 69 
 N. Y.45. (Contracts) 88 ; (Defin.) 122; (Cas. 
 Cr.) 503. 
 
 Kendall v. Niebuhr, 45 Superior 542 ; 
 68 How. Pr. 156. (Mort.) 286, 297 ; (Notice) 
 328. 
 
 Kennedy v. City of Troy, 77 N. Y. 493 ; 
 14 Hun 308. (Cert.) 74 ; (Cas. Cr.) 503. 
 
 Kennedy v. Kennedy, 73 N. Y. 369. 
 (Defin.) 121 ; (Divorce) 133, 134. 
 
 Kennedy v. Mayor, &c., of New 
 York, 73 N. Y. 365. (Mun. Corp.) 306. 
 
 Kennedy v. Mayor, &c., of New- 
 York, 79 N. Y. 361. (N. Y.) 327. 
 
 Kennedy v. McGuire, 16 Hun 70. 
 (Cred. S.) 110. 
 
 Kent V. Quicksilver Mining Co., 78 
 N. Y. 169 ; 17 Hun 169 ; 12 Hun 53. (Corp.) 
 92, 93, 95 ; (Defin.) 120 ; (Eq.) 143 ; (Estop.) 
 149 ; (Gas. Cr.) 503. 
 
 Kenyon v. New York Central, &o., 
 R. R. Co., 76 N. Y. 607. (App.) 27. 
 
 Kemochan v. Bland, 69 How.. Pr. 97. 
 (Judgm't) 238. 
 
 Kerr v. Dougherty, 59 How. Pr. 44. 
 (Wills) 461. 
 
 Kerr v. Dougherty, 17 Hun 341. (Inter- 
 est) 236 ; (Cas. Cr.) 503. 
 
 Kerr v. Dougherty,79 N. Y. 327. (Relig. 
 Soe.)390; (Wills) 451. 
 
CASES DIGESTED. 
 
 j79 
 
 Kerr v. Kerr, 59 How. Pr. 255. (Divorce) 
 134. 
 
 Keteltas v. Keteltas, 72 N. Y. 312. 
 {Wills) 449, 451. 
 
 Keyser v. Kelly, 43 Superior 32. (Ex. & 
 Ad.) 170, 175. 
 
 Kidd V. Phillips, 45 Superior 633. 
 (Judgm't) 239. 
 
 Kidder v. Horrobin, 72 N. Y. 159; Id. 
 €00. (Bank'cy) 52, 53; (Bills of Exch.) 63 ; 
 (Compromise) 82; (Courts) 104; (Defin.)123; 
 <Cas. Cr.) 503. 
 
 Kiersted v. Orange, &c., R. R. Co., 
 «9 N. Y. 343 ; 55 How. Pr. 51. (Land. & T.) 
 248, 252 ; (Leases) 255. 
 
 Kiff V. Youmans, 20 Hun 123. (Dam.) 
 112 ; (New Tr.) 315 ; (Witn.) 458. 
 
 Kilmer v. Bradley, 45 Superior 585. 
 (App.) 12. 
 
 Kilmer v. Hathom, 78 N. Y. 228. (App.) 
 17. 
 
 Kilmer v. Hobart, 58 How. Pr. 452. 
 (Eec.) 385. 
 
 Kilmer v. O'Brien, 13 Hun 224. (App.) 
 29. 
 
 Kilmer v. Smith, 77 N. Y. 226 ; 43 Supe- 
 rior 461. (Eq.) 144; (Cas. Cr.) 503. 
 
 Kilner v. O'Brien, 14 Hun 414. (Mort.) 
 292. 
 
 Kincaid v. Archibald, 73 N. Y. 189. 
 <Evid.) 155 ; (Lim. of Ac.) 264. 
 
 King V. Duryea, 76 N. Y. 626. (Mort.) 
 293. 
 
 King V. G]?eenway, 71 N. Y. 413. 
 (Defln.)120; (Sliipp.) 408. 
 
 King V, New York Central, &c., R. 
 R. Co., 72 N. Y. 607. (App.) 11 ; (Evid.) 150 ; 
 (Witn.) 461, 463. 
 
 Kingv. Sarria, 69 N. Y. 24; 7 Hun 167. 
 (Contracts) 89; (Domicile) 135; (Partners.) 
 336, 339. 
 
 Kinghom v. Wright, 45 Superior 615. 
 (Fraud. Conv.) 185. 
 
 Kingsbury v. Garden, 45 Superior 224. 
 (Mai. Pros.) 268 ; (Q. of L. & F.) 367 ; (Trial) 
 430. 
 
 Kingsbury v. Kirwan, 77 N. Y. 612 ; 
 43 Superior 451. (Contracts) 89; (Defin.) 121. 
 
 Kings County Elevated R. R. Co., 
 Matter of, 18 Hun 378. (E. K. Co.) 382. 
 
 Kings County Elevated R. R. Co., 
 Matter of, 20 Hun 217. (E. E. Co.) 382, 383. 
 
 Kings County Elevated R. R. Co., 
 Matter of, 78 N. Y. 383. (App.) 20.- 
 
 Kings County Insane Asylum, Mat- 
 ter of, 7 Abb. N. Cas. 425. (Off.) 330. 
 
 Kingsland v, Stokes, 58 How. Pr. 1. 
 <Ex. & Ad.) 175. 
 
 Kingsley v. City of Brooklyn, 78 N. 
 Y.200; 7 Abb. N. Cas. 28; 5 Id. 1. (B'klyn) 
 68 ; (Contracts) 90; (Stat.) 414; (Cas. Cr.) 503. 
 
 Kinsey v. Legget, 71 N. Y. 387. (Sales) 
 399. 
 
 Kinzey v. Kinzey, 7 Daly 460. (Divorce) 
 133. 
 
 Kipp v. Delamater, 58 How. Pr, 183. 
 (Action) 6. 
 
 Kircheis v. Scheig, 3 Eedf. 277. (Ex. & 
 Ad.) 167. 
 
 Kirkpatrick v. New York Central, 
 &c., R. R. Co., 79 N. Y. 240. (Q. of L. & 
 F.) 368; (E. E. Co.) 380; (Witn.) 459. 
 
 Kittle V. Kittle, 8 Daly 72. (Divorce) 
 134; (Injunc.) 207. 
 
 Kittredge v. Kellogg Bridge Co., 8 
 Abb. N. Cas. 168. (Manuf. Co.) 275. 1 
 
 Kline v. Corey, 18 Hun 624. (Plead.) 
 346. 
 
 Klock V. Beekman, 18 Hun 502. (Evid.) 
 157. 
 
 Knapp, Matter of, 59 How. Pr. 367. 
 (Att'y & CI.) 47 ; (Ex. & Ad.) 168. 
 
 Knapp V. Anderson, 71 N. Y. 466. 
 (App.) 30 ; (Bail) 49. 
 
 Knapp V. Roche, 44 Superior 247. (Banks) 
 60. 
 
 Knickerbocker Life Ins. Co. v. Nel- 
 son, 78 N. Y. 137; 7 Abb. N. Cas. 170; 13 
 Hun 321. (Auction) 49 ; (Mort.) 292 ; (Cas. 
 Cr.) 504. 
 
 Knickerbocker Life Ins. Co. v. Pat- 
 terson, 75 N. Y. 589 ; 43 Superior 547. As- 
 sign' ts) 41; (Land. & T.) 251; (Cas. Cr.) 504. 
 
 Knolls V. Bamhart, 71 N. Y. 474;- 9 
 Hun 443. (Deeds) 118 ; (Dower) 135 ; (Parti- 
 tion) 333 ; (Ten. in C.) 42L 
 
 Knowles v. Cuddeback, 19 Hun 590. 
 (Evid.) 156; (Land. & T.) 250. 
 
 Knox V. Hexter, 71 N. Y. 461. (Land. 
 & T.) 251. 
 
 Kobbe V. Price, 14 Hun 55. (Evid.) 159, 
 160; (Witn.) 458. 
 
 Koch V. Purcell, 45 Superior 162. (App.) 
 16 ; (Mort.) 293, 294. 
 
 Koch V. Village of Edgewater, 14 
 Hun 544. (Mun. Corp.) 305. 
 
 Koch V. Village of Edgewater, 18 
 Hun 407. (Mun. Corp.) 308. 
 
 Koehler v. Adler, 78 N. Y. 287. (Trial) 
 428, 429 ; (Witn.) 456. 
 
 Kohlbrenner v. Elsheimer, 19 Hun 88. 
 (Just. P.) 246. 
 
 Kohler v. Matlage, 72 N. Y. 259; 42 
 Superior 247. (Gov'ts) 109 ; (Partners.) 339. 
 
 Kohn V. Burtnett, 59 How. Pr. 410. 
 (Exec.) 164. 
 
580 
 
 CASES DIGESTED. 
 
 Kohn V. Koehler, 21 Hun 466. (Lot- 
 teries) 267. 
 
 Kopelowich v. Kersburg, 13 Hun 178. 
 (Arrest) 35. 
 
 Koster V. Noonan, 8 Daly 231. (Except's) 
 161 ; (Negl.) 312; (Witn.) 464. 
 
 Kxanich v. Reynolds, 43 SupeFior 576. 
 (Eef.) 387. 
 
 Kranser v. Buckel, 17 Hun 463. (Min- 
 ing Co.) 282. 
 
 Kraushaar v. Meyer, 72 N. Y. 602. 
 (App.) 23 ; (Witn.) 454. 
 
 Krekeler v. Thaule, 7 Daly 152. (Husb. 
 & W.) 201. 
 
 Krekeler v. Thaule, 73 N. Y. 608. (App.) 
 27. 
 
 Kromer v. Helm, 75 N. Y. 574 ; 44 Supe- 
 rior 237. (Dr. & Cr.) 116 ; (Defin.) 120 ; (Cas. 
 Cr.) 504. 
 
 Kuhnemundt v. Haar, 58 How. Pr. 464. 
 (Partners.) 337. 
 
 L. 
 
 La Bau v. Vanderbilt, 3 Eedf. 384. 
 (Estop.) 149 ; (Evid.) 157 ; (Wills) 452. 
 
 Lacustrine Fertilizer Co. v. Lake 
 Guano, &c., Co., 16 Hun 484; 56 How. Pr. 
 370. (App.) 17. 
 
 Lacustrine Fertilizer Co. v. Lake 
 Guanoi &;c., Co., 19 Hun 47. (Kxt.) 180. 
 
 Laford v. Deems, 8 Abb. N. Cas. 344. 
 (Soc. & Assoc.) 411. 
 
 Lake v. Dover Manuf. Co., 7 Daly 161. 
 (Mon. Rec'd) 283. 
 
 Lalor V. Dunning, 56 How. Pr. 209. 
 (Eem of C.) 391. 
 
 Lambert V. People, 76N.Y. 220; 6 Abb. 
 N. Cas. 181; 14 Hun 512. (Defin.) 124; (Evid.) 
 157, 158; (Peg.) 341 ; (Cas. Cr.) 504. 
 
 Lambert v. Staten Island R. R. Co., 
 70 N. Y. 104. (Defln.) 125; (Navig.) 311; 
 (Negl.) 312 ; (Q. of L. & F.) 368; (Shipp.) 408, 
 409 ; (Cas. Cr.) 504. 
 
 Lamberton v. Van Voorbis, 15 Hun 
 336. (Judgm't) 242. 
 
 Lammond v. Volans, 14 Hun 263. (Pen- 
 alties) 340. 
 
 Lamson v. Main, 43 Superior 24. (App.) 
 15. 
 
 Landers v. Frank Street Church, 15 
 Hun 340. (Kelig. Soc.) 391. 
 
 Landers v. Watertown Fire Ins. Co., 
 19 Hun 174. (Ins.) 215, 217. 
 
 Lane v. Brown, 20 Hun 382. (Wills) 
 451. 
 
 Lane v. Nickerson, 17 Hun 148. (Mort.) 
 289. 
 
 Langdon v. Mayor, &c., of New 
 York, 6 Abb. N. Cas. 314. (Deeds) 120. 
 
 Lange v. Benedict, 73 N. Y. 12. (Courts) 
 104; (Defin.) 122; (False Imp.) 178 ; (Cas.Cr.) 
 504. 
 
 Lanigan v. Mayor, &o., of New 
 York, 70 N. Y. 454. "(N. Y.) 324. 
 
 Lanigan v. New York Gas Light Co., 
 
 71iir. Y. 29. (Gas Co.) 185. 
 
 Lansing v. Holdridge, 58 How. Pr. 449. 
 (Husb. & W.) 198. 
 
 Lasher v. North Western Nat. Ins. 
 Co., 18 Hun 98 ; 57 How. Pr. 222 ; 55 Id. 324. 
 (Estop.) 149; (Ins.) 215, 220, 228. 
 
 Latham v. Richards, 15 Hun 129. (En- 
 junc.) 207. 
 
 Lattimer v. Livermore, 72 N. Y. 174. 
 (Costs) 101; (Cov'ts) 109; (Easein.) 137; 
 (Evid.) 154; (Injunc.) 209. 
 
 Laughran v. Smith, 75 N. Y. 205 ; 11 
 Hun 311. (App.) 14; (Contracts) 88; (Land. 
 & T.) 248. 
 
 Lawrence v. Conklin, 17 Hun 228. 
 (Deeds) 118. 
 
 Lawrence v. Elliott, 3 Eedf. 235. (Evid.) 
 153. 
 
 Lawrence v. Farley, 73 N. Y. 187. 
 (App.) 24. 
 
 - Lawrence v. Gallagher, 73 N. Y. 613 j 
 42 Superior 309. (Contracts) 89; (Evid.) 
 155. 
 
 Lawrence v. Lindsey, 70 N. Y. 666. 
 (Costs) 100. 
 
 Lawrence v. Palmer, 71 N. Y. 607. 
 (Bound.) 66. ; 
 
 Lawson v. Bachman, 44 Superior 396.. 
 (Contracts) 89. 
 
 Lawson v. Barron, 18 Hun 414 (Mort.). 
 291. 
 
 Lea V. Fabbri, 45 Superior 361. (Trusts> 
 435; (Vend. & P.) 443. 
 
 Leahy, Matter of, 8 Daly 124. (Insolv.) 
 212. • 
 
 Learn v. Currier, 15 Hun 184. (Costs) 
 99; (Cas.Cr.) 505. 
 
 La Blanc, Matter of, 14 Hun 8 ; 4 Abb. 
 N. Cas. 221; 75 N. Y. 598. (Corp.) 93; (Cas" 
 Cr.) 505. 
 
CASES DIGESTED. 
 
 581 
 
 liee v. Qargulio, 45 Superior 595. (Pr. & 
 Agt.) 355. 
 
 Lee V. Pittsburgh Coal^ &o., Co., 56 
 How. Pr. 373. (Corp.) 96. 
 
 Legrand v. Manhattan Mercantile 
 Assoc, 44 Superior 562. (Evid.) 159. 
 
 Leichtweiss v. Treskow, 21 Hun 487. 
 {Infants) 206. 
 
 Leonard v. City of Brooklyn, 71 N. Y. 
 498. (Mech. Lien) 279. 
 
 Leonard v. Collins, 70 N. Y. 90. (Mast. 
 & S.) 277. 
 
 Leonard v. Davenport, 58 How. Pr. 384. 
 <Costs) 98; (Leg.) 258; (Wills) 451. 
 
 Leonard v. Leonard, 56 How. Pr. 97. 
 {Taxes) 418. 
 
 Leonard v. New York Central, &o., 
 E. R. Co., 44 Superior 575. (Evid.) 159. 
 
 Leslie, Matter of, 3 Eedf. 280. (Leg.) 
 259. 
 
 Lesser v. People, 73 N. Y. 78. (False 
 Pret.) 179. 
 
 Lester, Matter of, 21 Hun 130. (N. Y.) 
 S20, 323. 
 
 Leutze v. Butterfleld, 7 Daly 24. (Eem. 
 of C.) 391, 392. 
 
 Levy V. Kaim, 55 How. Pr. 136. (Arrest) 
 35. 
 
 Levy V. Loeb, 5 Abb. N. Cas. 157 ; 44 Su- 
 perior 291 ; 75 N. Y. 609. (Depos.) 126 ; 
 (Prac.) 348; (Stat.) 414; (Cas. Cr.) 505. 
 
 Levy V. People, 19 Hun 383. (Arson) 36; 
 <Cas. Cr.) 505. 
 
 Lewis, Matter of, 59 How. Pr. 251. (As- 
 sign'ts) 41 . 
 
 Lewis V. Davis, 8 Daly 185. (Costs) 102 ; 
 {Courts) 106 ; (Judgm't) 241. 
 
 Lewis V. Seabury, 74 N. Y. 409. (Con- 
 tracts) 87 ; (Evid.) 156. 
 
 Lewis V. Watson, '3 Kedf. 43. (Ex. & 
 Ad.) 176. 
 
 Lewishon v. Drew, 15 Hun 467. (Cred. 
 a.) 109. 
 
 Lexow V. Julian, 14 Hun 152. (Fraud) 
 183. 
 
 Libbey v. Strasburger, 14 Hun 120. 
 <Bank'cy) 54 ; (Cas. Cr.) 505. 
 
 Lima, Matter of, 77 N. Y. 170. (N. Y.) 
 321. 
 
 Lind V. SuUestadt, 21 Hun 364. (Ser- 
 vices) 402. 
 
 Lintz.v. Howard, 18 Hun 424. (Prom. 
 IS.) 361. 
 
 Littauer v. Goldman, 72 N. Y. 506 ; 9 
 Hun 231. (Mon. Eeo'd) 284 ; (Prom. N.) 361. 
 
 Little V. Banks, 20 Hun 143. (State) 
 413. 
 
 Little V. Rawson, 8 Abb. N. Cas. 253. 
 <Husb. & W.) 199. 
 
 Littman, Matter of, 72 N. Y. 612. (Mun. 
 Corp.) 300. 
 
 Livingston v. Gordon, 7 Abb. N. Cas. 
 53. (Leg.) 260. 
 
 Livingston v. New York Central, &c., 
 R. B. Co., 76 N. Y. 631. (E. E. Co.) 373, 
 380. 
 
 Livingston V/ Sulzer, 19 Hun 375. (Em. ' 
 Dom.) 141 ; (Fixt.) 181 ; (Leases) 256. 
 
 Locke V. Pilley, 14 Hun 139. (Arbitr.) 
 32 ; (Partners.) 337. 
 
 Lockman, Matter of, 4 Abb. N. Cas. 173. 
 (Costs) 102 ; (Ex. & Ad.) 173. 
 
 Lockman v. Ellis, 58 How. Pr. 100. 
 (Costs) 101. 
 
 Lockport, &c., R. R. Co., Matter of, 15 
 Hun 265 ; 77 N. Y. 557 ; Id. 632. (Cas. Cr.) 506. 
 
 Lockport, &o.i R. R. Co., Matter of, 
 19 Hun 38. (E. E. Co.) 373. 
 
 Lockwood V. Fawpett, 17 Hun 146. 
 (Mort.) 295. 
 
 Lockwood V. Lockwood, 3 Eedf. 330. 
 (Le^.) 260. 
 
 Lockwood V. McGuire, 57 How. Pr. 266. 
 (Jud. Sale) 245. 
 
 Lockwood V. Underwood, 16 Hun 592. 
 (Witn.) 461. 
 
 Loder v. Hatfield, 71 N. Y. 92; 4 Hun 
 36. (Leg.) 258, 260. 
 
 Loeb V. Hellman, 45 Superior 336. (Pr. 
 & Agt.) 351, 352. 
 
 Long V. Bussell, 45 Superior 434. (Mon. 
 Eec'dj 283. 
 
 Longendyck v. Anderson, 59 How. Pr. 
 1. (Easem.) 138. 
 
 Long Island Bre-wing Co. v. Pitzpat- 
 rick, 18 Hun 389. (Bailm.) 50. 
 
 Long Island City y. Long Island R. 
 R. Co., 79 N. Y. 561. (Mun. Corp.) 309. 
 
 Long Island R. R. Co. v. Verree, 69 
 N. Y. 486. (Contracts) 90. 
 
 Looff V. Lawton, 14 Hun 588. (Atfy & 
 CI.) 47. 
 
 Loomis V. Balheimer, 5 Abb. N. Cas. 
 263. (Mort.) 287. 
 
 Loomis V. People, 19 Hun 601. (Crim. 
 L.) Ill ; (Evid.) 158 ; (Indict.) 206. 
 
 Loop V. Gould, 17 Hun 585. (Contempt) 
 85. 
 
 Lord, Matter of, 78 N. Y. 109 ; 21 Hun 
 555. (N. Y.) 323. 
 
 Lord V. Lindsey, 18 Hun 484. (Husb. & 
 W.) 203. 
 
 Losee v. BuUard, 79 N. Y. 404. (Manuf. 
 Co.) 273. 
 
 Lossee v. Ellis, 13 Hun 635. (Husb. & 
 W.) 201 ; (Mort.) 295. 
 
 Louisiana Nat. Bank v. Schuchardt, 
 15 Hun 405. ( Bills of Exch.) 62. 
 
582 
 
 CASES DIGESTED. 
 
 Low V. Harmony, 72 N. Y. 408. (Wills) 
 450. 
 
 Lowery v. Brooklyn City, &c., E. R. 
 Co., 76 N. Y. 28 ; 4 Abb. N. Gas. 32. (B. E. 
 Co.) 381. 
 
 Lucas V. McEnerna, 19 Hnn 14. (Taxes) 
 419. 
 
 Luce V. Dunham, 69 N. Y. 36 ; 7 Hun 
 202. (Wills) 449, 451 ; (Oas. Cr.) 506. 
 
 Luddingtou v. Bell, 45 Superior 513. 
 (Costs) 99. 
 
 Ludewig v. Pariser, 4 Abb. N. Cass. 246. 
 (Depos.) 127 ; (Cas. Cr.) 506. 
 
 Ludington's Petition, 5 Abb. N. Cas. 
 307. (Insolv.) 213. 
 
 Ludington v. Bell, 77 N. Y. 138; 43 
 Superior 557. (Partners.) 338; (Cas. Cr.) 
 506. 
 
 Ludlam v. Otis, 15 Hun 410. (Wills) 447, 
 449, 451. 
 
 Ludwig V. Kipp, 20 Hun 265. (Chat. 
 Mort.) 76. 
 
 Luers v. Brunges, 56 How. Pr. 282. (Ex. 
 & Ad.) 168. 
 
 Luhrs V. Eimer, 15 Hun 399. (Desce'nt) 
 128; (Cas. Cr.) 506. 
 
 Lunt V. Lunt, 8 Abb. N. Cas. 76. (Part- 
 ners.) 336. 
 
 Lunt V. Lunt, 8 Abb. N. Cas. 83. (Ex. & 
 Ad.) 169. 
 
 Lynch v. Mayor, &c., of New York, 
 76 N. Y. 60. (Mun. Corp.) 304. 
 
 Lynch v. McKenna, 58 How. Pr. 42> 
 (Pr. & Agt.) 355. 
 
 Lynch v. McNally, 73 N. Y. 347 ; 7 Daly 
 126. (Animals) 10 ; (Cas. Cr.) 507. 
 
 Lynch v. Rinaldo, 58 How. Pr. 133. 
 (Vend. & P.) 444. 
 
 Lynch v. St. John, 8 Daly 142; 56 How. 
 Pr. 144. (App.) 28 ; (Interpl.) 237. 
 
 Lyon V. Blakesly, 19 Hun 299. (Attach.) 
 43. 
 
 Lyons v. Murat, 4 Abb. N. Gas. 13. (Costs) 
 
 M. 
 
 Maas V. O'BHen, 14 Hun 95. (Bank'cy) 
 51. 
 
 Macauley v. Porter, 71 N. Y. 173. (Mort.) 
 285. 
 
 Mackay v. Lewis, 73 N. Y. 382. (App.) 
 28. 
 
 McAdams, Matter of, 19 Hun 292. (Ins. 
 Per.) 212. 
 
 McAlpine v. Powell, 70 N. Y. 126. 
 (Land. & T.) 249. 
 
 McArthur v. Globe Mut. Life Ins. Co., 
 14 Hun 348. (Ins.) 233. 
 
 McBratney v. Rome, &o., R. R. Co., 17 
 Hun 385. (Atty. & CI.) 48. 
 
 MoBride v. Lewisohn, 17 Hun 524. 
 (Mort.) 293. 
 
 McCabe v. Dutchess Oo. Mut. Ins. 
 Co., 14 Hun 599. (Ins.) 218, 233." 
 
 McCabe v. Farm Buildings Fire Ins. 
 Co., 14 Hun 602. ' (Ins.) 230.! 
 
 McCabe v. McCabe, 18 Hun 153. (Par- 
 tition) 333. 
 
 MoCahill v. Hamilton, 20 Hun 388, 
 (Assign'ts) 42. 
 
 McCallum v. Barnard, 58 How. Pr. 169. 
 (Bail) 49; (Impris.) 204. 
 
 McCarthy v. Lake Shore, &c., Ry. 
 Co., 76 N. Y. 592. (Q. of L. & F.) 367 ; (Trial) 
 427. 
 
 . McOaffchy v. McCarthy, 13 Hun 579-. 
 (Motions & O.) 299. 
 
 McCarthy v. McCarthy, 16 Hun 546 ; 
 55 How. Pr. 418. (Process) 359. 
 
 McCarthy v. "Whale n, 19 Hun 503. 
 (Highw.) 193. 
 
 McCarty V. Delaware, &c., Canal Co. 
 17 Hun 74. (E. E. Co.) 379. 
 
 MoOoU V. Boiler, 14 Hua 73. (Process) 
 358. 
 
 MoCoU V. Western Union Telegraph. 
 Co., 44, Superior 487; 7 Abb. N. Gas. 151; 57 
 How. Pr. 154, note. (Dam.) 112 ; (Teleg. Co.) 
 421. 
 
 McOombs V. Allen, 18 Hun 190. (Bank'cy) 
 53; (Cas. Cr.) 507. 
 
 McConnell v. Sherwood, 19 Hun 519 j 
 
 58 How. Pr. 453. (Assign'ts) 40, 41 ; (EstQp.) 
 149. 
 
 -McKosker v. Long Island R. R. [Co.^ 
 
 59 How. Pr. 258. (Mast. & R.) 278. 
 McCosker v. Long Island R. R. Co.,. 
 
 21 Hnn 500. (E. E. Co.) 380. 
 
 McCrea v. McCrea, 58 How. Pr. 220. 
 (Divorce) 134. 
 
 MoCue V. G-arvey, 14 Hun 562; (Ex. & 
 Ad.) 173. 
 
 McCuUough V. Hoffman, 73 N. Y. 615 
 (App.) 12. 
 
CASES DIGESTED. 
 
 583 
 
 McCullough ▼. Thompson, 45 Superior 
 449. (Pr. & Agt.) 354. 
 
 McDermett v. City of Kingston, 19 
 Hun 198 ; 6 Abb. N. Cas. 246 ; 57 How. Pr. 196. 
 (Mun. Corp.) 305. 
 
 MoDermott v. Lyooming Fire Ins. 
 Co., 44 Superior 221. (Ins.) 219, 220. 
 
 McDonald v. Kountz, 58 How. Pr. 152. 
 (Action) 5. 
 
 McDonald v. McDonald, 14 Hun 496. 
 (App.) 16. 
 
 McDonald v. Mallory, 77 N. Y. 546 ; 7 
 Abb. N. Cas. 84; 44 Superior 80. (Horn.) 195 ; 
 (State) 412; (Cas. Cr.) 507. 
 
 McBlvey v. Lewis, 76 N. Y. 373 ; 44 Su- 
 perior 561. (Partners.) 335. 
 
 McBncroe v. Decker, 58 How. Pr. 250. 
 (Partners.) 338; (Plead.) 344; {Cas. Cr.) 
 507. 
 
 McBteere v. Little, 8 Daly 167 ; 7 Abb. 
 N. Cas. 374 ; 56 How. Pr. 427. (App.) 28, 29 ; 
 (Services) 403. 
 
 McBwen v. Brewster, 17 Hun 223. 
 (Exec.) 165 ; (Cas. Cr.) 507. 
 
 McEwen v. Brewster, 19 Hun 387. 
 (Assign.) 38. 
 
 McFall V. People, 18 Hun 382. (Courts) 
 107; (Trial) 432. 
 
 McFarren v. St. John, 14 Hun 387. 
 (Costs) 99 ; (Cas. Cr.) 507. 
 
 McGhaffln v. City of Oohoes, 74 N. Y.' 
 387 ; 11 Hun 531. (Mun. Corp.) 308. 
 
 McGritabon v. Schlessinger, 18 Hun 225. 
 (Sales) 400. 
 
 McGrinley v. United States Life Ins. 
 Co., 77 N. Y. 495. (Excepts.) 161. 
 
 McGinley v. United States Life Ins. 
 Co., 8 Daly 390. (Evid.) 157 ; (Inj.) 231.; 
 (Q..of L. & F.) 367 ; (Cas. Cr.) 507. 
 
 MoGoldriok, Matter of, v. "Wilson, 18 
 Hnn 443. (Evid.) 159. 
 
 McGowan v. Newman, 4 Abb. N. Cas. 
 80. (Mort.) 293. 
 
 McGown, Matter of, 18 Hun 434. (Mun. 
 Corp.) 301. 
 
 McG-rath v. Van Stavoren, 22 Alb. L. 
 J. 271 ; 8 Daly 454. (Le^.) 258 ; (Wills) 451. 
 
 MoG-uflan V. Dinsmore, 4 Abb. N. Cas. 
 241. (Depos.) 126, 127. 
 
 Mclntyre v. Oarriere, 17 Hun 64. (App.) 
 30. 
 
 Mclntyre v. Ogden, 17 Hun 604. (Plead.) 
 346. 
 
 McKeage v. Hanover Fire Ins. Co., 
 16 Hun 249. (Pixt.) 180. 
 
 MoKelvey v. Lewis, 44 Superior 561. 
 (Judgm ) 243 ; (Cas. Cr.) 508. 
 
 MoKenna v. New York Central, &c., 
 E. B. Co., 8 Daly 304. (E. E. Co.) 377. 
 
 MoKenna v. People, 18 Hun 580. (Horn.) 
 195 ; (Cas. Cr.) 508. 
 
 McKeon v. Hagan, 18 Hun 65. (Husb. 
 & W.) 200. 
 
 MoKeon v. Kearney, 57 How. Pr. 349 ; 
 355, note. (Leg.) 260; (Soo. & Assoc.) 411; 
 (Partition) 332; (Wills) 451 ; (Cas. Cr.) 508. 
 
 MoKinney v. McKinney, 8 Daly ;368. 
 (Contracts) 87 ; (Cas. Cr.) 508. 
 
 McKinstry v. Shaler, 17 Hun 136. (Just. 
 P.) 247. 
 
 McLanahan v. City of Syracuse, 18 
 Hun 259. (Taxes) 418. 
 
 McLaughlin v. Maher, 17 Hun 215. 
 (Wills) 451. 
 
 McLaughlin v. Mayor, &c., of New 
 York, 58 How. Pr. 105; 8 Daly 474. 
 (Abate.) 2. 
 
 McLean v. Cole, 13 Hun 300. (App.) 
 15. 
 
 McLean v. Freeman, 70 N. Y. 81; 9 
 Hun 246. (Costs) 98; (Devise) 129; (Wills) 
 449. 
 
 McLean v. Hoyt, 56 How. Pr. 351. (Costs) 
 102. 
 
 McLean v. Stewart, 14 Hun 472. 
 (Judgm't) 243. 
 
 McMahon v. Second Ave. R. R. Co., 
 75 N. Y. 231; 11 Hun 347. (Defin.) 122; 
 (Mun. Corp.) 305, 307; (R. R. Co.) 380. 
 
 McMahon v. WalsS, 43 Superior 36. 
 (Mast. &S.) 278 ; (New Tr.) 315. 
 
 McMann v. Autenreith, 17 Hun 163. 
 (Land. & T.) 251. 
 
 McManus v. Gavin, 77 N. Y. 36 ; 8 Daly 
 371, (Witn.) 464. 
 
 McMaster v. Kohner, 44 Superior 253. 
 (Land. & T.) 250. 
 
 McMichael v. Kilmer, 76 N. Y. 36 ; 12 
 Hun 336. (Eq.) 143; (Fraud) 182; (Motions 
 & O.) 298; (Plead.) 343. 
 
 McMillan v. Cronin, 75 N. Y. 474 ; 57 
 How. Pr. 53 ; 13 Hun 68 ; (App.) 21 ; (Assault) 
 36; (Easem.) 138. 
 
 McMonagle v. Conkey, 14 Hun 326. 
 (Depos.) 125. 
 
 McMurray v. Hutcheson, 59 How. Pr. 
 210. (Mecb. Lien) 281. 
 
 McMurray v. Noyes, 72 IST. Y. 523. 
 (Guar.) 188, 189. 
 
 McNair v. National Life Ins. Co., 13 
 Hun 144. (Ins.) 231. 
 
 MoNaughton v. Chave, 5 Abb. N. Cas. 
 225. (Courts) 106; (Judgmt.) 239; (Par. &. 
 Ch.) 331 ; (Trial) 430. 
 
 MoNulty V. Htord, 72 JST. Y. 518. (Ex. & 
 Ad.) 170. 
 
 MoNulty V. Hurd, 18 Hun 1. (Pr. & S.) 
 357. 
 
584 
 
 CASES DIGESTED. 
 
 MoPherson v. Cox, 21 Hun 493. (Shipp.) 
 408. 
 
 McVeany v. Mayor, &o., of New 
 York, 59 How. Pr. 106. (Quo Warr.) 368. 
 
 McVey V. Cantrell, 70 N. Y. 295 ; 6 Hun 
 528. (Husb. & W.) 199 ; (Cas. Cr.) 508. 
 
 Madan v. Covert, 45 Superior 245. (Q. 
 of L. & F.) 368 ; (Wareh.) 446. 
 
 Madan v. Sherrard, 73 N. Y. 329 ; 42 
 Superior 353. (Ex. & Ad.) 177; (Cas. Cr.) 
 508. 
 
 Madge v. Puig, 71- N. Y. 608; 12 Hun 
 15. (Arrest) 36. 
 
 Madison Ave. Baptist Church v. 
 Baptist Church in Oliver Street, 73 N. 
 Y. 82; 41 Superior 369. (Mort.) 286; (Eel. 
 Soc.)390; (Cas. Cr.) 508. 
 
 Madison Ave. Baptist Church v. 
 Baptist Church in Oliver Street, 43 Su- 
 perior 151. (Eject.) 139. 
 
 Maginn v. Lawrence, 45 Superior 235. 
 (Partner3.)'339.' 
 
 Magnin v. Dinsmore, 70 N. Y. 410; 62 
 N.Y. 35; 42 Superior 16; (Carriers) 71, 73, 74. 
 
 Mahan, Matter of, 20 Hun 301. (State) 
 413 ; (Cas. Cr.) 508. 
 
 Mabar v. Grand Trunk By. Co., 19 Hun 
 32. (K. B. Co.) 379. 
 
 Mahler v. Schloss, 7 Daly 291. (Sales) 
 395. 
 
 Mahoney v. Decker, 18 Hun 365. (New 
 Tr.) 315. 
 
 Maier v. Canavan, 8 Daly 272. (Dr. & 
 Cr.) 115 ; (Partners.) 338. 
 
 Mairs v. Freeman, 3 Bedf. 181. (Wills) 
 448, 453. 
 
 Malloy V. Vanderbilt, 4 Abb. N. Cas. 
 127. (Cred. S.) 109 ; (Lim. of Ac.) 262. 
 
 Mandel v. Mower, 55 How. Pr. 242. (Pr. 
 & Agt.) 352. 
 
 Manhattan Life Ins. Co. v. Grlover, 
 14 Hun 153. (Husb. & W.) 202. 
 
 Manke v. People, 74 N. Y. 415. (Error) 
 144, 145. 
 
 Manke v. People, 17 Hun 410 ; 78 N. Y. 
 611. (Trial) 431; (Witn.) 463; (Cas. Cr.) 
 509. 
 
 Manley v. Rassiga, 13 Hun 288. (Ee- 
 ceivers) 385. 
 
 Mann v. People, 15 Hun 155. (Defln.) 
 122 ; (Cas. Cr.) 509. 
 
 Manning v. -Evans, 19 Hun 500. (Exec.) 
 165. 
 
 Manning v. Hogan, 78 N. Y. 615. (Q. 
 ofL. &P.)u368. 
 
 Manning v, Keenan. 73 N. Y. 45. (Coro- 
 ners) 91 ; (Pr. & Agt.) 353 ; (Eeplev.) 393. 
 
 Mansbaoh v. Metopolitan Life Ins. 
 Co., 17 Hun 340. (Ins.) 229. 
 
 Manson v. Manson, 8 Abb. N. Cas. 123. 
 (Devise) 129. 
 
 Ma.ples V. Maokey, 15 Hun 533. (Pro- 
 cess) 359. 
 
 Marcus v. Thornton, 44 Superior 411. 
 (Evid.) 155; (Sales) 399. 
 
 Marie v. Garrison, 45 Superior 157. 
 (Plead.) 343 ; (Tender) 422. 
 
 Marine Bank of Buffalo v. Fiske,' 71 
 N. Y. 353 ; 9 Hun '363. (Estop.) 147 ; (Trover) 
 433 ; (Cas. Cr.) 509, 
 
 Mark v. Hudson River Bridge Co., 56 
 How. Pr. 108. (Negl.) 311 ; (Trial) 429. 
 
 Markell v. Benson, 55 How. Pr. 360. 
 (Witn.) 454. 
 
 Marlett v. Marlett, 14 Hun 313. (Wills) 
 452. 
 
 Marquand, Matter of, 57 How. Pr. 477. 
 (Assign'ts) 41. 
 
 Marsh, Matter of, 71 N. Y. 315 ; 10 Hun 
 49. (Drains) 136. 
 
 Marsh v. Benedict, 14 Hun 317. ( Judgm.) 
 242. 
 
 Marsh v. Brown, 18 Hun 319. (AdTaince) 
 6; (Witn.) 454. 
 
 Marsh v. House, 13 Hun 126. (Usury) 
 441. 
 
 Marsh v. Woolsey, 14 Hun 1. (Costs) 
 102 ; (Depos.) 127. 
 
 Marshall v. Davies, 78 N. Y. 414; 58 
 How. Pr. 231; 16 Hun 606. (App.) 20; 
 (Mort.) 286, 287, 295 ; (Witn.) 462; (Cas. Cr.) 
 509. 
 
 Marshall v. Hitchcock, 3 Eedf. 461. 
 (Ex. & Ad.) 171. 
 
 Marshall v. Lippman, 16 Hun 110. 
 (App.) 14 ; (Assign.) 38. 
 
 Marston v. Gould, 69 N.Y. 220. (Acct'g) 
 3; (Trial) 426. 
 
 Marsullo V. Billotto, 55 How. Pr. 375. 
 (Costs) 99; (Mai. Pros.) 268. 
 
 Martin ;v. Punk, 75 N. Y. 134. (Gift) 
 186 ; (Trusts) 435. 
 
 Martin v. Johnson, SJDaly 541. (Amend.) 
 9 ; (App.) 29. 
 
 Martin v. "Windsor Hotel Co., 70 N. Y. 
 101. (App.) 16, 25. 
 
 Marvin v. Marvin, 75 N. Y. 240. 
 (Judgm.) 239 ; (Time) 422. 
 
 Marvin v. Marvin, 78 N. Y. 541. (Spec. 
 Pro.) 411. 
 
 Marvin v. Universal Life Ins. Co., 16 
 Hun 494. (Ins.) 223. 
 
 Marx, Matter of, 5 Abb. N. Cas. 224. 
 (Ex. & Ad.) 173; (Par. & Ch.) 331. 
 
 Mason v. Decker, 72 N. Y. 595. (Sales) 
 395, 398. 
 
 Mason v. Libbey, 19 Hun 119. (Evid.), 
 155 ; (Husb. & W.) 201 ; (Trusts) 436. 
 
CASES DIGESTED. 
 
 585 
 
 Mason & Hamlin Organ Oo. v. Pugs- 
 ley, 19 Hun 282. (Depos.) 125. 
 
 Hasten v. Budington, 18 Hun 105. (Ex. 
 A Ad.) 171. 
 
 Hasten v. "Webb, 19 Hun 172. (Exec.) 
 162. 
 
 Mather v. Hannaur, 55 How. Pr. 1. (Ar- 
 rest) 35. 
 
 Mathez v. Neidig, 72 N. Y. 100. (Manuf. 
 €o.) 274. 
 
 Matson v. Farm Buildings Ins. Co., 
 73 N. Y. 310 ; 9 Hun 415. (Ins.) 216 ; (Trial) 
 429. 
 
 Matteson v. New York Central, &c., 
 R. B. Co., 76 N. Y. 381. (Carriers) 73 ; (E. 
 E. Co.) 375. 
 
 Matthews v. Arnold, 14 Hun 376. (Just. 
 P.) 247. 
 
 Matthews v. Coe, 70 N. Y. 239. (Usury) 
 440. 
 
 Matthews v. Delaware and Hudson 
 Canal Co., 20 Hun 427. (Abate.) 2; (Dam.) 
 112; (Deeds) 120 ; (Water C.) 446. 
 
 Matthews v. Sheehan, 69 N. Y. 585. 
 (Assign.) 38 ; (Chat. M'tge) 76 ; (Mort.) 285. 
 
 Mattlage v. Poole, 15 Hun 556. (Pr. & 
 Agt.) 352. 
 
 Mattoon V. Monroe, 21 Hun 74. (Land. 
 A T.) 251. 
 
 Mauger v. Dick, 55 How. Pr. 132. (In- 
 juno.) 208. 
 
 Maule V. Crawford, 14 Hun 193. (Prom. 
 N.) 363 ; (Usury) 440. 
 
 Maxwell v. Audinwood, 15 Hun 111. 
 (Pr. & Agt.) 355. 
 
 May V. Schuyler, 43 Superior 95. (Pr. & 
 Agt.) 351. 
 
 May V. Strauss, 8 Abb. N. Cas. 274. (New 
 Tr.) 316. 
 
 Mayer v. McCue, 59 How. Pr. 78. (Ex. 
 <St Ad.) 168, 169; (Powers) 348. 
 
 Mayer v. Mode, 14 Hun 155. (Checks) 78. 
 
 Mayer v. Noll, 56 How. Pr. 214. (Depos.) 
 127. 
 
 Mayor, &c., of New York v. Broad- 
 way, &o., B. B. Co., 17 Hun 242. (R. K. 
 Co.) 380. ' 
 
 Mayor, &c., of New York v. Hart, 16 
 Bun 380. (Defin.) 120; (Mun. Corp.) 308; 
 (N. Y.) 317. 
 
 Mayor, &c., of New York v. James, 
 17 Hun 588. (Plead.) 346. 
 
 Mayor, &c., of New York v. Kent, 21 
 Hun 483. (N. Y.) 323. 
 
 Mayor, &c., of New York v. North 
 Shore Staten Island Ferry Co., 55 How. 
 164. (CI. on T.) 80 ; (Eject.) 138. 
 
 Mayor, &c., of New York v. Byan, 
 7 Daly 436. (Marshals) 276. 
 
 Mayor, &c., of New York v. tTnion 
 Perry Co., 55 How. Pr. 138. (CI. on T.) 80 ; 
 (Eject.) 138; (Eq.) 143; (Mun. Corp.) 307. 
 
 Meacham v. Collignon, 7 Daly 402. 
 (Fraud) 183 ; (Sales) 399. 
 
 Mead, Matter of, 74 N. Y. 216; 13 Hun 
 349. (App.) 19; (B'klyn) 69; (Mun. Corp.) 
 299 ; (Cas. Cr.) 510. 
 
 Mechanics', &o., Nat. Bank v. Mayor, 
 &c., of New York, 58 How. Pr. 207. (N. 
 Y.) 317. 
 
 Medbury v. Bochester Prear Stone 
 Co., 19 Hun 498. (Manuf. Co.J 276; (Cas.'Cr.) 
 510. 
 
 Meeker v. Wright, 76 N. Y. 262 ; 7 Abb. 
 N. Cas. 299 ; 11 Hun 533. (Husb. & W.) 201. 
 
 Mehan v. Syracuse, &c., B. B. Co., 
 73 N. Y. 585. (E. E. Co.) 379 ; (Cas. Cr.) 510. 
 
 Meiggs V. Meiggs, 15 Hun 453. (Pr. & 
 Agt.) 354 ; (Trusts) 434. 
 
 Meigs V. Binaldo, 8 Daly 295. (Mort.) 
 293. 
 
 Meiners v. Steinway, 44 Superior 369. 
 (Witn.) 463. 
 
 Mellen v. Hutchins, 8 Abb. N. Cas. 228. 
 (Just. P.) 246. 
 
 Mellen v. Hutchins, 58 How. Pr. 349. 
 (Costs) 100. 
 
 Melvain v. Tomes, 14 Hun 31. (Con- 
 tracts) 86. 
 
 Menard v. Stevens, 44 Superi6r 515. 
 (App.) 13,14; (Dam.) 113. 
 
 Merceron v. Powler, 8 Daly 536. (App.) 
 28. 
 
 Merchants' Bank v. Freeman, 15 Hun 
 359. (Dr. & Cr.) 116 ; (Usury) 441. 
 
 Merchants' Bank of Canada v. Gris- 
 wold, 72 N. Y. 472. - (Evid.) 153 ; (Pr. & 
 Agt.) 351. 
 
 Merchants' Bank of Canada v. Liv- 
 ingston, 17 Hun 321. 79N. Y.618. (Bailm.) 
 51 ; (Dr. & Cr.) 116 ; (Cas. Cr.) 510. 
 
 Merchants' Bank of Canada v. Liv- 
 ingston, 74 N. Y. 223. (Corp.) 92 ; (Pr. & 
 Agt.) 354. 
 
 Merchants' Bank of Canada v. Union 
 B. R. and Transp. Co., 69 N. Y. 373. (Bills 
 ofLa.) 63,64. 
 
 Merchants' Exchange Nat. Bank v. 
 Waitzfelder, 14 Hun 47. (Parties) 332. 
 
 Merchants' Loan, &o., Co. v. Bank of 
 the Metropolis, 7 Daly 137. (Banks) 57. 
 
 Merchants' Nat. Bank of Whitehall 
 V. Hall, 18 Hun 176. (Guar.) 189. 
 
 Merkee v. City of Bochester, 13 Hun 
 157. (Action) 5, 6; tMun. Corp.) 309. 
 
 Merrill v. Agricultural Ins. Co., 73 N. 
 Y. 452 ; 10 Hun 428. (Defin.) 125 ; (Ins.) 218 ; 
 (Cas. Cr.) 511. ' 
 
586 
 
 CASES DIGESTED. 
 
 Merrill v. Calkins, 74 N. Y. 1 ; 10 Hun 
 495. (Injuno.) 207. 
 
 Merrill v. Thomas, 7 Daly 393. (Pr. & 
 Agt.) 356. 
 
 Merritt v. Campbell, 79 N. Y. 625. 
 (Witn.) 461. 
 
 Merritt v. Cole, 14 Hun 324. (Pay't) 
 340; (Trial) 428. 
 
 Merritt v. Village of Portchester, 71 
 N. Y. 309. (Mun. Corp.) 300, 309; (Cas. Cr.) 
 511. 
 
 Messmore .v. Havilenbeek, 15 Hun 494. 
 (Husb. & W.) 200. 
 
 Methodist Episcopal Chiirch at Har- 
 lem V. Mayor, &c., of New York, 55 
 How. Pr. 57. (K Y.)320. 
 
 Metraz v. Pearsall, 5 Abb. N. Cas. 90. 
 (Plead.) 344. 
 
 Metzger v. Attica, &c., R. R. Co., 79 
 N. Y. 171. (Mun. Corp.) 303. 
 
 Meuoci V. Raudnitz, 20 Hun 343. (Ar- 
 rest) 34. 
 
 Meyer v. Knickerbocker Life Ins. 
 Co., 73 N. Y. 516. (Contracts) 90; (Ins.) 
 229. 
 
 Meyer v. Lathrop, 73 N. Y. 315. (App.) 
 14; (Evid.) 155; (Plead.) 346. 
 
 Meyer v. 'Whitaker, 5 Abb. IT. Cas. 172. 
 (Assign.) 38. 
 
 Meyer's Will, 6 Abb. N. Cas. 438; 57 
 How. Pr. 203. (Wills) 449. 
 
 Meyers, Matter of, 57 How. Pr. 203. 
 (Devise) 128. 
 
 Meyers v. Bennett, 7 Daly 471. (Mech. 
 Lien) 279. 
 
 Mickles v. Dillaye, 15 Hun 296. (Mort.) 
 290, 297. 
 
 Miesell v. G-lobe Mut. Life Ins. Co., 
 76N. Y. 115. (Ins.) 224. 
 
 Miles V. Loomis, 75 N. Y. 288 ; 10 Hun 
 372. (App.) 13 ; (Witn.) 463, 464 ; (Cas. Cr.) 
 511. 
 
 Milk V. Rich, 15 Hun 178. (Guar.) 187; 
 (Cas. Cr.) 511. 
 
 Millard v. Missouri, &c., R. R. Co., 20 
 Hun 191. (Judgm.) 241. 
 
 Miller v. Hall, 70 N. Y. 250. (Exec.) 166. 
 
 MiUer v. Hooper, 19 Hun 394. (Exec.) 
 165. 
 
 Miller v. Kent, 59 How. Pr. 321. (App.) 
 14 ; (Depos.) 126, 127. 
 
 Miller v. Lindsay, 19 Hun 207. (Mort.) 
 297. 
 
 Miller v. Long Island R. R. Co., 71 N. 
 Y. 380; 9 Hun 194. (Adv. Poss.) 7 ; (Tresp.) 
 424 ; (Witn.) 460. 
 
 Miller v. Mayor, &c., of New York, 
 76 N. Y. 151. (N. Y.) 327 
 
 Miller v. Miller, 18 Hun 507. (Defin.) 122 - 
 (Descent) 128. 
 
 Miller v. Montgomery, 78 N. Y. 282.. 
 (App.) 27 ; (Witn.) 455 ; (Cas. Cr.) 511. 
 
 Miller v. O'Kain, 13 Hun 594. (Bamk'cy) 52. 
 
 Miller v. Oswego, &c., Ins. Co., 18 Hutv 
 525. (Ins.) 217. 
 
 Miller v. People, 21 Hun 443. (Larceny) 
 254. 
 
 Miller v. Sheldon, 15 Hun 220. (App.) 
 11; (Cas. Cr.)5n. 
 
 MUler V. "Winchell, 70 N. Y. 437. (Con- 
 tracts) 86 ; (Mort.) 298. 
 
 MiUigan v. Robinson, 58 How. Pr. 380^ 
 (Costs) 99 ; (Cas. Cr.) 511. 
 
 Mills V. Hicks, 44 Superior 527. (Corp.) 
 94 ; (Lim. of Ac.) 263. 
 
 Mills V. Rodewald, 13 Hun 439. (Arrest) 
 35 ; (Bail) 49. 
 
 Mills V. Watson, 45 Superior 591. (App.) 
 16 ; (Costs) 101. 
 
 Miniok v. City of Troy, 19 Hun 253. 
 (Husb. & W.) 203 ; (Mun. Corp.) 310 ; (New 
 Tr.) 315; (Trial) 426. 
 
 Misland v. Boynton, 14 Hun 625 ; 79 JT. 
 Y.-630. (Witn.) 453, 458 ; (Cas. Cr.) 512. 
 
 Mitchell V. Carter, 14 Hun 448. (Trial). 
 430. 
 
 Mitchell V. Cornell, 44 Superior 401. 
 (Dam.) 113. 
 
 Mitchell V. Mitchell, 16 Hun 97 ; 77 N. 
 Y. 596. (Wills) 447 ; (Cas. Cr.) 512. 
 
 Mitchell V. Pike, 17 Hun 142, (Courts) 
 106 ; (Defin.) 123. 
 
 Mitchell V. Read, 19 Hun 418. (Defin.) 
 122; (Partners.) 335. 
 
 Mix V. Andes Ins. Co., 74 IST. Y. 53. 
 (Bern, of C.) 392 ; (Cas. Cr.) 512. 
 
 Moffatt V. McLaughlin, 13 Hun 449- 
 (Partition) 332. 
 
 Mohr V. Parmelee, 43 Superior 320. 
 (Cov'ts) 108 ; (Dam.) 113 ; (Easem.) 137 ; (Vend. 
 & P.) 444. 
 
 Mojarietta v. Saenz, 58 How. Pr. 505. 
 (Attach.) 44, 45 ; (Process) 358. 
 
 Moke V. Norrie, 14 Hun 128. (Trusts) 
 439; (Wills) 451. 
 
 Monarque v. Monarque, 8 Abb. N. Cas. 
 102; 19 Hun 332. (Devise) 128; (Partition) 
 333 ; (Wills) 449 ; (Cas. Cr.) 512. 
 
 Monellv. Northern Central Ry. Co., 
 16 Hun 585. (Carriers) 71. 
 
 Montague v. Worstell, 55 How. Pr. 406. 
 (Depos.) 126. 
 
 Montgomery v. Miller, 3 Eedf. 154. 
 (Wills) 448. 
 
 Moody V. Moody, 16 Hun 189. (CI. on 
 T.) 80 ; (Deeds) 118. 
 
CASES DIGESTED. 
 
 687 
 
 Moody V. Smith, 70 N. Y. 598. (Pr. & 
 Agt.) 353; (Vend. & P.) 444. 
 
 Moore V. Bogart, 19 Hun 227. (Mort.) 
 292. 
 
 Moore V. Hogeman, 72 N. Y. 376. 
 (Trusts) 437. 
 
 Moore V. MoMahon, 20 Hun 44. (Im- 
 pris.) 204. 
 
 Moore V. Mayor, &c., of New York, 
 73 N. Y. 238 ; 4 Hun 545. (Estop.) 147 ; (Mun. 
 Corp.) 299, 307 ; (N. Y.) 317, 318. 
 
 Moore v. Moore, 8 Abb. N. Cas. 171. (Di- 
 vorce) 132. 
 
 Moore v. Rector, &o., of St. Thomas, 
 4 Abb. N. Cas. 51. (Eel. See.) 390. 
 
 Moore V. Shaw, 15 Hun 428. (Mort.) 
 293. 
 
 Moore V. Shaw, 77 N. Y. 512. (App.) 22. 
 
 Moran v. McLarty, 75 N. Y. 25 ; 11 Hun 
 66. (App.) 19 ; (Eq.) 144 ; (Witn.) 456. 
 
 More V. Dvirr, 45 Superior 154. (Costs) 
 100. 
 
 Morehouse v. Yeager, 71 N. Y. 594. 
 (Fraud) 183 ; (Trial) 428. 
 
 Morenus v. Crawford, 15 Hun 45. (Liq. 
 Sell.) 267. 
 
 Morgan v. Francklyn, 55 How. Pr. 244. 
 (Pr. & S.) 356. 
 
 Morgan v. Potter, 17 Hun 403. (Exec.) 
 166 ; (Fraud. Conv.) 184. 
 
 Morgan v. Schuyler, 79 JST. Y. 490. 
 (Partners.) 339. 
 
 Morgan V. Smith, 70 N. Y. 537; 7 Hun 
 244. (App.) 27 ; (Land. & T.) 251 ; (Pr. & S.) 
 356, 357 ; (Kelease) 389. 
 
 Morgan v. Stevens, 6 Abb. N. Cas. 356. 
 (Contracts) 88; (Custom) 112; (Mech. Lien) 
 280; (Ref.)387. 
 
 Morrell v. Morrell, 17 Hun 324. (Divorce) 
 131. 
 
 Morris v. Budlong, 16 Hun 570. (Cas. 
 Cr.) 512. 
 
 Morris V. Budlong, 78 N. Y. 543. 
 (Evid.) 155 ; (Mori.) 285, 286. 
 
 Morris v. Hilar, 57 How. Pr. 322. (Ee- 
 ceivers) 385. 
 
 Morris V. Tuthill, 72 N. Y. 575. (Mort.) 
 291. 
 
 Morris V. Webb, 45 Superior 305. 
 (Trusts) 437. 
 
 Morrison v. Agate, 20 Hun 23. (Costs) 
 101. 
 
 Morrison v. Lester, 15 Hpn 538. (Costs) 
 102. 
 
 Morrison v. Morrison, 16 Hun 507. 
 (App.) 17. 
 
 Morrow v. Ostrander, 13 Hun 219. 
 (Witn.) 459. 
 
 Morton V. "Weir, 70 N. Y. 247 ; 5 Hurt 
 177. (Leases) 256. 
 
 Moser V. Mayor, &c., of New York,, 
 21 Hun 163. (Off.) 329. 
 
 Mosher v. Carpenter, 13 Hun 602_ 
 (Prom. N.) 364. 
 
 Mosher v. People, 19 Hun 625. (Witn.) 
 460. 
 
 Mott V. Consumers' Ice Co., 8 Daly 
 244. (Costs) 99, 100. 
 
 Mott V. Consumers' Ice Co., 73 N. Y. 
 543. (Estop.) 147; (Mast. & S.) 277; (Trial) 
 427 ; (Witn.) 462. 
 
 Mott V. Grunhut, 8 Daly 544. (Husb. & 
 W.) 198. 
 
 Mowry v. Peet, 7 Abb. N. Cas. 195. (Ex. 
 
 6 Ad.) 171. 
 
 Mowry v. Rosendale, 74 N. Y. 360> 
 (Ins.) 232. 
 
 Mowry v. Sanborn, 72 N. Y. 534; 11 
 Hun 545. (Mort.) 290. 
 
 Mowry v. World Mut. Life Ins. Co.,. 
 
 7 Daly 321. (Ins.) 223, 233. 
 
 Mudgett v.Goler, 18 Hun 302. (Mort.)293_ 
 
 Muloahy v. New York Floating Dry 
 Dock Co., 8 Daly 93. (Mast. & S.) 277. 
 
 MuUer v. McKesson, 73 N. Y. 195 ; 10- 
 Hun 44. (Animals) 10; (Mast. & S.) 278;. 
 (Trial) 427; (Cas. Cr.) 513. 
 
 Muller V. Struppman, 6 Abb. N. Cas.. 
 343 ; 55 How. Pr. 521. (Guard, ad L.) 191 ;. 
 (Infants) 206; (Partition) 332; (Wills) 448. 
 
 Mumby v. Jackson, 71 N. Y. 599. 
 (App.) 14; (Except's) 160. 
 
 Mumpher v. Rushmore, 14 Hun 591. 
 (Assignt's) 40 ; (Cas. Cr.) 513.. 
 
 Mundorff v. Wangler, 57 How. Pr. 
 372. (Ex. & Ad.)' 175, 176. 
 
 Mundy, Matter of, 59 How, Pr. 359. 
 (Liq. Sell.) 266. 
 
 Munsell v. Flood, 45 Superior 460.- 
 (Evid.) 154. 
 
 Munson v. Dyett, 56 How. Pr. 383.. 
 (Husb. & W.) 201 ; (Mort.) 287. 
 
 Munson V. Mayor, <fec., of New York,. 
 57 How. Pr. 497. (Counties) 104. 
 
 Murdock v. Prospect Park, dec, R. R. 
 Co., 73 N. Y. 579; 10 Hun 598. (Injunc.) 
 208 ; (License) 261 ; (E. E. Co.) 371. 
 
 Murphy, Matter of, 20 Hun 346. (N.. 
 Y.) 319, 322. 
 
 Murphy v. Boston, dec, R. R. Co., 59- 
 How. Pr. 197 ; 8 Abb. N. Cas. 41. (Mast. & 
 
 S.) 278. 
 Murray v. Mayor, Szo., of New York,. 
 
 43 Superior 164. (Stat.) 414. 
 
 Murray v. New York Life Ins. Co.,. 
 
 19 Hun 350. (Ins.) 221. 
 
588 
 
 CASES DIGESTED. 
 
 Murtage v. Conner, 15 Hun 488. (Exec.) 
 162. 
 
 Musgrave v. Sherwood, 76 N. Y. 194. 
 •(Injunc.) 210. 
 
 Mutual Life Ins. Co. v. Balch, 4 Abb. 
 lir. Cas. 200. (Mort.) 294. 
 
 Mutual Life Ins. Co. v. Davies, 44 Su- 
 |)erior 173; 56 How. Pr. 440. (Corp.) 96; 
 (Mort.) 287 ; (Pr. & S.) 357. 
 
 Mutual Life Ins. Oo. v. Hunt, 14 Hun 
 169. (Ins. Per.) 211 ; (Cas. Cr.) 513. 
 
 Mutual Sife Ins. Oo. v. Nat. Bank of 
 l^ewburgh, 18 Hun 371. (Injunc.)- 206. 
 
 Mutual Life Ins. Co. v. "Wilcox, 55 
 How. Pr. 43. (Assign.) 39; (Mort.) 288, 
 289. 
 
 Myer v. Whitaore, 55 How. Pr. 376 ; 5 
 Abb. N. Cas. 172. (Eip. Eights) 394; (Water 
 C.) 446. 
 
 Myers v. People, 14 Hun 416. (Courts) 
 107; (Kem. ofC.)391. 
 
 Mynard v. Ssrraouse, &o., B. B. Co., 
 71 N. Y. 180. (Carriers) 73, 74; (Defin.) 
 120; (Cas. Cr.) 513. 
 
 N. 
 
 Nagle V. Taggart, 4 Abb. N. Cas. 144. 
 <Husb. & W.) 202 ; (Mort.) 291 ; (Process) 
 :359. 
 
 Nash V. MitoheU, 71 N. Y. 199; 3 Abb. 
 N. Cas. 171 ; 8 Hun 471. (Husb. & W.) 199, 
 :200 ; (Cas. Cr.) 513. 
 
 Nash V. Sharpe, 19 Hun 365. (Witn.) 
 460. 
 
 Nason v. Luddington, 56 How.Pr. 172 ; 55 
 Id. 342: 8 Daly 149. (Eef.) 387; (Cas. Cr.) 513. 
 
 Nathans V. Hope, 77 N.Y. 420. (Action) 5. 
 
 Nat. Bank of Auburn v. Lewis, 75 N. 
 T. 516; 10 Hun 468. (Banks) 58; (Defln.) 
 120; (Prom. N.) 365; (Usury) 441. 
 
 Nat. Bank of G-loversville v. Place, 
 15 Hun 564. (Usury) 440. 
 
 Nat. Bank of Gloversville v. Wells, 
 15 Hun 51 ; 79 N. Y. 498. (Cas. Cr.) 513. 
 
 Nat. Bank of Newburgh v. Bigler, 
 18 Hun 400. (Prom. N.) 362. 
 
 Nat. Bank of Sohusjlerville v. Van 
 'Derwerker, 74 N. Y. 234. (Joint Stock Co.) 
 .237. 
 
 Nat. Bank of 'Waterto'wn v. Bab- 
 i>itt, 17 Hun 447. (Bank'cy) 51. 
 
 Nat. Bowery Bank v. Duryea, 55 
 S.OW. Pr. 88. (Cas. Cr.) 514. 
 
 Nat. Butchers', &c. , Bank v.De Groot, 
 43 Superior 341. (Defin.) 123 ; (Evid.) 159 
 
 Nat. Exchange Bank of Lansing- 
 burg V. Sniiman, 4 Abb. N. Cas. 224. 
 .(Costs.) 100. 
 
 Nat. Trust Oo. of New York v. G-lea- 
 son, 77 N. Y. 400. (Husb. & W.) 199 ; (Mou. 
 Hec'd) 284; (Witn.) 456; (Cas. Cr.)514. 
 
 Naugatuck Cutlery Co. v. RoTve, 5 
 Abb. N. Cas. 142. (Costs) 99. 
 
 Nearpass v. G-ilman,^ 16 Hun 121. 
 (Witn.) 455. 
 
 Nebenzahl, Matter pf, 57 How. Pr. 328 ; 
 20 Hun 81. (Arrest) 33. 
 
 Nebenzahl, Matter of, 59 How. Pr. 192. 
 (App.) 26. 
 
 Neftel V. Lightstone, 77 N. Y. 96. 
 (Exec.) 163; (Plead.) 346. 
 
 Neil V. Thorn, 17 Hun 144. (Mai. Pros.) 
 268. 
 
 Nelson v. Drake, 14 Hun 465. (Chat. 
 M'tge.) 77. 
 
 Nelson v. Neil, 15 Hun 383. (Chat. 
 M'tge) 77. 
 
 Nelson V. Sun Mut. Ins. Co., 71 N. Y. 
 453. (App.) 26; (Custom) 111; (Ins.) 226; 
 (Witn.) 464. 
 
 Netzel V. Mulford, 59 How. Pr. 452. 
 (Judg'mt) 243. 
 
 Neuendorf v. Dviryea, 69 N. Y. 557. 
 (Crim. L.) Ill ; (Sunday) 416. 
 
 Neuendorf v. World Mut. Life Ins. 
 Co., 69 N. Y. 389. (Ins.) 231 ; (Pr. & Agt.) 
 351. 
 
 Newins v. Baird, 19 Hun 306. (Guard, 
 ad L.) 191. 
 
 New V. NicoU, 73 N. Y. 127; 12 Hun 
 431. (Trusts) 437. 
 
 New Amsterdam Savings Bank v. 
 Tartter, 4 Abb. N. Cas. 215. (Banks) 
 61. 
 
 Newburger v. Campbell, 58 How. Pr. 
 313. (App.) 29. 
 
 Newell V. Cutler, 19 Hun 74. (App.) 
 29 ; (Contempt) 85 ; (Exec.) 167. 
 
 Newell V. Nichols, 75 N.. Y. 78 ; 12 Hun 
 604. (Evid.) 152; (Wills) 451. 
 
 Newell V. Toles, 17 Huri 76. (Wills) 451. 
 
 New England Iron Co. v. New York 
 Loan and Improvement Co., 55 How. Pr 
 351. (Discov.) 130. 
 
CASES DIGESTED. 
 
 589 
 
 Newman v. Gtoddard, 20 Hun 563. 
 (Bank'cy) 53. 
 
 Newton, Matter of, 19 Hun 470. (N. Y.) 
 319. 
 
 Newton v. Mutual Benefit Life Ins. 
 Co., 76 N. Y. 426 ; 15 Hun 595. (Ins.) 222, 
 225;.(Cas. Cr.) 514. 
 
 - Newton v. Porter, 69 N. Y. 133. 
 (Depos.) 126 ; (Sales) 396 ; (Trusts) 436, 439 ; 
 (Cas. Cr.) 514. 
 
 New York and Brookljm Bridge, 
 Matter of, 72 N. Y. 526. (Stat.) 414. 
 
 New York and Brooklyn Saw Mill 
 Co. V. City of Brooklyn, 71 N. Y. 580. 
 (Evid.) 151 ; (Mun. Corp.) 304. 
 
 New York, &c., R. R. Co., Matter [of, 
 
 20 Hun 201. (Em. Dom.) 141; (K. R. Co.) 
 
 370. 
 New York, &c., R. R. Co., Matter of, 
 
 21 Hun 250. (K. E. Co.) 371. 
 
 New York, &c., R. R. Co. v. Central, 
 &o., Telegraph Co., 21 Hun 261. (Teleg. 
 Co.) 420. 
 
 New York Catholic Protectory, Mat- 
 ter of, 77 N. Y. 342 ; 8 Hun 91. (Taxes) 420; 
 (Cas. Cr.) 514. 
 
 New York Central, &c., R. R. Co., 
 Matter of, 7 Abb. N. Cas. 408. (Counties) 
 103. 
 
 New York Central, &c., R. R. Co., 
 Matter of, 15 Hun 63. (Em. Dom.) 141 ; (K. 
 E. Co.) 371. 
 
 New York Central, &c., R. R. Co., 
 Matter of, 70 N. Y. 191. (E. E. Co.) 370. 
 
 New York Central, &o., R. R. Co., 
 Matter of, 77 N. Y. 248 ; (N. Y.) 318. (E. 
 E. Co.) 370. 
 
 New York Central, &o., R. R. Co. 
 V. Standard Oil Co., 20 Hun 39. (Car- 
 riers) 72. 
 
 New York Elevated R. R. Co., Mat- 
 ter of, 70 N. Y. 327 ; 3 Abb. N. Cas. 401. 
 (Const. L.) 83; (Corp.) 97; (Defin.) 122; (E. 
 E. Co.) 381, 382 ; (Stat.) 414 ; (Cas. Cr.) 515. 
 
 New York Guaranty, <fcc., Co. v. 
 Gleason, 78 N. Y. 503; 7 Abb. N. Cas. 334. 
 (App.) 12; (Consp.) 82; (Evid.) 150; (Mon. 
 Eerfd) 284; (Witn.) 457, 458. 
 
 New York Guaranty, <&c., Co. v. 
 Rogers, 71 N, Y. 377; 43 Superior 551. 
 (Exec.) 164. 
 
 New York Juvenal, &o., Soo. v. 
 Roosevelt, 7 Daly 188. (Injunc.) 208 ; (State) 
 413. 
 
 N. Y. Prot. Bpis. Pub. School, Matter 
 of, 75 N. Y. 324. (N. Y.) 321. 
 
 New York State Life Ins. Co., Mat- 
 
 ter of, 13 Hun 115. (Cas. Cr.) 515. 
 
 New York State Loan and Trust Co. 
 v. Helmer, 77 N. Y. 64 ; 12 Hun 35. (Banks) 
 55; (Prom. N.) 364 ; (Cas. Cr.) 515. 
 
 Nickerson v. Ruger, 43 Superior 258 ; 
 76 N. Y. 279. (App.) 14; (Prom. N.) 361, 365 ;. 
 (Cas. Cr.) 515. 
 
 NicoU V. Burke, 78 N. Y. 580 ; 8 Abb. N. 
 Cas. 213 ; 45 Superior 75. (App.) 28 ; (Land. 
 & T.) 252; (Leases) 255 ; (Pr. & Agt.) 353. 
 
 Nioholls V. VanValkenburgh, 15 Hun 
 230. (Prom. N.) 366. 
 
 Nichols, Matter of, 6 Abb. N. Cas. 474.. 
 (Const, L.) 83. 
 
 Nichols, Matter of, 57 How. Pr. 395. 
 (Cert.) 74. 
 
 Nichols, Matter of, 15 Hun 317. (As- 
 sign'ts) 41. 
 
 Nichols V. Drew, 19 Hun 490. (Action) 
 4; (Dr. & Cr.) 115. 
 
 Nichols V. Voorhis, 74 N. Y. 28 ; 9 Hun 
 171. (App.) 21. 
 
 Nichols V. Voorhis, 18 Hun 33. (Highw.)' 
 192. 
 
 Nicholson v. Conner, 8 Daly 212. (Witn.) 
 457. 
 
 Nicholson v. "Waful, 70 N. Y. 604; &■ 
 Hiin 655. (Prom. N.) 366; (Cas. Cr.) 515. 
 
 Nidig V. Nat. City Bank of Brooklyn, 
 59 How. Pr. 10. (Banks) 58 ; (Pay't) 340. 
 
 Ninth Ave. R. R. Co. v. New York 
 Elevated R. R. Co., 7 Daly 174. (Injunc.) 
 207. 
 
 Niven v. City of Rochester, 76 N. Y. 
 619. (Mun. Corp.) 306, 309. 
 
 Noe V. Gregory, 7 Daly 283. (Evid.) 
 154 ; (Pr. & Agt.) 352. 
 
 Noe V. Noe, 13 Hun 436. (Husb. & W.)- 
 198. 
 
 Noonan v. City of Albany, 79 N. Y. 
 470. (Mun. Corp.) 304 ; (Eip. Eights) 394. 
 
 Norris v. City of Brooklyn, 19 Hun. 
 296. (B'klyn) 68. 
 
 Norris v. "Wood, 14 Hun 196. (Usury) 
 440. 
 
 North America Life Ins. Co., Matter 
 of, 55 How. Pr. 465. (Ins.) 234. 
 
 North America Life Ins. Co. v. 
 People, 15 Hun 18. (Cas. Cr.) 515. 
 
 Northern Ins. Co. v. "Wright, 76 N. Y. 
 445; 13 Hun 166. (Guar.) 189; (Cas. Cr.) 
 515. 
 
 Northrup v. Garrett, 17 Hun 497. 
 (App.) 13 ; (Attach.) 45. 
 
 Noyes v. Children's Aid Soc.,70 N.Y. 
 481 ; 3 Abb. N. Cas. 36 ; 10 Hun 289 ; 16 Alb. 
 L. J. 224. (App.) 23, 30 ; (Costs) 101. 
 
590 
 
 CASES DIGESTED. 
 
 o. 
 
 Oakley v. Mayor, &o., of New York, 
 70 N. Y. 612 ; 39 Superior 549. (Mon. Eec'd) 
 283 ; (Pr. & S.) 356. 
 
 Oberwarth v. McLean, 7 Daly 70. 
 <Exeo.) 161 ; (Off.) 330. 
 
 Obregon v. De Mier, 58 How. Pr. 301. 
 ■(Amend) 9. 
 
 O'Brien v. Hashagen, 20 Hun 564. ( Jud. 
 Sale) 245. 
 
 O'Brien v. Phoenix Ins. Co., 76 N. Y. 
 459. (Ins.) 219, 220 ; (Q. of L. & F.) 368. 
 
 O'DeU V. Hoyt, 73 N. Y. 343. (Cas. Cr.) 515. 
 
 O'Donnell v. New York, <fec., R. R. 
 Co., 8 Daly 409 ; 77 N. Y. 625. (Trial) 427 ; 
 (Cas. Cr.) 515. 
 
 Offlnger v. De "Wolf, 43 Superior 144. 
 <Partition) 333. 
 
 O'Q-ara v. Kearney, 57 How. Pr. 439. 
 (Exec.) 161. 
 
 O'G-ara v. Kearney, 77 N. Y. 423. (Con- 
 tempt) 84. 
 
 Ogden V. Devlin, 45 Superior 631. (Atfy 
 & CI.) 47. 
 
 O'Grady v. Coe, 13 Hun 594. (Pr. & 
 Agt.) 351. 
 
 O'Hagan v. Dillon, 76 N. Y. 170. (Witn.) 
 460. 
 
 Olcott V. Maclean, 73 N. Y. 223; 10 
 Hun 27. (Bank'cy) 53. 
 
 Olmsted v. Dennis, 77 N. Y. 378. 
 (Drains) 136; (Off.) 330. 
 
 O'Mara v. Delaware, &c., Canal Co., 
 18 Hun 192. (E. E. Co.) 379. 
 
 One Hundred and Twenty-seventh 
 Street, Matter of, 56 How. Pr. 60. (N. Y.) 
 520. 
 
 Onondaga Co. Milk Assoc, v. "Wall, 
 17 Hun 494. (Corp.) 95. 
 
 Onthank v. Lake Shore, &o., R. R. 
 Co., 71 N. Y. 194. (Easem.) 139. 
 
 Opdyke V. Merwin, 13 Hun 401. (Bills 
 of Exch.) 62. 
 
 Oram v. Oram, 3 Eedf. 300. (Husb. & 
 W.) 196. 
 
 Oregon Steamship Co. v. Otis, 59 How. 
 Pr. 254. (Eef.) 387. 
 
 Organ v. "Wall, 19 Hun 184. (Parties) 332. 
 
 Orleans Co. Nat. Bank v. Spencer, 19 
 Hun 569. (Judgm.) 238. 
 
 Ormes v. Dauchy, 45 Superior 85. (Pr. 
 & Agt.) 354, 
 
 Orphan Asylum Soo. of New York 
 City V. Waterbury, 8 Daly 35. (Leases) 
 255. 
 
 Orr V. McEwen, 16 Hun 625. (Process) 
 359. 
 
 Orthodox Cong. Church, Matter of, 
 6 Abb. N. Cas. 398. (Leg.) 258 ; (Eel. Soc.) 
 390. 
 
 Osbom V. McCloskey, 55 How. Pr. 345. 
 (Process) 357 ; (Cas. Cr.) 516. 
 
 Osborn v. Schenck, 18 Hun 202. (Trover) 
 434. 
 
 Osborn & Cheeseman Co. v. Croome, 
 14 Hun 164 ; 77 N. Y. 629. (Manuf. Co.) 273 ; 
 (Cas. Cr.) 516. 
 
 Ostrander v. Conkey, 20 Hun 421. 
 (Plead.) 345. 
 
 Otis V. "Williams, 70 N. Y. 208. (Eeplev.) 
 393. 
 
 Ousby V. Jones, 73 N. Y. 621. (Deeds) 
 119. 
 
 Outerbridge v. Phelps, 45 Superior 656. 
 (Easem.) 138. 
 
 Outhouse V. Outhouse, 13 Hun 130. 
 (Trover) 434. 
 
 Owens V. Bloomer, 14 Hun 296. (Defin.) 
 122 ; (Ex. & Ad.) 172. 
 
 Owens v.Loomis, 19 Hun 606. (Abate.) 1. 
 
 Pacific, &o.. Gas Co. v. Wheelock, 44 
 
 Superior 566. (Evid.) 159. 
 
 Pacific, Mail Steamship Co. v. Mayor, 
 <fec., of New York, 57 How. Pr. 511. (In- 
 juno.) 207. 
 
 Page, Matter of, 7 Daly 155. (Ins. Per.) 
 212. 
 
 Page, Matter of, 56 Hoyr. Pr. 100. (Ins. 
 Per.) 212. 
 
 Page V. "Waring, 76 N.Y. 463. (Bank'cy) 
 51; (Deeds) 118; (Notice) 328. 
 
 Paine v. Barnum, 59 How. Pr. 303. 
 (Banks) 60 ; (Cas. Cr.) 517. 
 
 Paine v. Irwin, 59 How. Pr. 316. (Banks) 
 60. 
 
 Paine v. Irwin, 16 Hun 390. (Plead.) 
 344. 
 
 Paine v. Jones, 75 N. Y. 593. (Eq.) 144. 
 
CASES DIGESTED. 
 
 591 
 
 Paine v. Jones, 14 Hun 577 ; 76 N. Y. 
 274. (Mort.) 281; (Cas. Cr.) 517. 
 
 Paine v. Mead, 59 How. Pr. 318. (Banks) 
 ;60. 
 
 Paine v. Noelke, 43 Superior 176. (Evid.) 
 151. 
 
 Paine v. Upton, 21 Hun 806. (Mistake) 
 283. 
 
 Paine v. "Wilson, 74 N. Y. 348. (Mort.) 
 285. 
 
 Palmer v. Clark, 4 Abb. N. Cas. 26. (Auc- 
 tion) 49; (Ck)rp.)97; (Exec.) 161; (Manuf.Co.) 
 276. 
 
 Palmer v. Foley, 71 N. Y. 106. (Injunc.) 
 210. 
 
 Palmer v. Horn, 20 Huu 70. (Defin.) 120, 
 123; (Wills) 451. 
 
 Palmer v. Lang, 7 Daly 33. (Slaud.) 
 410. 
 
 Palmer v. People, 19 Hun 372. ' (Witn.) 
 462. 
 
 Palmer v. Banken, 56 How. Pr. 354. 
 <App.) 18. 
 
 Pardee v. Tilton, 58 How. Pr. 476 ; 20 
 Hun 76. (Exec.) 165. 
 
 Pardee v. Treat, 18 Hun 298. (Mort.) 
 285. 
 
 Park V. Park, 18 Huu 466. (Divorce) 
 133,134; (Cas. Cr.) 517. 
 
 Parker, Matter of, 5 Abb. N. Cas. 334. 
 ■(Assign' Is) 40. 
 
 Parker v. Baxter, 19 Hun 410. (Kef.) 
 S88. 
 
 Parker v. Conner, 44 Superior 416. 
 ■(Sheriffs) 405. 
 
 Parker v. Long Island B. B. Co., 13 
 Hnn 319. (Dam.) 112. 
 
 Parkinson v. Jacobson, 18 Hun 353. 
 <Mort.)294; (Plead.) 346. 
 
 Parkinson v. Sherman, 74 N. Y. 88. 
 .(Estop.) 148 ; (Mort.) 292. 
 
 Parr v. Village of Greenbush, 72 N. 
 Y. 463. (Mun. Corp.) 299, 308. 
 
 Parsons v. Brown, 78 N. Y. 613. (App.) 
 ■28. 
 
 Partridge v. Commercial Fire Ins. 
 •Co., 17 Hun 95. (Ins.) 232, 233 ; (Cas. Cr.) 
 ■517. 
 
 Patterson, Matter of, 18 Hun 221 ; 78 
 If. Y. 608. (Banks) 60 ; (Cas. Cr.) 517. 
 
 Pattison v. Syracuse Nat. Bank, 17 
 Hun 419. (Banks) 56 ; (Cas. Cr.) 517. 
 
 Paul V. Mayor, &c., of Ne-w York, 7 
 Daly 144. (N. Y.) 327. 
 
 Paulmier, Matter of, 5 Abb. N. Cas. 151 ; 
 -56 How. Pr. 1. (Depos.^ 127. 
 
 Payne v. Wilson, 74 Jif. Y. 348 ; 11 Hun 
 302. (Error) 147; (Lien) 262 ; (Mech. Lien) 
 iiSO. 
 
 Peasley v. Safety Deposit Life Ins; 
 Co., 15 Hun 227. (Ins.) 222. 
 
 Peck V. Ooler, 20 Hun 534, (Judgm.) 
 243. 
 
 Peck V. Collins, 70 N. Y. 376. (Pat.) 339. 
 
 Peck V. Knickerbocker Ice Co., 18 
 Hun 183. (Land. & T.) 251. 
 
 Peck V. New York, &c., By. Co., 59 
 How. Pr. 419. (Mort.) 293; (Motions & O.) 
 299. 
 
 Peck V. New York Central, &o., B. 
 B. Co., 70 N. Y. 687 ; 8 Hun 286. (App.) 25; 
 (E. E. Co.) 374. 
 
 Peck V. Von Keller, 15 Hun 470 ; 76 N. 
 Y. 604. (Evid.) 158, 159; (Cas. Cr.) 518. 
 
 Peck V. Yorks, 75 N. Y. 421. (Costs) 102. 
 
 Peckham v. VanWagenen, 45 Superior 
 328. (Corp.) 93. 
 
 Pelton V. Westchester Fire Ins. Co., 
 47N. Y. 605; 13 Hun 23. (Ins.) 216; (Cas. 
 Cr.) 518. 
 
 Pember v. SohaUer, 58 How. Pr. 511. 
 (Arrest) 35. 
 
 Pender v. People, 18 Hun 560. (Trial) 
 431 ; (Cas. Cr.) 518. 
 
 Penhryn Slate Co. v. Meyer, 8 Daly 
 61. (App.) 12; (Trial) 426. 
 
 People V. Adams, 16 Hnn 549. (Error) 
 145. 
 
 People V. Albany and Vermont B. 
 B. Co., 77 N. Y. 232; 15 Hun 126. (Corp.) 
 97 ; (Cas. Cr.) 518. 
 
 People V. Atlantic Mut. Life Ins. Co., 
 74 N. Y. 177. (Ins.) 235. 
 
 People V. Baker, 76 N. Y. 78 ; 15 Hun 
 256. (Bigamy) 61 ; (Divorce) 132 ; (Judgm't) 
 244; (Cas. Cr.) 518. 
 
 People V. Bank of North America, 13 
 Hun 434. (Kef.) 387. 
 
 People V. Bank of North America, 75 
 N. Y. 547. (Estop.) 147 ; (Off.) 330 ; (Pr. & 
 Agt.) 350, 354; (State) 413; (Trover) 433,434. 
 
 People V. Bork. 78 N. Y. 346. (Error) 
 145. 
 
 People V. Brown, 72 N. Y. 571 ; 8 Hun 
 562. (Witn.) 461 ; (Cas. Cr.) 518. 
 
 People V. Casey, 72 N. Y. 393. (Assault) 
 37; (Error) 145, 146; (Witn.) 461; (Cas. Cr.) 
 618. 
 
 People V. Clews, 4 Abb. N. Cas. 256, 
 (Courts) 107. 
 
 People V. Clews, 57 How. Pr. 245. (In- 
 dict.) 205. 
 
 People V. Clews, 77 N. Y. 39 ; 14 Hun 90. 
 (Bail) 50 ; (Cas. Cr.) 518. 
 
 People V. Cox, 21 Hun 47. (Trial) 432 
 (Witn.) 457.* 
 
 People V. Crandon, 17 Hun 490. (Husb 
 & W.) 198. 
 
692 
 
 CASES DIGESTED. 
 
 People T. Crapo, 76 N. Y. 288 ; 15 Hun 
 269. (Lar.) 254; (Witn.) 461; (Caa. Cr.) 518. 
 
 People V. Denison, 8 Abb. N. Cas. 128 ; 
 59 How. Pr. 157. (App.) 28 ; (Set-Off) 403 ; 
 (State) 413 ; (Cas. Cr.) 518. 
 
 People V. Denison, 19 Hun 137. (Ac- 
 tion) 5 ; (Cas. Cr.) 518. 
 
 People V. Devlin, 7 Daly 47. (Cert.) 76. 
 
 People V. Erie Railway Co., 56 How. 
 Pr. 122. (Mort.) 291. 
 
 People V. Genet, 19 Hun 91. (False 
 Pret.) 179. 
 
 People V. Globe Mut. Life Ins. Co., 57 
 How. Pr. 481. (Ins.) '233. 
 
 People V. Gorham, 16 Hun 93. (Con- 
 spiracy) 82. 
 
 People V. Hall, 57 How. Pr. 342. (Crim. 
 L.) 110. 
 
 People V. Hislop, 77 N. Y. 331 ; 16 Hun 
 577. (Liq. Sen.) 266. 
 
 People V. James, 16 Hun 426. (Mun. 
 Corp.) 310. 
 
 People V. Manke, 78 N. Y. 611. (Horn.) 
 195. 
 
 People V. Mann, 75 N. Y 484. (Forg.) 
 181. ■ 
 
 People V. Merchants' &o., Bank of 
 Troy, 78 N. Y. 269. (Banks) 59. 
 
 People V. Moett, 58 How. Pr. 467. (Ex- 
 cept's) 160. 
 
 People V. Morrison, 22 Alb. L. J. 210. 
 (Liq. Sell.) 266. 
 
 People V. Mut. Gas Light Co., 74 N. 
 Y. 434; 14 Hun 157. (Depos.) 126 ; (Cas. Cr.) 
 519. 
 
 People V. New York Central, &o., R. 
 R. Co., 74 N. Y. 302;' 12 Hun 195. (Nuis.) 
 329 ; (E. E. Co.) 372. 
 
 People V. Peck, 57 How. Pr. 315. (Eef.) 
 887. 
 
 People V. Petit, 74 N. Y. 320. (Husb. & 
 W.) 198 ; (Eecog.) 385. 
 
 People V. Rochester, &c., R. R. Co., 
 15 Hun 180. (App.) 12. 
 
 People V. Security Life Ins. Co., 78 
 N. Y. 114 ; 7 Abb. N. Cas. 198. (Defin.) 123 ; 
 (Ins.) 232, 234. 
 
 People V. Shattuck, 6 Abb. N. Cas. 33. 
 (Bail) 50 ; (Indict.) 205 ; (Witn.) 455. 
 
 People V. Smith, 69 N. Y. 175; 9 Hun 
 446. (Liq. Sell.) 265 ; (Stat.) 415. 
 
 People V. Stephens, 13 Hun 17. (Canals) 
 71. ■ 
 
 People V. Stephens, 71 N. Y. 527. 
 (Canals) 71; (Estop.) 147; (Men. Eec'd) 284; 
 (State) 413 ; (Cas. Cr.) 519. ^ 
 
 People V. Twaddell, 18 Hun 427. (Corp.) 
 96; (Soc. & Assoc.) 411. 
 
 People V. Vail, 57 How. Pr. 81 ; 6 Abb. 
 
 N. Cas. 206. (Banks) 55'; (Indict.) 205 ; (Perj.> 
 340. 
 
 People V. "Widows' and Orphans' 
 Life Ins. Co., 15 Hun 8. (Ins.) 224. 
 
 People V. "Williams, 8 Daly 264. (Husb.- 
 & W.) 200. 
 
 People V. "Wissig, 7 Daly 23. (Eecog.> 
 386. 
 
 People, ex rel. Ainslee, v. Hewlett, 76 
 N. Y. 574; 13 Hun 138. (Land. & T.) 253? 
 (Cas. Cr.) 520. 
 
 People, ex rel. Attorney-General, v. 
 Security Life Ins. Co., 71 N. Y. 222; 7 
 Abb. N. Cas. 198. (Ins.) 234; (Eeceivers) 385. 
 
 People, ex rel. Babcock, v. Murray, 
 70 N. Y. 521. (Liq. Sell.) 265 ; (Off.) 329. 
 
 People, ex rel. Bailey, v. Sherman, 
 15 Hun 575. (Highw.) 194. 
 
 People, ex rel. Bancroft, v. Super- 
 visors of Orange Co., 18 Hun 19. (Coun- 
 ties) 104; (Mun. Corp.) 309. 
 
 People, ex rel. Bancroft, v. "Weigant, 
 14 Hun 546. (Cert.) 75; (Mun. Corp.) 309. 
 
 People, ex rel. Banta, v. Kent, 58 How. 
 Pr. 407. (App.) 16 ; (N. Y.) 326. 
 
 People, ex rel. Banta, v. Kneissel, 58 
 How. Pr. 404. (N. Y.) 326. 
 
 People, ex rel. Barrett, v. Dempsey^ 
 19 Hun 322. (Off.) 329. 
 
 People, ex rel. Bay State Shoe and. 
 Leather Co., v. McLean, 17 Hun 204 ; 5 
 Abb. N. Cas. 137. (Taxes) 417; (Cas. Cr.) 
 520. 
 
 People, ex rel. Beattie, v. McAdam, 
 59 How. Pr. 19. (Land. & T.) 252. 
 
 People, ex rel. Becar, v. Struller, 16 
 Hun 234. (Ex. & Ad.) 176. 
 
 People, ex rel. Belknap, v. Beach, 57 ' 
 How. Pr. 337; 19 Hun 259. (Mining Co.) 
 282. 
 
 People, ex rel. Board of Charities, v. 
 Davis, 15 Hun 209. (Courts) 107; (Mun. 
 Corp.) 310. 
 
 People, ex rel. Board of Education,. 
 V. Hooper, 13 Hun 639. (Schools) 400. 
 
 People, ex rel. Brack, v. Reilly, 58 
 How. Pr. 218. (Exec.) 164. 
 
 People, ex rel. Brisbane, v. Common 
 Council, 76 N. Y. 558. (Buffalo) 69; (Mun. 
 Corp.) 305. 
 
 People, ex rel. Bunge, v. Board of 
 Tax Commissioners of New "york, 17 
 Hun 596. (Taxes) 417. 
 
 People, ex rel. Burbank, v. Robinson, 
 76 N. Y. 422 ; 14 Hun 226. (Counties) 103 ; 
 (Cas. Cr.) 520. 
 
 People, ex rel. Carroll, v. Smith, 17 
 Hun 286. (Cas. Cr.) 520. 
 
 People, ex rel. Caswell, v. Commis- 
 
CASES DIGESTED. 
 
 SOS 
 
 Bioners of Taxes, 17 Hun 293. (Taxes) 
 416. 
 
 People, ex rel. Catlin, v. Neilson, 16 
 Hun 214. (Hab. Corp.) 192. 
 
 People, ex rel. Olapp, v. Board of Po- 
 lice ot New York, 72 N. Y. 415 ; 5 Hun 
 457. (Cert.) 75 ; (N. Y.) 326. 
 
 People, ex rel. Coles, v. Callahan, 7 
 Daly 434. (Mand.) 269. 
 
 People, ex rel. Comaford, v. Dutcher, 
 20 Hun 241. (Bail) 50; (Courts) 107. 
 
 People, ex rel. Commissioners, v. 
 Lyons, 7 Daly 182. (Bastardy) 61. 
 
 People, ex rel. Commissioners, v. 
 Smith. 13 Hun 414. (Divorce) 132. 
 
 People, ex rel. Conliss, v. North, 72 
 N. Y. 124. (Elect.) 140; (Mun. Corp.) 308. 
 
 People, ex rel. Cooke v. Wood, 71 N. 
 Y. 371. (Defln.) 122, 125; (Mun. Corp.) 310; 
 (Stat.) 414. 
 
 People, ex rel. Cooper, v. Special 
 Term at Chambers, 57 How. Pr. 467. 
 (Courts) 105. 
 
 People, ex rel. Cowley v. Bowe, 58 
 How. Pr. 393. (Bail) 50 ; (Hab. Corp.) 192. 
 
 People, ex rel. Dailey, v. Livingston, 
 18 Hun 59. (Elect.) 140. 
 
 People, ex rel. Dailey, v. Livingston, 
 18 Hun 59 ; 79 N. Y. 279. (Quo Wai-r.) 368 ; 
 (Oas. Cr.) 520. 
 
 People, ex rel. Dannat, v. Comptrol- 
 ler of New York, 77 N. Y. 45. (Mand.) 
 270. 
 
 People, ex rel. Dargin, v. Cox, 76 N. 
 Y. 47; 9 Hun 146. (Mun. Corp.) 309. 
 
 People, ex rel. Dilks, v. Smith, 17 Hun 
 286. (Cas. Cr.) 520. 
 
 People, ex rel. Donovan, v. Fire Com- 
 missioners of New York, 77 N. Y. 153. 
 (N. Y.) 325. 
 
 People, ex rel. Drap^, v. Pinkerton, 
 77 N. Y. 245 ; 17 Hun 199. (Ex. & Ad.) 177 ; 
 (Cas Cr.) 520. 
 
 People, ex rel. Dusenbury, v. Speir, 
 77 N. Y. 144 ; 57 How. Pr. 274 ; 54 How. Pr. 
 74. (Arrest) 32. 
 
 People, ex rel. Egan, v. Justices, &c., 
 59 How. Pr. 413 ; 8 Abb. N. C^B. 377 ; 18 Hun 
 333. (Abate.) 2; (Courts) 105; (Cas. Cr.) 520. 
 
 People, ex rel. Sngel, v. Special Ses- 
 sions, 18 Hun 330. (Assault) 37. 
 
 People, ex rel. Ennis, v.. Schoeder, 76 
 N. Y. 160; 12 Hun 413. (B'klyn) 68; (Mun. 
 Coi-p.) 307. 
 
 People, ex rel. Paile, v. Ferris, 76 N. 
 Y.326; 16Hnn219. (App.)24; (Mand.) 269; 
 (Mini. Corp.) 307 ; (Cas. Cr.) 520. 
 
 People, ex rel. Parrell, v. Board of 
 Police, 20 Hun 402. (N. Y.) 326. 
 
 People, ex rel. Fischer, v. Reilly, 56 
 How. Pr. 223. (Contempt) 84. 
 
 People, ex rel. Polk, v. Board of Po- 
 lice, &c., 69 N. Y. 408. (B'klyn) 68 ; (Cert.) 
 75. 
 
 People, ex rel. Francis, v. Common 
 Council, 78 N. Y. 33 ; 17 Hun 20. (Hand.) 
 269, 270 ; (Cas. Cr.) 521. 
 
 People, ex rel. Freer, v. Canal Ap- 
 praisers, 73 N. Y. 443 ; 13 Hun 64. (Canals) 
 71 ; (Mand.) 269 ; (Cas. Cr.) 521. 
 
 People, ex rel. Garbutt, v. Rochester, 
 By. Co., 76 N. Y. 294 ; 14 Hun 371. (App.) 
 16; (Contempt.) 84, 85 ; (Defin.) 124; (Mand.) 
 270 ; (E. R. Co.) 373 ; (Cas. Cr.) 521. 
 
 People, ex rel. Gaslight Co. v. Com- 
 mon Council of Syracuse, 78 N. Y. 56. 
 (App.) 24; (Mand.) 269; (Mun. Corp.) 300, 
 310 ; (Cas: Cr.) 521. 
 
 People, ex rel. Gilchrist, v. Murray, 
 
 73 N. Y. 535; 8 Daly 347. (Clerks) 80; 
 (Judgm't) 241. 
 
 People, ex rel. Gilmore, v. Donohue, 
 59 How. Pr. 417. (Contempt) 86. 
 
 People, ex rel. Green, v. Smith, 13 Hun 
 227. (Cert.) 75. 
 
 People, ex rel. Hamnaond, v. Leonard 
 
 74 N. Y. 443. (Mand.) 269. 
 
 People, ex rel. Hannigan, v. Ingersoll, 
 20 Hun 316. (Land. & T.) 252. 
 
 People, ex rel. Hatfield, v. Comstock, 
 18 Hun 311 ; 78 N. Y. 356. (Const. L.) 83 ; 
 (Poor) 347 ; (Cas. Cr.) 521. 
 
 People, ex rel. Hatzel, v. Hall, 58 
 How. Pr. 147. (Cert.) 75; (N. Y.) 324. 
 
 People, ex rel. Hatzel, v. Supervisors 
 of New York Co., 58 How.Pr. 141. (Elect.) 
 140; (Mand.) 270; (N. Y.) 324; (Quo Warr.) 
 368. 
 
 People, ex rel. Hays, v. City of 
 Brooklyn, 71 N. Y. 495. (B'klyn) 68. 
 
 People, ex rel. Heiser, v. Board of 
 Assessors, 16 Hun 407. (N. Y.) 321. 
 
 People, ex rel. Hetfleld, v. Trustees 
 of Fort Edward, 70 N. Y. 28. (Mun. Corp.) 
 . 301, 303. 
 
 People, ex rel. Higgins, v. McAdams, 
 
 58 How. Pr. 442. (Prohib.) 359. 
 
 People, ex rel. Hislop, v. Cowles, 16 
 Hun 577. (Cas. Cr.) 521. 
 
 People, ex rel. Hudson, v. Fire Com- 
 missioners of New York, 77 K. Y. 605. 
 (App.) 25 ; (Cert.) 75. 
 
 People, ex rel. Ireland, v. Donohue, 
 15 Hun 446. (Ari-est) 34. 
 
 People, ex rel. Jackson v. McAdam, 
 
 59 How. Pr. 465. (Land. & T.) 252. 
 People, ex rel Jay, v. Bennett, 14 Hun 
 
 63. (Land. & T.) 252; (Leases) 255. 
 
 38 
 
■594 
 
 CASES DIGESTED. 
 
 People, ex rel. Joyce, v. Brundage, 
 78 N. Y. 403 ; 18 Hun 291. (Counties) 103 ; 
 (Cas. Cr.) 521. 
 
 People, ex rel. Kelly, v. Aitken, 19 
 Hun 327. (Contempt) 84. 
 
 People, ex rel. Kelly, v. Common 
 Council of Brooklyn, 77 N. Y. 503. 
 (B'klyn) 68; (Defin.) 124; (Quo Warr.) 
 568. 
 
 People, ex rel. Kenyon, v. Suther- 
 land, 16 Hun 192. (Insolv.) 213. 
 
 People, ex rel. Kerber, v. City of 
 Utica, 58 How. Pr. 136 ; 7 Abb. N. Cas. 414. 
 (Muu. Corp.) 310. 
 
 People, ex rel. Kilmer, -^ McDonald, 
 
 69 N. Y. 362 ; 4 Hun 187. (Cert.) 75 ; (Mun. 
 Corp.) 310. 
 
 People, ex rel. Kimball, v. Boston, 
 &o., R. R. Co., 70 N. Y. 569. (K. E. Co.) 
 S69. 
 
 People, ex rel. Kingsland, v. Clark, 
 
 70 N. Y. 518. (Injunc.) 206, 209. 
 
 People, ex rel. Kirtland, v. Dillon, 17 
 Hun 1. (Trial) 426. 
 
 People, ex rel. Larrabee, v. Mulhol- 
 land, 19 Hun 548. (Mun. Corp.) 310. 
 
 People, ex rel. La-wrence, v. Super- 
 visors of Westchester Co., 73 N. Y. 173. 
 (Counties) 103 ; (Mand.) 270. 
 ■ People, ex rel. Levy, v. Third District 
 ' Court, 57 How. Pr. 443; Id. 445, note. 
 <Courls) 106. 
 
 People, ex rel. Loomis, v. To^vn Au- 
 ditors, 75 N. Y. 316. (Highw.) 193 ; (Mand.) 
 270; (Towns) 423. 
 
 People, ex rel. Lorillard, v. Clyde, 69 
 N. Y. 603. (App.) 22. 
 
 People, ex rel. Lowenbein v. Dono- 
 liue, 15 Hun 418 ; 56 How. Pr. 152. (Cert.) 
 75 ; (Courts) 105. 
 
 People, ex rel. Lunney, v. Campbell, 
 72 N. Y. 496, 612. (Mand.) 270. 
 
 People, ex rel. McKenzie, v. Super- 
 visors, 19 Hun 11. (Counties) 103. 
 
 People, ex rel. Manhattan Fire Ins. 
 Co., V. Commissioners of Taxes, 76 N. 
 Y. 64. (Cert.) 75; (Defin.) 125; (Spec. Pro.) 
 411^ (Taxes) 416, 417. 
 
 People, ex rel. Martin, v. Dorsheim- 
 •er, 55 How. Pr. 118. (Defin.) 124; (State) 
 413. 
 
 People, ex rel. Mayor, v. Nichols, 57 
 How. Pr. 4fi3. (Cert.) 74. 
 
 People, ex rel. Mayor, v. Nichols, 58 
 How. Pr. 200 ; 57 Id. 467 ; 18 Hun 530. (Cert.) 
 74; (ProUb.) 359; (Cas. Cr.) 522. 
 
 People, ex rel. Mayor, v. Nichols, 58 
 How. Pr. 358. (Cert.) 74. 
 
 People, ex rel. Miller, v. Oummings, 
 72 N. Y. 433. (Mand.) 270 ; (Manuf. Co.) 271. 
 
 People, ex rel. Morris, v. Randall, 8 
 Daly 81. (Costs) 100. 
 
 People, ex rel. Morris, v. Randall, 73 
 N. Y. 416. (Att'y & CI.) 46 ; (Exec.) 166 ; 
 (Cas. Cr.) 522. 
 
 People, ex rel. Morris, v. Supervisors 
 of Richmond Co., 73 N. Y. 393. (Bound.) 
 66 ; (Defin.) 123. 
 
 People, ex rel. Munday, v. Fire Com- 
 missioners, 72 N. Y. 445. (App.) 26 ; (N. 
 Y.) 325 ; (Cas. Cr.) 522. 
 
 People, ex rel. Murphy, v. Kelly, 76 
 N. Y. 475 ; 5 Abb. N. Cas. 383. (Bridges) 67 ; 
 (Const. L.) 83 ; (Naviga.) 311 ; (Off.) 330. 
 
 People, ex rel. Murray, v. Justices 
 of Special Sessions, 13 Hun 533 ; 74 N. Y. 
 406. (Trial) 430 ; (Cas. Cr.) 522. 
 
 People, ex rel. New York, &m., R. 
 R. Co., V. Barrett, 18 Hun 206. (Mun. 
 Coi-p.) 303. 
 
 People, ex rel. New York, &o., R. 
 R. Co., V. Hutton, 18 Hun 116. (Mun. 
 Corp.) 302, 303. 
 
 People, ex rel. New York Elevated 
 R. R. Co., V. Commissioners, 19 Hun 460. 
 (Taxes) 417. 
 
 People, ex rel. Niagara Bridge, &c., 
 R. R. Co., V. Lodkport, &c., R. R. Co., 
 13 Hun 211. (R. R. Co.) 371. 
 
 People, ex rel. Nichols, v. Cooper, 57 
 How. Pr. 463. (Motions & O.) 298 ; (Stay of 
 Pro.) 415. 
 
 People, ex rel. Nichols, v. Cooper, 21 
 Hun 517. (N. Y.) 323. 
 
 People, ex rel. Nichols, v. Mayor, 
 &c., of New York, 19 Hun 441 ; 58 How. 
 Pr. 358. (Defin.) 122; (Jurisd.) 245; (N. Y.) 
 324. 
 
 People, ex rel. O'ReiUy, v. Mayor, 
 &c., of New York, 59 How. Pr. 277. (Hand.) 
 269 ; (N. Y.) 318. 
 
 People, ex rel. Pen Yan, &o.. Plank- 
 road Co., V. Martin, 56 How. Pr. 516. 
 (Plankroads) 342. 
 
 People, ex rel. Phelps, v. Donohue, 14 
 . Hun 133. (Hab. Corp.) 192. 
 
 People, ex rel. Phelps, v. General 
 Sessions, 13 Hun 395. (False Pret.) 179; 
 (Indict.) 205; (N..Y.) 323; (Cas. Cr.) 522. 
 
 People, ex rel. Phelps, v. Oyer and 
 Terminer, 14 Hun 21. (Hab. Corp.) 192. 
 
 People, ex rel. Ransom, v. Super- 
 visors of Niaigara Co., 78 N. Y. 622. 
 (Counties) 104. 
 
 People, ex rel. Ray, v. Burill, 14 Hun 
 224. (B'klyn) 68. 
 
OASES DIGESTED. 
 
 595 
 
 People, ex rel. Riedman, v. McOue, 
 18 Hun 53. (Exec.) 164 
 
 People, ex rel. Bobbins, v. Mayor, 
 ■Ssc, of New York, 20 Hun. 73. (Cert.) 75, 
 
 People, ex rel.. Roberts, v. Bowe, 20 
 Hun 85; 8 Abb. N. Cas. 234. (App.) 28; 
 (Cas. Cr.) 522. 
 
 People, ex rel. Robinson, v. Super- 
 -visors, 17 Hun 501. (Stat.) 414. 
 
 People,' ex rel. Rosenthal, v. Oowles, 
 .59 How. Pr. 287. (Hab. Corp.) 192. 
 
 People, ex rel. Ross, v. City of 
 Brooklyn, 69 N. Y. 605. (Stat.) 415. 
 
 People, ex rel. Sage, v. Schuyler, 17 
 Hun. 106. (Canals) 71 ; (Cas. Cr.) 522. 
 
 People, ex rel. Sage, v. Schuyler, 79 
 N. Y. 189. (Off.) 330 ; (Cas. Cr.) 522. 
 
 People, ex rel. Salke, v. Talcott, 59 
 How. Pr. 269. (Prohib.) 359. 
 
 People, ex rel. Sanford, v. Gedney, 
 
 15 Hun 475. (Land. & T.) 249. 
 
 People, ex rel. Satterlee, v. Board of 
 PoUoe, 75 N. Y. 38 ; 12 Hun 653. (Mand.) 
 270; (N. Y.) 327. 
 
 People ex rel. Scott, v. Supervisors, 
 20 Hun 196. (Highw.) 194, 
 
 People, ex rel. Scudder, v. Cooper, 20 
 Hun 486. (Contempt) 86; (Eject.) 139. 
 
 People, ex rel. Sears, v. Board of As- 
 sessors, 18 Hun 386. (Taxes) 418. 
 
 People, ex rel. Seery, v. Police Com- 
 missioners, 55 How. Pr. 454. (Mun. Corp.) 
 310. 
 
 People, ex rel. Serven, v. Demarest, 
 
 16 Hun 123. (Counties) 103. 
 
 People, ex rel. Siebert, v. Police Com- 
 missioners, 20 Hun 333. (N. Y.) 326. 
 
 People, ex rel. Sims, v. Fire Commis- 
 aioners of New York, 73 N. Y. 437. (Cert.) 
 75 ; (Defin.) 121 ; (N. Y.) 325. 
 
 People, ex rel. Slavin, v. Wendell, 71 
 IT. Y. 171. (Mand.) 271. 
 
 People, ex rel. Smith, v. Village of 
 ISrelliston, 18 Hun 165. (Cert.) 75. 
 
 People, ex rel. Stager, v. Starr, 55 
 How. Pr. 388. (M^nd.) 269, 270. 
 
 People, ex rel. Staudacher, v. Webb, 
 16 Hun 42. (Mun. Corp.) 308. 
 
 People, ex rel. Stebbins, v. Hoe, 20 
 Bun 26. (E. K. Co.) 382. 
 
 People, ex rel. Stiner, v. Morrison, 78 
 N. Y. 84. (Liq. Sell.) 265. 
 
 People, ex rel. Supervisors, v. Had- 
 ley, 14 Hun 183. (Taxes) 419. 
 
 People, ex rel. Supervisors, v. Had- 
 ley, 76 N. Y. 337 ; 16 Hun 113. (Taxes) 419 ; 
 <(Cas. Cr.) 523. 
 
 People, ex rel. Thompson, v. Super- 
 
 visors of Hamilton Co., 73 N. Y. 604 ; 9 
 Hun 60. (Taxes) 419. 
 
 People, ex rel. Thurston, v. Town 
 Auditors, 20 Hun 150. (Towns) 423 ; (Cas. 
 Cr ) 523. 
 
 People, ex rel. Tradesmen's Bank, v. 
 Commissioners of Taxes, 69 N. Y. 91 ; 9 
 Hun 650. (Defin.) 125; (Taxes) 418. 
 
 People, ex rel. Van AUen, v. Perry, 
 16 Hun 461. (Cei-t.) 75. 
 
 People, ex rel. Van Keuren, v. Town 
 Auditors, 20 Hun 150. (Towns.) 423. 
 
 People, ex rel. Van Keuren, v. Town 
 Auditors, 74 N. Y. 310; 10 Hun 551. 
 (Highw.) 193; (Pr. & Agt.) 351; (Cas. Cr.) 
 523. 
 
 People, ex rel. Van Wyckv. Police 
 Commissioners, 57 How Pr. 445. (Mand.) 
 270. 
 
 People, ex rel. Van Wyok, v. Wheel- 
 er, 18 Hun 540. (Elect.) 140. 
 
 People, ex rel. Vogler, v. Palmer, 16 
 Hun 136. (Just. P.) 246. 
 
 People, ex rel. Walker, v. Baboook, 
 16 Hun 313. (Ex. & Ad.) 177.^ 
 
 People, ex rel. Walsh, v. Smith, 77 
 N. Y. 347; 17 Hun 286. (N. Y.) 326; (Cas. 
 Cr.) 523. 
 
 People, ex rel. Ward, v. Ward, 59 
 How. Pr. 174. (Hab. Corp.) 192. 
 
 People, ex rel. Wasson, v. Schuyler, 
 69 N. Y. 242. (Canals) 71 ; (Cas. Cr.) 523. 
 
 People, ex rel. Waters, v. Diver, 19 
 Hun 263. (Highw.) 194. 
 
 People, ex rel. Weekes, v. Baldwin, 
 19 Hun 308. (Taxes) 418. 
 
 People, ex rel. Weeks, v. Supervis- 
 ors, 18 Hun 4. (Highw.) 193 ; (Cas. Cr.) 523. 
 
 People, ex rel. Westray, v. Mayor, 
 &c., of New York, 16 Hun 309. (N. Y.) 
 324. 
 
 People, ex rel. W^heeler, v. Cooper, 
 57 How Pr. 416. (Cert.) 74; (N. Y.) 324; 
 (Prohib.) 359. 
 
 People, ex rel. Wheeler, v. Shorb, 14 
 Hun 112. (Leases) 257. 
 
 People, ex rel. Williamsburgh Gas 
 Light Co., V. Board of Assessors, 76 
 N. Y. 202; 16 Hun 196. (Taxes) 417; (Cas. 
 Cr.) 523. 
 
 People, ex rel. Witherbee, v. Super- 
 visors of Essex Co., 70 N. Y. 228. (Abate.) 
 1; (App.) 27; (Const. L.) 83; (Defin.) 121; 
 (Mand.) 269, 271 ; (Stat.) 413, 414. 
 
 People, ex rel. Woolsey, v. Common 
 Council; 76 N. Y. 20. (Cert.) 75; (Mun. 
 Corp.) 308. 
 
596 
 
 CASES DIGESTED. 
 
 People, ex rel'. Yale, v. Eokler, 19 Hun 
 609. (Schools) 401. 
 
 People's Bank of New York v. Bog- 
 art, 16 Hun 270. (Fraud) 182; (Sales) 397 ; 
 (Cas. Cr.) 523. 
 
 People's Bank of New York v. Mit- 
 chell, 73 N. Y. 406. (Contracts) 89 ; (Estop.) 
 149 ; (Leases) 257. 
 
 Per Lee v. Beebe, 13 Hun 89. (Con- 
 tracts) 90. 
 
 Perry v. Dickerson, 7 Abb. N. Cas. 466. 
 (Judgm't) 240; (Services) 402. 
 
 Perry v. Lansing', 17 Hun 34. (Mast. & 
 S.) 278. 
 
 Perry v. Rollins, 56 How. Pr. 242. (Eef.) 
 386. 
 
 Perry v. Volkening', 44 Superior 332. 
 (Injuno.) 209. 
 
 Person v. Oberteuffer, 59 How. Pr. 339. 
 (Assign'ts) 41. 
 
 Petrie v. Adams, 71 N. Y. 79. (App.) 
 21. 
 
 Pettit V. G-eesler, 58 How. Pr. 195. 
 (Witn.) 454. 
 
 Peyser v. Mayor, &o., of New York, 
 70 N. Y. 497 ; 8 Hun 413. (Defin.) 121 ; (Mon. 
 Bec'd) 284; (Cas. Cr.) 523. 
 
 Pfohl V. Simpson, 74 N. Y. 137. (Corp.) 
 94; (Eq.) 142. 
 
 Phelps V. Nowlen, 72 N. Y. 39. (Eeal 
 Prop.) 383. 
 
 Phelps V. People, 72 N. Y. 334; 6 Hun 
 401. (Indict.) 205 ; (LarC.) 253 ; (Taxes) 418 ; 
 (Trial) 431 ; (Cas. Cr.) 523. 
 
 Phelps V. People, 72 N. Y. 365 ; 6 Hun 
 428. (Error) 146 ; (Forg.) 181. 
 
 Phenix Ins. Co. v. Church, 59 How. 
 Pr. 293; 56 Id. 493; Id. 29. (Prom. N.) 
 361. 
 
 Philbrook v. Kellogg, 18 Hun 399. 
 (Dam.) 114. 
 
 Phinney v. Broeohell, 19 Hun 116 ; 58 
 How. Pr. 492. (Motions & O.) 298 ; (Prao.) 
 358 ; (Cas. Cr.) 524. 
 
 PhcBnix V. Dupuy, 7 Daly 238. (Depos.) 
 126. 
 
 Phoenix Ins. Co. v. Church, 59 How. 
 Pr. 293. (Evid.) 151. 
 
 Phoenix Ins. Co. v. Ployd, 19 Hun 287. 
 (Ins.) 220. 
 
 Phyfe V. Masterson, 45 Superior 338. 
 (New Tr.) 315. 
 
 ' Pickett, Matter of, 55 How. Pr. 491. 
 (Poor) 347. 
 
 Pier V. George, 14 Hun 568; 17 Id. 207. 
 (Manuf. Co.) 273. 
 
 Pier V. George, 20 Hun 210. (Manuf. 
 Co.) 273, 274. 
 
 Pierce v. Keator, 70 N. Y. 419 ; 9 Hun 
 532. (Deeds) 119 ; (Defin.) 121, 124; (Easem.) 
 137. 
 
 Pierce v. Pierce, 71 N. Y. 154. (Con- 
 tracts) 89 ; (Husb. & W.) 197. 
 
 Pierson v. Atlantic Nat. Bank, 77 N, 
 Y. 304. (Evid.) 153, 156. 
 
 Pierson v. Freeman, 77 N. Y. 589. 
 (Arrest) 34. 
 
 Pierson v. People, 79 N Y. 424; 18 Hun 
 239. (Pliys & S.) 342 ; (Trial) 431 ; (Cas. Cr.) 
 524. 
 
 Pierson v 'Werhan, 14 Hun 626. (Sales) 
 396. 
 
 Pike V. Seiter, 15 Hun 402. (Mort.) 288. 
 
 Pilcher v. Brayton, 17 Hun 429. (Manut 
 Co.) 275. 
 
 Pillsbury, Matter of, 56 How. Pr. 290. 
 (Witn.) 453. 
 
 Platner v. Platner, 78 N. Y. 90. (App.) 
 13; (Evid.) 150; (Trial) 426; (Witn.) 454, 
 462. 
 
 Plonsky v. Japha, 7 Daly 226. (Judgm't) 
 238. 
 
 Plopper V. New York Central, &o.^ 
 B. R. Co., 13 Hun 625. (K E. Co.) 377. 
 
 Plume & Atwood Manuf. Co. v.. 
 Strauss, 17 Hun*586. (Assign'ts) 40. 
 
 Poillon V. Lawrence, 77 N. Y. 207 ; 45 
 Superior 385. (Bank'cy) 53, 54 ; (Plead.) 345 ; 
 (Cas. Cr.) 524. 
 
 Polinsky v. People, 73 N. Y. 65 ; 11 Hun 
 390. (Crim. L.) Ill ; (Error) 146; (Indict.) 
 205; (Mun. Corp.) 307; (N. Y.) 318. 
 
 Pollock, Matter of, 3 Eedf. 100. (Accf g) 
 3; (Wills) 451. 
 
 Pollock V. Pollock, 71 N. Y. 137. (App.) 
 27 ; (Divorce) 131, 132 ; (Witn.) 457, 459. 
 
 Pollock V. "Webster, 16 Hun, 104. (Husb. 
 & W.) 203. 
 
 Pomeroy v. Tanner 70 N. Y. 547. 
 (Prom. N.) 363. 
 
 Pond V. Comstocl^ 20 Hun 492. (Fraud. 
 Conv.) 184. 
 
 Pontius V. People, 21 Hun 328. (Trial) 
 431. 
 
 Pool V. Coleman, 8 Daly 113. (Injuno.) 
 207. 
 
 Pool V. Safford, 14 Hun 369. (Exec.) 
 165. 
 
 Pope V. Hanmer, 74 N. Y. 240 ; 8 Huu. 
 265. (Adv. Poss.) 7 ; (Trespass) 424. 
 
 Popham V. Barrett, 20 Hun 299. 
 (Bank'cy) 53. 
 
 Porter v. Kingsbury, 71 N. Y. 588. 
 (App.) 31 ; (Cas. Cr.) 524. 
 
 Porter v. Kingsbury, 77 N. Y. 164; 13 
 Hun 33. (Abate.) 2; (Cas. Cr.) 524. 
 
CASES DIGESTED. 
 
 59r 
 
 Porter v. 'Waring, 69 N. Y. 250. ,(■*■??.) 
 16; (Defin.) 124; (Evid.) 151, 159. 
 
 Post V. Campbell, 18 Hun 50. (Mech. 
 Lien) 280. 
 
 Potter V. Carpenter, 71 N. Y. 74. 
 <App.) 27. 
 
 Potter V. Carpenter, 76 N. Y. 157. (Ser- 
 vices) 402. 
 
 Potter V. MoPberson, 21 Hun 559. 
 <Tradem'ks) 423. 
 
 Potter V. Smith, 70 N. Y. 299. (Plead.) 
 345. 
 
 Potts V. Mayer, 74 N. Y. 594 ; 43 Supe- 
 rior 544. (Prom. N.) 361 ; (Q. of L. & F.) 367 ; 
 (Trial) 428; (Cas. Cr.) 524. 
 
 Poughkeepsie G-as Co. v. Citizens' 
 Oas Co., 20 Hun 214. (Gas Co.) 185. 
 
 Poughkeepsie Savings Bank v. 
 "Winn, 56 How. Pr. 368. (Mort.) 294. 
 
 Powell V. Powell, 71 N. Y. 71 ; 3 Hun 
 413. (Dam.) 115 ; (Trial) 427 ; (Trover) 432, 
 434. 
 
 Power V. Cassidy, 16 Hun 294 ; 79 N. 
 Y. 602. (Wills) 448, 452; (Cas. Cr.) 525. 
 
 Power V. Village of Athens, 19 Hun 
 165. (Contempt) 85 ; (Fences) 180 ; (Motions 
 A O.) 298 ; (Cas. Cr.) 525. 
 
 Poyer v. New York Central, &c., R. 
 R. Co., 7 Abb. N. Cas. 371. (Courts) 106. 
 
 Pratt V. Buffalo City Ry. Co., 19 Hun 
 SO. (Easem.) 137. 
 
 Pratt V. Collins, 20 Hun 126. (Pr. & Agt.) 
 354. 
 
 Pratt V. Eaton, 18 Hun 293 ; 79 N. Y. 
 449. (Banks) 55; (Cas. Cr.) 525. 
 
 Pratt V. Munson, 17 Hun 475. (Corp.) 
 S3; (Defin.) 120. 
 
 Pratt V. People, 13 Hun 664. (Highw.) 
 193. 
 
 Pratt v! Short, 79 N. Y. 437. (Stat.) 
 414. 
 
 Prentice v. Geiger, 74 N. Y. 341 ; 9 Hun 
 350. (Mills) 282. 
 
 Prentice v. Janssen, 14 Hun 548 , 79 N. 
 
 Y. 478. (Ex. & Ad.) 170; (Partition) 333; 
 (Wills) 451, 452; (Cas.Cr.) 525. 
 
 Prentice v. Knickerbocker Life Ins. 
 Co., 77 N. Y. 483 ; 43 Superior 352. (Ins.) 213, 
 225 ; (Cas. Cr.) 525. 
 
 Presbyterian Soo. of Knoxboro v. 
 Beach, 74 N. Y. 72 ; 8 Hun 644. (Eelig. Soc.) 
 389. 
 
 Preston v. Yates, 17 Hun 92. * (Sheriffs) 
 404. 
 
 Prensser v. Florence, 4 Abb. N. Cas. 136. 
 (Mech. Lien) 281. 
 
 Price V. Price, 75 K. Y. 244; 11 Hun 
 299. (Abate.) 2. 
 
 Priebe v. Kellogg Bridge Co., 77 N. Y. 
 597. (App.) 14. 
 
 Prime v. Koehler, 77 N. Y. 91 ; 7 Daly 
 345. (Guar.) 187, 188. 
 
 Prince v. Conner, 69 N. Y. 608. (Dam.)" 
 114. 
 
 Pritohard v. Pritchard, 4 Abb. N. Cas. 
 298. (Divorce) 133. 
 
 Proctor V. Clarke, 3 Eedf. 445. (Wills) 
 448. 
 
 Prospect Park, <&o., R. R. Co., Matter 
 of, 13 Hun 345. (E. E. Co.) 371. 
 
 Prospect Park, &c., R. R. Co., Matter 
 of, 16 Hun 261. (Em. Dom.) 141. 
 
 .Prospect Park, &c., R. R. Co., Matter 
 of, 20 Hun 184. (E. E. Co.) 371. 
 
 Protestant Epis. Pub. School, Matter 
 of, 75 N. Y. 324. (Cas. Cr.) 525. 
 
 Provost V. Parrell, 13 Hun 303. (Costs) 
 102; (Eject.) 139. 
 
 Provost V. Provost, 70 N. Y. 141. 
 (App.) 23; (Wills) 449. , 
 
 Pursell V. Fry, 58 How. Pr. 317 ; 19 Hun 
 595. (Ex. & Ad.) ,171; (Husb. & W.) 202; 
 (Interest) 236; (Lim. of Ac.) 265; (Witn.) 
 455. 
 
 Pursell V. Mayor, &c., of New York, 
 43 Superior 348. (Mon. Eec'd) 284. 
 
 Putnam v. Farnham, 71 N. Y. 590. 
 (Evid.) 159; (Exoept's) 161. 
 
 Q. 
 
 Quackenbush v. Johnson, 55 How. Pr. 
 ■94. (iftef.) 387. 
 
 Quick V. "Wheeler, 78 N. Y. 300. (Sales) 
 398. 
 
 Quimby v. Claflin, 77 N. Y. 270. (App.) 
 22 J (Motions &0.) 298. 
 
 Quincey v. Francis, 5 Abb. N. Cas. 286. 
 (Att'y & CI.) 48. 
 
 Quinn v. People, 71 N. Y. 561 ; 11 Hun 
 336. (Burg.) 70. 
 
 Quinn v. Power, 17 Hun 102. (Mast. & 
 S.) 277. 
 
598 
 
 CASES DIGESTED. 
 
 R. 
 
 Rae V. Beach, 76 N. Y. 164. (App.) 
 31. 
 
 Rae V. Harteau, 7 Daly 95. (Caa. Cr.) 
 526. 
 
 RandaU v. Sackett, 77 N. Y. 480. 
 (Abate.) 1 ; (App.) 30 ; ( Pr. & S.) 357. 
 
 Randell v. Von Ellert, 4 Abb. N. Cas. 88. 
 (Exec.) 163. 
 
 Ranney v. MoMtillen, 5 Abb. N. Cas. 
 246. (Eq.) 144 ; (Mort.) 287. 
 
 Ranney v. Peyser, 20 Huq 11. (Mort.) 
 293. 
 
 Ranney v. "Warren, 13 Hun 11. (Eq.) 
 143- 
 
 Ranney v. Warren, 17 Hun 111. 
 (Fraud) 183. 
 
 Ransom, Matter of, 8 Daly 89. (Assign'ts) 
 41. (Insolv.) 212. 
 
 Raplee v. Amot, 69 N. Y. 616. (Con- 
 tracts) 86. 
 
 Rasin v. Amroidown, 15 Hun 422. 
 (Bank'cy) 55. 
 
 Rassbeck V. Desterrelcher, 55 How. Pr. 
 516. (Manuf. Co.) 271. 
 
 Rathbun v. Citizens' Steamboat Co., 
 76 N. Y. 376; 57 How. Pr. 191. (Carrier) 73. 
 
 Raubitschek v. Blank, 44 Superior 564. 
 (Plead.) 346; (Vend. & P.) 441. 
 
 Rawl V. Guilleaume, 58 How. Pr. 308 ; 
 15 Hun 462. (Judgm't.) 242. 
 
 Ra-wley v. Brown, 18 Hun 456. (Exec.) 
 163. ^ 
 
 Rawley v. Brown, 71 N. Y. 85. (Evid.) 
 152. 
 
 Raymond, Matter of, 21 Hun 229. 
 (Mun. Corp.) 300. 
 
 Raymond v. Brooks, 59 How. Pr. 383. 
 (Depos.) 126. 
 
 Raymond v. Richmond, 76 N. Y. 106. 
 (App) 25. 
 
 Raymond v. Richmond, 78 N. Y. 351. 
 (App.) 12; (Judgm't) 241. 
 
 Raynor v. Gordon, 16 Hun 126. (Ex. & 
 Ad.) 175. 
 
 Read v. City of Buffalo, 74 N. Y. 463. 
 (Mun. Corp.) 301. 
 
 Real Estate Trust Co. v. Keech, 69 
 N. Y. 248. (Usury) 440. 
 
 Real Estate Trust Co. v. Balch, 45 Su- 
 perior 528. (Eq.) 144; (Estop.) 148, 149; 
 (Mort.) 287. 
 
 Rector V. Clark, 78 N. Y. 21. (Highw.) 
 193 ; (Plead.) 343. 
 
 Reddington v. Mariposa Land, <&c., 
 Co., 19 Hun 405. (Defin.) 123; (Process) 
 358. 
 
 Redfleld v. Patereon Fire Ins. Co., S 
 Abb. N. Cas. 456. (Ins.) 217. 
 
 Reeder v. Sayre, 70 N. Y. 180 ; 6 Huq 
 562. , (Amend.) 9; (App.) 16, 17 ; (Land. & T.> 
 248, 249, 250. 
 
 Reeve v. Crosby, 3 Eedf. 74. ("WiUs> 
 448. 
 
 Reid V. Lancaster Fire Ins. Co., 19 
 Hun 284. (Defin.) 123, 124; (Ins.) 225, 226. 
 
 Reid V. Sprague, 72 N.'Y. 457; 9 Hua 
 30. (Trusts) 436. 
 
 Reinach v. Meyer, 55 How. Pr. 283. 
 (Injunc.) 210. 
 
 Reiners v. Brandhorst, 59 How. Pr. 91. 
 (Plead.) 343. 
 
 Reitz V. Reitz, 14 Hun 536. (Lim. of 
 Ac.) 262 ; (Cas. Cr.) 526. 
 
 Remington Paper Co. v. O'Dough- 
 erty, 16 Hun 594. (Eq.) 143 ; (Cas. Cr.) 526 
 
 Renner v. Muller, 44 Superior .535; 
 57 How. Pr. 229. (Aliens) 8 ; (Citizens) 79 p 
 (Descent) 128; (Injunc.) 207; (Treaties) 424. 
 
 Reno V. Millspaugh, 14 Hun 229. 
 (Amend.) 9. 
 
 Reserve Mut. Life Ins. Co., Matter 
 of, 13 Hun 115; 74 N. Y. 617. (Ins.) 234; 
 (Cas. Cr.) 527. 
 
 Rexter v. Starin, 73 N. Y. 601. (Negl.) 
 311; (Trial) 428. 
 
 Reynolds Matter of, 77 N. Y. 631. 
 (App.) 26. 
 
 Reynolds v. Guilbert, 13 Hiin 301. 
 (Contracts) 86. 
 
 Rhodes V. Brandt, 21 Hun 1. (Mai. 
 Pros.) 268. 
 
 Rhoner v. First Nat. Bank, 14 Hua 
 126. (Attach.) 43 ; (Cas. Cr.) 527. 
 
 Rice, Matter of, 7 Daly 22. (Citizens)' 
 79. 
 
 Rich, Matter of, 3 Eedf. 177. (Accf g) 4. 
 
 Rich V. Lyles, 45 Superior 601. (Witu.) 
 463. 
 
 Richards v. Richards, 76 N. Y. 186 ; 14 
 Hun 25. (Partition) 338 ; (Cas. Cr.) 527. 
 
 Richardson v. Hughitt, 76 N. Y. 55. 
 (Partners.) 334. 
 
 Richardson v. Root, 19 Hun 473. (Ex. 
 &A&.) 170. 
 
 Richardson v. Warner, 13 Hun 13. 
 (Witn.) 455. 
 
 Richardson v. Westchester Fire Ins. 
 Co., 15 Hun 472. (Ins.) 218. 
 
 Richmond v. Niagara Fire Ins. Co.> 
 15 Hun 248. (Ins.) 216, 228 ;. (Cas. Cr.) 627. 
 
 Richmond v. Union Steamboat Co.» 
 8 Abb. N. Cas. 66. (Carriers) 72. 
 
CASES DIGESTED. 
 
 599 
 
 Riddell v. New York Central, Sec, R. 
 R. Co., 73 N. Y. 618. (App.) 27 ; (Evid.) 150. 
 
 Rider v. Fuller, 13 Hun 669. (False Imp.) 
 178. 
 
 Rieser, Matter of, 19 Hun 202. (As- 
 sign'ts) 41. 
 
 Riggs V. American Tract Soc, 7 Abb. 
 N. Cas. 433; 19 Hun 481. (Ex. & Ad.) 174; 
 (Ins. Pers.) 211 ; (Plead.) 343. 
 
 Riggs V. Purcell, 74 N. Y. 370. (App.) 
 28; (Estop.) 148; (Mort.) 294; (Motions &0.) 
 298. 
 
 Riggs V. Waydell, 56 How. Pr. 247. 
 (Judgm't) 238. 
 
 Riggs V. Waydell, 17 Hun 515. (Amend.) 
 10. 
 
 Riggs V. "Waydell, 78 N. Y. 586. (App.) 
 24; (Costs) 99. 
 
 Riley v. Corwin, 17 Hun 597. (Amend.) 
 10. 
 
 Ring V. City of Cohoes , 77 N. Y. 83 ; 13 
 Hun 76. (Mun. Corp.) 305; (Cas. Cr.) 527. 
 
 Risley v. "Wightman, 13 Hun 163. (App.) 
 19 ; (Lim. of Ac.) 265. 
 
 Ritten v. G-rifflth, 16 Hun 454. (Process) 
 358. 
 
 Ritterband v. Baggett, 4 Abb. N. Cas. 
 67. (Exec.) 166. 
 
 Robbins, Matter of, 20 Hun 530. (N. 
 Y.) 319 ; (Cas. Cr.) 527. 
 
 Robbins v. Falconer, 43 Superior 363. 
 (Arrest) 33, 36. 
 
 Roberts, Matter of, 8 Daly 95. (Impris.) 
 204; (Cas. Cr.) 527. 
 
 Roberts, Matter of, 59 How. Pr. 136. 
 (Defin.) 123 ; (Judgm't) 241 ; (Cas. Cr.) 527. 
 
 Roberts, Matter of, 17 Hun 559. (N. Y.) 
 319,320; (Cas. Cr.) 527. 
 
 Roberts, Matter of, 70 N. Y. 5. (Impris.) 
 204. 
 
 Roberts v. "White, 73 N. Y. 375 ; 43 Su- 
 perior 455. (Injunc.) 210 ; (Cas. Cr.) 527. 
 
 Robertson v. Bennett, 44 Superior 66. 
 (Libel) 261. 
 
 Robertson v. Russell, 20 Hun 243. (De- 
 pos.) 127. 
 
 Robertson v. StiUings, 8 Daly 153. 
 (App.) 19. 
 
 Robinson v. Chittenden, 69 N. Y. 525. 
 (Pr. & Agt.) 355; (Shipp.) 407. 
 
 Robinson v. Comer, 13 Hun 291. (Bills 
 of Panic.) 64. 
 
 Robinson v. G-ilflllan, 15 Hun 267. 
 (Partners.) 334. 
 
 Robinson v. Hatch, 25 How. Pr. 55. 
 (Sland.) 409. 
 
 Robinson v. Kime, 70 N. Y. 147. . (Adv. 
 Poss.) 7; (Dam.) 115; (Deeds) 119; (Estates) 
 146. 
 
 Robinson V. Marks, 19 Hun 325. (Judgm.) 
 240. 
 
 Robinson v. Nat. Bank of New Berne, 
 59 How. Pr. 218 ; 68 Id. 306 ; 19 Hun 477. 
 (Attach.) 43 (Cas. Cr.) 528. 
 
 Robinson v. Pacific Fire Ins. Co., 18 
 Hun 395. (Ins.) 217, 219. 
 
 Robson V. New York Central, &c., R. 
 R. Co., 21 Hun 387. (New Tr.) 314. 
 
 Roby V. Hallock, 5 Abb. N. Cas. 86 ; 55 
 How. Pr. 412. (Plead.) 344. 
 
 Rockwell V. McGrOvern, 69 N. Y. 294. 
 (Insolv.) 212. 
 
 Roderigas v. East River Savings 
 Inst., 43 Superior 217 ; 76 N. Y. 316. (Courts) 
 106 ; (Ex. & Ad.) 167, 169 ; (Judgm't) 241 ; 
 (Off.) 330 ; (Cas. Cr.) 528. 
 
 Roe -v. Barker, 17 Hun 84. (Vend. & P.) 
 443. 
 
 Roe V. Conway, 74 N. Y. 201. (Leases) 
 257. 
 
 Roe V. Roe, 14 Hun 611. (Divorce) 133 ; 
 (Excepl's) 161. 
 
 Rogers v. Chicago, &c., Ry. Co., 6 
 Abb. N. Cas. 253. (Bonds) 65. 
 
 Rogers v. Rogers, 18 Hun 409. (Trusts) 
 439. 
 
 Rogers v. Rochester, &c., R. R. Co., 
 21 Hun 44. (Mun. Corp.) 301. 
 
 Rogers Locomotive Works v. Kelly, 
 19 Hun 399." (Bonds) 65. 
 
 Rohrschneider v. Knickerbocker Life 
 Ins. Co., 76 N. Y. 216. (Fraud) 182. 
 
 Roll V. Northern Central Ry. Co., 15 
 Hun 496. (Negl.) 313 ; (R. E. Co.) 379 ; (Cas. 
 Cr.) 528. 
 
 Rollins V. Wood, 16 Hun 586. (App.),18. 
 
 Rome, &c., R. R. Co- v. Ontario South- 
 ern R. R. Co., 16 Hun 445. (R. E. Co.) 372. 
 
 Rooney, Matter of, 3 Eedf. 15. (Ex. & 
 Ad.) 173. 
 
 Roosa V. Smith, 17 Hun 138. (App.) 19. 
 
 Roosevelt v. Roosevelt, 6 Abb. N. Cas. 
 447. (Trusts) 438. 
 
 Roosevelt Hospital v. Dowley, 57 
 How. Pr. 489. (Mort.) 294. 
 
 Roosevelt Hospital v. Mayor, &c., of 
 New York, 18 Hun 582. (N. Y.) 319. 
 
 Roseboom v. Roseboom, 15 Hun 309. 
 (Ten. in C.) 422 ; (Wills) 449 ; (Cas. Cr.) 528. 
 
 Rosenbaok v. Manufacturers' &c.. 
 Bank, 69 N. Y. 358 ; 10 Hun 148. (Banks.) 
 60; (Cas. Cr.) 529. 
 
 Rosenthal, Matter of, 59 How. Pr. 327. 
 (Courts) 106. 
 
 Rosepaugh v. Vredenburgh, 16 Hun 
 60. (Contracts) 91. 
 
 Ross V. Campbell, 19 Hun 615. (Sheriffs) 
 405. 
 
600 
 
 CASES DIGESTED. 
 
 Ross V. Ferris, 18 Hun 210. (Just. P.) 
 247. 
 
 Boss V. Harden, 44 Superior 26. (Dam.) 
 113; (Ex. & Ad.) 168; (Gift) 187; (Cas Cr.) 
 529. 
 
 Ross V. Hardin, 79 N. Y. 84. (Services) 
 402. 
 
 Ross V. Hurd, 71 N. Y. 14. (Prom. N.) 
 362. 
 
 Ross V. People, 17 Hun 591. (Liq. Sell.) 
 266. 
 
 Rossv.Wood, 70N. Y.8. (Fraud) 183; 
 (Cas. Cr.) 529. 
 
 Rossner v. New York Museum As- 
 sociation, 20 Hun 182. (Discov.) 130. 
 
 Rountree v. Holmes, 15 Hun 585. (Cas. 
 Cr.) 529. ; 
 
 Roup V. Bradner, 19 Hun 513. (Ex. & 
 Ad.) 174, 175. 
 
 Rowe V. G-illeaume, 18 Hun 556. 
 (Bank'cy) 53. 
 
 Rowland v. Mayor, &c., of New 
 York, 44 Superior 559. (N. Y.) 323. 
 
 Royal Baking Powder Co. v. Sherrill, 
 59 How. Pr. 7. (Tradem'ks) 423. 
 
 Royoe V. Watrous, 7 Daly 87 ; 73 N. Y. 
 597. (Estop.) 147 ; (Sales) 399 ; (Cas. Cr.) 
 529. 
 
 Ruckman v. Ruckman, 58 How. Pr. 
 278 ; (Divorce) 133. 
 
 Rugerv.Heckel, 21 Hun 489. (Judgm't) 
 242. 
 
 Rugg V. Rugg, 21 Hun 383. (^1118)447,448. 
 
 Rumsey v. Lake, 55 How. Pr. 339. 
 (Husb. & W.) 202 ; (Parties) 332. 
 
 Russell V. Consolidated Fruit Jar 
 Co., 13 Hun 286. (Pr. & Agt.) 351. 
 
 Russell V. Weinberg, 4 Abb. N. Cas. 139 ; 
 2 Id. 422. (Mort.) 287. 
 
 Rust V. Hauselt, 8 Abb. N. Cas. 148 ; 59 
 How. Pr. 389. (Costs.) 102; (Judgm't) 239. 
 
 Rust V. Hauselt, 69 N. Y. 485. (App.) 
 22. 
 
 Rustv. Hauselt, 43 Superior 571. (Prac.) 
 349. 
 
 Rutherford v. Hewey, 59 How. Pr. 231. 
 (Bank'cy) 52; (Partition) 332. 
 
 Ryan v. Knorr, 19 Hun 540. (Indians) 
 205. 
 
 Ryan v. People, 19 Hun 188 ; 79 N. Y. 593. 
 (Courte) 108 ; (Witn.) 461 ; (Cas. Cr.) 529. 
 
 Ryan v. Wilson, 45 Superior 273. (Land. 
 & T.) 250. , 
 
 Ryder V. Gilbert, 16 Hun 163. (Partners.) 
 337. 
 
 Ryder v. Thomas, 13 Hun 296. (Eeal 
 Prop.) 384. 
 
 Ryers, Matter of, 72 N. Y. 1 ; 10 Hun 93. 
 (App.) 21; (Courts) 104, 105; (Defin.) 121; 
 (Drains) 136. 
 
 Ryerson v. KaufiBeld, 13 Hun 387. 
 (Trover) 434. 
 
 Ryerson v. Willis, 8 Daly 462. (Vend. 
 &P.)444; (Cas. Cr.) 529. 
 
 Sacia v. O'Connor, 79 N. Y. 260; 58 
 How. Pr. 420; 45 Superior 633. (New Tr.) 
 316 ; (Cas. Cr.) 530. 
 
 Sackett, &c.. Streets, Matter of, 74 
 N. Y. 95. (Mun. Corp.) 308; (N. Y.) 
 318. 
 
 Sage V. City of Brooklyn, 8 Abb. N. 
 Cas. 279. (Mun. Corp.) 300. 
 
 Sage V. Lake Shore, &c., Ry. Co., 70 
 N. Y. 220. (App.) 25; (Corp.) 93, 98. 
 
 Sailesbury v. Creswell, 14 Hun 460. 
 (False Imp.) 178. 
 
 St. John V. Sweeney, 59 How. Pr. 175. 
 (Easem.) 138 ; (Motions & O.) 298. 
 
 St. Joseph's Asylum, Matter of, 69 
 N. Y. 353 ; 10 Hun 113 note. (N. Y.) 320, 322. 
 (Cas. Cr.) 530. 
 
 St. Nicholas Nat. Bank v. Savery, 45 
 Superior 97. (Partners.) 336. 
 
 St. Vincent's Orphan Asylum v. City 
 of Troy, 76 N. Y. 108. (Adv. Poss.) 8. 
 
 Salmon v. Gedney, 75 N. Y. 479. (App.) 
 20, 26. 
 
 Salter v. TTtica,-&c., R. R. Co., 75 N. 
 Y. 273 ; 13 Hun 187. (E. E. Co.) 378 ; (Trial) 
 428 ; (Cas. Cr.) 530. 
 
 Saltsman v. Shults, 14 Hun 256. (Evid.) 
 152; (Joint St. Co.) 237. 
 
 Sampson v. Buffalo, &c., Ry. Co., 13 
 Him 280. (E. E. Co.) 237. 
 
 Sanders v. Gillett, 8 Daly 183. (Att'y & 
 CI.) 48. 
 
 Saunders v. Chamberlain, 13 Hun 568. 
 (Fraud) 183. 
 
 Saunders v. Irvin, 16 Hun 342. (Exec.) 
 165. 
 
 Savage v. Crill, 19 Hun 4. (Dower) 135 ■ 
 (Cas. Cr.) 530. 
 
CASES DIGESTED. 
 
 601 
 
 Savings Bank of Utioa v. Wood, 17 
 Hun 133. (Mort.) 294. 
 
 Sayles v. Sims, 73 N. Y. 551. (Prom. 
 N.) 360; (Trial) 429. 
 
 Scattergood v. "Wood, 14 Hun 269. 
 <Dam.) 114 ; (Caa. Cr.) 530. 
 
 Scattergood v. "Wood, 79 N. Y. 263. 
 <Witn.) 463. 
 
 Sohaaf v. O'Brien, 8 Daly 181. (Guar.) 
 190. 
 
 Sohaefer v. Henkel, 75 N. Y. 378 ; 57 
 'How. Pr. 97 ; 7 Abb. N. Cas. 1. (Leases) 255 ; 
 (Pr. & Agt.) 352. 
 
 Schanok v. Conover, 56 How. Pr. 437. 
 (Exec.) 165. 
 
 Schanck v. Mayor, &e., of New 
 York, 69 N.Y. 444; 10 Hun 124. (JST. Y.) 
 324. 
 
 Sohappert v. Ringler, 45 Superior 345. 
 .(Horn.) 196 ; (New Tr.) 314. 
 
 Soheiderv. Oorby, 15 Hun 493. (New Tr.) 
 315. 
 
 Sohell, Matter of, 75 N. Y. 432; 16 Hun 
 283. (N. Y.) 322 ; (Cas. Cr.) 530. 
 
 Schelly v. Zink, 13 Hun 538. (Arrest) 
 36. 
 
 Schenck v. Rowell, 7 Daly 286. (Con- 
 tracts) 88. 
 
 Schierloh v. Schierloh, 14 Hun 572. 
 (Dower) 135. 
 
 Solimtzer V. Adelson, 8 Daly 269. (App.) 
 19. 
 
 Schmidt v. Heitner, 45 Superior 334. 
 <Exec.) 164. 
 
 Schoen v. Schlessinger, 57 How. Pr. 
 490; 7 Abb. N. Cas. 399. (Guard, ad L.) 191. 
 
 Scholey v. Halsey, 72 N. Y. 578. (Abate.) 
 1; (Estop.) 148 ; (Men. Eec'd) 284. 
 
 Scholle, Matter of, 14 Hun 14. (N. Y.) 
 320. 
 
 Schoonmaker v. "Wolford, 20 Hun 166. 
 (App.) 14, 18 ; (Wills) 448, 455. 
 
 Schrauth v. Dry Dock Savings Bank, 
 ■8 Daly 106. (Exec.) 166. 
 
 Sohroeder v. G-urney, 73 N. Y. 430 ; 10 
 Hun 413. (CI. on T.) 80; (Deeds) 118; 
 <Judgiu't) 242. 
 
 Schnimpf v. People, 14 Hun 10. (Crim. 
 L.) Ill ; (Error) 146. 
 
 Schufeldt V. Sohnitzler, 21 Hun 462. 
 (Sales) 399. 
 
 Schulte V. Anderson, 45 Superior 489. 
 (Partners.) 337. 
 
 Schwartz v. Atlantic, 8z6., Teleg. 
 Co., 18 Hun 157. (Teleg. Co.) 421. 
 ' Schwarz v. Oppold, 74 N. Y. 307 ; 56 
 How. Pr. 156 ; 7 Daly 121. (AH. of Inst.) 8 ; 
 (Courts) 105; (Prom. N.) 366; (Trial) 426. 
 
 Sohwarzansky v. Averill, 7 Daly 254. 
 (Prom. N.) 360. 
 
 Sch-weizer v. Raymond, 6 Abb. N. Caa. 
 378, (New Tr.) 316. 
 
 Schwler v. New York Central, &c., 
 R. R. Co., 70 N. Y. 119. (R. E. Co.) 377. 
 
 .Scofleld V. Churchill, 72 N. Y.565. (Ex. 
 & Ad.) 175. 
 
 Scofleld V. Dosoher, 72 N. Y. 491. 
 (Mort.) 295; (Plead.) 343. 
 
 Scott V. Meeker, 20 Hun 161. (Checks) 
 78. 
 
 Scott V. McMillan, 76 N. Y. 141 ; 8 Daly 
 320. (Gov'ts) 108; (Easem.) 138; (Cas. Cr.) 
 531. 
 
 Scully V. Sanders, 77 N. Y. 598. (App.) 
 21 ; ,(Ins.) 215. 
 
 Scully V. Sanders, 44 Superior 89. 
 (Deeds) 119. 
 
 Seaman v. Harvey, 16 Hun 71. (Trusts) 
 435. 
 
 Seaman v. Whitehead, 18 Hun 64; 78 
 N. Y. 306. (App.) 30 ; (Ex. & Ad.) 173 ; (Cas. 
 Cr.) 531. 
 
 Seeley v. Clark, 78 N. Y. 220. (Defln.) 
 124; (Depos.) 126. 
 
 Seeley v. Nat. Exchange Banl^ 4 Abb. 
 N. Cas. 61. (Banks) 55. 
 
 Seeley v. Nat. Exchange Bank, 8 Daly 
 400 ; 78 N. Y. 608. (Judgm't) 239 ; (Cas. Cr.) 
 531. 
 
 Segelken v. Meyer, 14 Hun 593. (Guard, 
 ad L.) 190. 
 
 Seller v. People, 77 N. Y. 411. (Evid.) 
 151 ; (Larc.) 254. 
 
 Seligman v. Dudley, 14 Hun 186. (Set- 
 off) 403. 
 
 Senear v. Woods, 74 N. Y. 615. (B. E. 
 Co.) 371. 
 
 Sentell v. Oswego Co. Farmers' Ins. 
 Co., 16 Hun 516. (Ins.) 216, 233. 
 
 Severn v. National State Bank of 
 Troy, 18 Hun 228. (Witn.) 454. 
 
 Sewell V. City of Cohoes, 75 N. Y. 45 ; 
 11 Hun 626. (Mun. Corp.) 305; (Negl.) 312; 
 (Q. of L. & F.) 368. 
 
 Seymour v. Coggs, 13 Hun 29. (Att'y 
 & CI.) 47. 
 
 Seymour v. Fellows, 77 N. Y. 178 ; 44 
 Superior 124. (Husb. & W.) 201 ; (Witn.) 456, 
 463 ; (Cas. Cr.) 531. 
 
 Seymour v. McKinstry, 13 Hun 284. 
 (App.) 12. 
 
 Seymour v. New1;on, 17 Hun 30. (Con- 
 stables) 82. 
 
 Shakespeare v. Markham, 72 N. Y. 
 400. (Contracts) 89 ; (Courts) 107 ; (Ex. & Ad. 
 173; (Spec. Perf.) 412. 
 
602 
 
 CASES DIGESTED. 
 
 Shand v. Hanley, 71 N. Y. 319. (Fraud. 
 C!onT.) 184, 185 ; (Husb. & W.) 202. 
 
 Shaw, Matter of, 18 Hun 195. (Assign'ts) 
 42. 
 
 Shaw V. Cock, 78 N. Y. 194. (Lim. of 
 Ac.) 262. 
 
 Shaw V. Republic Life Ins. Co., 69 N. 
 Y. 286. (Contracts) 90 ; (Dr. & Cr.) 115 ; (Ins.) 
 223. 
 
 Sheary v. Adams, 18 Hun 181. (Land. 
 & T.) 249. 
 
 Shehan v. Mahar, 17 Hun 129. (Attach.) 
 44. 
 
 Sheldon v. Saenz, 59 How. Pr. 377. 
 (Exec.) 163. 
 
 Sheldon Hat Blocking Co. v. Eick- 
 meyer Hat Blocking Co., 56 How. Pr. 70. 
 (Corp.) 96. 
 
 Shelp V. Morrison, 13 Hun 110. (Discov.) 
 130. 
 
 Shepard v. Conrad, 4 Abb. N. Cas. 254. 
 (Eem. ofC.)391. 
 
 Sheppard v. Barles, 13 Hun 651. (Chat. 
 M'tge) 77. 
 
 Sheridan v. Houghton, 6 Abb. N. Cas. 
 234. (Att'y & CI.) 48 ; (Wills) 448. 
 
 Sheridan v. Jackson, 72 N. Y. 170. 
 (App.) 15; (Plead.) 343. 
 
 Sherman v. People, 13 Hun 575. (False 
 Pret.) 179. 
 
 Sherry, Estate of, 69 N. Y. 390. (Con- 
 tempt) 84. 
 
 Sherwood v. Agricultural Ins. Co., 
 73 N. Y. 447 ; 10 Hun 593. (Ins.) 215. 
 
 Sherwood v. Dolen, 14 Hun 191. (Exec.) 
 165. 
 
 Shiflf V New York Central, &c., R. R. 
 Co., 16 Hun 278. (Bills of La.) 63; (Car- 
 riers) 73 ; (Gas. Cr.) 532. 
 
 Shuler v. Boutwell, 18 Hun 171. (Chat. 
 M'tge) 77. 
 
 Shulman v. People, 14 Hun 516 ; 76 N. 
 Y. 624. (False Pret.) 179 ; (Cas. Cr.) 532. 
 
 Sickels V. Hanley, 4 Abb. N. Cas. 231. 
 (Exec.) 166. 
 
 Sickels V. Richardson, 14 Hun 110. 
 (Costs) 101. 
 
 Simmouds v. Simmonds, 75 N. Y. 612. 
 (App.) 23. 
 
 Simmons v. Kayser, 43 Superior 131. 
 (Land. & T.) 252. 
 
 Simmons v. Vanderbilt, 59 How. Pr- 
 411. (Depos.) 127. 
 
 Simpson, Matter of, 56 How, Pr. 125. 
 (Wills) 448. 
 
 Sims V. Sims, 75 N. Y. 466 ; 12 Hun 231. 
 (Const. L.) 83; (Witn.) 456, 458. 
 
 Sinclair v. G-alland, 8 Daly 508. (Pr. & 
 Agt.1 351. 
 
 Singer v. People, 13 Hun 418 ; 75 N. Y_ 
 608. (Assault) 37; (Cas. Cr.) 532. 
 
 Sisson V. Hibbard, 75 N. Y. 642; lO 
 Hun 420. (Fixt.) 180. 
 
 Sistare v. Best, 16 Hun 611. (Banks) 6 1 .. 
 
 Sixth Ave. R. R. Co. v. Gilbert Ele- 
 vated R. R. Co., 71 N. Y. 430. (App.) 11, 
 20,23; (Cas. Cr.) 532. 
 
 Sixth Ave. R. R. Co. v. Gilbert Ele-^ 
 vated R. R. Co., 43 Superior 292. (App.) 16 ^ 
 (Em. Dom.)-141 ; (N. Y.) 318. 
 
 Sixth Ave. R. R. Co. v. Kerr, 72 N. Y_ 
 330. (Em. Dom,) 141. 
 
 Skelton v. Scott, 18 Hun 375. (Mort.). 
 291. 
 
 Skidmore v. Hart, 13 Hun 441. (Leases)' 
 257. 
 
 Slater v. Merritt, 75 N. Y. 268. (Con- 
 tempt) 85 ; (Injuno.) 210. 
 
 Slauson v. "Watkins, 44 Superior 73. 
 (Spec. Perf.) 412. 
 
 Sloan V. Livermore, 14 Hun 29 ; 55 How. 
 Pr. 85. (Arrest) 34. 
 
 Sloan V. "Waring, 55 How. Pr. 62. (Cred. 
 S.) 109. 
 
 Smart v. Haring, 14 Hun 276. (Guard., 
 ad L.) 190 ; (Husb. & W.) 201. 
 
 Smith V. AUt, 4 Abb. N. Cas. 205 ; 7 Daljr 
 492. (Land. & T.) 248. 
 
 Smith V. American Institute, 7 Daly 
 526. (App.) 29 ; .(Contracts) 90. 
 
 Smith V. Bodine, 74 N. Y. 30. (Acct'g) 
 3 ; (Partners.) 334, 337. 
 
 Smith V. City of Newburgh, 77 N. Y. 
 130. (Mun. Corp.) 301, 309. 
 
 Smith V. City of Rochester, 76 N. Y. 
 506 ; 13 Hun 214. (Mun. Corp.) 304 ; (Cas. 
 Cr.) 532. 
 
 Smith V. Conlin, 19 Hun 234. (Contracts) 
 87. 
 
 Smith V. Cooper, 5 Abb. K Cas. 274. 
 (Injunc.) 208. 
 
 Smith V. Cross, 16 Hun 487. (Mort.) 292. 
 
 Smith V. Erwin, 77 N. Y. 466. (Exec.> 
 162 : (Prom. N.) 362, 364. 
 
 Smith V. Frankfield, 77 N. Y. 414; IS 
 Hun 489. (App.) 12 ; (Judgm't) 239 ; (Cas. 
 Cr.) 532. 
 
 Smith V. Frost, 70 N. Y. 65. (Trover) 433. 
 
 Smith V. Gratz, 59 How. Pr. 274. (Plead.) 
 344. 
 
 Smith V. Green, 14 Hun 529. (Prac.) 
 348. 
 
 Smith V. Griswold, 15 Hun 273. (Witn.V 
 463. 
 
 Smith V. Kennedy, 13 Hun 9. (Husb. 
 & W.) 201. 
 
 Smith V. Krauskopf, 13 Hon 526. 
 (Bank'cy) 54. 
 
CASES DIGESTED. 
 
 603 
 
 Smith V. Lyke, 13 Hun 204. (Hnsb.,& 
 W.) 198. 
 
 Smith V. McNamara, 15 Hun 447. 
 (Exec.) 166. 
 
 Smith V. Pettee, 70 N. Y. 13 ; 7 Hun 
 ^34. (Dam.) 113 : (Sales) 399, 400. 
 
 Smith V. Rathbun, 75 N. Y. 122 ; 13 Hun 
 47. . (App.) 17 ; (Eef.) 387 ; (Gas. Or.) 533. 
 
 Smith V. Salomon, 7 Daly 216. (Sales) 
 399. 
 
 Smith V. Schulting, 14 Hun 52. (Plead.) 
 343. 
 
 Smith V. Smith, 56 How. Pr. 316; 20 
 Hun 555. (Mai. Pros.) 268. 
 
 Smith V. Smith, 43 Superior 140. (App.) 
 18; (Divorce) 134. 
 
 Smith V. Starr, 70 N. Y. 155. (App. )15. 
 
 Smith V. Tiffany, 13 Hun 671. (Mort.) 
 293. 
 
 Smith V. Tififany, 16 Hun 552. (Assign.) 
 39. 
 
 Smith V. "Waldorf, 13 Hun 127. (Ani- 
 mals) 10. 
 
 Smith V. ■Wells, 69 N. Y. 600. (Jud. Sale) 
 244 ; (Process) 358. 
 
 Smith V. "Wheeler, 8 Daly 135. (Land. & 
 T.) 251. 
 
 Smyth V. Knickerbocker Life Ins. 
 Co., 21 Hiin 241. (Mort.) 289, 291. 
 
 Smyth V. Lombardo, 15 Hun 415. 
 (Mort.) 289, 292. 
 
 Smyth V. Munroe, 19 Hun 550. (Mort.) 
 292. 
 
 Snape v. Gilbert, 13 Hun 494. (Plead.) 
 347. 
 
 Snebley v. Conner, 78 N. Y. 218. (App.) 
 23, 26, 27. 
 
 Snedeker v. Snedeker, 18 Hun 355 ; 8 
 Abb. N. Gas. 50. (Exec.) 163 ; (Gas. Cr.) 533. 
 
 SneUing' v. Mclntyre, 6 Abb. N. Gas. 
 469. (Mort.) 290. 
 
 Sniffen v. Koeohling, 45 Superior 61. 
 (Mort.) 292 ; (Trial) 428. 
 
 Sno-w V. Cable, 19 Hun 280. (App.) 14 ; 
 (Husb. & -W.) 202. 
 
 Snow V. "Williams, 16 Hun 468. (Estop.) 
 149 ; (Injunc.) 207. 
 
 Snyder v. Guthrie, 21 Hun 341. (Par. & 
 Ch.) 331. 
 
 Snyder v. Sohram, 59 How. Pr. 404. 
 (Just. P.) 247 ; (Process) 358. 
 
 Society of New York Hospital v. 
 Coe, 15 Hun 440. (Prac.) 349. 
 
 Solinger v.Barle, 45 Superior 80. (Dr. & 
 Cr.) 117 ; (Defin.) 120 ; (Gas. Gr.) 533. 
 
 Solinger v. Patrick, 7 Daly 408. (At- 
 tach.) 43. 
 
 Soixrwine v. Truscott, 17 Hun 432. 
 (Trial) 428. 
 
 Southard v. Benner, 7 Daly 40 ; 5 Abb. 
 N. Gas. 184; 72 N. Y. 424. (Assign'ts) 40 ^ 
 (Bank'cy) 53 ; (Ghat. M'tge) 77 ; (Defin.) 121 ; 
 (Fraud. Conv.) 183, 184 ; (Insolv.) 212 ; (Gas, 
 Gr.) 533. 
 
 Southard v. Pinokney, 5 Abb. N. Gas_ 
 184. (Gred. S.) 109. 
 
 Southard v. "Walsh, 77 N. Y. 301. (Sales) 
 398. 
 
 Southwick V. First. Nat. Bank of 
 Memphis, 20 Hun 349. (Mon. Bec'd) 283. 
 
 Spalding v. Rosa, 71 N. Y. 40. (Gon- 
 tracts) 90. 
 
 Sparmann v. Keim, 6 Abb. N. Gas. 353, 
 (Guard, ad L.) 191. 
 
 Sparmann v. Keim, 44 Superior 163. 
 (Fraud) 182. 
 
 Sparrowhawk v. Sparrowhawk, 73- 
 N. Y. 591. ("Witn.) 458. 
 
 Spears v. Mayor, &c., of New "STork^ 
 72 N. Y. 442. (App.) 24 ; (Plead.) 346. 
 
 Spelman, Matter of, v. Terry, 74 N. Y„ 
 448; 8 Hun 205. (Infants) 206; (Judgm't) 
 240; (Spec. Pro.) 411. 
 
 Spence v. Baldw^in, 59 How. Pr. 375, 
 (Arrest) 36; (Fraud) 182. 
 
 Spencer v. "Weaver, 20 Hun 450. 
 (Easem.) 138. 
 
 Spinnette v. Atlas Steamship Co., 
 14 Him 100. (Bills of La.) 63 ; (Gas. Gr.) 533, 
 
 Sprague v. Dunton, 14 Hun 490. (App.) 
 16. 
 
 Sprague v. Holland Purchase Ins. 
 Co., 69 N. Y. 128. (Ins.) 218 ; (Gas. Gr.) 533, 
 
 Staats V. Bristow, 73 N. Y. 264. (Exec.> 
 163; (Farmers.) 334; (Gas. Cr.) 533. 
 
 Stackus V. New "STork Central, &:c.^ 
 R. R. Co., 79 N. Y. 464. (Negl.) 314; (E. E, 
 Co.) 379. 
 
 Stall V. "Wilbur, 77 N. Y. 158. (Devise)- 
 129; (Ten. in C.) 422. 
 
 Stallknecht v. Pennsylvania R. R.. 
 Co., 13 Hun 451. (Hem.) 195. 
 
 Standard Oil Co. v. Amazon Ins, 
 Co., 14 Hun 619; 79 N. Y. 506. (Ins.) 219 ;. 
 (Cas. Cr.) 533. 
 
 Standard Sugar Refinery v. Dayton^ 
 70 N. Y. 486. (Arrest) 34. 
 
 Stanley v. Lovett, 14 Hun 412. (Exec.) 
 167. 
 
 Stanton v. King, 76 N. Y. 585. (App.) 
 13, 20 ; (Judgm't) 238. 
 
 Stanton v. Miller, 14 Hun 383 ; 79 N. Y. 
 620. (Dam.) 113; (Spec. Perf.) 412; (Gas, 
 Gr.) 534. 
 
 Stape V. People, 21 Hun 399. (Witn.) 
 457, 458. 
 
 Starkweather v. Bronner, 18- Hun 346, 
 (Plead.) 346. 
 
«04 
 
 CASES DIGESTED. 
 
 Staunton v. Parker, 19 Hun 55. (Con- 
 tracts) 89; (Wills) 448. 
 
 Stebbins v. Harmon, 17 Hun 445. 
 (Acct'g) 3. 
 
 Steele v. Lord, 70 N. Y. 280. (Evid.) 
 152. 
 
 Steere v. Ohllds, 15 Hun 511. (Mort.) 293. 
 
 Steinbaoli v. La Fayette Fire Ins. 
 Co., 54 N. Y. 90. ( Jud. Sale) 244. 
 
 Steinbaoh v. Relief Fire Ins. Co., 
 77 N. Y. 498; 12 Hun 640. (Action) 5; 
 (Judgm't) 244. 
 
 Stent V. Continental Nat. Bank, 5 
 Abb. N. Cas. 88. (Plead.) 344. 
 
 Stephens v. Board of Education of 
 -Brooklyn, 791^. Y. 183. (Cas. Cr.) 534. 
 
 Stephens v. Fox, 17 Hun 435. (Corp.) 
 vS5. 
 
 Sterett v. Denver, &o., B. B. Co., 17 
 Bun 316. (Process) 358. 
 
 Sternack v. Brooks, 7 Daly 142. 
 -{Arrest) 36. 
 
 Sterne v. Groep, 20 Hun 396. (Partners.) 
 538. 
 
 Stettheimer v. Killip, 75 N. Y. 282. 
 {Contracts) 89; (Eq.) 144; (Mistake) 283. 
 
 Steuben County Bank v. Alberger, 
 75 N. Y. 179; 56 How. Pr. 345; 14 Hun 379; 
 65 How. Pr. 481. (Attach.) 45; (Cas. Cr.) 
 634. 
 
 Steuben County Bank v. Alberger, 78 
 1^. Y. 252. (Attach.) 44, 45 ; (Judgm't) 242. 
 
 Stevens v. Breman, 79 N. Y. 254. 
 (Sales) 399; (Trial) 426. 
 
 Stevens v. Stevens, 3 Eedf. 507. (Ex. 
 -&Ad.) 167. 
 
 Stevenson v. Jewett, 16 Hun 210. 
 {Mast. & S.) 278. 
 
 Stevenson v. Lesley, 70 N. Y. 512; 9 
 Sw 637. (Trusts) 436; (Wills) 450. 
 
 Stewart v. Bramhall, 74 N. Y. 85 ; 11 
 Hun 139. (Prom. N.) 365. 
 
 Stewart v. Fonda, 19 Hun 191. (Taxes.) 
 418. 
 
 Stewart v. Munroe, 56 How. Pr. 193. 
 {Partition) 332 ; (Stat.) 414. 
 
 Stewart v. Stewart, 56 How. Pr. 256. 
 {Att'y & CI.) 47. 
 
 Stiebeling v. Lookhaus, 21 Hun 457. 
 {Sland.) 409. 
 
 Stilwell V. Hernandez, 7 Daly 485. 
 {Bills of Partic.) 64. 
 
 Stilwell V. Melrose, 15 Hun 378. (De- 
 scent) 127; (Ex. & Ad.) 173. 
 
 Stilwell V. Mutual Life Ins. Co., 72 N- 
 Y. 385. (App.) 26; (Contracts) 90; (Evid.) 
 157 ; (Husb. & W.) 199 ; (Ins.) 231. 
 
 Stimson v. Arnold, 5 Abb. N. Cas. 377. 
 ■<Mort.) 293. 
 
 Stinde v. Goodrich, 3 Kedf. 87. (Evid.) 
 152. 
 
 Stinde v. Bidgway, 55 How. Pr. 301. 
 (Evid.) 153 ; (Wills) 452. 
 
 Stockbridge, Matter of, 58 How. Pr. 
 128. (Assign'ts) 41. 
 
 Stockbridge's Assignment, 7 Abb. N. 
 Cas. 395. (Contempt) 85. 
 
 Stoddard v. Johnson, 13 Hun 606. 
 (Leg.) 259: 
 
 Stone V. People, 13 Hun 263. (Conspi- 
 racy) 82. 
 
 Stoney v. Farmers' Transp. Co., 17 
 Hun 5^9. (Custom) 111. 
 
 Storms' ■Will, 3 Eedf. 327. (Wills) 448. 
 
 Stowell V. Otis, 71 N. Y. 36. (BaUm.) 
 51. 
 
 Story V. Hamilton. 20 Hun 133. (Mort.) 
 290. 
 
 Stratton v. People, 20 Hun 288. (Feq.) 
 340; (Cas. Cr.) 534. 
 
 Strause v. Josepthal, 77 N. Y. 622 ; 8 
 Daly 417. (App.) 14; (Assign.) 38; (Evid.) 
 157; (Pr. & Agt.) 355; (Cas. Cr.) 535. 
 
 Strauss v. HeUman, 58 How. Pr. 377. 
 (Partition) 333. r 
 
 Strickland v. Harger, 16 Hun 465. (Dr. 
 & Cr.) 117 ; (Cas. Cr.) 535. 
 
 Strong. V. Smith, 15 Hun 222. (Corp.) 
 96. 
 
 Strong V. Strong, 3 Kedf. 477. (Judgm't) 
 242. 
 
 Struffman v. Muller, 74 N. Y. 594. 
 (App.) 28. 
 
 Struppman v. Miiller, 43 Superior 38; 
 55 How. Pr. 427. (App.) 19. 
 
 Strusburgh v. Mayor, &c., of New 
 York, 45 Superior 508. (Mon. Beo'd) 284; 
 (N. Y.) 320. 
 
 Stryker V. Cassidy, 76 N. Y; 50 ; 10 Hun 
 18. (Acc'ts) 4; (Defin.) 123; (Mech. Lien) 
 279, 281. 
 
 Stuart V. Palmer, 74 N. Y. 183. (CI. on 
 T.) 80; (Const. L.) 83; (Defin.) 121; (Mun. 
 Corp.) 300 ; (Stat.) 414; (Cas. Cr.) 535. 
 
 Studwell V. Charter Oak Life Ins. 
 Co., 17 Hun 602. (Ins.) 280. 
 
 Studwell V. Charter Oak Ins. Co., 19 
 Hun 127. (Trial) 426. 
 
 Sturges V. Vanderbilt, 73 N. Y.384; 11 
 Hun 136. (Abate.) 1, 2; (Corp.) 95, 96. 
 
 Sullivan v. Bonesteel, 79 N. Y. 631. 
 (Prom. N.) 365. 
 
 Sun, &o., Assoc, v. Tribune Assoc, 
 44 Superior 136. (Defin.) 123 ; (Except's) 161 ; 
 (License) 261 ; (Sunday) 416. 
 
 Sunderlin v. .ffitna Ins. Co., 18 Hun 
 522. (Ins.) 217. 
 
 Supervisors of Saratoga Co. v. 
 
CASES DIGESTED. 
 
 605 
 
 Deyoe, 77 N. Y.219; 57 How. Pr. 134; 15 
 Hun 526. (Interpl.) 237 ; (Cas. Cr.) 535. 
 
 Supervisors of Schenectady Oo. v. 
 McQueen, 15 Hun 551. (Contracts) 88, 90 ; 
 (Estop.) 147. 
 
 Supervisors of Tompkins Oo. v. Bris- 
 tol, 15 Hun 116. (Counties) 103, 104. 
 
 Susquehanna Valley Bank v. Pick- 
 ering, 19 Hun 230. (Bills of Exch.) 63. 
 
 Sutton V. Ray, 72 N. Y. 482. (App.) 23. 
 
 Suydam v. Belknap, 20 Hun 87. (Im- 
 pris.) 204. 
 
 Sweeney v. Prior, 44 Superior 337. (Dr. 
 & Cr.) 115. 
 
 Sweet V. Buffalo, &o., R. R. Co., 13 
 
 Hun 643 ; 79 N. Y. 293. (Buffalo) 69 ; (Cas. 
 Cr.) '535. 
 
 Swettenham v. Leary, 17 Hun 284, 
 (Adv. Poss.) 7 ; (Bound.) 66 ; (Evid.) 157. 
 
 Swift V. Mayor, &o., of New York, 17 
 Hun 518. (N. Y.)327. 
 
 Swift V. Tross, 55 How. Pr. 255. (Action) 
 6; (Shipp.)407. 
 
 Swinburne v. Stookwell, 58 How. Pr. 
 312. (Plead.) 344. 
 
 Syracuse Chilled Plow Co. v. Wing, 
 20 Hun 206. (Fraud. Conv.) 184 ; (Husb. & W.) 
 197. 
 
 Syracuse Savings Bank v. Town of 
 Seneca Falls, 21 Hun 804. (Mun. Corp.) 301. 
 
 T. 
 
 Taber v. Delaware, &o., R. R. Co., 71 
 
 N. Y. 489. (R. E. Co.) 376. 
 
 Taddiken v. Cantrell, 69 N. Y. 597. 
 (Alt. of Inst.) 9. 
 
 Taintor v. Hemmingway, 18 Hun 458. 
 (Vend. & P.) 442. 
 
 Talcott V. Harris, 15 Hun 567. (Bank'cy) 
 54; (Cas. Cr.) 536. 
 
 Talcott V. Holmes, 15 Hun 585. (Cas. 
 Cr.) 536. 
 
 Tarbel v. Bradley, ,7 Abb. N. Cas. 273. 
 (Partners.) 335. 
 
 Tator v. Adams, 20 Hun 131 ; 58 How. 
 Pr. 355. (Mort.) 294. 
 
 Taylor, Matter of, 3 Eedf. 259. (Ex. & 
 Ad.) 167. 
 
 Taylor V. Atlantic, &c., Ry. Co., 55 
 How. Pr. 275. (Judgm't) 244; (E. E. Co.) 369. 
 
 Taylor v. Barnes, 69 N. Y. 430. (Dam.) 
 113; (Evid.) 159; (Lim.of Ac.) 263. 
 
 Taylor v. Bentley, 3 Eedf. 34. (Dower) 
 135. 
 
 Taylor v. Charter Oak Life Ins. Co., 
 59 How. Pr. 468. (Ins.) 228, 233. 
 
 Taylor v. Faas. 14 Hun 166. (Arrest) 
 35. 
 
 Taylor v. Mayor, &c., of New York, 
 20 Hun 292. (Set-Off) 403 ; (Cas. Cr.) 536. 
 
 Taylor v. Philips, 75 N. Y. 588. (Con- 
 tracts) 88. 
 
 Taylor v. Surget, 14 Hun 116. (Prom. 
 N.) 361. 
 
 Taylor v. Troncoso, 76 N. Y. 599. 
 (Attach.) 45 ; (Process) 358. 
 
 Tebo V. Baker, 77 N. Y. 33 ; 16 Htm 182. 
 (Motions & O.) 298 ; (Cas. Cr.) 536. 
 
 Ten Broeck v. SherriU, 71 N. Y. 276. 
 (Canals) 70. 
 
 Terpenning v. Agrictiltural Ins. Co.^ 
 14 Hun 299. (Ins.) 215. 
 
 Terrett v. Brooklyn Improvement 
 Co., 18 Hun 6. (Exec.) 163 ; (Judgm't) 243. 
 
 Terry v. Flushing, &c., R. R. Co., 
 13 Hun 359. (E. E. Co.) 374. 
 
 Terry v. Jewett, 78 N. Y. 338; 17 Hun 
 395. (Horn.) 196 ; (R. E. Co.) 378, 379. 
 
 Tesohner v. Deveron, 59 How. Pr. 467. 
 (Eeplev.) 393. 
 
 Thaule v. Krekeler, 17 Hun 338. (App.> 
 20; (Cas. Cr.) 536. 
 
 Thayer v. Manley, 73 N. Y. 305 ; 8 Hun 
 550. (Action) 5 ; (Dam.) 114 ; (Judgm't) 239. 
 
 Thayer v. Marsh, 75 N. Y. 340. (App.) 
 13 ; (Except's) 160, 161. 
 
 Thayer Manuf , &c., Co. v. Steinau,. 
 58 How. Pr. 315. (New Tr.) 316. 
 
 Theall v City of Yonkers, 21 Hun 265. 
 (Mun. Corp.) 310. 
 
 Therasson v. People, 20 Hun 55. (False- 
 Pret.)179; (Cas. Cr.) 536. 
 
 Third Nat. Bank v. Blake, 73 N. Y. 
 260. (Banks) 56 ; (Husb. & W.) 200. 
 
 Thomas, Matter of, 5 Abb. N. Cas. 354. 
 (Assign'ts) 41. 
 
 Thomas v. Nelson, 69 N. Y. 118. (Land. 
 & T.) 251, 252 ; (Leases) 255. 
 
 Thomas v. Thomas, 18 Hun 481. (Just. 
 P.) 247. 
 
 Thomson v. Liverpool, &c., Steam- 
 ship Co., 44 Superior 407. (Bills of La.) 63 ; 
 (Trial) 428. 
 
€06 
 
 CASES DIGESTED. 
 
 Thomson v. McGregor, 45 Superior 197. 
 '(Eec.) 385. 
 
 Thomson v. Thomson, 55 How. Pr. 
 494. (Guard. & W.) 191 ; (Wills) 451. 
 
 Thompson v. Bank of British North 
 America, 45 Superior!. (App.)16; (Bailm.) 
 •50 ; (Banks) 57. 
 
 Thompson v. Burhans, 15 Hun 580 ; 79 
 N. "». 83. (Eject.) 138; (Cas. Cr.) 536. 
 
 Thompson v. Commissioners for 
 Loaning, &c., 16 Hun 86 j 79 N. Y. 54. 
 <Mort.)285; (Cas. Cr.) 536. 
 
 Thompson v. Hickey, 59 How. Pr. 434 ; 
 « Abb. N. Cas. 159. (Mort.) 285. 
 
 Thompson v.Lumley, 7 Daly 74. (App.) 
 28; (Dam.) 115; (Mai. Pros.) 268; (Cas. Cr.) 
 
 me. 
 
 Thompson v. Society of Tammany, 
 17 Hun 305. (Injunc.) 209. 
 
 Thompson v. Sweet, 73 N. Y. 622. 
 (Bank'cy) 53 ; (Sheriffs) 405 ; (Cas. Cr.) 536. 
 
 Thompson v. Taylor, 13 Hun 201. (App.) 
 12, 18. 
 
 Thompson v. Taylor, 71 N. Y. 217. (Ex. 
 A Ad.) 170. 
 
 Thompson v. Taylor, 72 N. Y. 32. (Ex. 
 ■& Ad.) 170 ; (Pr. & S.) 356. 
 
 Thorne v. Newley, 59 How. Pr. 120. 
 (Mort.) 291. 
 
 Thorpe v. New York Central, &c., 
 B. R. Co., 76 N. Y. 402 ; 13 Hun 70. (E. E. 
 ■Co.) 374; (Cas. Cr.) 536. 
 
 Thursby v. Lidgerwood, 69 N. Y. 198. 
 (Partners.) 338. 
 
 Tice V. Zinsser, 76 N. Y. 549 ; 13 Hun 
 566. (Vena. & P.) 444 ; (Cas. Cr.) 537. 
 
 Tiedemann v. Ackerman, 16 Hun 307. 
 (Guar.) 190. 
 
 Tiemey v. New York Central, &c., R. 
 R. Co., 76 N. Y. 305 ; 10 Hun 569. (Carriers) 
 72 ; (E. E. Co.) 373. 
 
 Tighe V. Pope, 16 Hun 180. (Amend.) 9. 
 
 Tilton V. United States Life Ins. Co., 
 :8 Daly 84. (Att'y & CI.) 46; (Motions & O.) 
 298. 
 
 Timby v. Kinsey, 18 Hun 255. (Vend. 
 -& P.) 444. 
 
 Titus V. O'Connor, 18 Hun 373 ; 57 How. 
 Jr. 391. (Witn.)454. 
 
 Tobias v. Mayor, <fco., of New York, 
 17 Hun 534. (Mort.) 289. 
 
 Todd V. Monell, 19 Hun 362. (Fraud. 
 -Conv.) 184. 
 
 Tone V. Mayor, See, of New York, 70 
 N.Y. 157. (N. Y.)320. 
 
 Tooker v. Arnoux, 76 N. Y. 397. (App.) 
 12 ; (Plead.) 343 ; (Trial) 427. 
 
 Tooley v. Bacon, 70 N. Y. 34. (Except's) 
 161 ; (Witn.) 454. 
 
 Toope V. Prigge, 7 Daly 208. (Judgm't) 
 240. 
 
 Torrey v. Twombly, 57 How. Pr. 149. 
 (Partners.) 337. 
 
 Towle V. Remsen, 70 N. Y. 303. (Adv. 
 Poss.) 7; (Contracts) 88; (Deeds) 118, 119; 
 (N. Y.) 316 ; (Vend. & P.) 441. 
 
 Town of Pierrepont v. Loveless, 72 
 N. Y. 211. (Negl ) 311. 
 
 Town of Springport v. Teutonia Sav- 
 ings Bank, 75 N, Y. 397. (CI. on T.) 80 ; 
 (Eq.) 142, 143. 
 
 Town of Wayne v. Sherwood, 14 Hun 
 42a; 76 N. Y. 599. (Mun. Corp.)' 302; (Cas. 
 Cr.) 537. 
 
 Town of Wellsborough v. New York, 
 &c., R. R. Co., 76 N. Y. 182. (Mun. Corp.) 
 301 ; (Cas. Cr.) 537. 
 
 Townsend v. City of Brooklyn, 73 N. 
 Y. 589. (Plead.) 345 ; (Cas. Cr.) 537. - 
 
 Townsend v. Mayor, &c., New York, 
 77 N. Y. 542; 16 Hun 362. (CI. on T.) 80; 
 (N. Y.) 325 ; (Taxes) 4i9 ; (Cas. Cr.) 537. 
 
 Townsend v. Ross, 45 Superior 447; 
 (Sheriffs) 404. 
 
 Townsend v. Van Tassel, 8 Daly 261. 
 (Auction) 48. 
 
 Townsend v. United States Trust 
 Co., 3 Bedf. 320. (Trusts) 439. 
 
 Townsend v. "Whitney, 75 N. Y. 425 ; 
 15 Hun 93. (Ex. & Ad.) 171, 176 ; (Cas. Or.) 
 537. 
 
 Travis, Matter of, 55 How. Pr. 347. 
 (Crim. L.) Ill ; (Hab, Corp.) 193. 
 
 Trimble v. Dzieduzyiki, 57 How. Pr. 
 208. (Ex. & Ad.) 176; (Domicile) 135; 
 (Guard. & W.) 191 ; (Wills) 449. 
 
 Trimmer v. Trimmer, 13 Hun 182. 
 (Evid.) 153. 
 
 Tripp V. Saunders, 59 How. Pr. '379. 
 (Judgm't)- 243. 
 
 Treadwell v. Archer, 76 N. Y. 196; 10 
 Hun 73. (Husb. & W.) 199; (Prom. N.) 
 360. 
 
 Treman v. Allen, 18 Hun 4. (Husb. & 
 W.) 199. 
 
 Trow V. Shannon, 59 How. Pr. 214. (Ex. 
 & Ad.) 168 ; (Wills) 452. 
 
 Trow V. Shannon, 78 N. Y. 446 ; 8 Daly 
 239. (App.) 14; (Gift) 186; (Eelease) 389; 
 (Cas. Cr.) 538. 
 
 Trowbridge v. Horan, 78 N. Y. 439. 
 (Mun. Corp.) 308. 
 
 Troy, &c., R. R. Co. v. Boston, &o., 
 Ry. Co., 57 How. Pr. 181. (App.) 21. 
 
 Troy, &o., R. R. Co. v. Boston, &o., R. 
 R. Co., 13 Hun 60. (Injunc.) 208. 
 
 Troy, &c., R. R. Co. v. Kane, 72 N. Y. 
 614. (Eeplev.) 392. 
 
CASES DIGESTED. 
 
 607 
 
 True, Matter of, 4 Abb. N. Cas. 90. 
 (Attach.) 42. 
 
 Trunninger v. Busch, 7 Daly 124. (Ar- 
 rest) 33. 
 
 Trustees of Columbia College v. 
 Lynch, 70 N. Y. 440. (Cov'tg) 108 ; (Defin.) 
 124; (Easem.) 137; (Spec. Perf.) 411 ; (Vend. 
 & P.) 441. 
 
 Trustees of Harvard College v. 
 Quinn, 3 Eedf. 514. (Leg.) 260. 
 
 Trustees of Northern Dispensary v. 
 "Merriam, 59 How. Pr. 226. (Mort.) 296. 
 
 Trustees of Presbytery of New York, 
 Matter of, 57 How. Pr. 500. (N. Y.) 319. 
 
 Trustees of St. Jacob's Luth. Church 
 V. BIy, 73 N. Y. 323. (Kelig. See.) 389. 
 
 Tucker v. Leland, 75 N. Y. 186. (App.) 
 22. 
 
 Tugman v. Nat. Steamship Co., 76 N. 
 Y. 207 ; 13 Hun 332. (Plead.) 343 ; (Eem. of 
 C.) 391; (Shipp.) 407; (Cas. Cr.) 538. 
 
 Tullis V. Miller, 13 Hun 363. (Bank'cy) 52. 
 
 Tuomy V. Dunn, 77 N. Y. 515. (App.) 
 27. 
 
 Turner v. Borthwick, 20 Hun 119. 
 (Exec.) 163. 
 
 Turner v. Dinnegar, 20 Hun 466. (Mai. 
 Pros.) 268. 
 
 Turner v. Trpad-way, 56 How. Pr. 28. 
 (Prom. N.) 361. 
 
 Tuthill V. Bogart, 79 N. Y. 215; 14 Hun 
 487. (Sales) 397; (Cas. Cr.) 538. 
 
 Twombly v. Cassidy, 21 Hun 277. (Cas. 
 Cr.) 538. 
 
 Twomley v. Central Park, &o., R. R. 
 Co., 69 N. Y. 158. (Negl.) 313; (Q. of L. & 
 F.) 368 ; (E. K. Co.) 381 ; (Cas. Cr.) 538. 
 
 Tylerv.McCollum,19Hun622. (Bank'cy) 
 53. 
 
 Tyng V. Halstead, 74 N. Y. 604. (App.) 
 22 ; (Eq.) 142. 
 
 Tyng V. Marsh, 43 Superior 566. (Eef.) 
 388. 
 
 u. 
 
 Ulster County Savings Bank, Matter 
 of, 20 Hun 481. (-Taxes) 420. 
 
 Ulster County Savings Inst. v. 
 Fourth Nat. Bank, 59 How. Pr. 482. (Eem. 
 of C.) 391. 
 
 Ulster County Savings Inst. v. 
 Leake, 73 N. Y. 161. (Ins.) 214. 
 
 Underwood v. Sutcliffe, 77 N. Y. 58 ; 10 
 Hun 453. (Exec.) 166. 
 
 Union Ave., Matter of, 59 How. Pr. 228. 
 (Mun. Corp.) 300. 
 
 Union Dime Savings Inst. v. Anda- 
 Tiese, 19 Hun 310. (Sheriffs) 404. 
 
 Union Dime Savings Inst. v. Clark, 
 -59 How. Pr. 342. (Eq.) 142; (Mort.) 296; 
 (Usury) 440. 
 
 Union Hotel Co. v. Hersee, 15 Hun 371 ; 
 J9 N. Y. 454. (Corp.) 94 : (Cas. Cr.) 539. 
 
 Union Nat. Bank of Rahway v. Un- 
 derbill, 21 Hun 178. (Partners.) 336. 
 
 Union Pacific R. R. Co. v. MoComb, 
 58 How. Pr. 478. (Eem. of C.) 391. 
 
 Union Trust Co. v. Whiton, 78 N. Y. 
 491. (App.) 23 ; (Costs) 101. 
 
 United States Reflector Co. v. Rush- 
 ton, 7 Daly 410. (Sales) 395 ; (Trial) 428. 
 
 United States Rolling Stock Co., 
 Matter of, 57 How. Pr. 16. (Eeceivers) 
 385. 
 
 Upham V. Nevr York Loan, &o., Co., 
 76 N. Y. 1. (Bank'cy) 55. 
 
 Upham V. Paddock, 13 Hun 571. 
 (Bank'cy) 52. 
 
 Upton V. New York and Erie Bank, 
 13 Hun 269. (Banks) 59. 
 
608 
 
 CASES DIGESTED. 
 
 V. 
 
 Vail V. Hamilton, 20 Hun 355. (Manuf. 
 Co.) 272, 276. 
 
 Valean v. Smith, 45 Superior 598. (New 
 Tr.) 316. 
 
 Valentine. Matter of, 72 N. Y. 184. (Ins. 
 Per.) 211 ; (Jud. Sale) 244. 
 
 Valentine v. Belden, 20 Hun 537. (Ex. 
 & Ad.) 169. 
 
 Van Allen v. Farmers' Joint Stock 
 Co., 72 N. Y. 604. (Cas. Cr.) 539. 
 
 Van Alstyne v. .ffltna Ins. Co., 14 Hun 
 360. (Custom) 112 ; (Ins.) 226^ 
 
 Van Amburgh v. Baker, 14 Hun 615. 
 (Cas. Cr.) 539. 
 
 Van Amburgh v. Kramer, 16 Hun 205. 
 (Husb. & W.) 201. 
 
 Van Brunt v. Aheam, 13 Hun 388. 
 (Nuis.) 329. 
 
 Van Brunt v. Day, 17 Hun 166 ; 8 Abb. 
 N. Cas. 336. (Mort.) 289 ; (Cas. Cr.) 539. 
 
 Van Buren, Matter of, 79 N. Y. 384; 17 
 Hun 527. (N. Y.) 326 ; (Cas. Cr.) 539. 
 
 Vanderbilt, Matter of, 20 Hun 520. 
 (Trusts) 439. 
 
 Vanderbilt v. Schreyer, 21 Hun 537. 
 (Plead.) 345. 
 
 Vandermark v. Vandermark, 55 How. 
 Pr. 408. (Gift) 187. 
 
 Van De "Wiele v. Callanan, 7 Daly 386. 
 (App.) 13 f (Mai. Pros.) 268 ; (Trial) 427*. 
 
 Van Dolseu v. Abendroth, 43 Superior 
 470. (Judgra't) 244 ; (Cas. Cr.) 540. 
 
 Van Doren v. Horton, 19 Hun 7. (New 
 Tr.) 315; (Partners.) 338. 
 
 Van Dyck v. McQuade, 18 Hun 876. 
 (Trial) 425. 
 
 Van Dyck v. McQuade, 20 Hun 262. 
 (Banks) 57. 
 
 Van Dyke v. McQuade, 45 Superior 
 620 ; 57 How. Pr. 62. (Banks) 61. 
 
 Van Bmburgli v. Ackerman, 3 Eedf. 
 499. (Wills) 451. 
 
 Van Gelder v. Van Gelder, 13 Hun 
 118. (CosU) 99, 102. 
 
 Van Gelder v. Van Gelder, 77 N. Y. 
 446. (Eef.) 386. 
 
 Van Gieson v. Bridgford, 18 Hun 73. 
 (Ex. & Ad.) 168. 
 
 Van Noy v. Failing, 75 N. Y. 594. (Pat.) 
 339. 
 
 Van Riper v. Baldwin, 19 Hun 344. 
 (Assign.) 38. 
 
 Van Santen v. Standard Oil Co., 17 
 Hun 140. (Mon. Paid) 283; (Cas. Cr.) 540. 
 
 Van Soboonhoven v. Curley, 21 Hutt 
 
 205. (Wareh.) 445. 
 
 Van Shaiok v. Sigel, 58 How. Pr. 211.. 
 (N. Y.) 327. 
 
 Van Tassel v. Wood, 76 N. Y. 614> 
 (App.) 20. 
 
 Van Valkenburg v. Am. Pop. Life- 
 Ins. Co., 70 N. Y. 605; 9 Hun 583. (App.) • 
 27 ; (Ins.) 221. . 
 
 Van Valkenburgh v. Croffut, 15 Hun 
 147. (Services) "402. 
 
 Van Valkenburgh v. Doolittle, 4 Abb. 
 N. Cas. 72. (Contempt) 85. 
 
 VanWyck V.Allen, 69 N.Y. 61. (Sales) 
 397. 
 
 Van "Wyok v. Baker, 16 Hun 168. 
 (Fraud. Con.) 184. 
 
 Van Wyck v. "Walters, 16 Hun 209.. 
 (Mort.) 292; (Cas. Cr.) 540. 
 
 Vedder v. Van Buren, 14 Hun 250. 
 (Just. P.) 247. 
 
 Veiller v. Brown, 18 Hun 571. (Manuf. 
 Co.) 275. 
 
 Verdin v. Slocum, 71 N. Y. 345 ; 9 Huu 
 150. (Mort.) 294 ; (Trusts) 436. 
 
 Verplanok v. Kendall, 45 Superior 525. 
 (Eef.) 386. 
 
 Verplanck v. Member, 74 N. Y. 620. 
 (App.) 25. 
 
 Verplanok v. Van Btiren, 76 N. Y. 247 r 
 11 Hun 328. (Action) 4; (Judgm't) 240. 
 
 Victory Webb, &c., Manuf. Co. v. 
 Beecher, 55 How. Pr. 193. (Manuf. Co.) 273 ; 
 (Cas. Cr.) 540. 
 
 Viele V. Judson, 15 Hun 328. (Mort.) 
 288 ; (Cas. Cr.) 540. 
 
 Vietor v. International Nav. Co., 45- 
 Superior 129. (Carriers) 72. 
 
 Vilas V. New York Central Ins. Co.. 
 72 N'. Y. 590 ; 9 Hun 121. (Ins.) 214. 
 
 Village of Deposit v. Pitts, 18 Hurt 
 475. (Mun. Corp.) 308. 
 
 Village of Gloversville v. Howell, 70». 
 N. Y. 287 ; 7 Hun 345. (Liq. Sell.) 265, 266 ; 
 (Mun. Corp.) 308. 
 
 Village of Rhinebeok, Matter of, 19^ 
 Hun 346. (Eem. of C.) 391. 
 
 Voak V. Northern Central Ry. Co.,. 
 75 N. Y. 320. (Negl.) 313; (Q. of L. & F.) 
 368 ; (E. E. Co.) 378. 
 
 Volans V. Owen, 74 N. Y. 526 ; 9 Hua 
 558. (Defin.) 123; (Liq. Sell.) 266; (Cas. Cr.) 540. 
 
 Volkening v. De Graaf, 44 Superior 424. 
 (Acc'l8)4; (Trial) 427. 
 
CASES DIGESTED. 
 
 609- 
 
 Von Sachs v. Kretz, 72 N. Y. 548 ; 10 
 Hnn 95. (Evid.) 156, 157 ; (Lim. of Ac.) 264 ; 
 (Witn.) 463. 
 
 Vrooman v. Turner, 69 N. Y. 280 ; 
 
 78. (Mort.) 288. 
 
 8 Hua. 
 
 w. 
 
 Wade V. Baker, 14 Hun 615. (Manuf. 
 Co.) 273 ; (Cas. Cr.) 541. 
 
 "Wade V. Malloy, 16 Hun 226. (Defin.) 
 125 ; (Estates) 146. 
 
 "Wager v. Wager, 21 Hun 93. (Wills) 
 452. 
 
 Wagner v. Jones, 7 Daly 375. (App.) 
 18 ; (Chat. M'tge) 77 ; (Exec.) 163. 
 
 Wagner v. Jones, 77 N. Y. 590. (Trial) 
 427. 
 
 Wagner v. Long Island R. R. Co., 70 
 N. Y. 614. (App.) 21. 
 
 Wait V. Agricultural Ins. Co., 13 Hun 
 371. (Defin.) 125 ; (Ins.) 217. 
 
 Wait V. Breese, 18 Hun 403. (Wills) 453. 
 
 Walbridge v. James, 16 Hun 8. (Mort.) 
 293. 
 
 Waldele v. New York Central, &o., 
 B. R. Co., 19 Hun 69. (Evid.) 157; (Q. of 
 L. & F.) 368. 
 
 Waldman v. O'Donnell, 57 How. Pr. 
 215. (Exec.) 162. 
 
 Walker v. Spencer, 45 Superior 71. 
 (Plead.) 344. 
 
 Walker V. Walker, 20 Hun 400 ; 59 How. 
 Pr. 476. (Divorce) 134; (Cas. Cr.) 541. 
 
 Wallace v. American Linen Thread 
 Co., 16 Hun 404. (Costs) 99 ; (Eq.) 142. , 
 
 ■ Wallace v. Castle, 14 Hun 106. (Pr. & 
 Agl.) 356. 
 
 Waller v. Suggett, 3 Eedf. 249. (Ex. & 
 Ad.) 172. 
 
 Walling V. Schwartzkopf, 44 Superior 
 576. (Sales) 399. 
 
 Wallis V. RandaU, 16 Hun 33. (Vend. & 
 P.) 443 ; (Cas. Cr.) 541. 
 
 Walsh V. Cornett, 17 Hun. 27. (Just. P.) 
 247. 
 
 Walsh V. German- American Bank, 
 73 N. Y. 424. (Pr. & Agt.) 354. 
 
 Walsh V. Hartford Fire Ins. Co., 73 N- 
 Y. 5; 9 Hnn 421. (Ins.) 233; (Pr. & Agt.) 
 353 ; (Cas. Cr.) 541. 
 
 Walsh V. New Yprk Floating Dry- 
 Dock Co., 8 Daly 387. (Wharves) 447 ; (Cas. 
 Cr.) 541. 
 
 Walsh V. Ne-w York Floating Dry 
 Dock Co., 77 N. Y. 448. (N. Y.) 318. 
 
 Walter, Matter of, 75 N. Y, 354 ; 14 
 Hun 148. (Evid.) 151 ; (N. Y.) 322 ; (Cas. Cr.) 
 541. 
 
 Walter, Matter of, 21 Hnn 533. (N. Y.) 
 319. 
 
 Walton V. Daly, 17 Hun 601. (Attach.) 
 44. 
 
 Wanzer v. Cary, 76 N. Y. 526 ; 12 Hun 
 403. (Mort.) 296. 
 
 Ward V. Atlantic, &c.. Telegraph 
 Co., 71 N. Y. 81. (Teleg. Co.) 421 ; (Caa. Cr.) 
 541. 
 
 "Ward V. Roy, 69 N. Y. 96. (Action) 6 ; 
 (Att'y & CI.) 47 ; (Corp.) 98 ; (Exec.) 167. 
 
 Ward V. Warren, .15 Hun 600. (App.) 
 19; (Easem.)137; (Cas. Cr.) 541. 
 
 Waring v. O'Neill, 15 Hun 105. (Mort.) 
 296 ; (Prac.) 349. 
 
 Warner v. Durant, 76 N. Y. 133 ; 15 Hun 
 450. (Leg.) 258 ; (Wills) 449.; (Cas. Cr.) 541. 
 
 Warner v. Miller, 13 Hun 654. (Shipp.) 
 408. 
 
 Warner v. Perry, 14 Hun 337. (Crim. 
 L.) 111. 
 
 Washington Cemetery v. Prospect 
 Park and Coney Island R. R. Co., 4 Abb. 
 N. Cas. 15; 7 Hun 655. (Em. Dom.) 140; 
 (R. K. Co.) 370. 
 
 Washington Heights M. E. Church 
 V. Mayor, &c., of New York, 20 Hun 
 297. (Taxes) 418. 
 
 Waterman v. Mayor, &o., of New 
 York, 7 Daly 489. (N. Y.) 326. 
 
 Waters v. Shepherd, 14 Hun 223. (EeL> 
 387. 
 
 Waters' Patent Heater Co. v. Tomp- 
 kins, 14 Hun. 219. (Pr. & Agt.) 353. 
 
 Watkins v. Atlantic Ave. R. R. Co.^ 
 20 Hun 237. (Q. of L. & F.) 368. 
 
 Watrous v. Elmendorf, 55 How. Pr. 
 461. (Mech. Lien) 279, 280, 281. 
 
 Watson, Matter of, v. Nelson, 69 N.Y. 
 536. (App.) 25 ; (Contempt) 84. 
 
 Waver v. Waver, 16 Hun 278. (Witn.) 
 456. 
 
 Waverly Water Works Co., Matter 
 of, 16 Hun 57 ; (Em. Dom.) 141. 
 
 Wayne Co. Savings Bank v. Low, 22 
 
 39 
 
610 
 
 CASES DIGESTED. 
 
 Alb. L. J. 346 ; 6 Abb. N. Cas. 76. (Prom. N.) 
 363; (Cas. Cr.) 542. 
 
 Weatherwax v. Woodin, 20 Hun 518. 
 (Advancement) 6. 
 
 Webb V. Foster, 45 Superior 311. (Plead.) 
 344. _ 
 
 Weber v. Weber, 58 How. Pr. 255. 
 (Trusts) 434. 
 
 Webster v. Bainbridge, 13 Hun 180. 
 (App.) 11 ; (Plead.) 346. 
 
 Webster v. Oole, 17 Hun 507. (Trial) 429. 
 
 Weed V. Beach, 56 How. Pr. 470. (State) 
 413. 
 
 Weed V. Burt, 78 N. Y. 191 ; 7 Daly 267. 
 (Mast. & S.) 276. 
 
 Weed V. Mut. Benefit Life Ins. Co., 
 70 N. Y. 561. (Ins.) 225. 
 
 Weed V. Village of Ballston Spa, 76 
 N. Y. 329. (Highw.) 194; (Mun. Corp.) 308 ; 
 (Negl.) 312 ; (Q. of L. & F.) 368. 
 
 W^eeks v. New York, &c., R. R. Co., 
 
 72 N. Y. 50. (Carriers) 72, 73, 74 ; (R. E. 
 Co.) 374. 
 
 Weeks v. Tomes, 16 Hun 349; 76 N. Y. 
 601. (Mort.) 294; (Cas. Cr.) 542. 
 
 Weble V. Conner, 69 N. Y. 546. (At- 
 tach.) 43, 44 ; (Sheriffs) 405. 
 
 Wehle V. Haviland, 69 N. Y. 448. (Dam) 
 112, 114. 
 
 Wehle V. Spellman, 75 N. Y. 585. (At- 
 tacli.) 43. 
 
 Weil V. Merchants' Dispatch Transp. 
 Co., 7 Diily 456. (Carriers) 73. 
 
 WeinhauB, Matter of, 5 Abb. N. Cas. 
 355. (Assign'ts) 41, 42. 
 
 Weisbrod v. Marquardt, 8 Abb. N. Cas. 
 243. (Just. P.) 247. 
 
 Weissenstein v. Blias, 14 Hun 533. 
 (Assign.) 39. 
 
 Welch, Matter of, 74 N. Y. 299. (Hab. 
 Corp.) 193. 
 
 Welch V. Preston, 58 How. Pr. 52. 
 (Amend.) 9. 
 
 Welch V. Smith, 13 Hun 403. (Cas. Cr.) 
 643. 
 
 Welch V. Winterbum, 14 Hun 518. (Ar- 
 rest) 33, 36. 
 
 Wells V. City of Buffalo, 14 Huu 438. 
 (Const. L.) 83 ; (Cas. Cr.) 543. 
 
 Wells V. Maples, 15 Hiin 90. (Fixt.) 180. 
 
 Wells V. Sisson,14 Hun 267. (Just. P.) 246. 
 
 Welsh V. German-American Bank, 
 
 73 N. Y. 424; 42 Superior 462. (Acc'ts) 4; 
 (Banks) 57 ; (Checks) 78. 
 
 Wemple v. Glavin, 5 Abb. N. Cas. 360. 
 (Exec.) 164. 
 
 Wemple v. Glavin, 57 How. Pr. 109. 
 (Sheriffs) 404. 
 
 Weridt V. Peyser, 14 Hun 114. (Plead.) 
 345. 
 
 West V. First Nat. Bank, 20 Hun 408. 
 (Banks) 56. 
 
 West V. Lynch, 7 Daly 245. (Witn.)458. 
 
 Westbrook v. Gleason, 14 Hun 245 ; 
 79 N. Y. 23. (Mort.) 297 ; (Cas. Cr.) 543. 
 
 Westerfleld v. Radde, 7 Daly 326. 
 (Manuf. Co.) 272. 
 
 Western R. R. Co. v. Bayne, 75 N. Y. 
 1 ; 11 Hun 66. (Pr. & Agt.) 352 ; (Eeplev.) 
 392. 
 
 Western Transp. Co. v. Hosrfc, 69 N. 
 Y. 230. (Carries) 72. 
 
 Westervelt v. Radde, 55 How. Pr. 369. 
 (Corp.) 97. 
 
 Westfall V. Hintze, 7 Abb. N. Cas. 236. 
 (Dower) 135. 
 
 WestfaU V. Westfall, 16 Hun 541, 
 (Dower) 135; (Ex. & Ad.) 172. 
 
 Weston V. New York Elevated R. R. 
 Co., 73 N. Y. 595. (E. E. Co.) 376. 
 
 West Side Savings Bank v. New- 
 ton, 76 N. Y. 616; 57 How. Pr. 152; 8 Daly 
 332. (Land. & T.) 249, 250. 
 
 Wettig V. Moltz, 45 Superior 389. (Ar- 
 rest) 35. 
 
 Weyer v. Beach, 14 Hun 231 ; 79 N. Y. 
 409. (Mech. Lien) 281; (Cas. Cr.) '643. 
 
 Weymanv. Nat. Broadway Bank, 59 
 How. Pr. 331. (Judgm't) 239. 
 
 Wheleer v. Allen, 59 How. Pr. 118. 
 (Prom. N.) 364. 
 
 Wheeler v. Connecticut Mut. Life 
 Ins. Co., 16 Hun 317. (Ins.) 223, 224. 
 
 Wheeler v. Crosby, 20 Hun 140. (Spec. 
 Perf.) 412. 
 
 WTieeler v. Ruthven, 74 N. Y. 428 ; 13 
 » Hud 530. (Interest) 236 ; (Leg.) 259 ; (Cas. Cr.) 
 543. 
 
 Wheelook v. Lee, 74 N. Y. 495; 5 Abb. 
 N. Cas. 72. (Action) 6; (Plead.) 345; (Trial) 
 424. 
 
 Whipple V. Christian, 15 Hun 321. 
 (Mech. Lien) 280 ; (Cas. Cr.) 543. 
 
 W^hitaker v. Imperial Skirt Manuf. 
 Co., 78 N. Y. 621. (App.) 22. 
 
 Whitcomb v. Fowls, 56 How. Pr. 365; 
 7 Abb. N. Cas. 295. (Assign'ts) 40 ; (Partners.) 
 339. 
 
 W^hitcomb v. Hoffman, 14 Hun 335. 
 (Eeplev.) 393. 
 
 W^hite V. Albany Railway, 17 Hun 98. 
 (Leases) 257. 
 
 White V. BEixter, 71 N. Y. 254. (Con- 
 tracts) 86. 
 
 White V. Bogart, 73 N. Y. 256. (Ac- 
 tion) 6 ; XJudgm't) 238 ; (Process) 359. 
 
CASES DIGESTED. 
 
 611 
 
 ■White V. Hoyt, 7 Daly 232 ; 73 N. Y. 505. 
 (Compromise) 81 ; (Contracts) 88 ; (Q. of L. & 
 F.) 368 ; (Cas. Cr.) 543. 
 
 ■White V. Meyer, 7 Daly 428. (Eq.) 144. 
 
 ■White V. Miller, 71 N. Y. 118; 7 Hun 
 427. (Dam.) 112; (Pr. & Agt.) 353; (Sales) 
 397; (Trusts) 436. 
 
 ■White V. MiU6r, 78 N. Y. 393. (Dam.) 
 113 ; (Interest) 236. 
 
 White V. Utica, <Sso., B. K. Co., 15 Hun 
 333. (E. K. Co ) 376. 
 
 ■White V. Whiting, 8 Daly 23. (Evid.) 
 154. 
 
 "White's Bank of Buffalo v. Myles, 73 
 N. Y. 335. (Guar.) 188. 
 
 Whited V. Qerzaania Fire Ins. Co., 76 
 N. Y. 415 ; 13 Hun 191. (Ins.) 219 ; (Cas. 
 Cr.) 54i3. 
 
 "Whited V. Hamilton, 15 Hun 275. 
 (Leases) 256. 
 
 Whitehead v. Kennedy, 69 N. Y. 462; 
 7 Hun 230. (App.) 20; (Att'y & a.) 47. 
 
 "Whitehead v. Smith, 14 Him 531. 
 <Witn.) 455; (Cas. Cr.) .544. 
 
 "Whiting V. City Bank of Rochester, 
 77 N. Y. 363. (Prom. N.) 362. 
 
 Whiting V. Gearty, 14 Hun 498 ; 8 Id. 
 116. (Mort.) 287. 
 
 Whitney v. Black River Ins. Co., 72 
 N. Y. 117. (Defin.) 125 ; (Ins.) 216, 217. 
 
 "Whitney v. Daggett, 6 Abb. N. Cas. 434. 
 (Costs) 99. 
 
 Whitney v. Martine, 6 Abb. N. Cas. 72. 
 (Pr. & Agt.) 352. 
 
 "Whitney v. Mayor, sfec, of Ne-w 
 York, 6 Abb. N. Cas. 329, note. (N. Y.) 317. 
 
 "Whiton V. Spring, 74 N. Y. 169. (Evid.) 
 156; (Shipp.) 406. 
 
 "Whlttemore v. Farrington, 76 N. Y. 
 4.52; 12 Hun 349. (Eq.) 144; (Vend. & P.) 
 442, 444. 
 
 "Whittlesey v. Delaney, 73 N. Y. 571. 
 (Corp.) 97 ; ( Jurisd.) 245 ; (Plead.) 347 ; (Trial) 
 425. 
 
 "Whittlesey v. Frantz, 74 N. Y. 456. 
 (Abate.) 1 ; (Corp.) 97 ; (Process) 357. 
 
 "Whitworth v. Erie By. Co., 45 Superior 
 ^02. (Carriers) 73. 
 
 "Whritner v. "CTniversal Life Ins. Co., 
 4 Abb. N. Cas. 23. (Ins.) 230. 
 
 "Wice V. Commercial Ins. Co., 7 Daly 
 258. (Guard, ad L.) 191. 
 
 Wioe V. Commercial Fire Ins. Co., 8 
 Daly 70. (Guard, ad. L.) 191. 
 
 "Wickham v. Frazee, 13 Hun 431. (Ref.) 
 •387. 
 
 Wickham v. "Wickham, 20 Hun 239. 
 (Rem. of C.) 391. 
 
 Widening Carlton Street, Matter of, 
 16 Hun 497; 78 N. Y. 362. (Cas. Cr.) 
 544. 
 
 "Widmer v. Q-reene, 56 How. Pr. 91. 
 (Injuno.) 209. 
 
 "Wido'ws' and Orphans' Life Ins. Co., 
 Matter of, 13 Hun 115. (Cas. Cr.) 544. 
 
 ■Widrig V. Finster, 18 Hun 237. (De- 
 vise) 128. 
 
 "Wiel V. Stewart, 19 Hun 272. (Evid.) 
 157. 
 
 "Wiener v. Morange, 7 Daly 446. (App.) 
 18. 
 
 "Wigand v. Dejonge, 18 Hun 405. (Bills 
 of Partic.) 64. 
 
 "Wiggins V. Richmond, 58 How. Pr. 376. 
 (Amend.) 9. 
 
 "Wightman v. Overhiser, 8 Daly 282. 
 (App.) 12. 
 
 "Wilbur V. "White, 56 How. Pr. 321. 
 (Costs) 100. 
 
 "Wilcox V. Harris, 59 How. Pr. 262. 
 (Contempt) 84. 
 
 "Wilcox v."V"an Schaiok, 19 Hun 279. 
 (Guard. & W.) 191. 
 
 "Wilcox & Gibbs Sewing Machine 
 Co. V. Elliott, 14 Hun 16. (Husb. & "W.) 
 199. 
 
 "Wilcox Silver Plate Co. v. Green, 72 
 N. Y. 17. (Evid.) 160; (Pr. & Agt.) 352; 
 (Sales) 396. 
 
 "Wild V. Bergen, 16 Hun 127. (Powers) 
 348. 
 
 W"ilde V. Smith, 8 Daly 196. (Assign.) 
 39; (Patents) 339. 
 
 "Wilde V. "Wilde, 58 How. Pr. 71. ("Wills) 
 451. 
 
 "Wilder v.Peabody, 21 Hun 376. ("Witn.) 
 459, 460. 
 
 Wilds, Matter of, 6 Abb. N. Cas. 307. 
 (Exec.) 166. 
 
 "Wiley V. Brigham, 16 Hun 106. 
 (Acc'ts) 4. 
 
 "Wilkes V. Mayor, &o., of New York, 
 8 Daly 407. (Cas. Cr.) 544. 
 
 "Wilkins v. Buck, 13 Hun 124. (Eef ) 
 387. 
 
 "Wilkinson v. First Nat. Fire Ins. Co., 
 72 N. Y. 499. (Contracts) 91 ; (Injunc.) 209 ; 
 (Ins.) 229 ; (Lira, of Ac.) 264. 
 
 "Wilkinson v. Gill, 74 N. Y. 63; 10 Hun 
 156. (Defin.) 123 ; (Lotteries) 267. 
 
 "Willets V. Titus, 14 Hun 554. ("Wills) 
 451. 
 
 W"illett, Matter of, 70 N. Y. 490. (N. Y.) 
 322. 
 
 "Williams v. Eaton, 3 Eedf. 503. (Ex. & 
 AH.) 170. 
 
612 
 
 CASES DIGESTED. 
 
 ■WilUams t. GUlies, 75 K. Y. 197; 13 
 Hun 422. (Partners.) 335, 336 ; (Gas. Or.) 544. 
 
 "Williame v. Montgomery, 16 Hun 50. 
 (Bound.) 66. 
 
 ■Williams v. Pitts, 55 How. Pr. 331. (As- 
 sign'ts) 40. 
 
 ■Williams v. Schreiber, 14 Hun 38. (Dr. 
 & Or.) 117. 
 
 ■Williams v. Seaman, 3 Eedf. 148, (Leg.) 
 259. 
 
 ■Williams v. Slote, 70 N. Y. 601. (App.) 
 19 ; (Plead.) 343. 
 
 Williams v. Supervisors of "Wayne 
 Co., 14 Hun 343 ; 78 N. Y. 561. (Taxes) 420, 
 421 ; (Gas. Cr.) 544. 
 
 "Williams V. Thorn, 70 N. Y. 270. (Cred. 
 S.) 109. 
 
 Williams v. Weaver, 75 K. Y. 30. 
 (Taxes) 417, 418. 
 
 ■Williamson v. Duffy, 19 Hun 312. 
 (Husb. & W.) 200. 
 
 Willick V. Taggart, 17 Hun 511. (Guard. 
 & W.) 191. 
 
 ■Willover v. Hill, 72 N. Y. 36. "(Sland.) 
 409,410; (Gas. Cr.) 545. 
 
 ■Willy V. MuUedy, 78 JST. Y. 310; 6 Abb. 
 N. Gas. 97. (B'klyn).69; (Horn.) 196; (Par- 
 ties) 331. 
 
 "Wilmersdoerflfer v. Lake Mahopao 
 Imp. Co., 18 Hun 387. (Corp.) 97. 
 
 ■Wilson V. Been, 74 N. Y. 531. (Eq.) 
 144 ; (Evid.) 156 ; (Gas. Cr.) 545. 
 
 Wilson V. Gould, 21 Hun 447. (Sales) 
 398. 
 
 ■Wilson V. Grant, 59 How. Pr. 350. 
 (Morti) 293. 
 
 ■Wilson V. Knapp, 70 N. Y. 596. (Bailm.) 
 51 1 (Chat. Mort.) 76; (Shipp.) 406. 
 
 ■Wilson V. Lawrence, 76 N. Y. 585 ; 13 
 Hun 238. (Husb. & Yf.) 199 ; (Gas. Cr.) 545. 
 
 ■Wilson V. Lawrence, 18 Hun 56. 
 (Shipp.) 408. 
 
 ■Wilson V. Palmer, 75 N. Y. 250. (App.) 
 25. 
 
 Wilson V. Taylor, 8 Daly 253. (Land. 
 & T.) 248. 
 
 ■WUson V. Town of Oaneadea, 15 Hun 
 218. (Mun.Gorp.) 301. 
 
 ■Winchell v. Doty, 15 Hun 1. (Guar.) 
 188. 
 
 ■Windbiel v. Carroll, 16 Hun 101. (Mon. 
 Bec'd) 283. 
 
 ■Wines v. Mayor, &o., of New ■york, 
 70 N. Y. 613. (N. Y.) 323. 
 
 ■Wing V. Disse, 15 Hun 190. (Exec.) 
 166. 
 
 ■Wing V. Schramm. 13 Hun 377 ; 79 N. 
 Y. 619. (Hiisb. & W.) 200; (Cas. Cr.) 545. 
 
 ■Wintermute v. Cooke, 73 N. Y. 107 ; 7 
 Hun 476. " (Contracts) 89 ; (Dam.) 114. 
 
 ■Wisner v. Ooumpaugh, 71 N. Y. 113. 
 (Action) 4 ; (Leases) 256. 
 
 ■Witmark v. Herman, 44, Superior 144. 
 (Arrest) 33. 
 
 ■Witthausv. Schaok, 57 How. Pr. 310. 
 (Eq.) 144. 
 
 Wood V. Brie Ry. Co., 72 N. Y. 19&. 
 (Carriers) 71 ; (Partners.) 336. 
 
 ■Wood V. Mayor, <&c., of New York, 
 73 N. Y. 556. (Evid.) 154 ; (Set-Offj 403. 
 
 ■Wood V. Mayor, &o., of New ■X'ork, 
 44 Superior 321. (Corp.) 95 ; (N. Y.) 323, 325. 
 
 ■Wood V. New ■JTork Central, &o., B. 
 R. Co., 70 N. Y. 195. (R. R. Go.) 379. 
 
 ■Wood V. TunnioUff, 74 N. Y. 38. (Arbitr.) 
 31 ; (Ex. & Ad.) 171 ; (Guar.) 187, 189. 
 
 ■Wood V. ■Wood, 18 Hun 350. (Eject.) 
 138. 
 
 ■Woodbridge v. Nelson, 13 Hun 390. 
 (Trover) 434. 
 
 ■Woodford V. BuoMin, 14 Hun 444. 
 (Amend.) 10. 
 
 Woodmansee v. Rogers, 20 Hun 285 ; 
 58 How Pr 439 ; Id. 98 ; 59 Id. 402. (Attach.) 
 44; (Exec.) 162; (Cas. Cr.) 546. 
 
 ■Woodruff V. Beekman, 43 Superior 282. 
 (App.) 15; (License) 261. 
 
 ■Woodruff V. Terry, 45 Superior, 176. 
 (Bank'cy) 54. 
 
 Woods V. Pangbom, 75 N. Y. 495 ; 14 
 Hun 540. (Judgm't) 240, 243; (Libel) 261; 
 (Cas. Cr.) 546. 
 
 ■Woodworth v. Payne, 74 N. Y. 196. 
 (Deeds) 119. 
 
 ■Wooley V. Newcombe, 58 How Pr. 
 480. (Gov'ts) 109. 
 
 ■Woolsey V. Brown, 74 N. Y. 82 ; 11 Hua 
 52. (Husb. & -W.) 200. 
 
 Woolsey v. Morss, 19 Hun 273. (Ten. 
 in C.) 421. 
 
 ■Wooster v. Forty-Second St., &c., R.. 
 R. Co., 71 N. Y. 471. (App.) 29. 
 
 ■Wooster v. Sandman, 8 Daly 218. (Pat.> 
 339. 
 
 "Wormuth v. Tracy, 15 Hun 180. (Mort.) 
 289. 
 
 ■Worthy v. Benham, 13 Hun 176. (As- 
 sign'ts) 40. 
 
 ■Wottrick V. Freeman, 71 N. Y. 601.. 
 (Husb. & "W.) 197 ; CWitn.) 456. 
 
 ■Wray v. Fedderke, 43 Superior 335. 
 (Chat. M'tge) 77 ; (Defin.,) 124 ; (Evid.) 156. 
 
 ■Wright, Matter of, 3 Redf. 362. (App.), 
 30. 
 
 ■Wright V. Booth, 69 N. Y. 620. (Manufi. 
 Co.) 273. 
 
CASES DIGESTED. 
 
 613 
 
 Wright V. Fleming, 71 N. Y. 612. (Ex. 
 & Ad.) 173. 
 
 Wright V. Fleming, 76 N. Y. 517 ; 12 
 Hun 469. (Ex. & Ad.) 174. 
 
 Wright V. Fleming, 18 Hun 360. (Costs) 
 102. 
 
 Wright V. Fleming, 19 Hun 370. (Wills) 
 448. 
 
 Wright V. Nostrand, 58 How. Pr. 184. 
 (Att'y & CI.) 46 ; (Cas. Cr.) 546. 
 
 Wright V. Williams, 20 Hun 320. (Ins.) 
 225, 226. 
 
 Wright V. Wright, 59 How. Pr. 176. 
 (Ten. in C.) 421, 422. 
 
 Wright V. Wright, 70 N. Y. 98 ; 7 Daly 
 €2. (Att'y & CI.) 47, 48 ; (Cas. Cr.) 546. 
 
 Wright V. Wright, 72 N. Y. 149. (Dr. & 
 Cr.) 116. 
 
 Wright V. Wright, 3 Eedf. 325. (App.) 
 30. 
 
 Wyeth V. Branif, 14 Hun 537. (Usury) 
 440. 
 
 Wyeth V. Morris, 13 Hun 338. (Dam.) 
 114. 
 
 "Wygant v. Nat. Burglar, &c., Ins. 
 Co., 45 Superior 107. (Trial) 427. 
 
 Wylie V. Lockwood, 20 Hun 377. 
 (Wills) 451. 
 
 Wynen v. Schappert, 55 How. Pr, 
 156. (Prom. N.) 362. 
 
 Y. 
 
 Yates V. Burch, 13 Hun 622. (App.) 15, 
 31; (Defin.)120. 
 
 Yerkes v. Nat. Bank of Port Jervis, 
 ^9 N. Y. 382. (Banks) 56, 59; (Defin.) 
 124 
 
 Youmans v. Edgerton, 16 Hun 28. 
 (Vend. & P.) 443. 
 
 Young V. Campbell, 75 N. Y. 525 
 (App.) 24 ; (Injunc.) 209. 
 
 Young V. Hunt, 72 N. Y. 604. (Att'y & 
 CI.) 48; (Services) 403. 
 
 Young V. Weeks, 7 Daly 115. (Arrest) 34. 
 
 Youngs, Matter of, 5 Abb. N. Cas. 346. 
 (Assigu'ts) 41. 
 
 Zimmer, Matter of, 15 Hun 214. (Ins. 
 Per.) 212. 
 
 Zimmerman v. Brhard, 58 How. Pr. 11 ; 
 « Daly 311. (Husb & W.) 201. 
 
 Zink V. People, 77 N. Y. 114 ; 6 Abb. N. 
 
 Cas. 413 ; 16 Hun 396. (Larceny) 253 ; (Cas. 
 Cr.) 547. 
 
 Zinsser v. Seller, 7 Daly 464. (App.) 29. 
 
 Zugner v. Best, 44 Superior 393. (Banks) 
 61. 
 
GEN'ERAL INDEX, 
 
 Names of subjects which are treated as titles in the body of the work are distinguished by the 
 use of a full-faced type, and the entries under them are indexed from other titles. Subjects of a 
 more general nature, not belonging to any one title in particular, such as Abandonment, Absev/x, &c., 
 are indicated by means of Italic letters. The figures used in the references call for the pages where the 
 cases referred to are given. 
 
 Abandonment. 
 
 as ground for limited divorce, 133. 
 of supplementary proceedings, 167. 
 liability of husband for necessaries after, 
 
 198. 
 in marine insurance, 227. 
 of organization of manufacturing company, 
 273. 
 
 Abatement. 
 
 I. Gbotjnds of Abatement ; and how 
 
 Pleaded 1 
 
 II. Kevtval. Contistjance 2 
 
 of legacy, 260. 
 nuisance, 329. 
 taxes, 421. 
 plea in, 344. 
 Abortion. 
 
 prosecutions for procuring, 110. 
 Absence. 
 
 effect of, to suspend running of statute of 
 limitations, 263. 
 Absent and absconding debtors. 
 
 attachment against, 42, et seq. 
 Acceptance. 
 
 of bills of exchange, 62. 
 necessity of demand to hold acceptor, 62. 
 of non-negotiable order, 62. 
 proposals, 86. 
 
 land dedicated to public use, 117. 
 deed by grantee, 118. 
 chattels purchased, 395, 399. 
 Accessories and accomplices. 
 generally, 110. 
 credibility of, 457. 
 corroboration of, 459. 
 Accident. 
 
 liability of carrier for, 73. 
 
 railroad company for, 375, et seq. 
 
 Accommodation paper. 
 
 bills of exchange, 62. 
 
 promissory notes, 360, 361. 
 Accord and satisfaction. 
 
 what is, 116. 
 
 Accounting 3 
 
 in equity, generally, 142. 
 by assignee for creditors, 41. 
 
 in insolvency, 213. 
 power of surrogate to compel, 107. 
 by personal representatives, 172. 
 
 guardian, 191. 
 limitations of suits for, 263. 
 between partners, 337. ' 
 
 for fees, by municipal officers, 323. 
 by agent, 352. 
 
 receiver, 385. 
 between tenants in common, 421. 
 
 Accounts 4 
 
 procedure in actions for, 4. 
 
 as evidence, 159. 
 
 of personal representatives, 172. 
 
 when statute of limitations begins to run 
 
 on, 263. 
 exception of merchant's, or mutual, 263. 
 what is a long account, within compulsory 
 
 reference rule, 386. 
 commissioners of, in New York city, 324. 
 Aceumvlaiion. 
 
 testamentary provisions respecting, when 
 
 void, 448. 
 
 of deeds, 118. 
 
 to remove bar of statute of limitations, 264- 
 Acquiescence. 
 
 in location of boundary, 66. 
 
 sufficiency of, to raise equitable estoppel, 149. 
 
 615 
 
616 
 
 ACQUITTAL— ADVEETISEMENTS. 
 
 Acguiltal. 
 
 plea of former, 241. 
 
 Action 4 
 
 grounds of abatement of, 1. 
 revival of, 2. 
 
 to obtain an accounting, 4. 
 by assignee for creditors, 41. 
 I on attachment bonds, 45. 
 against attorney, 47. 
 by'attorney, for services, 48. 
 by or against assignee in bankruptcy, 52, 
 
 53. 
 on bills of exchange, 62. 
 
 bonds, 65. 
 for conspiracy, 82. 
 
 breach of contract, generally, 9h 
 by corporations, 95. 
 
 to enforce individual liability of stock- 
 holder, 94. 
 by or against foreign corporations, 98. 
 in forma pauperis, costs in, 98. 
 upon covenants, 109. 
 for dower, 135. 
 of ejectment, 138, 
 for false imprisonment, 178. 
 by and against personal representatives, 174. 
 for fraud, 182. 
 i on guaranties, 190. 
 
 guardian's bond, 191. 
 for causing death, 195. 
 
 breach of promise to marry, 206. 
 by and against husband and wife, 202. 
 
 infants, 206. 
 on injunction bonds, 210. 
 ■ against innkeepers, 211. 
 on insurance policy, 227, et seq. 
 
 judgments, 243. 
 for rent, 250, et seq. 
 
 legacies, 260. 
 what is commencement of, under statute 
 
 of limitations, 262. 
 when lies under civil damage act, 266. 
 for malicious prosecution, 268. 
 
 money paid, 283. 
 
 received, 283. 
 
 dificiency in foreolosure, 295. 
 
 damages for nuisance, 329. 
 by partners, 335. 
 between partners, 336. 
 to enforce penalties, 340. 
 on promissory notes, 363, et seq. 
 for conversion of note, 364. 
 by and against receivers, 385. 
 on forfeited recognizances, 385, 
 
 replevin bonds, 393. 
 to set aside release, 389. 
 between seller and buyer of chattels, 398, 
 et seq. 
 
 Action, (continued.) 
 
 by and against sheriffl, 404. 
 for slander, 409. 
 
 specific performance, 412. 
 between tenants in common, 422. 
 by towns, 422. 
 for infringement of trademark, 423. 
 
 trespass, 424. ' 
 
 ' place of trial of, 425. 
 of trover, 432. 
 to enforce trusts, 439, 
 on undertakings, 440. 
 between vendor and purchaser of land, 
 
 443. 
 for construction of wills, 452. 
 to set aside wills, 452. 
 
 duties of, in winding up insurance company, 
 234. 
 
 his report, 234. 
 Ademption. v 
 
 of legacy, 260. 
 Ac^oummemt. 
 
 injustices' courts, 246. 
 Administrators. 
 
 appointment of, 167. 
 
 right to renounce, 168. 
 
 security of, 175. 
 
 special, 168. 
 Admissions 
 
 to raise equitable estoppel, 149. 
 
 effect of, as evidence, 167. 
 
 effect of, in suits on insurance policies, 231. 
 
 of service of process, 359. 
 
 effect of, to narrow issue, 345. 
 
 of agent, when bind principal, 353. 
 Adoption. 
 
 of firm name, 335. 
 
 agent's acts, by p;rincipal, 353. 
 trademark, 423. 
 child, 331. 
 Adulteration. 
 
 of milk, offence of, 110. 
 Adultery. 
 
 when ground for divorce, 131. 
 
 Advancement 6 
 
 Adverse possession. 
 
 I. General pBiNciPiiES 7 
 
 11. Under the statute of limita- 
 tions 7 
 
 effect of, on boundaries, 66. 
 to avoid deed, 118. 
 Advertisements. 
 
 of execution sale, 162. 
 
 notice to creditors of decedent, 170, ' 
 foreclosure by, 290. 
 for proposals, 299. 
 powers of cities relative to, 299. 
 
AFFIDAVITS— APPEAL. 
 
 617 
 
 to obtain arrest, 34. 
 
 in justice's court, 246. 
 attachment in justice's court, 246. 
 ■compelling witness to make, 44. 
 for order to examine party before trial, 126. 
 to oppose motion for inspection of books 
 
 and papers, 130. 
 for order in supplementary proceedings, 
 165. 
 
 injunction order, 209. 
 in summary proceedings, 252. 
 
 foreclosure by advertisement, 290. 
 on motion for new trial, 316. 
 of jurors, to impeach or sustain verdict, 
 
 316. 
 of capital pnid in, on formation of limited 
 
 partnership, 339. 
 for order of publication of summons, 358. 
 for removal of cause under act of 1867, 392. 
 Agency. See Pkincipal and Agent, 
 Agreemenls. 
 
 to accept drafts, 62. 
 reduce rent, 250. 
 what are within the statute of frauds, 87. 
 for insurance, 213. 
 
 referee's compensation, 388. 
 between partners, 335. 
 
 stockholders, 93. 
 on dissolution, 338. 
 Agrieuiturcd lands. 
 leases of, 255. 
 Albany, 
 
 decisions interpreting the city charter, or 
 of a local character only, 307. 
 
 Aliens 8 
 
 naturalization of, 79. 
 descent through, 128. 
 
 enforcing payment by proceedings in con- 
 tempt, 133. 
 when allowed, 133. 
 pendente lite, 133. 
 modifying allowance of, 134. 
 
 in addition to costs, 100, et seq. 
 
 of damages for land taken for public use, 141. 
 
 Alteration of instruments 8 
 
 of contract, when a discharge of surety, 
 
 356. 
 promissory notes, 362, 366. 
 Ambiguities. 
 
 parol evidence to explain, 154, et. seq 
 
 Amendment. 
 
 I. The Eight to Amend; and Power to 
 
 Allow Amendments 9 
 
 II. Obtaining and Making Amendments; 
 
 AND their Effect 10 
 
 on appeal, 16, 19, 27. 
 
 Amendment, (continued.) 
 
 review of discretion in making, 24. 
 
 of constitution, 83. 
 
 on appeal from justice's court, 247. 
 
 of judgment, 242. 
 
 in justices' courts, 246. 
 
 of justice's return on appeal, 247. 
 pleadings, 346. 
 
 bringing in new parties by, 332. 
 
 power of referee to allow, 387. 
 Amount. 
 
 jurisdiction as dependent on, 21. 
 
 provisions respecting, in judgment, 239. 
 
 right to remove cause, as dependent on, 
 391. 
 
 Animals 10 
 
 carriers of, liability of, 73. 
 killing stock on track, 376. 
 prosecutions for cruelty to. 111. 
 Annual report. 
 
 of manufacturing companies, failure of trus- 
 tees to file, 272, et seq. 
 insurance companies, 232. 
 Annuities. , 
 
 apportionment of, 259. 
 Another action. 
 
 as ground of abatement, 1. 
 how pleaded, 344. 
 Anetwer. 
 
 in abatement, 1. 
 
 amendment of, 9, 10. 
 
 in action on bond, 65. 
 
 striking out for non-payment of alimony, 
 
 133. 
 in foreclosure, 292. 
 partition, 332. 
 actions generally, 343. 
 evidence under, 346. 
 when evidence, 158. 
 in actions on promissory notes, 364. 
 claim and delivery, 393. 
 slander, 409. 
 trover, 434. 
 Ante-nuptial settlements. 
 
 form and validity of, 197. 
 
 Appeal. 
 
 I. General principles 11 
 
 II. Appeal to the General Term. 16 
 
 III. Appeal to the Court op Ap- 
 
 peals 21 
 
 IV. Appeals from Marine and 
 
 District Cotjrts to Court or 
 Common Pleas, in New York 
 
 City 28 
 
 V. Appeals from County Court 
 
 to Supreme Court 29 
 
 VI. Appeals from Surrogates' 
 
 Courts 30 
 
 VII. Enfokoement OF Appeal Bonds 30 
 
 election between certiorari and, 75. 
 
618 
 
 APPEAL— ASSIGN EE. 
 
 Appeal, (continued.) 
 
 from surrogate's decree on executor's ac- 
 counting, 174. 
 highway commissioners, 193. 
 costs on, 100 
 
 from Marine and District Courts to Common 
 Pleas, 'l05, 106. 
 justice to county court, 247. 
 what may be carried up by bill of excep- 
 tions, 160. 
 form and contents of bill, 161. 
 settlement of case on 349. 
 in proceedings under rapid transit act, 383. 
 mechanic's lien cased, 281. 
 divorce cases, 132. 
 from order granting new trial, 316. 
 
 mandamus, 271. \, 
 judgment on referee's report, 171, 388. 
 undertaking on, 440. 
 
 in actions, generally, 5. 
 by married woman, 202. 
 effect of, to waive defects, 5, 6. 
 Applicalion of payments. , 
 
 by creditor, 115. 
 
 court, 116. 
 conclusiveness of, 116. - 
 Appointment. 
 
 of agents of corporation, 96. 
 
 receiver of insolvent corporation, 97. 
 
 manufacturing corporation, 
 276. 
 guardian ad litem, 190. 
 inspectors of election, 140. 
 personal representatives, 167. 
 general guardian, 191. 
 special guardian to sell infant's lands, 
 
 206. 
 committee of lunatic, 212. 
 assignee in insolvency, 212. 
 agents of insurance company, 232. 
 excise commissioners, 265. 
 conmiissioners in proceedings to drain 
 
 lands, 136. 
 municipal officers, 307, 323, et seq. 
 commissioners of local improvements, 
 
 320. 
 under " rapid transit " act, 382. 
 officers, generally, 329. 
 power of, 348. 
 of agent, 350. 
 commissioners in proceedings to take 
 
 land for railroads, 370. 
 receivers, 3^5. 
 referees, 386. 
 
 by surrogate, 107. 
 trustees, 434. 
 
 Arbitration and award. 
 
 I. The Submission; and Pkoceed- 
 
 INGS THEBBTTNDEB 31 
 
 II. The Award ; and how En- 
 
 rOBCED 31 
 
 III. Impeachment OP the Awakd 32 
 
 power of attorney to submit claims, 46. 
 ascertaining loss nnder policy by, 220. 
 
 of annuities, 259. 
 
 challenge to, 430. 
 
 Arrest. 
 
 I. iNClVIliAcTIONS 32 
 
 II. In Cbiminal Cases 3i> 
 
 when bail required in civil actions, 49. 
 in justice's court, 246. 
 
 in criminal cases, 50. 
 of judgment, in criminal cases, 432. 
 defendant about to leave state, aftei' judg- 
 ment, 243. 
 power of justice of the peace to direct, 246.. 
 liability of sheri£f for escape from, 405. 
 privilege of witness from, 453. 
 
 Arson 3K 
 
 Assault. 
 
 I. The Civiii Action 35 
 
 II. The Cbiminal Prosecution 37 
 
 Assent. 
 
 of stockholders, to mortgage of corporatet 
 
 property, 272. 
 necessity of, to validity of contract, 86. 
 sufficiency of, to raise equitable estoppel,149^ 
 ssm^nt. 
 
 when cloud on title, 80. 
 on holder of corporate stock, 94. 
 of damages, 115. 
 
 compensation for land taken for public- 
 use, 141. 
 enjoining collection or disbursement of,. 
 
 207. 
 recovering back money paid on, 284. 
 of city taxes, 69. 
 
 for local improvements in cities, 299, ei seq. 
 in New York city, 318, et seq. 
 Brooklyn, 68. 
 Buffiilo, 70. 
 of damages for land taken by railroads, 
 371. 
 taxes, 418. 
 
 possession of by receiver of insurance com- 
 pany, 234. 
 of bank, application to debts on dissolu- 
 tion, 59. 
 
 decedent's estate, 168. 
 insurance company, annual statement of, 
 232. 
 marshaling, 169. 
 
 misappropriation of, by partner, 339. 
 'nee. 
 right of, to sue, 39. 
 
ASSIGNEE— BENEVOLENT SOCIETIES. 
 
 619^ 
 
 Assignee, (continued.) 
 
 when takes subject to equities, 39. 
 liability of, for costs, 102. 
 for creditors, 40. 
 
 Assignment. 
 
 I. What may be Assioned, and how 37 
 
 II. Construction and Validity 38 
 
 III. Rights and Liabilities op the 
 
 Assignee 39 
 
 attachment in cases of fraudulent, 43, 
 to assignee in bankruptcy, 52. 
 insolvency, 212. 
 of bill of exchange, 62. 
 
 property, to obtain discharge from im- 
 prisonment, 164, 204. 
 insurance policy, 198. 
 property insured, 215. 
 lease, 257. 
 mortgage, 289. 
 patent, 339. 
 non-negotiable note, 363. 
 
 Assignments for benefit of creditors. 
 
 I. Validity, Interpretation and 
 
 Effect 40 
 
 II. BiOHTS, Powers and Liabilities 
 
 OF THE Assignee 40 
 
 accounting by assignee, 3. 
 
 contempts by assignees, 85. 
 Asmtance. 
 
 writ of, 293. 
 Associations. 
 
 for banking purposes, 55, et seq. 
 
 joint stock companies, 237. 
 
 voluntary, generally, 411. 
 
 benevolent, 411. 
 
 social, 411. 
 
 Attaciiment. 
 
 I. When an Attachment will lie. 42 
 
 II. Obtaining and Serving the 
 
 Warrant, and its Effect 43 
 
 III. Motion to Vacate, or Dis- 
 
 solve 44 
 
 IV. Remedies foe Wrongful At- 
 
 tachment 45 
 
 priority of assignment for creditors over, 40. 
 for contempt, 85. 
 injustices' courts, 246. 
 sheriff's fees on, 404. 
 compelling attendance of witness by, 463. 
 AUeetation. 
 
 of wills, 447. 
 
 Attorney and client. 
 
 I. The Vocation 46 
 
 II. The Relation with the Client, 46 
 
 III. Compensation of Attorneys 47 
 
 IV. Privileged Communications 48 
 
 competency of attorney as witness, 456. 
 compelling disclosure of client's address, 130. 
 
 Auction 48 
 
 execution sales at, 162. 
 
 Auction (continued.) 
 
 foreclosure sales at, 293. 
 
 tax sales at, 418. 
 
 other judicial sales at, 244. 
 Avdit. 
 
 of claims against county, 104. 
 town, 423. 
 Avditors. 
 
 power of, on accounting by executors, 17$ 
 
 in New York city, 324. 
 Autrefois acquit. 
 
 plea of, 241. 
 
 general, in marine insurance, 227. 
 Award. 
 
 of arbitrators, 31. 
 canal appraisers, 71. 
 
 commissioners in proceedings to take- 
 lands, 141, 371. 
 Saggage. 
 
 liability of carrier for, 73. 
 
 innkeeper for, 211. 
 railroad company for, 375. 
 
 Bail. 
 
 I. In CrvTL Actions 49 
 
 n. In Criminal Cases 50- 
 
 when required, 33. 
 
 the undertaking, 35. 
 
 hoheas corpus to admit to, 192. 
 
 Bailment. 
 
 I. General Principles 50 
 
 II. The Different Species of Bail- 
 ments i... 50- 
 
 special deposits in bank, 56. 
 larceny by bailee, 253. 
 Sallston Spa. 
 
 decisions relative to, 307. 
 
 Bankruptcy * 51 
 
 effect of adjudication on statutes of limita- 
 tions, 264. 
 
 effect of act on assignments for credit- 
 tors, 40. 
 
 declarations of bankrupt, as evidence, 156. 
 
 Banks and banking. 
 
 I. Organization and Management, 55 
 n. Eights and Liabilities op 
 
 Stockholders 55- 
 
 m. Powers and Dealings of 
 
 Banks 55 
 
 IV. Officers; their Powers, Dutif^s 
 
 AND Liabilities 58 
 
 V. Dissolution, Receiver, &c 59 
 
 VL Savings Banks 59- 
 
 interest on deposits, 236. 
 liability on checks, 78. 
 taxation of bank stock, 417. 
 
 Bastardy ^^ 
 
 descent to illegitimate children, 128. 
 Benevolent societies. 
 
 decisions relative to, 411. 
 
€20 
 
 BIGAMY— CALENDAR. 
 
 Bigamy 61 
 
 £ais. 
 
 of exceptions, 15, 161. 
 
 exchange, 61. 
 
 lading, 63. 
 
 particulars, 64. 
 form of, in creditor's suit, 110. 
 dismissal of, 142. 
 of interpleader, 236. 
 
 Bills of exchange. 
 
 I. Nature and Eeqttisitbs, gener- 
 ally 61 
 
 II. Acceptance 62 
 
 III. Transfers 62 
 
 IV. Actions ON Bills or Exchange 62 
 
 power of partner to bind firm by, 336. 
 
 Bills of lading 63 
 
 admissibility of, in evidence, 159. 
 parol evidence to vary, 155. 
 
 Bills of particulars 64 
 
 in action for legacy, 260. 
 slander, 409. 
 £ilk of sale. 
 
 parol evidence to vary, 155. ' 
 of vessels, 406. 
 £inghampton. 
 
 repair of sidewalks in, 308. 
 ^Boards. 
 
 of health, 307, 326. 
 aldermen, 307. 
 of city officers, 324, et seq. 
 directors, 96, 272, 373. 
 trustees, 96, 272. 
 
 Bonds. 
 
 I. Form, Constbuotion and Valtdi- 
 
 TT „ 65 
 
 II. Actions on Bonds 65 
 
 of assignee for creditors, 46. 
 
 enforcement of bail, 50. 
 
 bastardy, 61. 
 
 for maintenance of bastard, 61. 
 
 oil sale of lands to pay debts of decedent, 172. 
 
 of county treasurer, 104. 
 
 receiver in supplementary proceedings, 
 166. 
 for jail limits, 164, 203, 404. 
 enforcement of administration, 175, 
 of general guardian, 191. 
 
 marshal, 276. 
 
 excise commissioners, 265. 
 
 officers, generally, 330. 
 
 receivers, suits on, 385. 
 remedy of mortgagee on, 295. 
 municipal, in aid of railroads, 301, et seq. 
 ■of railroads, 369. 
 on removal of cause, 392. 
 in replevin, 392, 393. 
 -of indemnity to sheriff, 404. 
 
 treasurer of school district, 400. 
 
 Bonds, (continued.) 
 
 taxation of government, 417. 
 in aid of railroads, 301, et seq. 
 undertakings in actions, 440. 
 
 Boundaries ■ • • 66 
 
 description of, in deeds, 119. 
 of state, jurisdiction as affected by, 412. 
 between New York and New Jersey, 66. 
 Brecich. 
 
 of covenants, 108. 
 
 promise to marry, 206. 
 
 recognizance, 385. 
 
 warranty in insurance policy, 218, 221, 
 226. 
 
 covenants in leases, 256. 
 
 warranty in sales of chattels, 397, 399. 
 
 contract for services, 402. 
 
 Bridges 66 
 
 the East river bridge, 67, 83. 
 
 over streets, 312. 
 
 duties of railroads respecting width and 
 
 safety of, 376. 
 taxation of bridge companies, 417. 
 Srokers. 
 
 rights and liabilities of, generally,- 354. 
 merchandise brokers, 354. 
 real estate brokers, 354. 
 stockbrokers, 355. 
 
 Brooklyn. 
 
 I. Municipal Officers 68 
 
 II. Local Improvements, and As- 
 sessments therefor 68 
 
 III. Taxes; Fibe-Escapes ; Sewers.... 69 
 the East river bridge, 67,, 83. 
 justices' courts in, 106. 
 
 Buffalo 69 
 
 Burden of proof. 
 
 in actions on bills of exchange, 63. 
 
 actions generally, 153 
 
 creditor's suit, 185. 
 
 criminal trial, 432. 
 
 prosecution for false pretences, 179. 
 
 civU action for causing death, 196. 
 
 actions for purchase money of land, 443. 
 against warehousemen, 446. 
 
 cases involving negligence, 312. 
 as to contributory negligence, 196. 
 
 against bona fide holder of note, 365. 
 in proceedings to contest will, 452. 
 
 Burglary 70 
 
 By-laws. 
 
 of corporations, generally, 95. 
 municipal corporations, 299. 
 New York city, 317, 318. 
 savings banks, 60. 
 Calendar. 
 
 on appeal to Court of Appeals, 26. 
 of causes ready for trial, 425. 
 in justice's court, 247. 
 
CALLS— CHEATS. 
 
 621 
 
 70 
 
 CWfe. 
 
 on corporate stock, 94. 
 
 Canals 
 
 Cancellation. 
 
 of judgments, after discharge in bankruptcy, 
 53. 
 chattel mortgages, 77. 
 contracts, jurisdiction of equity, 143. 
 Caption. 
 
 of order, 298. 
 indictment, 205. 
 
 Carriers. ' 
 
 I. Carriehs OP Merchandise 71 
 
 II. Cabriers OF Passengers 73 
 
 " in. Epi-ect of Notices and Special 
 
 Contracts . 74 
 
 bills of lading, 63. 
 
 measure of damages in actions against, 113. 
 express companies, 177. 
 railroad companies, 369, et seq. 
 connecting lines, 380. 
 delivery to, effect of to perfect sale, 396. 
 carriers by sea, 406, et seq. 
 Case. 
 
 on appeal, 15, 18, 25. 
 
 settlement of, 349. 
 
 Cases affirmed, reversed, &c 467 
 
 Omhier. 
 
 of bank, 59. 
 
 sayings bank, 61. 
 CatUe-gvards. 
 
 obligation of railroad company to maintain, 
 371, 376. 
 Causes ofaetum. 
 generally, 4. 
 whail survive, 2. 
 joinder of, 4, 115. 
 splitting or severing, 4, 5. 
 election between, 5. 
 ' what are assignable, 37, et seq. 
 of assignee, 39. 
 
 statement of, in pleading, 343. 
 of principal, on contract made by agent, 
 353. 
 agent, on contract made for principal, 351. 
 receiver, 385. 
 Caveat emptor. 
 
 application of the maxim to execution sales, 
 
 163. 
 in sales of chattels, generally, 397. 
 Certificate. 
 
 of deposit, 56. 
 naturalization, 79. 
 incorporation, 92. 
 acknowledgment of deeds, 118. 
 effect of official, as evidence, 159. 
 of protest by notary, 159. 
 capital paid in, 271, 339. 
 
 Certificate, (continued.) 
 
 of service of process by sheriff, 359. 
 
 Certiorari. 
 
 I. In Civil Actions, generally 74 
 
 II. To Justices' Courts 75- 
 
 III. In Criminal Cases 75 
 
 to review assessment for local improve- 
 ment, 321. 
 Cestui que trust. 
 
 rights of, generally, 439. 
 Challenge. 
 
 to jurors, 430,431. 
 Chara/:ter. 
 
 of deceased, evidence of in murder cases, 
 
 195. 
 credibility of witness as dependent on, 456, 
 evidence of, to impeach witness, 458. 
 corroborate witness, 459. 
 Cluirge. 
 
 upon land devised, for legacies, mainten- 
 ance, &c., 129, 259. 
 of crime, when actionable, per se, 409. 
 
 validity of devises for, 128. 
 legacies for, 259. 
 exemption from taxation, 418. 
 Charter. 
 
 of bank, how construed, 55. 
 
 savings bank, 59. 
 
 corporations, generally, 92. 
 
 municipal corporation, 299. 
 
 New York City, 316. 
 
 Brooklyn, 68. 
 
 Buffalo, 69. 
 
 railroad, 369. 
 
 expiration of, as ground of abatement^ 1^ 
 Charter-parly. 
 
 rights of parties to, generally, 407. 
 who deemed owner for voyage, 407. 
 damages in action on, 113. 
 Chattels. 
 
 arrest in actions for, 33. 
 presumptions respecting title to, 152. 
 levy of executions on, 162. 
 sales of, on execution, 162. 
 judgment in action for, 393. 
 seller's action for price of, 398. 
 
 Chattel mortgages. 
 
 I. What may be Mortgaged, and 
 
 WHAT Debts Secured 7S 
 
 II. Eights op the Parties 77 
 
 III. Eights of Creditors, and Pur- 
 chasers IN Good Faith 77 
 
 parol evidence to explain, 156. 
 when bind wife's separate estate, 200. 
 of vessels, 406. 
 Cheats. 
 
 offence of cheating, and how prosecuted,. 
 178. 
 
■622 
 
 CHECKS— COMMON PLEAS. 
 
 Checks ., 78 
 
 on bankers, 56. 
 
 certification of, 57. 
 
 forged and raised, 57. 
 
 receiving in payment, 340. 
 ■CMd. See Parent and Child. 
 
 " children" defined, 120. 
 
 indecent assault upon, 37. 
 
 cruelty to, 111. 
 
 descent to illegitimate, 128. 
 /)ircum8tantial evidence. ^ 
 
 sufficiency of, generally, 150. 
 
 Citizens 79 
 
 naturalization, 79. 
 ■CM damage act, 
 
 rights of^ action and procedure under, 266. 
 ■CivU rights. 
 
 trial by jury, 424, 430. 
 Claim and delivei-y, see Eeplevin. 
 
 Clerks 79 
 
 adjustmenl of costs by, 102. 
 power to enter judgment, 239. 
 of departments, in Brooklyn, 68. 
 ■Client. , 
 
 power of attorney to bind, 46. 
 dealings between attorney and, 47. 
 compelling attorney to discJose address of, 
 130. 
 
 Cloud on title 80 
 
 Code of civil procedure. 
 
 inspection of books and papers under, 129. 
 
 continuance of actions under, 2. 
 
 amendments in actions under, 9. 
 
 cost in actions under, 93, etseq. 
 
 taxalion of costs under, 102. 
 
 recovering possession of land nnder, 133. 
 
 determination of conflicting claims to real 
 property under, 139. 
 
 action of interpleader under, 23S. 
 
 bringing in new parties under, 332. 
 
 actions for pariition nnder, 332. 
 
 rules of pleading under, 342, et seq. 
 
 amendment of |)leadings under, 346. 
 
 issuing process under, 357. 
 
 service of process under, 3^8. 
 
 reference in actions under, 386. 
 
 set-off in actions under, 403. 
 
 stay of proceedings in actions under, 415. 
 
 competency of parlies as witnesses under, 
 454, 455. 
 
 of husband and wife, 455. 
 CodicUs. 
 
 inteipretation of, 449. 
 Cohoes. 
 
 local decisions relative to, 308. 
 Collateral securily. 
 
 effect of, and rigbta of holder, 116. 
 
 taking a note an, 361. 
 
 liability for loss of, 58. 
 
 Collection. 
 
 by assignee for creditors, 41. 
 
 bank, 58. 
 of costs, 102. 
 guaranty of, 188. 
 of city taxes, 69. 
 state taxes, 418. 
 Collector. 
 
 of decedent's estate, 168. 
 
 compensation of, 174. 
 school tax, 400. 
 general taxes, 418/ 
 
 Collision. 
 
 liability of vessel for, 408. 
 rules for avoiding, 408. 
 amount of recovery, 409. 
 law of the road, 194. 
 Color of title. 
 
 necessity of, to constitute adverse posses- 
 sion, 7. 
 Commissons. 
 
 of auctioneer, 49. *" 
 
 collector of decedents estate, 174. 
 taking depositions by, 125. 
 of personal representatives, 174. 
 broker, 351, 352. 
 Commissioners. 
 
 of highways, duties respecting bridges, 
 67. 
 
 appeals from, 193. 
 their powers and liabilities, generally, 
 
 193. 
 in lunacy, 330. 
 of excise, their appointment, 265. 
 
 assessment, in local improvement pro- 
 ceedings, 318, et seq. 
 in town bonding proceedings, 301. 
 
 proceedings under " rapid transit " 
 
 act, 382. 
 proceedings to condemn lands for rail- 
 roads, 370. 
 proceedings to drain lands, 136. 
 of accounts in New York city, 324. 
 
 sinking fund in New York city, 324. 
 in proceeedings by one railroad to cross an- 
 other, 373. 
 CommUtee. 
 
 of lunatic, 212. 
 Commitment. 
 
 under Stilwell act^ 32. 
 for contempt, 85. 
 
 warrants of, in criminal cases, 246, 359. 
 by justice of the peace, 246. 
 Common carriers. See Cabriees. 
 Common Pfeas. 
 
 in city and county of New York, 105. 
 appeals to from Marine Court, 28. 
 District Court, 29. 
 
COMMON EUMOE— CONSIDERATION. 
 
 623 
 
 ■Oammon mnwr. 
 
 admissibility of, 152. 
 
 to prove marriage, 152. 
 ■Common schools. See Sohools. 
 
 of assignee for creditors, 42. 
 attorneys, 47. 
 auditors, 173. 
 for lands taken for canals, 71., 
 ■of carrier of merchandise, 72. 
 
 clerks of courts, 79. 
 for lands taken for public use, 141. 
 ■of personal representatives, 174.- 
 for lands taken for drains, 136. 
 of insurance agents, 233. 
 right of servant to, 276. 
 ■of municipal officers, 323. 
 for lands taken for local improvements, 300, 
 
 320. 
 of officers and clerks, liability of city for, 323. 
 partner for special services, 337. 
 railroad director for special services, 373. 
 agents, 351. 
 brokers, 354. 
 for land taken for railroads, 371. 
 to railroad whose_ track is crossed by an- 
 other, 373. 
 of clergymen, 390, 3i91. 
 school teachers, 401. 
 sheriffs, 404. 
 Comphint. 
 
 amendment of, 9. 
 
 sufficiency of, to obtain order of arrest, 34. 
 to obtain warrant of arrest in 
 criminal cases, 36. 
 in action on covenant, 109. 
 
 for false imprisonment, 178. 
 by or against personal representa- 
 tives, 174. 
 by or against husband and wife,202. 
 injustice's court, 246. 
 suit to wind up manufacturing company, 
 
 275. 
 action on marshal's bond, 276. 
 mechanics' lieu cases, 281. 
 foreclosure, 291. 
 actions, generally, 342, 343. 
 claim and delivery, 392. 
 partition, 332. 
 slander, 409.. 
 dismissal of, on trial, 142, 427. 
 ■Compogition. 
 
 in bankruptcy, 54. 
 
 requisites and validity of deeds of, 116. 
 
 effect of fraud, 117. 
 
 Compromise 81 
 
 by assignee for creditors, 40. 
 by client, effect of on rights of attorney, 47. 
 . of disputed claims, effect of, 116. 
 
 Gomputaiion. 
 
 of costs on appeal, 100. 
 extra allowance, 101 
 damages, 115. 
 
 on dissolving injunction, 211. 
 interest, 236. 
 time, 422. 
 Goncealment. 
 
 when amounts to fraud, 182. 
 in insurance law, 216, 221, et seq. 
 
 of bill of lading, 63. 
 compromise, 81. 
 application of payments, 116. 
 commissioners' report in proceedings to 
 
 condemn lands to public use, 141. 
 sheriff's deed, 163. 
 
 final accounting by personal representa- 
 tives, 173. 
 final accounting by guardian, 191. 
 judgments, 239, el seq. 
 receipts, 384. 
 referee's report, 387. 
 releases, 388. 
 Conditions. 
 
 what imposed, on allowing amendments, 10. 
 in penal bonds, 65. 
 precedent and subsequent, 88. 
 subscriptions for stock on, 94. 
 in deed, 119. 
 
 fire policy, 215, et seq. 
 life policy, 221. 
 lease, 255. 
 sales on, 396. 
 Confension. 
 
 admissibility of, as evidence in criminal 
 
 cases, 158. 
 effect of judgment by, 243. 
 of judgment, after discharge in bankruptcy, 
 53. 
 Confirmation. 
 
 of infant's contract, 206. 
 
 report of sale in foreclosure, 293. ' 
 assessments for local improvements, 68, 
 
 320. 
 report of referee, 41, 388. 
 
 in divorce, 131. 
 Conflicting claims to real property. 
 proceedings to determine, 139. 
 
 Congress. 
 
 powers of, respecting bridges, 66. 
 
 Consideration. 
 
 of negotiable bond, 65. 
 
 contracts, generally, 86. 
 restoration of, on rescission of contract, 90. 
 interpretation of clause respecting, 118. 
 what defects in, render conveyance fraudu- 
 lent, 183, et seq. 
 of mortgage, 285. 
 
624 
 
 CONSIUEEATION— CONTRACTS. 
 
 Consideration, (continued.) 
 of promissory note, 360. 
 non-negotiable note, 363. 
 
 rights and duties of, generally, 355. 
 duty of carrier to notify, 72. 
 Consolidation. 
 
 of actions, matters of practice on, 6. 
 
 Conspiracy 82 
 
 Constables 82 
 
 Constitution. 
 
 of the United States, 83. 
 
 state, S3, 
 amendments to, 83. 
 
 Constitutional law 82 
 
 interpretation of "due process of law," 121. 
 relating to county courts, 105. 
 
 drains, 136. 
 regulating exercise of eminent domain, 140. 
 validity of insolvent laws, 212. 
 excise laws, 265. 
 civil damage act, 266. 
 statutes relative to railroads, 369. 
 "rapid transit" act, 381. 
 statutes respecting Sunday, 415. 
 prohibition of town bonding, 303. 
 constitutionality of statutes, generally, 413. 
 Constructive delivery. 
 
 of goods sold, 396. 
 Constructive notice. 
 generally, 328. 
 of unrecorded deed, 118. 
 existence of mortgage, 289. 
 defects in streets and sidewalks, 306. 
 equities between original parties to note, 
 361. 
 when purchaser of land charged with, 442. 
 
 Contempt of court 84 
 
 attorneys, when punishable for, 46. 
 enforcing payment of alimony, 133. 
 review of proceedings for, 23. 
 in supplementary proceedings, 167. 
 
 injunction cases, 210. 
 enforcement of judgment by proceedings 
 in, 243. 
 
 what legacies are, 258. 
 
 remainders are, 129. 
 Continuance. 
 
 of action after death of party, 2. 
 injunction, 210. 
 
 Contracts. 
 
 I. General Principles 86 
 
 II. Consideration 86 
 
 III. Kequibbments of the Statute 
 
 OP Frauds 87 
 
 IV. Interpretation and Effect. 
 
 Conditions 88 
 
 V. Validity 89 
 
 VI. Pebpoemanob. Breach 89 
 
 Contracts, (continued.) 
 
 VII. Modification 90 
 
 ,VIII. Kescission 90 
 
 IX. Lavt op Place 91 
 
 X. Actions por Breach op Con- 
 tract 9t 
 
 what actions are founded on contract, 5. 
 
 effect of alterations on validity of, 8. 
 
 for compensation of attorneys, 47. 
 
 of bailment, 50. 
 
 power of banks to make, 55, et seq. 
 
 respecting boundaries, 66. 
 
 for canal repairs, 70. 
 
 special, to limit carrier's liability, 74, 177. 
 
 power of corporations to make, 95. 
 
 personal representatives to make,. 
 168. 
 
 costs in actions on, 98, et seq. 
 
 covenants in, 108. 
 
 proof of usage to control. 111. 
 
 measure of damages in actions on, 112, et seq^ 
 
 cancellation of, in equity, 143. 
 
 reformation of, 144. 
 
 burden of proof in actions on, 153. 
 
 parol evidence to vary, 154, et seq. 
 
 of guaranty, 187, et seq. 
 
 when within statute of frauds, 187, el seq. 
 
 by guardian of infant, 191. 
 
 of marriage, 196. 
 
 by wife, liability of husband on, 198. 
 
 wife's disability to make, 198 
 
 by wife, under enabling acts, 199. 
 
 between husband and wife, 201. 
 
 liabilities of infants on, 206. 
 
 enjoining enforcement of, 206, et seq. 
 
 liability of insane persons ou, 211. 
 
 of insurance, 213, el seq. 
 
 interest on, 236. 
 
 action ou, when barred by lapse of time^ 
 262, etseq. 
 
 when statute of limitations begins to rurt 
 on, 263. 
 
 relief against mistakes in, 282. 
 
 recovering back money paid under void,. 
 283, 284.- 
 
 power of cities to make, 299, 316. 
 
 with Brooklyn water boaid, 68. 
 
 when work on local improvement must be- 
 done by, 319. 
 
 liability of cities upon, 301, 327. 
 
 between parent and child, 331. 
 
 power of partner to bind firm by, 336. 
 
 respecting patent-rights, 339. 
 
 what bind agent, personally, 352. 
 
 what bind principal, 353. 
 
 of suretyship, 356, et seq. 
 
 interpretation of, when question of law, 367_ 
 
 ., , fact, 367- 
 
 for railroad construction, 371. 
 
 between connecting lines, 880. 
 
CONTRACTS— COUNTEE-CLAIM. 
 
 625 
 
 Contracts, (continued.) 
 
 what is a sale, 395. 
 
 implieJ, for services rendered, 402. 
 
 for towage, 407. 
 
 specific performance of, 411. 
 
 constitutionality of statutes impairing obli- 
 gation of, 414. 
 
 validity of, when made on Sunday, 416. 
 
 •when void for usury, 440. 
 
 for sale of land, 441. 
 Qmtribution. 
 
 in general average, 227. 
 
 among co-sureties, 31, 356. 
 Caniributive negligence. 
 
 law of, generally, 313. 
 
 in collision cases, 408. 
 
 of passenger, 377. 
 
 person crossing railroad track, 379. 
 
 jurisdiction as dependent on amount in, 21. 
 right to remove cause as dependent on 
 amount in, 391. 
 Qmversum. 
 
 by bailee, 50. 
 carrier, 73. 
 agent, 352, 
 of promissory note, damages for, 114, 364. 
 arrest in actions for, 33. 
 by tenants in common, 422. 
 equitable, 452. 
 Conveyances. 
 
 ■' conveyance '' defined, 121. 
 requirements of statute of frauds, 87. 
 admissibility of, in evidence, 159. 
 what are fraudulent, 183, et seg. 
 with intent to defraud creditors, prosecu- 
 tion for. 111. 
 under married women's acts, 200. 
 by, or to husband and wife, 201. 
 between husband and wife, 201. 
 liability of insane persons on, 211. 
 what sufficient to satisfy contract of sale, 442. 
 Oonviclion. 
 
 defined, 121. 
 
 efiect of, on competency of witness, 456. 
 
 credibility, proof of, to impeach 
 witness, 458. 
 
 Coroners 91 
 
 Corporations. 
 
 1. How Created; Incorporation; 
 
 Organization ; Charters 92 
 
 II. Corporate Stock...'. 92 
 
 III. Eights and Liabilities of 
 
 Stockholders 93 
 
 IV. Corporate Powers 95 
 
 V. Corporate Liabilities 95 
 
 VI. Officers AND Agents 96 
 
 VII. DissoLtTTioN, Keceiver, &c 97 
 
 VIII. Foreign Corporations 
 
 abatement of suits against, 1. 
 
 continuance of suits against, 2. 
 appearance by, 5. 
 
 98 
 
 40 
 
 Corporations, (continued.) 
 
 banks, 55. 
 
 savings banks, 59. 
 
 right to take by devise, 128 ' 
 
 devises to charitable, 128. 
 
 foreign, 128. 
 presumptions in favor of acts of, 1 51. 
 declarations of ofiicer of, as evidence, 156. 
 books of, as evidence, 159. 
 insurance companies, 231, et seq. 
 mandamus to, 270. 
 
 manufacturing companies, 271, et seq. 
 municipal, 299, et seq. 
 service of process in suits against, 358. 
 removal of causes by or against' 391. 
 taxation of, 416, 417. 
 telegraph companies, 420. 
 Carrohoration. ' 
 
 of witnesses, generally, 459. 
 
 accomplices, 459. 
 
 prosecutrix in seduction case, 401. 
 
 Costs. 
 
 I. In Original Civil Suits 98 
 
 II. On Appeal or Error 100 
 
 III. Security FOR Costs 100 
 
 IV. Allowance in Addition to Costs. 1 00 
 V. Taxation and Collection 102 
 
 amendments.on payment of, 10. 
 
 review of allowance of, 13, 23. 
 
 attorneys, when liable for, 46. 
 
 agreements with attorneys respecting, 47. 
 
 lien of attorney for, 47, 48. 
 
 on certiorari, 75. 
 
 in proceedings for contempt, 85. 
 
 for drawing interrogatories, 125. 
 
 in ejectment, 139. 
 
 execution against the person for, 164. 
 
 of reference of claim against estate, 171. 
 
 when allowed to executors, 173. 
 
 liability of guardian ad litem for, 191. 
 
 in supplementary proceedings, 167. 
 
 actions by personal representatives, 175. 
 of proceedings in lunacy, 212. 
 on order of interpleader, 237. 
 provisions in judgment, respecting, 239. 
 payment of, on appeal from justice's judg- 
 ment, 247. 
 in malicious prosecution, 268. 
 
 proceedings to vacate assessments, 323. 
 
 suits against receivers, 385. 
 by trustees, 438. 
 in mechanics' lien cases, 281. 
 
 foreclosure, 295. 
 new trials, on payment of, 316. 
 Counsel fees. 
 
 when allowed in divorce cases, 133. 
 to executors, 173. 
 Cownter-claim. 
 
 how pleaded, 403. 
 
 mode of trial, when pleaded, 403. 
 
626 
 
 COUNTIES— DAMAGES. 
 
 Counties 1 03 
 
 mandamus to supervisors, 269. " 
 
 what, proper for an examination of party 
 before trial, 127. 
 dounty court, 
 
 appeals from, 29. 
 
 jurisdiction and powers of, 105. 
 
 in proceedings to drain lands, 136. 
 
 remedies for illegal taxation in, 420. 
 
 removal of causes to Supreme Court, 391. 
 Couniy judge. 
 
 powers of, 103. 
 County treasurer. 
 
 powers and compensation of, 103. 
 
 enforcement of bond of, 104. 
 Coupons. 
 
 rights of holders, 65. 
 
 of town bonds in aid of railroads, 302. 
 Court of Appeals. 
 
 what is appealable to, 21, et seq. 
 
 procedure in, 25, el seq. 
 
 Courts. 
 
 I. Genebal Pbinciples 104 
 
 II. Courts op General Civil Jueis- 
 
 BIOTION 105 
 
 in. Subrogates' Couets 106 
 
 IV. Courts op Criminal Jurisdic- 
 tion 107 
 
 powers of, in allowing amendments, 9. 
 conflict of jurisdiction in bankruptcy, 52. 
 suits in state courts by assignees in bank- 
 ruptcy, 52. 
 appointment and compensation of clerks, 79. 
 powers of, in respect to costs, 98. 
 jurisdiction of, generally, 245. 
 of justice of the peace, 245, et seq. 
 maTidamus to inferior, 269. 
 removal of causes, generally. 391. 
 
 from state court to United 
 States Circuit Court, 391. 
 
 Covenants, v 
 
 I. Genebal Principles 108 
 
 II. Vabious Kinds op Covenants 108 
 
 III. Actions upon Covenants 109 
 
 measure of damages in actions on, 113. 
 of marrred woman, 200, 201. 
 in leases, 256. 
 deed, to pay mortgage, 286, et seq. 
 contract for sale of land, 442. 
 Coverture. 
 
 disabilities of, 198, 199. 
 
 effect of, to suspend statute of limitations, 264. 
 
 Creditor's suit 
 
 I. The Eight op Action 109 
 
 II. What Property MAY BE Beached, 109 
 
 III. Fbocedube 110 
 
 who may avoid assignment for creditors, 40. 
 
 chattel mortgage, 77. 
 to reach property fraudulently conveyed, 
 184. 
 
 110 
 
 Criminal law. 
 
 I. General Principles op Ceiminal 
 
 Law 
 
 II. Decisions Kelating to Particu- 
 lar Oppencbs 110 
 
 what is a criminal assault, 37. 
 
 buying demands with intent to sue them, 
 
 46. 
 putting in bail, 50. 
 what constitutes bigamy, 61. 
 
 burglary, 70. 
 review of proceedings by certiorari, 75. 
 what constitutes conspiracy, 82. 
 courts of cri5ninal jurisdiction, 107. 
 embezzlement, 140. 
 writ of error, 144, et seq. 
 exceptions in criminal cases, 160. 
 extradition, 177. 
 what is a false pretence or token, 178. 
 
 constitutes forgery, 181. 
 proceedings to compel support of wife, 198. 
 doctrine of former adjudication, 241. 
 proceedings injustices' courts, 246, 247. 
 what is larceny, 253. 
 
 keeping a lottery, 267. 
 selling liquor to minor, 266. 
 new trials in criminal cases, 316. 
 what constitutes perjury, 340. 
 Crops. 
 
 right of tenant to remove, 250. ^ 
 
 raising, on shares, 250. 
 
 duties of railroad companies, relative to, 
 377, et seq. 
 Cruelty. 
 
 to animals. 111. 
 children. 111. 
 as ground for limited divorce, 133. 
 Cumulative emdence. 
 
 newly-discovered, not ground for new trial, 
 315. 
 
 Curtesy Ill 
 
 Oastody. 
 
 of child after divorce, 134. 
 discretionary power of court as to, 193. 
 , of baggage by passenger, effect of, 374, 375. 
 of property under execution levy, 162. 
 vife, rights of husband, 198. 
 property, in replevin, 393. 
 
 Custom : Usage Ill 
 
 effect of, on delivery by carrier, 72. 
 
 Damages. 
 
 I. General Pbinciples 112 
 
 II. Measure op Damages 112 
 
 III. Assessment op Damages 115 
 
 on appeal bonds, 30. 
 in suits on attachment bonds, 45. 
 amount of, in action on bond, 65. 
 when costs depend on amount of, 98. 
 
DAMAGES— DEEDS. 
 
 627 
 
 Damages, (continued.) 
 
 for fraud, 183. 
 
 in actions for causing death, 196. 
 
 on dissolution of injunction, 210. 
 
 for breach of agreement to repair, 249. 
 
 proof to aggravate, in libel, 261. 
 
 amount of, in libel, 261. 
 
 for malicious prosecution, 268. 
 
 new trial for excessive, 315. 
 inadequate, 315. 
 
 for land taken for local improvements, 300, 
 320. 
 land taken for railroads, 371. 
 
 ■what subject of recoupment, 399. 
 
 when recoverable in replevin, 393. 
 
 amount of, in action for goods sold, 399. 
 
 for breach of warranty in sales of goods, 399. 
 
 in actions for services, 403. 
 collision cases, 409. 
 
 what recoverable in slander, 409. 
 
 proof in aggravation of, 409. 
 mitigation of, 410. 
 
 what adjudged in specific performance, 412. 
 
 in actions against telegraph companies, 421. 
 of trover, 434. 
 
 for interference with spring, 446. 
 
 in actions between vendor and purchaser 
 of land, 443. 
 Dams. 
 
 right to erect, 281. 
 
 relative rights of upper and lower proprie- 
 tors, 281, 394, 446. 
 Death. 
 
 as ground of abatement, 1. 
 
 continuance in case of, 2. 
 
 of attorney, new appointment on, 47. 
 
 presumptions relative to, 152. 
 
 entry of judgment after, 238. 
 
 gifts in view of, 187. 
 
 of insured, proof of, 224. 
 
 by suicide, 225. 
 De bene esse. 
 
 taking depositions, 125, 
 
 Debtor and creditor. 
 
 I. The Relation, Generally Con- 
 
 SIDEKED 115 
 
 II. Payment and Discharge of 
 
 Debts 115 
 
 III. Accord and Satisfaction, Com- 
 
 promises, Extensions, &c 116 
 
 IV. Collateral Securities 116 
 
 V. Composition Deeds 116 
 
 VI. Conflicting Eights OF Creditors, 117 
 accounts rendered, 4. 
 right of debtor to prefer creditor, 40. 
 liability of creditor for loss of collaterals, 58. 
 compromises, 81. 
 
 conveyances void as against creditors, 183, 
 et seq. 
 
 Debtor and creditor, (continued.) 
 legacy to debtor, 259. 
 
 creditor, 259. 
 rightg^of partnership creditors, 337, 
 release of debtor, 357. 
 Debts. 
 
 defined, 121. 
 
 compromise of, by assignee for creditors, 40. 
 
 proof of, in bankruptcy, 52. 
 
 composition proceedings, 54. 
 individual liability of stockholder for, 94, 
 
 274, 282. 
 sale of lands for payment of, 171. 
 what preferred in distribution of decedent's 
 
 , estate, 130, 
 righLto interest on, 236. 
 taking a note in payment of, 340. 
 liability of trust estate for, 437. 
 Deceit. See Fraud. 
 DeelaratioTis. 
 
 when raise estoppel in pais, 149. 
 
 part of res gestce, 153. 
 against interest, efiect of, as evidence, 156, 
 
 el seq. 
 admission of, in suits on insurance policies, 
 
 231. 
 of agent, when bind principal, 353. 
 trust, 435. 
 Decree. 
 
 of surrogate, when appealable, 23. 
 in divorce cases, foreign, 132. 
 
 foreclosure, 293.' 
 effect of, as evidence, 158. 
 in creditor's suit, 185. 
 partition, 333. . 
 
 Dedication 117 
 
 Deed. 
 
 I. Common Law Bequieements 117 
 
 II. Acknovstlbdgment. Eecording.. 118 
 
 III. How Construed. Validity 118 
 
 what adverse possession will defeat, 7. 
 when cloud on title, 80. 
 covenants in, 108. 
 reformation of, in equity, 144. 
 estoppel by, 148. 
 parol evidence to vary, 155. 
 , admissibility of, in evidence, 159 
 of sheriff, on execution, 163. 
 marriage settlement, 197. 
 married woman, under enabling acts, 
 
 200, 201. 
 infant, 206. 
 relief against mistakes in, 283. 
 when construed as mortgages, 285. 
 to purchaser in foreclosure, 293. 
 . of lands sold for taxes, 418. 
 
 trust, or creating trusts, 434. 
 prioritv between judgment and, 242. 
 
628 
 
 DEFENCES— DEVISE. 
 
 in actions for assault, 86, 
 
 setting up discharge in bankruptcy, 53, ei 
 
 in action on bonds, 65. 
 
 proceedings for contempt, 85. 
 
 actions to enforce individual liability of 
 stockholders, 94. 
 what may be set up by counter-claim, 403. 
 in suits for divorce, 131, 133. 
 on application for alimony, 133. 
 in suits on administration bonds, 176. 
 
 actions for false imprisonment, 178. 
 setting up fraud, 183. 
 in actions on guaranties, 190. 
 
 murder cases, 195-. 
 of infancy, 206. 
 in actions on insurance policy, 229. 
 
 replevin bonds, 393. 
 in actions for rent, 251. 
 
 summary proceedings, 252. 
 on trial for larceny, 254. 
 in suits for malicious prosecution, 268. 
 against stockholders, 274. 
 
 mechanics' lien cases, 281. 
 
 foreclosure, 291, 292. 
 
 partition, 332. 
 
 prosecutions for perjury, 341. 
 what available to surety, 356, e( sej. 
 in suits on promissory notes, 364. 
 frivolous and sham, 346. - 
 in actions for price of goods sold, 398. 
 
 prosecution for seduction, 401. 
 
 action for services, 402. 
 slander, 410. 
 trover, 434. 
 usury as a defence, 440. 
 Decency. 
 
 on sale in foreclosure, judgment for, 295. 
 liability of grantee for, 287. 
 
 Definitions'. 120 
 
 what is a " dwelling-house " within statute 
 
 as to burglary, 70. 
 " due process of law " 83. 
 " opinion " and " decision " distinguished, 
 
 238. 
 " license," 261. 
 " executors," 451. 
 "heirs," 451. 
 " natural heirs," 451. 
 "interests," 451. 
 " next of kin," 451. 
 Dday. 
 
 liability of carrier for, 72. 
 to sue principal, when discharges guaran- 
 tor, or surety, 189, 357. 
 waiver of defects by, 347. 
 effect of, to discharge indorser, 363. 
 liability of telegraph company for, 420. 
 
 Ddivery, 
 
 assignment by, 38. 
 
 of bill of lading, effect to pass title, 63. 
 
 to carrier, 71. 
 
 by carrier, 72. 
 
 of chattels mortgaged, 76. 
 deeds, 117. 
 legacy, 259. 
 gift, 186. 
 assignment of jnortgage, 289. 
 
 transfer of title to note by, 361. 
 
 what satisfies statute of frauds, 395. 
 
 necessity and sufficiency of, in sales of chat- 
 tels, 396. 
 
 constructive, and symbolical, 396. 
 
 conditional, 397. 
 
 liability of telegraph company for failure 
 to make, 420. 
 Demand, 
 
 of payment of draft, 62. 
 
 necessity of, to set limitation running, 263. 
 
 in cases of guaranty, 190. 
 
 of payment of note, to hold indorser, 362. 
 
 necessity of, in replevin, 392. 
 trover, 433. 
 Demurer, 
 
 appeal from orders on, 16, 22, 
 
 form and requisites of, generally, 344. 
 Deniah. 
 
 form and sufficiency of, in answer, 344. 
 Departments. 
 
 in New York city, 324, el seq. 
 Deposit. 
 
 as a species of bailment, 50, 
 
 in bank, 56, 
 
 by savings bank, priority of, 60, 
 
 interest on, 236, 
 
 general and special, 56. 
 
 Depositions. 
 
 I. De Bene Esse, and on Commission, 125 
 II. Examination of Parties bepokb 
 
 Tbial 126 
 
 Dymties. 
 
 liability of sheriff for acts of, 405. 
 
 Descent 127 
 
 to aliens, 8. 
 Description. 
 
 in deed, of premises conveyed, 118, 119. 
 of premises, in sheriff's deed, 163. 
 legatee, 258. 
 
 parties, in promissory note, 360. 
 Determination of conflicting claims. 
 to real property, 139. 
 insurance policy, 228. 
 Deviation. ' 
 
 effect of, on policy of marine insurance, 226. 
 
 Devise 128 
 
 to aliens, 8. 
 
 religious society, 389. 
 in trust, 435. 
 lapse of, 129. 
 
DIRECTORS— DEAINS. 
 
 629 
 
 Direclors. 
 
 of manufacturing companies, 271, 272. 
 liability of corporation for acts of, 96. 
 rights and liabilities of, 96. 
 Disahilitiee. 
 of aliens, 8. 
 
 coverture, 198, 199. 
 Indians, 205. 
 infants, 206. 
 insane persons, 211. . 
 what suspend running of statute of limita- 
 tions, 263. 
 DisaffirmaTice. 
 
 of infant's contract, 206. 
 Disbursements. 
 
 what allowed as costs, 102. 
 of personal representatives, when allowed, 
 173. 
 agent, right to, 351. 
 trustee, 437. 
 Discharge. 
 
 of surety on appeal bond, 30. 
 
 from arrest, 35. 
 
 after vacating order of arrest, 36. 
 
 of bail, 49. 
 
 in bankruptcy, 53. 
 
 composition proceedings, 54. 
 of indorsers, 62, 362. 
 
 liability on stock subscription, 94. 
 from imprisonment on execution, 164, 204. 
 of debts, generally, 115. 
 
 guarantor, 189. 
 on habeas corpus, 192. 
 in insolvency, 213. 
 of servant, 276. 
 surety, 356. 
 Discontinuance. 
 
 of appeal, 18, 28 
 
 supplementary proceedings, 167. 
 proceedings to take lands for public use, 
 141. 
 in ejectment, after judgment, 139. 
 
 justice's court, on plea of title, 246. 
 for want of jurisdiction of sum involved, 
 
 246. 
 on failure of justice to appear, 246. 
 matters of practice on, 848. 
 costs on, 99. 
 
 Discovery and inspection 1 29 
 
 Discretion. 
 
 review of, on appeal, 11, 24, 30. 
 
 when costs on appeal are in, 100. 
 
 on haheas corpus as to custody of children, 
 193. 
 
 of jury, as to credibility of witnesses, 456. 
 Dismissal. 
 
 of appeal, 19, 28. 
 bill in equity, 142. 
 
 conclusiveness of judgment of, 241. 
 
 Dismissal, (continued.) 
 
 matters of practice on, 349. 
 of complaint, 427. 
 
 exceptions to denial of motion to dismiss, 
 160. 
 Disorderly persons. 
 
 arrest and commitment of. 111. 
 Dispossession, 
 
 of tenant, 252, et seq. 
 Dissolution. 
 
 of banking corporations, 59. 
 savings bank, 61. 
 corporations, generally, 97. 
 injunctions, 210. 
 insurance companies, 231, et seq. 
 joint stock companies, 237. 
 manufacturing companies, 275. 
 partnership, 338. 
 limited partnership, 339. 
 
 Distribution 130 
 
 by assignee for creditors, 41. 
 
 of proceeds of execution sale, 163. 
 
 by personal representatives, 170. 
 
 receiver of insurance company, 234. 
 payment of legacies in advance of, 259. 
 District Courts. 
 
 appeals to Common Pleas, 29. 
 jurisdiction of, 105. 
 tlerks of, 79. 
 Diversion. 
 
 of watercourse, remedy by injunction, 207. 
 trust fund by trustee, 439. 
 accommodation paper, 361. 
 stream, remedy for, 394, 446. 
 Dividends. 
 
 on bank stock, 55. 
 
 insurance stock, 232. 
 corporate stock, generally, 92. 
 illegal, by savings bank, 61. 
 in insolvency proceedings, 212. 
 
 Divorce. 
 
 I. Suit to ANNtrt, Maekiage Con- 
 tract 131 
 
 ir. Absoi,ute Divorce 131 
 
 HI. Limited DivoBCB 133 
 
 I V. Alimony ; and Custody or Chil- 
 
 DBEN 133 
 
 "cruel and inhuman treatment," defined, 
 
 121. 
 effect of, on subsequent marriage, 61. 
 competency of party as witness in, 456. 
 Documentary evidence. 
 
 what is admissible, generally, 158, et seq. 
 
 Domicile 135 
 
 Dower 1 35 
 
 Drafts. See Bills op Exchange. 
 
 Drains 136 
 
 appeal from county court decision to Su- 
 preme Court, 29. 
 
630 
 
 DUE DILIGENCE— EVICTION. 
 
 J>ue diligence. 
 
 in charging indorsers, 62. 
 
 of common carrier, 71. 
 
 in cases of newly-discovered evidence, 315. 
 presentment of note, proof of, 362. 
 
 ■when question of law, 367. 
 fact, 367. 
 DuplieUy. 
 
 in indictment, 205. 
 Duress. 
 
 ' "coercion'' defined, 121. 
 
 in composition deed, 1 17. 
 
 recovering back money paid under, 283. 
 Dying declarations. 
 
 effect of, as evidence, 195. 
 
 Easements. 
 
 I. General Pbinciples 137 
 
 II. Paetictjlae Kinds of Easements 137 
 
 defined, 121. 
 
 what pass by deed, 119. 
 
 protection of, by injunction, 207. 
 East river bridge. 
 
 decisions relative to, 67, 83. 
 
 Ejectment 1 38 
 
 new trials in, 315. 
 Election. 
 
 between difierent forms or causes of action, 5. 
 
 remedies for violation of trusts, 439. 
 
 appeal and ceiiiorari, 75. 
 
 counts in indictment, 431. ' 
 
 dower and provisions of will, 135. 
 
 land and personalty, 452. 
 of remedies by seller of chattels, 398. 
 
 Elections..^..... 139 
 
 of corporate officers, 96. 
 excise commissioners, 265. 
 officers, generally, 329. 
 
 of manufacturing companies, 271. 
 mandamus to canvassers, 270. 
 Eleemosynary societies. 
 
 exemption of, from taxation, 418. 
 Emancipation. 
 of child, 331. 
 
 Embezzlement 1 40 
 
 Emblem,en,ts. 
 
 right bf tenant to remove, 250. 
 
 Eminent domain 1 40 
 
 taking lands for canals, 70. 
 
 drains, 136. 
 power of gas-light company to take by, 185. 
 taking land for highway, 193. 
 power of city to take for local improve- 
 ments, 69, 299, et seq. 
 power of railroad to take, 369. 
 
 New York city to take, 318. 
 Entry. 
 
 of judgments, 238. 
 satisfaction, 242. 
 
 .Entry,, (continued.) ^ 
 
 of satisfaction of execution, 164. 
 judgment by confession, 243. 
 
 landlord's right of, 250. 
 
 of satisfaction of mortgage, 297. 
 Equitaiile. 
 
 estoppel, 149. 
 
 conversion, 452. 
 
 Equity. 
 
 I. The JtiBisdiciion, GENEEAxiiY ; 
 
 AND HOW EXEBCISED. 142 
 
 II. JuEisDioTioN IN Pabticulab Cases 142 
 
 opening and correcting accounts in, 4. 
 
 amendments in, 9. 
 
 of third person against assignee, 39. 
 
 original parties against holder of bill, 62. 
 jurisdiction of, to remove cloud on title, 80. 
 relief against compromise in, 82. 
 
 in, from executions, 165. 
 power to grant relief in cases of fraud, 183. 
 necessity of exhausting remedy at law, 109. 
 jurisdiction of, in cases of mistake, 282. 
 parties to suits in, 331. 
 suits between partners in, 337. 
 rules of pleading in, 342, et seq. 
 when purchaser of note holds subject to, 
 
 361. 
 relief in, against usury, 440. 
 suits in, to enforce vendor's Uen, 442. 
 
 Error 144 
 
 when ground for reversal, 12, et seq., 19^ 27. 
 impeachment of award for, 32. « 
 costs on, 100. 
 
 when ground for new trial, 314. 
 in pleadings, remedies for, 346. 
 effect of pardon, pending writ of, 331. 
 Escape. 
 
 liability of sheriff for, 405. 
 
 Estates 1 46 
 
 in fee, 128. 
 
 dower, 135. 
 for years, ,248, et seq. 
 tenancy in common, 421. 
 
 Estoppel. 
 
 I. Genebal Principles 147 
 
 II. Estoppel BY Kecobd , 147" 
 
 III. Estoppel BY Deed 148 
 
 IV. Estoppel IN Pais 149^ 
 
 by account stated, 4. 
 
 of tenant, to deny landlord's title, 249. 
 principal, by agent's dealings, 354. 
 party to invoke statute of frauds, 88. 
 city, by official acts and admissions, 305. 
 Estrays. 
 
 liability of owner for trespass by, 10. 
 Eviction. 
 
 of tenant, recovery for, 250. 
 
 effect of, to excuse payment of rent, 251. 
 
 of purchaser, action for, 444. 
 
EVIDENOE— EXCEPTIONS (BILLS OF.) 
 
 631 
 
 Evidence. 
 
 I. The Necessity and Sufficiency 
 
 OF Evidence 150 
 
 II. Parol Evidence to Affect Wmt- 
 
 TEN Instruments 154 
 
 III. Admissions, Declarations, and 
 
 Confessions 156 
 
 IV. Documentary Evidence 158 
 
 to establish an advancement, 6. 
 
 review of, on appeal, 12, 14, 15, 19, 26, 28. 
 when case on appeal should contain, 18. 
 on motion to vacate order of arrest, 35. 
 in criminal prosecutions for assault, 37. 
 of fraud, in assignment for creditors, 40. 
 in attorney's action for services, 48. 
 
 actions on bills of exchange, 63. 
 of boundary, 66. 
 in actions against carriers, 73. 
 review of, on certiorwi, 75. 
 of naturalization, or citizenship, 79. 
 
 criminal conspiracy, 82. 
 in civil action for conspiracy, 82. 
 
 actions on contract, generally, 91. 
 to enforce individual liability of stock- 
 holders, 94, 275. 
 
 prove usage, 111. 
 of dedication, 117. 
 
 adultery, in suit for divorce, 131. 
 in ejectment, 139. 
 
 prosecutions for embezzlement, 140. 
 general exceptions to, 161. 
 in actions by or against personal represen- 
 tatives, 174. 
 
 suits on administration bonds, 176. 
 
 action for false imprisonment, 178. 
 
 jjrosecution for false pretences, 179. 
 forgery, 181. 
 of fraud, 183. 
 in creditor's suit, 185. 
 
 prosecutions for murder, 195. 
 
 civil action for causing death, 195, 196. 
 of marriage, 197. 
 
 in actions by or against husband and wife, 
 102. 
 
 actions on insurance policies, 230, 231. 
 injunction bonds, 211. 
 , against joint-stock companies, 
 237. 
 in actions for rent, 252. 
 on trial for larceny, 254. 
 in actions for libel, 261 . 
 
 under civil damage act, 267. 
 on marshals' bonds, 276. 
 for malicious prosecution, 268. 
 to prove deed to be mortgage, 285. 
 
 explain assignment of mortgage, 289. 
 in foreclosure, 292. 
 to prove negligence, 312. 
 as to contributory negligence, 313. 
 
 Evidence, (continued.) 
 
 error in admission of, when' ground for new 
 
 trial, 314. 
 verdict against, when ground for new trial, 
 
 315. 
 new trial for newly-discovered, 315. 
 to prove partnership, 334. 
 in prosecutions for perjury, 341. 
 under pleadings, 346. 
 in actions on promissory notes, 365 
 
 quo warranto, 368. 
 of damages Tor land taken for railroad, 371. 
 parol, to explain receipt, 384. 
 powers of referees respecting, 387. 
 in replevin, 393. 
 
 actions for price of goods sold, 399. 
 of market value, 399. 
 in prosecution for seduction, 401. 
 actions for services rendered, 403. 
 collision, 409. 
 slander, 409. 
 trespass, upon land, 424. 
 putting in, on trial, 426, 431. 
 dismissal of complaint for insufficiency of, 
 
 427. 
 in trover, 434. 
 
 actions between vei:dor and purchaser 
 of land, 443. 
 of revocation of will, 447. 
 on probate of wills, 448. 
 of incapacity of testator, 452. 
 
 undue intiuence, 452. 
 to impeach witness, 458 
 corroborate witness, 459. 
 Examination. 
 
 of witnesses, generally, 460, et seq. 
 
 party before trial, 126 
 in supplementary proceedings, 165. 
 Excavations. 
 
 liability of city for injuries occasioned by, 
 305, 327. 
 Exceptions. 
 
 in deeds, 120. 
 
 to rule subjecting assignee to equities, 39. 
 forbidding collateral impeachment 
 
 of judgments, 241. 
 forbidding tenant todeny landlord's 
 title, 249 
 running of statute of limitations, 263. 
 report of referee, 388. 
 accounts of executors, 173. 
 time and manner of taking, generally, 427. 
 to rule excluding parties as witnesses, 453, 
 , e( seg. 
 
 excluding opinions of witnesses, 462, 
 et seq. 
 
 Exceptions, (Bills of.) ' 1 60 
 
 sufficiency of, on appeal, 15. 
 
632 
 
 EXCISE— FEES. 
 
 Hxdse. 
 
 constitutionality and interpretation of stat- 
 utes, 265. 
 commissioners of, 265. 
 licenses, 265. 
 penalties, 266. 
 
 Execution. ^ 
 
 I. Executions aoaint Property 161 
 
 II. Executions aoainst the Person 163 
 
 III. Payment. Satisfaction. Dis- 
 
 charge 164 
 
 IV. Belief against Executions 165 
 
 V. Proceedings Supplementary to 
 
 Execution 165 
 
 levy of, by constable, 82. 
 
 contempt in supplementary proceedings, 84. 
 
 of contracts, generally, 86. 
 
 necessary proceedings under, to support 
 
 creditor's suit, 109. 
 proof of, to let in documentary evidence, 
 
 158. 
 of marriage settlements, 197. 
 on justice's judgment, 246. 
 ofJease, 255. 
 
 by agents, 255. 
 mortgage, 285. 
 powers, 348. 
 
 annual report, by manufacturing com- 
 pany, 212. 
 powers of slierifTs in respect to sales under, 
 
 404. 
 sherifls' fees on, 404. 
 of wills, 447. 
 
 Executors and administrators. 
 
 I. Appointment AND Eemoval 167 
 
 II. Assets 168 
 
 III. Eights, Powers, Duties and Lia- 
 
 bilities 168 
 
 IV. Suits 174 
 
 V. Public Administrators. Foreign 
 
 Eepresentatives 176 
 
 accounting by, 3. 
 
 liability to pay interest, 236. 
 
 privileges of, under statutes of limitations, 
 
 264. 
 power to sell, 348. 
 taxation of, 416. 
 competency of party, as witness, in actions 
 
 by or against, 454. 
 declarations of, as evidence, 157. 
 Exemption. , 
 
 from execution, 163. 
 taxation, 418. 
 Exhibits. 
 
 what are admissible in evidence, 158, et 
 seq. 
 Exoneration, 
 of bail, 49. 
 
 guarantors, 189. 
 sureties, 356. 
 
 competency and qualifications of, 463. 
 rules for examining, 464. 
 Ex post facto laws. 
 
 constitutionality of, 413. 
 
 Express companies 177 
 
 carrying goods C. O. D., 73. 
 Extinguishment. 
 
 of cbattel mortgage, 77. 
 debts, 115. 
 easements, 137. 
 Extortion. 
 
 recovering back money paid under, 283. 
 
 Extradition , 1 77 
 
 Factor. 
 
 rights and liabilities of, 355. 
 Failure. 
 
 of consideration of contracts, 87. 
 to produce papers ordered to be inspected, 
 130. 
 deliver, buyer's action for, 399. 
 deliver message, liability of telegraph 
 company for, 420. 
 of witness, to attend, consequences of, 453. 
 
 False imprisonment 1 78 
 
 False pretences 178 
 
 distinction between larceny and, 253. 
 False representations. 
 
 measure of damages in actions for, 114. 
 when amount to fraud, 182. 
 question of fact, 367. 
 > effect of, on sales of chattels, 398, 399. 
 False return. 
 
 liability of constable for, 82. 
 sheriff for, 405. 
 on shares. 
 interpretation of contracts for, 250. 
 Fee simple. 
 
 when passes by devise, 128. 
 Fees. 
 
 of arbitrators, 31. 
 
 attorneys, liability of executor for, 168. 
 • for prosecuting pensions, 340. 
 liability of attorney for, 46. 
 contracts for contmgent, 47 . 
 of auctioneers, 49. 
 
 auditors, 173. i 
 
 collector of decedent's estate, 174. 
 clerks of courts, 80. 
 brokers, 354. 
 what are taxable as costs, 102. 
 of referee to sell, in partition, 333. 
 
 foreclosure, 293. 
 referees, generally, 388. 
 
 on appeals from highway com- 
 missioners, 194. 
 sheriffs, 404. 
 stenographers, 46. 
 
FEES— FREIGHT. 
 
 633 
 
 Fees, (continued.) 
 
 of warehousemen, 445. 
 wharfingers, 446. 
 witnesses, 453. 
 Feigned issues. 
 
 how settled and tried, 142. 
 
 Fences 180 
 
 efiect of fencing to aid title by adverse pos- 
 session, 7. 
 of railroads, 371. 
 
 Ferries 180 
 
 Fiduciwy eapacily. 
 
 arrest in actions for money received in, 33. 
 Filing. 
 
 ■of case on appeal, 15, 18, 25. 
 chattel mortgage, 76. 
 security for cos'.s, 100. 
 record, on error, 145. 
 assignment of lease, 257. 
 notice of mechanics' lien, 280. 
 referee's report, 387. 
 
 manufacturing company's annual report, 
 273. 
 Filling blanks. 
 
 in mortgage, 285. 
 Finding. 
 
 of indictment, 205. 
 entry of judgment en, 238. 
 of fact, by referee, 387. 
 Fines. 
 
 arrest in actions for, 33. 
 for contempt, 85. 
 Fire. 
 
 insurance against, 213, el seq. 
 
 destroying building to stop spread of, 69, 
 
 305. 
 covenant to rebuild in case of, 256. 
 department of, in New York city, 325. 
 by sparks from locomotive, 375. 
 liability of land-owner for spread of, 384. 
 
 Fixtures - 180 
 
 Forbearance. 
 
 when discharges guarantor, 189. 
 surety, 357. 
 Forcible entry. 
 
 right of land-owner to resist, 384. 
 Foreclosure. 
 
 of chattel mortgage, 77. 
 mechanics' lien, 281. 
 
 by advertisement, 290. 
 
 equitable action, 290, et seq. 
 Foreign corporations. 
 
 their powers and liabilities, 98. 
 
 devises to, 128. 
 
 taxation of,' 417. 
 Foreigij, divorce. 
 
 effect of foreign decree, 132. 
 Foreign executors. 
 
 their powers and liabilities, 176. 
 
 Foreign jvdgments. 
 
 of courts of sister states, 244. 
 Foreign laws. 
 
 presumptions relative to, 151. 
 respecting marriage, 196. 
 Forfeiture. 
 
 of bank charter, 55. 
 
 corporate charter, 97. 
 for non-payment of rent, 252. 
 of life policy, for default in payment of pre- 
 mium, 223. 
 railroad franchise, 369. 
 recognizance, 385. 
 for usury, 441. 
 
 Forgery 181 
 
 defined, 122. 
 
 liability on forged check, 57, 78. 
 recovery of money paid on forged paper, 
 284. 
 
 Forma pauperis. 
 
 costs in suits in, 98. 
 Former adjudication. 
 
 how pleaded, 344. 
 
 plea of, in criminal cases, 241. 
 generally, 239, et seq. 
 Franchise. 
 
 forfeiture of, 55, 97, 369. 
 
 enjoining infringement of, 180. 
 
 forfeiture of railroad, 369. 
 
 Fraud. 
 
 I. What Amounts to Fbaud oe De- 
 ceit 182 
 
 II. Eemedies fob Fbatxd 182 
 
 defined, 122. 
 arrest for, 33. 
 
 what is, in assignment for creditors, 40. 
 in disposal of property, when ground for 
 attachment, 43. 
 contracts, generally, 89. 
 liability of corporations for, 96. 
 measure of damages in actions for, 114. 
 in composition deed, 117. 
 annulling marriage for, 131. 
 impeaching judgment for, 241. 
 opening judgment for, 242. 
 vacating local assessments for, 300, 321. 
 when question of fact, 367. 
 
 Fraudulent conveyances. 
 
 I. What Conveyances are Feattd- 
 
 TJLENT ; 183 
 
 II. Eemedy BY Suit in Equity 184 
 
 what chattel mortgages are, 77. 
 exhausting legal remedy, 109. 
 when the fraud is question of fact, 367. 
 criminal prosecution for making. 111. 
 
 Freight. 
 
 lien of carrier for, 72. 
 
 delivery prerequisite to right to, 72. 
 
034 
 
 FREIGHT— HUSBAND AND WIFE. 
 
 Freight, (continued.) 
 
 duty of carrier as to perishable, 72, 373. 
 
 when subject of salvage, 400. 
 
 abandonment in cases of loss of, 226. 
 
 extent of insurer's liability for losses of, 
 227. 
 
 pro rata, 72. 
 Frivolous pleadings. 
 
 striking out, 346. 
 Fugitives. 
 
 extradition of, 177. 
 Funeral expenses. 
 
 payment of, 170, 173. 
 
 what are included in, 122. 
 
 allowances for, on accounting of executor, 
 173. 
 Future advances, 
 
 validity of mortgage for, 176. 
 
 Gas-light companies 185 
 
 taxation of, 417. 
 General average. 
 
 contribution in, 227. 
 Oeneral issue. 
 
 evidence under, 346. 
 General reputaiion. 
 
 admissibility of, as evidence, 152. 
 Oeneral Term. 
 
 appeals to, 16, et seq. 
 
 order that excepdons be heard in first in- 
 stance, at, 429. 
 
 verdict subject to opinion of, 429. 
 
 when opinion of, may be examined in Court 
 of Appeals, 26. 
 
 Gift. 
 
 I. Gifts Intee Vivos 186 
 
 II. Gifts Causa Mortis 187 
 
 by husband to wife, 201. 
 
 Ooodfaiih. 
 
 who is purchaser in, 396, 442. 
 Oood will. 
 
 defined, 122. 
 Oovernor. 
 
 certiorari to review action of, 74. 
 Grand jury. 
 
 finding of indictment by, 205. 
 
 members of, as witnesses, 455. 
 Grand larceny. See Larceny. 
 Grants. 
 
 of lands under water in New York city, 316, 
 317. 
 
 Guaranty. 
 
 I. General Principles 187 
 
 II. Kequieements op the Statute 
 
 or Frauds 187 
 
 III. Construction AND Operation 188 
 
 IV. Eights and Liabilities or Guar- 
 
 antor „. 189 
 
 requirements of the statute of frauds, 87. 
 
 Guardian ad litem 1 90 
 
 Guardian and ward 
 
 I. Appointment; and Nature op 
 
 THE Trust 191 
 
 II. Powers and Duties op the 
 
 Guardian 191 
 
 III. Accounting; and Liability op 
 
 Sureties 191 
 
 accounting between, 3. 
 guardians ad litem, 190. 
 
 who is, 211. 
 
 liability of innkeeper to, 211. 
 
 Habeas Corpus 192 
 
 Bandwriting. 
 
 proof of to let in documentary evidence, 
 158. 
 
 opinions of witnesses as to, 463. 
 
 experts as to, 464. 
 
 comparison of, 158. 
 Samrdoiis and extra hazardous. 
 
 in fire insurance, 216. 
 Bealth. 
 
 boards of, 307. 
 
 in New York city, 326. 
 Bearsay. 
 
 admissibility and sufiiciency of, 152. 
 
 of, in criminal cases, 432. 
 Beir. ' 
 
 inheriting by aliens, 8. 
 
 what will descend to, 127. 
 
 meaning of, 451. 
 
 competency of, as witness, 455. 
 Bigh seas. 
 
 jurisdiction of state over vessels on, 412. 
 
 Highways. / 
 
 I. Establishment and Eepair i 
 
 Discontinuance 193 
 
 II. Use OF Highways 194 
 
 III. Obstructions and Encroach- 
 ments 194 
 
 powers of commissioners of, respecting 
 
 plank roads, 342. 
 obstructions in, as nuisances, 328. 
 Balding over. 
 
 by tenant, 249. 
 
 summary proceedings for, 252. 
 
 by municipal officers, 307. 
 
 Homicide. 
 
 I. The Criminal Offence ; and how 
 
 Prosecuted 195 
 
 II. The Civil Action pob Causing 
 
 Death.. 195 
 
 assault with intent to kill, 37. 
 Borse railroads. 
 
 rights, in use of city streets, 299, 318, 380. 
 injuries to passengers, 381. ^ 
 
 Husband and Wife. 
 
 I. Marrige; and Agreements, 
 AND Promises in Eelation to 
 Marriage jgg 
 
HUSBAND AND WIFE— INFUINGEMENT. 
 
 635 
 
 Husband and wife (continued.) 
 
 II. Eights and Powers of the 
 
 Husband 197 
 
 III. Liabilities oe the Husband .... 198 
 
 IV. Bights and Disabilities oe 
 
 THE Wife 198 
 
 V. Sepabate Estate of the Wife, 199 
 VI. Effect of the Eelation on 
 THE Tenure and Transfer 
 
 OF Land 201 
 
 VII. Contracts and Dealings be- 
 tween THEM 201 
 
 VIII. Actions by, against or between 
 
 Husband and Wife 202 
 
 citizenship of wife, 79. 
 alimony, when granted after voluntary sep- 
 aration, 133. 
 larceny of wife, coercion of husband, 254. 
 domicile of wife, 135. 
 declarations of, as evidence, 156. 
 gifts between, 186, 187. 
 competency of, as witnesses, 455. 
 Sypothecation. 
 
 of chattels, generally, 50, 51. 
 
 vessel, 406. 
 lUegality. 
 
 of assignment for creditors, 40. 
 
 chattel mortgage, 76. 
 
 lotteries, 267. 
 
 deeds, 118. 
 
 testamentary provisions, 448. 
 lUegUimate children. 
 
 bond for maintenance of, 61. 
 meaning of " illegitimate," 1 22. 
 right of, to take by descent, 128. 
 Impaneling jurors. 
 
 in justices' courts, 246. 
 
 error in, when ground for new trial, 314. 
 
 in courts of record, 426. 
 
 criminal cases, 430, 431. 
 Impetuhment. 
 
 of award of arbitrators, 32. 
 
 bankrupt's discharge, 54. 
 
 discharge in composition proceedings, 54. 
 
 jurisdiction, 245. 
 
 proceedings to condemn land for railroad, 
 371. 
 
 judgments, collaterally, 241. 
 
 judicial sales, 244. 
 
 verdict, by juror's affidavit, 430. 
 
 consideration of note, 366. 
 
 release, 389. 
 
 witness, 457, et aeq. 
 Impotence. 
 
 suit to annul marriage for, 131, 
 
 Imprisonment 203 
 
 on execution, discharge from, 164. 
 action for false, 178. 
 punishment by, 366. 
 
 Improvements. 
 
 covenant in lease to pay for, 256. 
 Inadequacy. 
 
 of consideration of contract, 87. 
 damages, new trial for, 315. 
 Ineapacity. 
 
 suit to annul marriage for, 131. 
 
 what amounts to mental, 447, 452. 
 
 contesting will for, 452. 
 Incorporation. 
 
 of corporations, generally, 92. 
 banks, 55. 
 
 manufacturing companies, 271. 
 railroad companies, 369. 
 religious societies, 389. 
 Incumbrances. 
 
 covenant against, 108. 
 
 condition against, in fire policy, 216. 
 
 damages for breach of, 113. 
 Indemnity. 
 
 covenant of, 108. 
 
 right of agent to, 351. 
 
 to sheriff, in replevin, 393. 
 
 right of warehouseman to, 446. 
 
 necessity of, in action on lost note, 364. 
 
 Indians 205 
 
 Indictment. 
 
 I. The Finding 205 
 
 II. Form and Contents 205 
 
 III. Motion to Quash 205 
 
 for assault, 37. 
 arson, 36. 
 burglary, 70. 
 embezzlement, 140. 
 false pretences, 179. 
 forgery, 181. 
 murder, 195. 
 larceny, 253. 
 
 selling liquor without licence, 266. 
 public nuisance, 329. 
 perjury, 340. 
 Individiud liability. 
 
 of executora, for legacies, 260. 
 
 stockholders in corporations, generally,94. 
 manufacturing companies,. 
 
 274. 
 mining companies, 282. 
 Indorsement. 
 
 of bill of exchange, 62. 
 transfer of check without, 78. 
 power of partner to bind firm by, 336. 
 of promissory notes, 360. 
 
 Infants 206 
 
 general guardians of, 191. 
 guardians ad litem, 190. 
 offence of selling liquor to, 266. 
 Infrinz/ement. 
 
 of trademark, 423. 
 
€36 
 
 INJUNCTION— INTERPEETATION. 
 
 Injunction. 
 
 I. General Principles 206 
 
 II. Use of the Writ in Pabtic0LAB 
 
 Cases 207 
 
 III. Granting and Dissolving 209 
 
 IV. Damages on Dissolution. Eem- 
 
 EDY ON Bond or Undertaking, 210 
 punishing violationof, as contempt, 84. 
 enjoining collection of execution, 165. 
 obstruction of highway, 194. 
 summary proceedings, 253. 
 effect of, to suspend running of statute of 
 
 limitations, 264. 
 to restrain nuisance, 329. 
 for misappropriation of partnership assets, 
 
 329. 
 on dissolution of partnership, 338. 
 to restrain collection of taxes, 419. 
 
 infringement of trademark, 423. 
 Injury. 
 
 by animals, liability of owner for, 10. 
 10 realty, arrest in action for, 33. 
 
 passenger, 376, et seq. 
 by fall of telegraph pole, 421. 
 to the person, measure of damages for, 114. 
 what is ground for injunction, 206. 
 by defect in cohstruction of railroad, 371. 
 to persons crossing railroad track, 377. 
 employees, 277, 379. 
 Innocence. 
 
 presumption of, 151. 
 
 Jnns and innkeepers 21 1 
 
 Inquest. 
 
 by coroner, as to cause of death, 91. 
 Inquiry. 
 
 duty of assignee to make, 39. 
 
 purchaser of promissory note, to 
 make, 361. 
 
 Insane persons. 
 
 I. Disabilities of Insane Peesons 211 
 II. The Inquisition. Appointment 
 
 OF Committee, &c 212 
 
 powers of commissioner in lunacy, 330. 
 
 Insolvency 212 
 
 suspension of state laws by bankrupt act, 
 
 61. 
 of limited partnerships, 339. 
 Jnspeclion. 
 
 of books and papers, generally, 129. 
 books of assignor for creditors, 40. 
 corporate books, by stockholders, 93. 
 official books and papers, 93. 
 weights and measures, 326. 
 instructions. 
 
 review of, on appeal, 12. 
 on trial for assault, 37. 
 bigamy, 61. 
 question of negligence, 313. 
 exceptions for errors in, 160, 161. 
 general exceptions to, 161. 
 
 Instructions, (continued.) 
 in murder cases, 195. 
 
 civil action for causing death, 196. 
 
 action for rent, 252. 
 
 qtu) warranto, 368. 
 
 slander, 410. 
 
 action for services, 403. 
 error in, when ground for new trial, 314. 
 to jury, what proper, generally, 427, et seq. 
 in prosecution for seduction, 401. 
 
 Insurance. 
 
 I. General Principles 213 
 
 II. Fire Insurance 213 
 
 III. Life Insurancse 221 
 
 IV. Marine Insurance 225 
 
 V. Actions on Insurance Policies 227 
 
 VI. Insurance Companies 231 
 
 taxation of insurance companies, 417. 
 Intendments. 
 
 on appeal, 14. 
 
 See, also. Presumptions. ■ 
 Intent. 
 
 assaults with special, 37. 
 to hinder creditors, 40. 
 
 mislead, not essential to estoppel in pais, 
 149. 
 presumptions in respect to, 152. 
 of parties to written instruments, ascertain- 
 ing by parol, 155. 
 in false pretences, 179. 
 when question of fact for jury 367. 
 to revoke will, how shown, 447. 
 of testator, how ascertained, 449. 
 
 Interest. 
 
 I. The Eight 'to Interest 236 
 
 II. The Kate ; and Computation 236 
 
 real party in, liable for costs, 102. 
 declarations against, as evidence, 156. 
 on stock subscriptions, 94. 
 when personal representatives are charge- 
 able with, 172. 
 what is insurable, 213. 
 on assessments for local improvements 
 320. ' 
 
 of mortgagee, 286. 
 real party in, must sue, 331. 
 when usurious, 440. 
 liability of New York city for, 327. 
 
 Interpleader 236 
 
 bringing in new parties, generally, 332. 
 Interpretation. 
 
 of statute relative to revival of actions, 2. 
 adjournments, 6. 
 submission to arbitration, 31. 
 award, 31. 
 assignments, 38. 
 
 for benefit of creditors, 40. 
 bank charters, 55. 
 savings banks charter, 59, 
 bills of lading, 63. 
 
INTERPRETATION— JUDICIAL NOTICE. 
 
 637 
 
 Interpretatian, (continued.) 
 of bonds, 65. 
 
 chattel mortgage, 76. 
 
 constitutfonal provisions, 83. 
 
 contracts, generally, 88. 
 
 statutes relating to courts, 104. 
 
 intersecting railroads, 
 372. 
 
 covenants, 108, 
 
 composition deeds, 116. 
 
 ordinary deeds, 118. 
 
 guaranties, 188. 
 
 statute relative to haheota corpus, 192. 
 
 judgments, 289, ei seq. 
 
 legacies, 258. 
 
 excise laws, 265. 
 
 civil damage act, 266. 
 
 mechanics' lien laws, 279. 
 
 mortgages, 285. 
 
 assignment of mortgage, 289. 
 
 town-bonding laws, 301 . 
 
 resolution for local improvement, 319. 
 
 partnership articles, 335. 
 
 powers of attorney, 350. 
 
 writings, when question of law, 367. 
 fact, 367. 
 
 statutes relating to railroads, 369. 
 
 "rapid transit" act, 382. 
 
 contracts for railroad construction, 371. 
 
 express contracts for services, 402. 
 
 statutes, 414. 
 
 trusts, 434, et seq. 
 
 contracts for sale of land, 441 . 
 
 wills, 449. 
 Interrogatories. 
 
 on commission to take deposition, 125. 
 costs for drawing, 125. 
 Intnmon into office. 
 
 remedy by quo warranto, 368. 
 Inventory. 
 
 in insolvency proceedings, 212. 
 
 of execution against property, 161. 
 letters on decedent's estate, 167. 
 habeas corpus, 192. 
 under pleadings, generally, 345. 
 of process, 357. 
 Jail limits. 
 
 bond for, 164, 203, 404. 
 Joinder. 
 
 of parties, in actions by or against husband 
 and wife, 202. 
 parties in actions, generally, 331. 
 causes of action, 4. 
 issue, 345. 
 Joint debtors. 
 
 judgment against, 238. 
 
 proceedings to. bind, when not originally 
 
 summoned, 233. 
 release of one, effect of, 389. 
 
 Joint stock companies 237 
 
 manufacturing companies, 271, et seq. 
 
 mining companies, 282. 
 Joint terumts. See Tenants in common. 
 Judges. 
 
 appointment and powers, 104. 
 
 qualifications, 104. 
 
 what motions may be made before, 298. 
 
 Judgment; Decree. 
 
 I. KuLES Relative to Pabtiis 238 
 
 II. Eendition and Entry of Judg- 
 ments 238 
 
 III. Interpeetation and Effect. 
 
 Conclusiveness 239 
 
 IV. Lien. Pkioritt 242 
 
 V. Satisfaction AND Discharge... 242 
 
 VI. Opening, Amending and Va- 
 cating 242 
 
 VII. Enpobcement 243 
 
 VIII. Judgments BY Confession 243 
 
 IX. JjJDGMBNTS OF CoURTS OF OtHEK 
 
 States, and op the Federal 
 Courts 244 
 
 defined, 122. 
 
 amendment of, 10. 
 
 what is final, and what interlocutory, 11. 
 
 notice of entry of, 12. 
 
 appeals from, to general term, 16, et seq. 
 
 court of appeals, 21, et seq. 
 
 of appellate court, 19. 
 
 modifying in appellate court, 20, 27. 
 
 assignments of, 39. 
 
 attachment of, 42. 
 
 in actions on bonds, 66. 
 
 when cloud on title, 80. 
 
 cancellation of, after discharge in bank- 
 ruptcy, 53. 
 
 confession of, after such discharge, 53. 
 
 constitutional provision concerning "full 
 faith and credit," 83. 
 
 costs after offer to allow, 99. 
 
 for absolute divorce, 132. 
 
 in ejectment, 139. 
 
 what will support writ of error in criminal 
 cases, 144. 
 
 estoppel by recitals in, 148. 
 
 use of, as evidence, 158. 
 
 in actions ' by personal representatives, 
 175. 
 creditors' actions, 185. 
 mechanics' lien cases, 281. 
 
 recovering back money paid on, 284. 
 
 in foreclosure, 293, 295, 296. 
 partition, 333. 
 
 on referee's report, 388. 
 
 in replevin, 393. 
 
 actions for construction of wills, 452. 
 Judicial notice. 
 
 what must be proved, 151. 
 need not be, 150. 
 
638 
 
 JUDICIAL SALES— LAW OF PLACE. 
 
 Judicial sales 244 
 
 sales at auction, 48. 
 execution sales, 162. 
 return, 163. 
 sheriff's deed, 163. 
 foreclosure sales, 293. 
 for non-payment of local assessments, 323. 
 in partition, 333. 
 for non-payment of taxes, 418. 
 ■Juries. 
 
 right to trial by jury, 424, 430. 
 
 in summary proceed, 
 ings, 252, 
 error in instructions to, when ground for 
 
 new trial, 314. 
 admissibility of juror's affidavit on motion 
 
 for new trial, 316. 
 what questions are for, 367. 
 impaneling, 314, 426, 431. 
 
 Jurisdiction '. 245 
 
 definition of, 122. 
 
 objections to, waiver of by appearance, 5. 
 on appeal, 12, 21. 
 to grant order of arrest, 34. 
 of state" courts, of suits by assignees in bank- 
 ruptcy, 52. 
 to issue certiorari, 75. 
 of courts, generally, 105, et seq. 
 recitals in judgment respecting, 239. 
 of New York Common Pleas, 105. 
 
 Marine Court of city of New York, 105. 
 
 District Courts in New York city, 105. 
 
 New York Superior Court, 105. 
 
 justices' courts in cities, 106. 
 
 Court of Appeals, 21. 
 
 General Term, 16. 
 
 Surrdgates' Courts, 106. 
 
 in distribution, 130. 
 as to payment of debts, 
 170. 
 
 Oj'er and Terminer, 107. 
 
 Special Sessions, 107. 
 
 creditoi's' suits, 109. 
 
 suit for absolute divorce, 131. 
 in equity, generally, 142, et seq. 
 
 supplementary proceedings, 165. 
 to order sale of lands for payment of debts, 
 171. 
 
 call executors to account, 172. 
 of prosecution for false pretences, 178. 
 on habeas corpus, 192. 
 to order sale of infant's lands, 206. 
 
 stay proceedings by injunction, 206. 
 judgment of no force, if court has not, 239. 
 impeaching judgment for want of, 241. 
 of justices of the peace, 245. 
 in summary proceedings, 252. 
 
 proceedings to drain lands, 136. 
 
 Jurisdiction, (continued.) 
 
 in actions for legacies, 260. ^ 
 to issue writ of prohibitior|, 359. 
 
 refer issues, 386. 
 in actions for specific performance, 411. 
 
 trespass, 424. 
 of state, over vessel on liigh seas, 412. 
 action for construction of will, 452. 
 proceedings to contest wills, 452. 
 
 Justice of the peace. 
 
 I. Election and Jurisdiction 245 
 
 II. Procedure 246 
 
 III. Appeals from Justices' Courts.. 247 
 
 certiorari to, 75. 
 
 courts of, in cities, 105, 106. 
 
 conclusiveness of judgment of, 241. 
 Justices^ courts in cities. 
 
 in Brooklyn, 106. 
 Justification. 
 
 in slander, 410. 
 
 of agent, of insurance company, 232. 
 Laches. 
 
 effect of, to bar equitable relief, 142. 
 in applying for mandamus, 269. 
 moving to vacate assessment, 322. 
 
 Landlord and tenant. 
 
 I. The Belation ; how Constituted 
 
 AND Terminated 248 
 
 II. Bights and Obligations arising 
 
 OUT op the Belation 249 
 
 III. Bent; andEemediestoEecoverit, 250 
 
 IV. Becovery op Possession by Land- 
 
 lord 252 
 
 ' measure of damages in actions between, 113- 
 law of fixtures, as between, 180. 
 the lease, 254, et seq. 
 insurable interest of lessee, 214. 
 Lapse. 
 
 of devise, 129. 
 
 time, to bar relief in equity, 142. 
 
 terminate power of assignee for 
 creditors, 42. 
 time, when bar under statute of limita- 
 tions, 262. 
 
 Larceny 253 
 
 title of purchaser from thief, 396. 
 Lateral support. 
 
 right to, 384. 
 Law of place. 
 
 effect of, on bills of exchange, 62. 
 delivery by carrier, 72. 
 contracts, generally, 91. 
 contract of marriage, 196. 
 promissory notes, 363. 
 wills, 449. 
 
 testamentary capacity of mar- 
 ried woman, 449. 
 
LAW OF THE ROAD— LOSS. 
 
 e39 
 
 Jmw of the road. 
 
 in general, rights of foot passengers, 194. 
 Leading questiom. 
 
 what are, admissibility, &c., 460. 
 
 Leases. 
 
 I. What is a Lease ; Validity, &c., 254 
 11. Keservations, Conditions, &c.... 255 
 
 III. Covenants and Stipulations 256 
 
 IV. Assignments and Transfers 257 
 
 V. Surrender 257 
 
 assignment of, 38. 
 
 requirements of the statute of frauds, 88. 
 
 when cloud on title, 80. 
 
 insurable interest of lessee, 214. 
 
 parol evidence to vary, 155. 
 
 Legacies. 
 
 I. Nature, Interpretation, and 
 
 Effect. Validity 258 
 
 II. When a Charge upon Land 259 
 
 in. Payment 259 
 
 IV. Incidental Eights and Liabili- 
 
 THS OF Legatee 260 
 
 payment and delivery of, 171. 
 interest on, 236. 
 to religious society, 389. 
 Jjegislature. 
 
 power to pass limitation laws, 262. 
 over cities, 299. 
 elections, 139. 
 railroads, 369. 
 local improvements, 318. 
 Letters. 
 
 contracts by correspondence, 86. 
 on estate of decedent, 167. 
 of creditpconstruction of, 188. 
 Le^y. 
 
 of attachment, 44. 
 execution, 162. 
 liability for wrongful, 404. 
 
 Libel 261 
 
 measure of damages in actions for, 114. 
 what communications are privileged, 48, 
 342. 
 
 License 261 
 
 to sell liquor, 265. 
 
 offence of selling without, 266. 
 
 of trades and employments, by city, 318. 
 
 Lien 261 
 
 meaning of, 123. 
 
 of attorney, for costs, 47. 
 
 carrier, for freight, 72. 
 
 execution, 162. 
 
 judgment, 242. 
 
 landlord, for rent, 255. 
 
 mechanics and material-men, 279, et, seq. 
 
 seller of chattels, 395. 
 
 upon vessels, enforcement of, 408. 
 
 vendor of land, 442. 
 
 Life estate. 
 
 rights of life tenant, 146. 
 Life inswanee. 
 
 insurable interest, 221. 
 
 warranties, representations, &c., 221, et. 
 seq. 
 
 premiums, 223. 
 
 death, and proof thereof, 224. 
 
 suicide, 225. 
 
 Limitations of actions. 
 
 I. General Principles 262 
 
 II. What Lapse of Time will Cre- 
 ate A Bar 262 
 
 III. When the Statute Begins to 
 
 EuN 263 
 
 IV. Disabilities AND Exceptions 263 
 
 V. Acknowledgement. New Pro- 
 mise. Part Payment 264 
 
 of suits against assignees in bankruptcy, 53. 
 
 to dissolve marriage, 131. 
 effect of adverse possession, 7. 
 
 lapse of time in equity, 142. 
 of suits on insurance policies, 229. 
 Limited partnership. 
 formation of, 339. 
 powers of special partner, 339. 
 dissolution of, 339. 
 
 Liquor-selling. 
 
 I. General Principles 265 
 
 II. Decisions Under the "Civil Dam- 
 age Act." 266 
 
 condition against, in lease, 255. 
 Lis pendens. 
 
 filing, and effect of, generally, 349 
 in foreclosure, 291. 
 Literary property. 
 
 protection of, in equity, 208. 
 Loan commissioners. 
 
 interpretation of mortgages taken by, 285. 
 ioarw!. 
 
 by banks, 57. 
 
 savings banks, 60. 
 power of corporations to make, 95. 
 Local improvements. 
 
 in cities, generally, 299, et seq. 
 New York city, 318, et seq. 
 Brooklyn, 68. 
 Buffalo, 70. 
 Local statutes. 
 
 necessity that subject be expressed in title, 
 114. 
 L(mg Island city. 
 
 decisions of a local character relative to, 
 308! 
 Loss. 
 
 liability of carrier for, 71. 
 proof of, to let in secondary evidence, 152. 
 liability of personal representative for, 169. 
 express company for, 177. 
 
640 
 
 LOSS— MEMORANDUM. 
 
 Loss, (continued.) 
 
 liability of innkeeper for, 211. 
 
 in insurance cases, 226. 
 
 of freight, in marine insurance, 226. 
 
 agreement to share, when constitutes part- 
 nership, 334. 
 
 of goods, liability of railroad company for, 
 373. 
 
 service of wife, action for, 198. 
 
 liability of trustee for, 438. 
 JLost instruments. 
 
 stoppage of payment of, 57. 
 
 lost checks, 78. 
 
 recovery on lost notes, 364. 
 
 establishing lost wills, 448. 
 
 Lotteries 267 
 
 defined, 123. 
 Lunatics. See Insane Persons. 
 Machinery. 
 
 liability of master to servant for defects in, 
 
 277. 
 liability of railroad company, 379. 
 Mail. 
 
 service of notice of protest by, 362. 
 
 proofs of loss under fire policy by, 
 
 220. 
 process by, 358. 
 Maintenance. 
 
 liability of attorney for buying demands to 
 
 sue, 46. 
 duty of putative father of bastard, 61. 
 of debtor imprisoned on execution, 164. 
 liability of parent for, 331. 
 Malice. 
 
 when presumed in malicious prosecu- 
 tion, 268. 
 
 Malicious prosecution 268 
 
 Malpractice. 
 
 liability of physicians for, 341. 
 
 Mandamus. 
 
 I. General Principles... 269 
 
 II. Use of the Writ in Various 
 
 Cases 269 
 
 III. Pboceddre 270 
 
 to canal appraisers, 71. 
 
 railroad company, 373. 
 review of orders on, 24. 
 punishment of disobedience of, 84. 
 
 Manufacturing companies. 
 
 I. Organization and Corporate 
 
 POVCERS 271 
 
 II. Liabilities of Officers and 
 
 Tbtjstkes 272 
 
 III. Individual Liability of Stock- 
 
 holders 274 
 
 IV. Dissolution, Eeceiyeb, &c 275 
 
 Marine Court of the city of New York, (continued.> 
 
 continuance against executor of decease* 
 party in, 2. 
 
 appeals to Common Pleas, 28. 
 Marine insurance. 
 
 interpretation of policy of, 225. 
 
 warranties, representations, &c., 226. 
 
 perils insured against, 226, 
 
 deviation, 226. 
 J loss, 226. 
 
 abandonment, 227. 
 Maritime liens. 
 
 what are, and how enforced, 405. 
 Marriage. 
 
 the contract, generally, 196. 
 
 what bigamous, 61. 
 
 of guilty party, after divorce, 132. 
 
 when provable by hearsay, 152. 
 
 suit to annulj 131. 
 
 effect of, as revocation of wUl, 447. 
 Married women's (jicts. 
 
 rights of wife under, generally, 199. 
 
 Marshals 276 
 
 Master. 
 
 liability to third persons, 277. 
 servant, 277. 
 
 of vessel, 407. 
 Master and servant 276 
 
 accounting between, 3. 
 larceny by servant, 253. 
 servants of railroad companies, 379, et seq^ 
 injuries to, by defects in road, or machin- 
 ery, 379. 
 neglect of co-servant, 380. 
 Material-men, 
 
 rights of, under mechanics' lien laws, 279. 
 Mayor. 
 
 of New York city, 323. 
 
 Brooklyn, approval of ordinances hj, 68.. 
 removal of officers by, 323. 
 Measure of damages. 
 
 in actions on contract, 112, et seq. 
 for wrongs, 114. 
 libel, 261. 
 for land taken by railroad, 371. 
 
 Mechanics' lien. 
 
 I. The Lien; and Eights or the 
 
 Parties, generally 279 
 
 II. Proceedings to Fobeclose 281 
 
 admissibility of, in evidence, 159. 
 Marine Court of the city of New York. 
 jurisdiction and powers of, 105. 
 
 for corporate elections, 96. 
 of religious societies, 390. 
 Members. 
 
 of joint stock companies, 237. 
 voluntary associations, 411. 
 Memorandum. 
 
 right of witness to refer to, 462. 
 evidence to explain memorandum of sale of 
 chattels, 165. 
 
MERGER— MUNICIPAL CORPORATIONS. 
 
 641 
 
 Merger. 
 
 of written, in subsequent oral contract, 90, 
 155. 
 lesser, in greater crime, 110. 
 legal and equitable estates, 147. 
 mortgage, in fee, 297. 
 
 Mills 281 
 
 remedy forflowage caused by dams, 394, 446. 
 
 Mining companies 282 
 
 Ministers. 
 
 of the gospel, 390. 
 Minors. See Infants. 
 MiacarnAige. 
 
 offence of procuring abortion, 110. 
 Misaynduct. , 
 
 of assignee for creditors, 42. 
 agent, liability for, 352. 
 Mi^oinder. 
 
 of plaintifls, 331. 
 
 causes of action, demurrer for, 344. 
 MisMomer. 
 
 in indictment, 205. 
 summons, 357. 
 Misrepresentatio-ns. 
 
 in insurance law, 218, 222. 
 
 Mistake 282 
 
 in award of arbitrators, 32. 
 
 assessment, correction of, 322. 
 jurisdiction of equity, in cases of, 144. 
 V arying a writing by parol, in cases of, 155. 
 Mitigation of damages. 
 in slander, 410. 
 
 Money paid, (Action for) 283 
 
 Money received, (Action lor) 283 
 
 arrest in actions for, 33. 
 
 recovery of money paid for taxes, 420. 
 
 on usurious con- 
 tract, 441, 
 on contract for sale 
 
 of land, 444. 
 for lottery ticket, 
 267. 
 Month. 
 
 what is a letting by the, 248. 
 
 Mortgages. 
 
 I. What Constitutes A Mortgage 285 
 II. Validity, Interpretation and 
 
 Eefect 285 
 
 III. Eights and Liabilities of the 
 
 I'ARTIES 286 
 
 IV. Decisions Under the Kecord- 
 
 iNG Acts. Priority 288 
 
 V. Assignments 289 
 
 VI. Foreclosure 290 
 
 VII. Redemption 296 
 
 Vlll. Discharge of the Lien by 
 Payment, Satisfaction, or 
 
 Otherwise 296 
 
 insurable interest of mortgagee, 214. 
 
 assignment of, 39. 
 
 power of bank to take, 56. 
 
 Mortgages, (oontimied.) 
 
 of chattels, 76, el seq. 
 
 parol evidence to convert deeds into, 155.- 
 
 explain or vary, 156. 
 law of fixtures, as' between the parties, 180^ 
 when bind wife's separate estate, 200. 
 specific performance of vendee's contract to 
 
 pay, 412, 442. 
 of railroads, 369. 
 
 property of manufacturing company, 372. 
 how distinguished from sale, 395. 
 of ships, 406. 
 when void for usury, 440. 
 
 Motions and Orders. 
 
 I. The Eight to Move ; and herein 
 of Time, Place, and Manner of 
 
 Moving.., 298 
 
 II. The Motion Papers. How Mo- 
 tions ARE Made and Deter- 
 mined 298 
 
 III. Orders 298 
 
 "motion" defined, 123. 
 
 when proper instead of appeal, 17. 
 
 to obtain or vacate order of arrest, 34, 35. 
 
 for attachment, 43. 
 
 to vacate attachment, 44. 
 
 against attorneys, 46. 
 
 for bill of particulars, C4. 
 
 costs of, 99. 
 
 for extra allowance, 100. 
 
 to suppress deposition, 126. 
 
 for inspection of books and papers, 130. 
 
 alimony, 133. 
 to confirm referee's report in divorce case, 
 
 131. 
 for leave to sell land for payment of debts, 
 
 122. 
 to quash indictment, 205. 
 for injunction, 209. 
 to dissolve injunction, 209. 
 vacate body execution, 164. 
 open defaults, 242. 
 vacate judgment, 243. 
 for new trial, 315. 
 to strike out pleadings, 346. 
 
 make more definite and certain, 346. 
 for order of reference, 386. 
 to change place of trial, 425. 
 for non-suit, 427. 
 
 leave to examine party before trial, 126. 
 
 Municipal corporations. 
 
 I. Incorporation AND Charters 299 
 
 II. Powers 299 
 
 III. Liabilities 301 
 
 IV. Municipal Officers 307 
 
 V. Decisions of a Local Character, 
 
 affecting a Particular City 
 OR Village only 307 
 
 when estopped, 147. 
 
 injunctions against, 207. 
 
 mandamv,s to oflScers of, 269. 
 
 41 
 
642 
 
 MUNICIPAL CORPORATIONS— NOTICE. 
 
 Municipal corporations, (continued.) 
 
 set-off in actions against, 403. 
 
 taxation of bonds of, 417. 
 
 exemptions in favor of, 418. 
 
 decisions relative to New York city, 316. 
 Brooklyn, 68. 
 Buffalo, 69. 
 
 horse railroads in, 380. 
 Murder. See Homicide. 
 
 what liilling amounts to, 195. . 
 Name. 
 
 of partnership, 335. 
 National banks. 
 
 attachments against, 43. 
 
 taxation of shares in, 417. 
 Naturalization. . 
 
 the power to confer, its effect, &c., 79. 
 
 Navigation 311 
 
 power of congress to authorize bridges, 66. 
 Necessaries. 
 
 liability of husband for, 198. 
 parent for, 331. 
 
 Negligence. 
 
 I. What Amounts to Negligence, 
 
 AND THE Liability Therefob, 311 
 
 II. Contributoby Negligence 313 
 
 of passenger, in respect to baggage, 73, 375. 
 special contracts, limiting liability for, 74, 
 
 177. 
 of corporate officers and agents, 95. 
 burden of proof in cases of, 153. 
 liability of express company for, 177. 
 
 gas light company for, 185. 
 of servant, liability of master for, 277. 
 
 city officers, liability of city for, 303. 
 liability of public officers for, 330. 
 of agent, when principal liable for, 354. 
 when question of law, 367. 
 
 fact, 367, 368. 
 liabilities of railroad companies for, 375, el 
 
 seq. 
 of flagman, effect of, 378. 
 liability of trustees for, 438. 
 Negotiable iuslruments. 
 
 what is a bill of exchange, 61. 
 
 coupon bonds, 65. 
 
 when draw interest, 296. 
 
 by partner, to bind firm, 336. 
 
 who may receive payment of, 340. 
 
 effect of, as payment, 340. 
 
 rules relative to promissory notes, 359, et 
 
 seq. 
 when void for usury, 440. 
 Newly-discovered evidence. 
 
 new trial for, 315. 
 New promise. 
 
 by indorser, after discharge, 362. 
 
 to remove bar of'statute of limitations, 264. 
 
 New trial. 
 
 I. Gbounds ,314 
 
 -II. The Application ; and how Dis- 
 posed OF 315 
 
 III. New Trials IN Criminal Cases... 316 
 appeal from order granting or reftising, 22. 
 ordering, on reversal, 20. 
 
 New York city. 
 
 I. COBPOEATE POWEBS 316 
 
 II. Local Impbovements ; and As- 
 sessments Thebbfor 318 
 
 III. Municipal Officebs 323 
 
 IV. Coepoeate Liabilities 327 
 
 Superior Court of, 105. 
 
 Marine Courfof, 105. 
 
 District Courts in, 105. 
 
 horse railroads in, 380. 
 
 elevated railroads in, 381. 
 
 the Brooklyn bridge, 67. 
 Next of kin. 
 
 who may lake by distribution, 130. 
 
 when competent as witnesses, 455. 
 Nominal damages. 
 
 when the measure of recovery, 112. 
 Non compos mentis. See Insane Pebsons. 
 Non-joinder. 
 
 of parties plaintiff, 331. 
 
 demurrer for, 344. 
 Norirnegotinble instruments. 
 
 orders, 62. 
 
 what promissory notes are, 363. 
 Non-residents. 
 
 exception in favor of, under the statute of 
 limitations, 263. 
 
 service of process on, 358. 
 Non-suit. 
 
 granting and refusing, generally, 427. 
 Notary public. 
 
 certificate of, as evidence, 159. 
 
 Notice 328 
 
 of entry of judgment, to limit time to ap- 
 peal, 12. 
 
 entry of judgment of affirmance, before 
 suing appeal bond, 31. 
 
 appeal, 25, 29. 
 when assignee chargeable with, 39. 
 to pledgor, of sale of pledge, 51. 
 of dishonor of bill, 62. 
 to consignee, of arrival, 72. 
 effect of, to limit carrier's liability, 74. 
 of unrecorded deed, 118. 
 
 execution sale, 162. 
 
 loss, in insurance, 219. 
 
 motion to vacate judgment, 243. 
 
 appeal from justice's judgment, 247. 
 
 mechanics' lien, 280. 
 constructive, as applied to mortgages, 288. 
 of foreclosure by advertisement, 290. 
 
 motion, 298. 
 
NOTICE— OVERSEERS. 
 
 643 
 
 Notice, (continued.) 
 
 of local improvement, before taking land, 
 
 300, 319. 
 to city, of defect in street or sidewalk, 306. 
 of dissolution of partnership, 338. 
 to agent, when binds principal, 354. 
 of equities between original parties to note, 
 361. 
 dishonor of promissory note, 362. 
 sale for non-payment of taxes, 418. 
 
 of land fortaies, 418. 
 redemption from tax sale, 419. 
 when purchaser of land charged with, 442. 
 
 Nuisance. 
 
 I. What Amounts to a Nuisance 328 
 
 II. Remedies 329 
 
 remedy by injunction, 207. 
 
 Oath. 
 
 of referee, 387. 
 Objections. 
 
 waiver of, by appearance, 5. 
 
 how interposed on equity trial, 142. 
 
 trial, generally, 426. 
 to accounts of executor, 173. 
 
 responsibility of guardian ad litem, 190. 
 of "no guardian,'' when to be made, 190. 
 to discharge in insolvency, 204. 
 for defects in pleadipgs, when waived, 347. 
 to point of intersection of railroads, 372. 
 testimony, 462. 
 Obstructumg. 
 
 in private ways, 138. 
 highways, 194. 
 by turnpike company, 439. 
 city streets, 305,380. 
 to navigation, 311. 
 in streets in New York city, 327. 
 
 streets and highways, as nuisances, 328, 
 water-courses,. 281, 446. 
 Occupation. 
 
 what necessary to give title by adverse 
 
 possession, 7. 
 of insured premises, 216, 217, 225. 
 Offer to aUovi judgment. 
 amendment of, 10. 
 priority of creditor accepting, 117. 
 in justice's court, 246. 
 
 Officers. 
 
 I. GrENEBAI, PBINCrPLES ; ACQUISI- 
 TION AND TenUEE OP OFFICE 329 
 
 II. Powers and Duties of Opficebs, 330 
 
 III. Their Liabilities; Official 
 
 Bonds 330 
 
 IV. Decisions Kelative to Pabticu- 
 
 LAB Officebs 330 
 
 "office" defined, 124. 
 of banks, 58. 
 
 savings banks, 60. 
 corporations, generally, 96. 
 
 liability of, to stockholders, 
 93. 
 
 Officers, (continued.) 
 
 presumptions in favor of acts of, 151. 
 of insurance companies, 232. 
 mandamus to, 269, 270. 
 of manufacturing companies, individual 
 liability of, 272. 
 municipal corporations, 307. 
 liability of city for acts of, 303. 
 
 New York city, 323, et seq. 
 Brooklyn, 68. 
 quo warranto to try title, 368. 
 of railroad companies, 373. 
 religious societies, 390. 
 school districts, 400 
 towns, 423. 
 Off-sets. See Set-off. 
 Opening. 
 
 of accounts stated, 4. . 
 new roads, 193. 
 judgments 242. 
 
 cause after party has rested, 426. 
 Opinion. 
 
 expressions of, when not actionable though, 
 
 false, 182. 
 when disqualifies juror, 431. . 
 Order. 
 
 appeals from, 11, 16, 21. 
 
 of Marine Court, appeal from, 28. 
 
 in proceedings for draining lands, appeals 
 
 from, 29. 
 to take deposition, necessity of, 125. • 
 non-negotiable, 62. 
 of distribution, 130, 
 estoppel by recitals in, 148. 
 in supplementary proceedings, 165. 
 for laying out highway, 193. 
 appointing special guardian, 206. 
 of injunction, 209. 
 
 granting new trial, appeal from, 316. 
 for service by publication, 358. 
 
 of cities, generally, 299. 
 
 New York city, 317. 
 
 Brooklyn, approval by mayor, 68. 
 sanitary, 318. 
 
 of banks, 55. 
 
 corporations, 92. 
 
 insurance companies, 231. 
 
 manufacturing companies, 271. 
 
 mining companies, 282. 
 
 cities, 299. 
 
 railroad companies, 369. 
 
 religious societies, 389. 
 
 of bank account, 57. 
 
 of highways, 193. 
 the poor, 347. 
 
644 
 
 OWNERSHIP— PAYMENT. 
 
 of ferocious dog, liability, 110. 
 
 presumptions as to, ISl, 152. 
 
 averment of, in indictment for burglary, 
 
 '70. 
 who is owner under mechanics' lien laws, 
 
 279. 
 of vessels, 406. 
 
 for the voyage, under charter par- 
 ty, 407. 
 when purchaser of laud is deemed owner, 
 
 442. 
 Oyer and Terminer. 
 
 powers of justice of, 107. 
 
 removal of cause from, to Supreme Court, 
 
 391. 
 
 Pardon 331 
 
 Parent and child.. 331 
 
 assaults upon cfiildren, 37. 
 
 custody of children after divorce of parents, 
 
 ■134. 
 discretion of court as to, 193. 
 descent to illegitimate children, 128. 
 
 Parties 331 
 
 death of, as ground of abatement, 1. 
 
 conlinuahce after death of, 2. 
 
 who may sue, generally, 63. 
 
 amendments in respect to, 9. 
 
 on appeal, 12, 1-7, 25. 
 
 to bonds on appeal, 30. 
 
 who may move to vacate attachment, 44. 
 
 in actions on contracts, generally, 91. 
 
 suit to dissolve corporation, 97. 
 
 actions on covenants, 109. 
 
 creditors' suits, 110, 184. ^ 
 
 actions by personal representatives, 174. 
 against them, 175. 
 to suit on administration bond, 175. 
 in action at law, for fraud, 183. 
 
 actions by or against husband and wife, 
 202. 
 
 actions upon insurance policies, 227. 
 
 summary proceedings, 252. 
 
 suits against officers of manufacturing 
 companies, 272. 
 
 foreclosure suits, 290. 
 
 partition, 332. 
 naming, and describing in pleadings, 342. 
 demurrer for defect of, 344. 
 to promissory notes, 360. 
 
 actions on promissory notes, 363. 
 
 proceedings by one railroad to cross 
 ■another, 372. 
 
 actions of trover, 432, 433. 
 competency of, as witnesses, 453, et seq. 
 examination of, before trial, 126. 
 
 Partition 332 
 
 Partnersliip. 
 
 I. The Relation, and hov? Consti- 
 
 334 
 
 Partnersiiip, (continued.) 
 
 II. PovcEB or One Partner to Bind 
 
 Another, or the Firm 336 
 
 III. StriTS Between Partners. Ac- 
 
 counting 336- 
 
 IV. Bights of Creditors 337 
 
 V. Dissolution 338 
 
 VI. Limited Partnership 339 
 
 accounting between partners, 3. 
 
 admissibility of declarations of partner, 157. 
 
 books of, as evidence, 159. 
 
 between husband and wife, 201. 
 Part owners.. 
 
 accounting between, 3. 
 Part payment. 
 
 to revive debt barred by statute of limita- 
 tions, 264. 
 satisfy statute of frauds, 88, 395. 
 
 Part performance. 
 
 under contract for services, recovery for, 
 
 402. 
 effect of, to take contract ont of statute of 
 frauds, 88, 395. 
 Party viaUs. 
 
 law of easements respecting, 137. 
 
 rights and liabilities of carriers of, 73. 
 right of action for expulsion from car, 374. 
 retention of custody of baggage by, 374. 
 injuries to, 376. 
 
 Patents 339 
 
 assignment of right to use patented ma- 
 chine, 89. 
 Paupers. See Poor. 
 Pavm. See Pledge. 
 
 Payment 340 
 
 power of assignee for creditors to make, 4K 
 in fraud of bankrupt act, 54. 
 of lost draft, stoppage of, 57. 
 chattel mortgage, 77. 
 debts, generally, 115. 
 application of, 115, 116. 
 by bill, note or check, 115. 
 to effect redemption from execution sale, 
 
 163. 
 of executions, 164 
 
 debts and legacies by personal represent-^ 
 alives, 170, et seq. 
 of premiums on life policies, 223. 
 fire policies, 217. 
 guaranty of, 188. 
 satisfaction of judgment by, 242. 
 by owner, effect on mechanics' lien, 280. 
 of capital, on forming manufacturing com- 
 pany, 271. 
 action for money paid, 283. 
 
 by mistake, 283. 
 of mortgage debt, 297. 
 
PAYMENT— PLEADING. 
 
 645 
 
 Payiyient, (continued.) 
 
 into court, 294. 
 
 plea of, in action on note, 365, 
 
 of taxes, 418. 
 
 when tender is necessary, 422. 
 
 what sufiSoient, to raise resulting trust, 486. 
 
 Penalties 340 
 
 arrest in actions for, 33. , 
 
 for violating injunctions, 210. 
 
 disobeying mandamus, 271. 
 
 violating excise laws, 266. 
 interpretation of statutes imposing, 414. 
 for usury, 441. 
 
 non-attendance by witness, 453. 
 Pendency of another action. 
 how pleaded, 1, 344. 
 as ground of abatement, 1. 
 
 Pensions 340 
 
 Peremptory mandamus. 
 
 when granted, 270. 
 Performance. 
 
 of contracts, generally, 89. 
 covenants, 108. 
 PerUs of the sea. 
 
 what are deemed to be, in insurance law, 
 226. 
 Perishable property. 
 
 duties of carrier respecting, 72. 
 
 railroad company respecting, 373. 
 
 Perjury 340 
 
 Perpetuities. 
 
 effect of, to avoid devise or legacy, 448. 
 Personal injuries. 
 
 to passengers, 376. 
 
 liability of master to servant for, 277. 
 
 third persons for, 277. 
 by excavations in, or unsafe condition of 
 
 streets, 305, 327. 
 to employees of railroad company, 379. 
 persons crossing track, 377. 
 Personal property. 
 
 mortgages of, 76, et. seq. 
 presumptions respecting title to, 152. 
 admissibility of declarations respecting title 
 
 to, 157. 
 what may be reached by execution, 162. 
 sufKciency of levy on, 162. 
 management of, by personal representatives, 
 
 169. 
 of wife, rights of husband as to, 197. 
 sales of, 395. 
 
 what subject to taxation, 417. 
 for what trover lies, 433. 
 Personal representatives. See Executors and 
 
 ADMINIStBATORS. 
 
 Petition. 
 
 for leave to sell lands for payment of debts, 
 172. 
 
 Petition, (continued.) 
 
 for appointment of committee of lunatic 
 212. 
 
 by railroad, to acquire lands, 370. 
 
 for habeas corpus, 192. 
 
 to vacate assessments, 300. 
 
 for removal of cause to federal court, 391. 
 
 in proceedings to drain lands, 136. 
 bond town, 301. 
 Petit jury. 
 
 summoning and impaneling, 426, 430. 
 Photographs. 
 
 admissibility of, as evidence, 150. 
 
 Physicians and surgeons 341 
 
 police suigeons, 326. 
 
 competency of, as witnesses, 456. 
 
 experts, 464, 
 Place of trial. 
 
 in general, and how changed, 425. 
 
 Planl< road companies 342 
 
 Plea. 
 
 of former acquittal or conviction, 240. 
 adjudication, 240. 
 title, in justice's court, 246. 
 
 Pleading. 
 
 I. Complaint 342 
 
 II. Answer 343 
 
 III. Demurrer 344 
 
 IV. Beply 345 
 
 V. Verification OP Pleadings 345 
 
 VI. The Issue ; its Scope, and hovt 
 
 Joined 345 
 
 VII. Evidence under the Plead- 
 ings 346 
 
 VIII. Amended and Supplemental 
 
 Pleadings 346 
 
 IX. Remedies eor Errors and De- 
 fects. Waiver 346 
 
 in abatement, 1. 
 
 actions against carriers, 73. 
 to enforce individual liability of stock- 
 holders, 94, 275. 
 how counter-claims should be set up, 403. 
 in actions on covenants, 109. 
 estoppel by allegations in, 147. 
 admissibility of, as evidence, 158. 
 in actions by or against personal representa- 
 tives, 174. 
 for false imprisonment, 178. 
 fraud, at law, 183. 
 pleading fraud in defence, 183. 
 in actions on guaranties, 190. 
 
 by or against husband and wife, 
 202. 
 charging the offence, in criminal cases, 205. 
 in action on insurance policy, 230. 
 
 against joint stock company 237. 
 justices' courts, 246. 
 actions for rent, 252. 
 libel, 261. 
 under civil damage act, 267. 
 
646 
 
 PLEA DING— PKESUMPTIONS. 
 
 Pleading, (continued ) 
 
 in suit to foreclose mortgage, 291, 292. 
 misjoinder of parties, 331. 
 rules of, in partition, 332. 
 joinder of causes of action, 4. 
 severing causes of action, 5. 
 in actions on promissory notes, 364. 
 replevin, 392, 393. 
 actions for price of goods sold, 398. 
 
 breach of warranty in sales of 
 goods, 399. 
 in actions for services rendered, 403. 
 
 slander, 409. 
 rule for pleading statutes, 414. 
 setting up usury, 440. 
 Pledge. 
 
 what constitutes, 50. 
 of corporate stock, 92. 
 vessel, 406. 
 Police. 
 
 department of, in New York city, 326. 
 Brooklyn, 68. 
 Policies of insurance. 
 assignment of, 38. 
 actions on, 227, et seq. 
 
 Poor 347 
 
 Possession. 
 
 what necessary to give title by adverse pos- 
 session, 7. 
 
 as evidence of title, 63, 365. 
 
 of chattels mortgaged, 76. 
 
 sufficiency of, to support ejectment, 138. 
 
 recovery of, by landlord, 252. 
 
 of lessor, after surrender, 257. 
 
 mortgaged premises, right to, 286. 
 
 recovery of, in replevin, 393. 
 
 right of purchaser of land to, 442. 
 
 writ of, 139. 
 Post-nuptial settlements. 
 
 validity and effect of, 197. 
 Postponement. 
 
 in criminal cases, 430. 
 
 appeals from orders on motions for, 16. 
 
 exception to refusal of, 161. 
 
 Powers 348 
 
 of assignee for creditors, 40, et seq. 
 attomeys-at-law, 46. 
 assignee in bankruptcy, 52. 
 banking corporations, 55 el seq. 
 bank officers, 58. 
 savings banks, 60. 
 coroners, 91. 
 
 corporations, generally, 95. 
 receiver of insolvent corporation, 97. 
 legislature, over elections, 139. 
 
 local improvements, 318, 
 sale, given by will, 169. 
 general guardian, 191. 
 
 Powers, (continued.) 
 of highway officers, 193. 
 
 married women, under enabling acts, 199. 
 
 assignee in insolvency, 212. 
 
 justice of the peace, 245. 
 
 manufacturing companies, 271. 
 
 municipal corporations, 299. 
 
 public officers, generally, 330. 
 
 agents, 350, 353. 
 express powers of attorney, 350. 
 of referees, 387. 
 
 commissioners ' under "rapid transit" 
 act, 382. 
 
 sheriffi, 404. 
 
 deputies, 405. 
 
 master of vessel, 407. 
 
 trustees, 437. 
 to sell, when equitable conversion, 452. 
 
 Practice 348 
 
 in suits for accounting, 4. 
 
 on accounting by personal representatives, 
 
 173. 
 consolidation of actions, 6. 
 on appeal, 15, et seq.; 17, et seq.; 25, et seq.; 30. 
 costs in suits in forma pauperis, 98. 
 motion to quash indictment, 205.. 
 on mandamus, 270. 
 in foreclosure by action, 290, et seq. 
 confirmation of' report of commissioner* 
 
 of assessment, 320. 
 on removal of causes from state court to U. 
 
 S. Circuit Court, 391. 
 
 for relief, 343. 
 
 instructions, 428. 
 Prefere/nce. 
 
 in assignment for creditors, 40. 
 
 composition deed, 117. 
 of causes, on trial calendar, 425. 
 Preliminary proofs. 
 
 of loss of insured property, 213, 219, 224. 
 Premiums. 
 
 payment of, on life policy, 223. 
 fire policy, 217. 
 President. 
 
 of bank, 58. 
 
 savings bank, 60. 
 corporation, 97. 
 insurance company, 232. 
 manufacturing company, 272. 
 tions. 
 the word defined, 124. 
 on appeal, 14. 
 
 of fraud, in assignment for creditors, 40. 
 on trial, generally, 151. 
 as to delivery of deed, 117. 
 laws of other states, 91. 
 foreign laws relative to marriage, 196» 
 
PEESUMPTIONS— PKOOF. 
 
 647 
 
 Presumpiions, (continued.) 
 
 against party withholding evidence, 432. 
 relative to malice, in malicious prosecution, 
 
 268. 
 in favor of holder of note, 365. 
 relative to revocation of wills, 447 
 Principal. 
 
 surrender of, by bail, 49. 
 rights of, as towards agent, 352. 
 liabilities of, to tliird persons, 353. 
 rights of, as respects surety, 356. 
 exhausting remedy against, before suing 
 
 surety, 357. 
 
 Principal and agent. 
 
 I. AppornTMENT OP Agents; and 
 
 THEIR Powers, generally 350 
 
 II. Eights, Duties, and Liabilities 
 
 OF Agents 351 
 
 III. Eights and Liabilities op Prin- 
 
 cipals 353 
 
 IV. Decisions Eelative to Particu- 
 
 lar Classes of Agents 354 
 
 agents of corporations, 96. 
 
 foreign corporations, 98. 
 embezzlement by agent, 140. 
 execution of lease by agent, 255. 
 presumptions in favor of agent's authority, 
 
 151. 
 declarations of agent as evidence against 
 
 principal, 157. 
 wife as agent for husband, 198. 
 husband as agent for wife, 199, 200. 
 insurance agents, 232. 
 
 Principal and surety. 
 
 I. General Principles 356 
 
 II. Eights and Liabilities op the 
 
 Parties 356 
 
 III. What will Exonerate the 
 
 Surety 356 
 
 liabilities of bail, 49. 
 Priority. 
 
 between chattel mortgages simultaneously 
 filed, 77. 
 chattel mortgage and claims of 
 creditors, 77. 
 of deposits made by savings bank, 60. 
 among creditors, 117. 
 
 deeds, under recording acts, 118. 
 debts of decedent, 170. 
 between judgments, 242. . 
 
 and other liens, 242. 
 in mechanics' lien cases, 280. 
 between mortgages, 288. 
 
 assignments of mortgages, 289. 
 Private ways. 
 
 law of easements respecting, 138. 
 ways of necessity, 138. 
 Privilege. 
 
 of communications between attorney and 
 client, 48. 
 
 Privilege, (continued.) 
 of infants, 206. 
 
 communications between physician and 
 
 patient, 242. 
 witness, from arrest or service of process, 
 453. 
 to refuse to answer, 127. 
 Prohahle cause. 
 
 rules as to, in action for malicious prosecu- 
 tion, 268. 
 when question of law, 367. 
 Prohaie. 
 
 of wills, generally, 448. 
 jurisdiction of surrogate, 106, 448. 
 
 Process. 
 
 I. In Civil Actions 357 
 
 II. In Criminal Proceedings 359 
 
 waiver of defects in, by appearance, 6. 
 amendments in respect to, 9. 
 service of, on foreign corporation, 98. 
 judgment against defendant not served 
 
 with, 238. 
 in justices' courts in civil cases, 246. 
 when a protection to officer, 330. 
 Profits. 
 
 when loss of, recoverable, 112. 
 agreements to share, when constitute part- 
 nership, 334. 
 
 Prohibition, (Writ of) 359 
 
 of marriage of guilty party after divorce, 
 
 132. 
 to restrain summary proceedings, 253. 
 Promise of marriage. 
 
 breach of by infant, 206. 
 
 Promissory notes. 
 
 I. Nature and Kequisites, gen- 
 erally 359 
 
 n. Parties 360 
 
 IIL Validity 360 
 
 IV.- Transfers ; and Eights op 
 
 Purchasers 360 
 
 V. Eights and Liabilities op In- 
 
 dorsers 362 
 
 VI. Non-negotiable Notes„ 363 
 
 VII. Law OF Place « 363 
 
 VIII. Actions upon Promissory 
 
 Notes 363 
 
 alterations in, 8. 
 
 payment by, 115, 340. 
 
 conversion of, damages for, 114. 
 
 when charge on wife's separate estate, 199. 
 
 draw interest, 236. 
 power of partner to bind firm by, 336. 
 who may receive payment of, 340. 
 Proof. 
 
 of matter in abatement, 2. 
 
 claims before assignee for creditors, 41. 
 delivery of deed, 117. 
 debts, in banlirnptcy, 52. 
 rule reqnlring best evidence, 152. 
 of marriage, 197. 
 
648 
 
 PROOF— RAILROAD COMPANIES. 
 
 Proof, (continued.) 
 
 of mistake, in equity, 144. 
 
 consent of tax-payers in town-bonding, 
 
 303. 
 service of proeess, 359. 
 wills, 448. 
 Property. 
 
 right of, in water, 394. 
 
 ice, 446. 
 what may be reached by attachment, 42. 
 
 will pass to assignee in bankruptcy, 52. 
 perishable, duty of carrier as to, 72. 
 what reached by creditor's bill, 109. 
 descends to heir, 127. 
 subject to dower, 135. 
 execution against, 161, et seq. 
 what may be be reached by, 162. 
 
 is exempt from execution, 163. 
 reached in supplementary proceed- 
 ings, 165. 
 rights of infants, 206. 
 what reached by mechanics' lien, 279. 
 
 may be mortgaged, 285, 
 of religious society, 390. 
 for what replevin lies, 392. 
 what subject to taxation, 416, et seq. 
 
 assessment ior local im- 
 provements, 318, 
 for what trover lies, 433. 
 Protest. 
 
 of promissory note, 362. 
 Publie administrators. 
 
 their powers and liabilities, 176. 
 PvJilication. 
 
 of notice of execution saley 162. 
 to creditors of decedent, 170, 
 of notice; in foreclosure by advertisement, 
 290. 
 annual report of manufacturing com- 
 pany, 273. 
 process in foreclosure by suit, 291. 
 resolution for local improvement, 319. 
 ordinances, in New York city, 317. 
 terms of limited partnership, 339. 
 service of process by, 358. 
 of will, 447. 
 Piihlie lands. 
 
 canal lands, sale of, 71. 
 VJKc policy. 
 
 contracts contrary to, 89. 
 
 Punishment 366 
 
 for contempt, 85. 
 
 disobedience in supplementary proceed- 
 ings, 167, 
 violating injunction, 210. 
 disobeying mandamus, 271. 
 Punitive damages. 
 
 when recoverable, 112. 
 
 Purchasers. 
 
 at auction sale, rights of, 48. 
 of property pledged, 51. 
 
 bills of exchange, 62. 
 
 bills of lading, 63. 
 
 negotiable bonds, 65. 
 
 chattels subject to mortgage, 77. 
 
 checks, 78. 
 
 corporate stock, 92. 
 rights of, under recording ads, 118. 
 of land, subject to mortgage, 286, et seq. 
 at execution sale, 163. 
 
 other judicial sales, 244. 
 
 foreclosure sale, 293. 
 
 sale for non-payment of local assess- 
 ments, 320. 
 
 partition sale, 333. 
 of promissory notes, 361. 
 
 accommodation note, 361. 
 
 notes, presumptions in fayor of, 365. 
 
 chattels, their rights and duties, 395, el 
 . seq. . 
 
 land sold for taxes, 418. 
 effect of usury on rights of, 440. 
 of real property, at private sale, 442, 443. 
 under fraudulent ' conveyance, when pro- 
 tected, 184. 
 
 for naturalization, 79. 
 of judges, 104. 
 
 personal representative, 167. 
 
 guardian ad litem, 190. 
 
 petit jurors, 431. 
 
 experts, 463, 464. 
 Quashing. 
 
 indictment, 205. 
 
 Questions of law and fact. 
 
 I. Questions of Law roB the Cottet, 367 
 
 II. Questions or Fact for the Juby, 367 
 III. Mixed Questions of Law and 
 
 Fact 368 
 
 in action under " civil damage act," 267. 
 
 malicious prosecution, 268. 
 of fact, how reviewed, 15, 19, 26. 
 when negligence is for the jury, 314. 
 Quieting title. See Cloud on Title. 
 
 Quo warranto 368 
 
 in contested elections, 140. 
 to try title to office, 329, 
 
 Railroad companies. 
 
 I. Incoepoeation, Organization, 
 
 AND Powers, generally 369 
 
 II. Acquiring Eight of Way, and 
 
 Constructing the Koad 369 
 
 III. Eights, Powers and Duties of 
 
 Officers, Agents and Serv- 
 ants 373 
 
 IV. Powers, Duties and Liabilities 
 
 IN respect to the Manage- 
 ment or the Boad 373 
 
EAILROAD COMPANIES— RE-INSURANCE. 
 
 649 
 
 380 
 
 Railroad companies, (continued.) 
 
 V. HOBSE AND StBEET RAILROADS.. 
 
 injunctions against, 208. 
 
 license to use city streets, 299, 318. 
 
 municipal subscriptions in aid of, 301, et 
 
 seq. 
 municipal bonds in aid of, 302. 
 elevated, taxation of, 417. 
 
 assault with intent to commit, 37. 
 Eatificatian,, 
 
 what will raise equitable estoppel, 149. 
 of agent's act, by. principal, 353. 
 
 insurance company, 233. 
 
 Real property 383 
 
 acquiring title by adverse possession, 7. 
 disabilities of aliens in respect to, 8. 
 arrest in actions for injuries to, 33. 
 for what ejectment will lie, 138. 
 determination of conflicting claims to, 139. 
 what may be taken for public use, 141. 
 power of city of Buffalo to take, 69. 
 various estates in, 146. 
 presumptions respecting title to, 151. 
 declarations respecting title to, as evidence, 
 
 157. 
 what may be reached on execution, 162. 
 levy on, 162. 
 sale of, 162. 
 powers of personal representatives as to, 
 
 168. 
 obligation to fence, 180. 
 of Indians, 205. 
 
 infants, sale of, by order of court, 206. 
 enjoining transfer of, 207. 
 plea of title to, in justice's court, 246. 
 license to enter on, 261. 
 limitations of actions respecting, 262, et seq. 
 partition of, 332. 
 of partnership, 335. 
 specific performance of contracts relative 
 
 to, 412. 
 what subject to taxation, 416, et seq. 
 sale of, for non-payment of taxes, 418. 
 
 highway assess- 
 ments, 193. 
 tenancy in common of, 421. 
 trespasses on, 424. 
 resulting trusts in, 436. 
 contracts for sale of, 441, et seq. 
 Re-argument, 
 
 when allowed on appeal, 16, 19. 
 Reasonable time. 
 
 when question of fact for jury, 368. 
 
 Receipts 384 
 
 parol evidence to explain, 156. 
 of warehousemen, 445. 
 property attached, 44. 
 
 Receivers 385 
 
 of corporations, generally, 97. 
 
 banking corporations, 59. 
 contempts, by, 84. 
 in divorce cases, 134. 
 
 supplementary proceedings, 166. 
 of insolvent insurance companies, 233. 
 
 manufacturing companies, 276. 
 in foreclosure, 293. 
 of partnership assets, 338. 
 Recitals. 
 
 of jurisdictional facts, in judgment, 239. 
 in tax deed, 159. 
 
 extradition warrant, 177. 
 
 Recognizances 385 
 
 in bastardy proceedings, 61. 
 when bind married woman's estate, 200. 
 Record. 
 
 what must appear by, 25. 
 how brought up on appeal, 15. 
 necessity of recording deeds, 118. 
 how brought up on error, 145. 
 estoppel by, 147. 
 admissibility of, in evidence, 158. 
 of mortgage, 288. 
 
 assignment of mortgage, 289. 
 
 of damages for breach of warranty, 399. 
 
 tion. 
 
 of morte;aged chattels, 77. 
 from execution sale, 163. 
 foreclosure sale, 296. 
 tax sale, 419. 
 
 Reference 386 
 
 power of surrogate to order, 107. 
 
 appeal from judgment on report of referee, 
 
 16,26,29. 
 in divprce cases, 131. 
 
 suits to annul marriage, 131. 
 declarations of persons referred to, as evi- 
 dence, 157. 
 taking exceptions on, 161. 
 of claims against decedents' estates, 171. 
 proceedings for laying out highways, 
 194. 
 to ascertain damages on dissolution of in- 
 junction, 210. 
 in foreclosure, 293. 
 partition, 333. 
 Reformation of contracts. 
 
 jurisdiction of equity, 144. 
 of policy of insurance, 229. 
 Re-insiatem£nt. 
 
 of appeal, after dismissal, 28. 
 canceled policy, 229. 
 Re-insurance, 
 
 against fire, 217. 
 
 in marine insurance, 225. 
 
650 
 
 RELEASE— RETURN. 
 
 Release 383 
 
 of debtor, satisfaction of judgment by, 242. 
 
 alimony, by acceptance of gross sum, 
 134. 
 
 dower, 135. 
 
 indorser on note guaranteed, 189. 
 
 grantee's covenant to pay mortgage, 287. 
 
 part of mortgaged premises, 297. 
 Relief. . 
 
 against proceedings at law, 142. 
 
 from executions, 165. 
 
 extent of, in cases of fraud, 183. 
 
 what may be granted in judgment, 239. 
 
 when granted for mistake, 282. 
 
 against partner, in equity, 337. 
 
 prayer for, 343. 
 
 right of surety to, 356. 
 
 Religious societies 389 
 
 numdamus to, 270. 
 
 exemption of, from taxation, 418. 
 
 trusts in favor of Shakers, 436. 
 
 when vested in devise, 129. 
 Seuwtmess. 
 
 in testamentary provisions, 448. 
 Bemovai. 
 
 of attorneys, 47. 
 
 assignee for creditors, 42. 
 personal representatives, 168. 
 highway encroachment, 194. 
 city officers, by mayor, 323. 
 receiver, 385. 
 trustee, 438. 
 
 Removal of causes. 
 
 I. Fbom one State Cotjkt to An- 
 
 OTHBE 391 
 
 II. Fbom State Coubt to U. S. Cie- 
 
 ctriT Coukt , 391 
 
 MenewcU. 
 
 of leases, covenants for, 256. 
 motions, 298. 
 Sent. 
 
 liability of personal representative for, 
 
 168. 
 remedies to recover, 250. 
 landlord's lien for, 255. 
 summary proceedings for non-payment, 
 252. 
 Jtemmeiaiion. 
 
 of executor, 168. 
 H^airs. 
 
 of highways, 193. 
 
 respective duty of landlord and tenant, 
 
 249. 
 stipulations for, in lease, 257. 
 of streets in New York city, 317. 
 vessels, liability for, 408. 
 
 M^eal. 
 
 of statutes, 414. 
 
 Replevin : claim and delivery. 
 
 I. When IT Lies 392 
 
 II. Peocedure 392 
 
 III. Eembdies upon Replevin Boni)S, 393^ 
 
 arrest in actions of, 33. 
 measure of damages in, 114. 
 
 when necessary, 345. 
 Meport. 
 
 by bank, to state banking department, 55. 
 of referee, in divoj'ce case, 131. 
 
 to "take account of assignee for 
 
 creditors, 41^ 
 in proceedings on injunction 
 bond, 210. 
 commissioners, under "rapid transit" 
 
 act, 383. 
 commissioners in proceedings to take 
 
 lands, 141. 
 referees, generally, 387. 
 actuary, 234. 
 sale, in forecloure, 293. 
 
 what will raise equitable estoppel, 149. 
 of agent, when bind principal, 353. 
 vendor of lafld, 442. 
 lies gestcB. 
 
 what is admissible, as part of, 153. 
 Sesdsswn. 
 
 of contracts, generally, 90. 
 sales of chattels, 399. 
 contracts for sale of laud, 444. 
 Seservations. 
 
 in deeds', 119. 
 leases, 255. 
 
 legatees, 451. 
 
 clause in will, how interpreted, 451. 
 Hesignation. 
 
 of personal representative, 168. 
 
 trustee of manufacturing company, 273. 
 Restilution. 
 
 after reversal of District Court judgment, 
 29. 
 Retrospective laws. 
 
 constitutionality of, 413. 
 
 interpretation of, 414. 
 
 statutes of limitation, 262. 
 Return. 
 
 to certiorari, 75. 
 
 of officers of election, 140. 
 
 on execution, 163. 
 
 to habeas corpus, 192. 
 
 of justice, on appeal from his judgment, 
 247. 
 irregular pleadings, 347. 
 
RETURN— SENTENCE. 
 
 651 
 
 Return, (continued.) 
 of sheriff, 405. 
 liability for false, 82, 405. 
 Ueeersal. 
 . what errors are ground for, 12, 19, 27, 29. 
 new action after, 29 
 effect of, 239. 
 Reoiew. 
 
 of discretionary action, 11, 24, 30. 
 referred causes, 16, 26. 
 proceedings in contempt, 86. 
 order granting alimony, 134. 
 taxation of costs, 102. 
 accounts of personal representatives, 174. 
 proceedings for laying out highways, 
 
 193, 194. 
 decision of referee in highway cases, 194. 
 proceedings to wind up insurance com- 
 panies, 235. 
 assessments for local improvements, 300, 
 
 320. 
 reports of referees, 388. 
 proceedings on probate of will, 448. 
 Hemsed statutes. 
 
 revival of actions under, 2. 
 bastardy proceeding under, 61. 
 determination of conflicting claims to real 
 
 property, under 139; 
 new trials in ejectment, under, 315. 
 interpretation of, 414. 
 Redval. 
 
 of actions, 2. 
 Revocation. 
 
 of assignment for creditors, 40. 
 license, 261. 
 wills, 447. 
 
 Riparian rights 394 
 
 right to natural flow of stream, 446. 
 Bide. 
 
 in insurance, wliat is within it, 226. 
 
 hazardous and extra-hazardous articles, 216. 
 
 perils of the sea, 226. 
 Rochester. 
 
 decisions particalarly applicable to, 309. 
 Rules.. 
 
 of court, effect of, 105. 
 savings banks, 60. 
 
 Sales. 
 
 I. The Contract ; Validity ; 
 
 Eights of the Parties, &c... 395 
 II. Delivery and Payment. Ac- 
 ceptance 396 
 
 III. Warranties 397 
 
 IV. Sales BY Sample 398 
 
 V. Eemedies between Buyer and 
 
 Seller 398 
 
 at auction, 48. 
 
 of property pledged, 51 
 
 by mortgagee of chattels, 77. 
 
 delivery by transfer of bill of lading, 63. 
 
 of corporate stock, 92. 
 
 canal lands, 71. 
 
 Sales, (continued.) 
 
 of lunatics' lands, 211. 
 
 measure of damages in actions between 
 
 seller and buyer, 113. 
 on execution, 162. 
 by personal representatives, 169. 
 of land, for payment of debts, 171. 
 
 legacies, 259. 
 infants' lands, under order of court, 206. 
 conditional, distinguished from mortgage, 
 
 285. 
 on foreclosure by advertisement, 290. 
 
 suit, 293, 294. 
 for non-payment of highway assessments, 
 
 193. 
 in partition, 333. 
 of vessels, 406. 
 
 land for non-payment of taxes, 418. 
 contract for, 441, et seq. 
 
 Salvage 40a 
 
 Sanity. See Insane Persons. 
 Saratoga Springs. 
 
 decisions particularly applicable to, 309. 
 iSatisfaction. 
 
 of execution, 164. 
 judgment, 242. 
 real property mortgage, 297. 
 Savings hanks. 
 
 interpretation of charter, 59. 
 
 powers and liabilities, 60. 
 
 Schools 400 
 
 Search warrants. 
 
 when issued, 259. 
 Secondary evidence. 
 
 admissibility, preliminary proofe, &c., 152.^ 
 Security. 
 
 on appeal, 15, 18, 29. 
 for future advances, 76. 
 
 costs, 100. 
 effect of receiving, to extinguish debt, 115. 
 for property levied on, 162. 
 when required from executor, 167. 
 of administrator, 175. 
 
 receiver in supplementary proceedings,. 
 
 166. • 
 general guardian, 191. 
 on injunction, 210. 
 
 appeal from justice's judgment, 247. 
 of public officers, 330. 
 taking a note as collateral, 361. 
 
 Seduction 401 
 
 Seisin. 
 
 necessity of, to sustain curtesy, 111. 
 Self-defence. 
 
 right of, 36. ~ 
 
 evidence appealing to, 150. 
 Sentence. 
 
 in criminal cases, generally, 432. 
 
€52 
 
 SEPARATE ESTATE— SPECIFIC PERFORMANCE. 
 
 Separate estate. 
 
 under married women's acts, 199. 
 liability of, for husband's debts, 2i"i0. 
 
 services rendered, 402. 
 conveyances of, 201. 
 Separation. 
 
 liability of husband for necessaries after, 198. 
 
 alimony after, 133. 
 agreements for, 202. 
 Seqiiestration, 
 
 of husband's property in action for divorce, 
 134. 
 Servants. 
 
 right to wages, 276. 
 liability of master for injuries to, 277. 
 of railroad companies, 379. 
 injuries to, liability of company, 379. 
 Service. 
 
 of notice of appeal, 25, 29. 
 case on appeal, 18. 
 order of arrest, 35. 
 
 ■warrMit of arrest in criminal cases, 36. 
 attachment, 44. 
 upon whom attachment may be served, 44. 
 of writ of certiorari, 75. 
 
 order to show cause in proceedings for 
 
 contempt, 85. 
 orders, generally, 298. 
 notice to quit, 249. 
 what sui&cient to support judgment, 238. 
 of notice of foreclosure by advertisement, 
 290. 
 process in foreclosure, 291. 
 
 suits against foreign corpora- 
 tions, 98. 
 notice of motion, 298. 
 process, 357, et seq. 
 privilege of witness from, 453. 
 of summons and order for examination of 
 party before trial, 127. 
 
 Services 402 
 
 of attorney, actions for, 48. 
 
 what contracts for, are within the statute of 
 
 frauds, 87. 
 measure of damages in actions for, 113. 
 of wife, right of husband to, 198. 
 when wife may sue for, 202. 
 recovcEy of interest in actions for, 236. 
 liability of cities on contracts for, 301. 
 New York city for, 327. 
 Sessions. 
 
 Courts of, 107. 
 
 Set-off 403 
 
 against assignees, generally, 39. 
 
 attorney's lien for costs, 48, 
 Settiement. 
 
 of case on appeal, 18. 
 
 by parties, effect of on rights of attorney, 
 47. 
 
 Sham pleadings. 
 
 striking out, 346. 
 
 Sheriffs. 
 
 I. Rights, Powers and Duties 404 
 
 II. Liabilities 404 
 
 liability of, as bail, 49. 
 
 for wrongful levy of attach- 
 ment, 45. 
 powers in making levy, 162. 
 deed of, on execution, 163. 
 coroner acting in place of, 91. 
 
 Shipping. 
 
 I. The Title and Ownership of 
 
 Vessels 406 
 
 II. Employment 406 
 
 III. The Master 407 
 
 IV. Enforcement op Liens Upon 
 
 Vessels 408 
 
 V. Liability pob Collisions 408 
 
 bills of lading, 63. 
 lien for freight, J2. 
 parol evidence to explain, 156. 
 Sidewalks. 
 
 regulations as to, in cities, 299. 
 
 New York city, 318. 
 liability for defects or obstructions in, 305. 
 Signals. 
 
 liability of railroad company for failure to 
 give, 377. 
 Signature. 
 
 of will, 447. 
 Silence. 
 
 effect of, to raise estoppel in pais, 149. 
 when fraudulent, 182. 
 
 Slander. 
 
 I. What Words are Actionable.... 409 
 II. PBOCEDTrRB 409 
 
 Social clubs. 
 
 formation, and rights of members, 411. 
 
 Societies and associations 410 
 
 joint stock companies, 237. 
 
 religious societies, 389. 
 Speaial damages. 
 
 when recoverable, 112. 
 
 evidence of, 409. 
 Special guardians. 
 
 appointment and powers of, 206. 
 
 Special proceedings 411 
 
 review of, by Court of Appeals, 24. 
 General Term, 17. 
 Special Term. 
 
 when motion at, instead of appeal, is prop- 
 er, 17. 
 i^edai verdiet, 
 
 form and sufficiency of, 429. 
 
 Specific performance. 
 
 I. When Specific Performance 
 
 WILL BE Adjudged 411 
 
 II. Suits for Specific Performance, 412 
 
STALE DEMANDS— SUMMARY PROCEEDINGS. 
 
 65S 
 
 Stale demands. 
 
 when equity will enforce, 142. 
 
 State. 
 
 I. General Principles 412 
 
 II. Contracts WITH the State 413 
 
 jurisdiction of courts of, over suits by assig- 
 nees in bankruptcy, 52". 
 
 reports by banks to banking department, 55. 
 
 boundary between New Jersey and, 66. 
 
 naturalization by courts of, 79. 
 
 decisions of courts of, when followed in U. 
 S. courts, 105. 
 
 estoppels against, 147. 
 
 insurance department, assignment of mort- 
 gages to, 289. 
 
 commissioner in lunacy, powers of, 330. 
 
 treasurer, 330. 
 
 set-off in action against, 403. 
 
 personal service of process out of, 358. 
 Statute of frauds. 
 
 memorandum required on auction sale, 48. 
 
 as to contracts, generally, 87. 
 
 requirements of, in respect to guaranties, 187. 
 as to sales of chatlels, 395. 
 Siatvte of limitations. See Limitations of Ac- 
 tions. 
 
 Statutes. 
 
 I. Constitutionality. Validity, 413 
 
 II. Interpretation and Effect 414 
 
 III. Repeal; and its Effect 414 
 
 restrictions on banking, 55. 
 
 what is a "general law,'' 122. 
 
 concerning individual liability of stock- 
 holders, 94. 
 
 in respect to courts, 104. 
 
 surrog?ftes' courts, 106. 
 drainage, 136. 
 
 the recording acts, 118, 288. 
 
 regulating exercise of right of eminent do- 
 main, 1401 
 
 presumptions as to laws of other states and 
 
 , countries, 151. 
 
 admissibility of, in evidence, 159. 
 
 authorizing sales of land by personal rep- 
 resentatives, 171. 
 
 giving civil action for causing death, 
 195. 
 
 married women's acts, 199. 
 
 laws relative to summary proceedings by 
 landlords, 252. 
 
 t)f limitations of actions, 262. 
 
 excise laws, 265. 
 ' civil damage act, 266. 
 
 mechanics' lien laws, 279. 
 
 town bonding acts, 301. 
 
 relating to railroads, 369. 
 
 intersecting railroads, 372. 
 
 giving liens upon vessels, 408. 
 
 of uses and trusts, 436. 
 
 Stay of proceedings 415, 
 
 effect of certiorari as, in criminal case, 75. 
 
 in foreclosure, 293. 
 
 for non-payment of costs, 102. 
 
 of execution, 165. 
 
 suits against receivers, 98. 
 
 by injimction, 206. 
 Stenographers. 
 
 liability of attorney for fees of, 46. 
 
 taxing fees of, as costs, 102. 
 StihieU aot. ' 
 
 arrests under, 32. • 
 
 StipvMions. 
 
 respecting referee's fees, 388. 
 
 in leases, 257. 
 
 admiralty, effect of as evidence, 158. 
 Slock. 
 
 in banking association, 55. 
 
 issuing and dealings in corporate, general- 
 ly, 92, el seq. 
 
 in manufacturing companies, 272. 
 
 taxation of, 417. 
 Slockhotders. 
 
 in banks, 55. 
 
 rights and liabilities of, generally, 93. 
 
 individual liability of, 94. 
 
 in foreign corporations, 98. 
 manufacturing companies, 274. 
 railroad companies, liability to laborers,. 
 371. 
 
 liability of, to taxation, 417. 
 Stoppage in transit. 
 
 the right of, 397. 
 Siibmission. 
 
 of controversy without action, 349. 
 
 to arbitration, 31. 
 Svhpcena. 
 
 duces lecum, 453. 
 Suirogaiion. 
 
 of surety, to position of creditor, 356. 
 on administration bond, 176. 
 insurer, to rights of mortgagee, 220. 
 Subscription. 
 
 for corporate stock, 94. 
 
 what will discharge liability for, 94. 
 
 by cities, in aid of railroads, 301, et seq. 
 
 in formation of religious societies, 389. 
 Substituted service. 
 
 when allowed, sufficiency, &c., 358. 
 
 of attorneys, 47. 
 
 defendants, under code of procedure, 237* 
 creditor, to position of surety, 356. 
 new trustee, 438. 
 Suicide. 
 
 effect of, on life policy, 225. 
 Suit. See Action. 
 Summary proceedings. 
 
 to remove tenant, 252. 
 
654 
 
 SUMMONING— TIME. 
 
 petit jury, 430. 
 
 errors in, when ground for new trial, 314. 
 Summons. 
 
 amendment of, 9. 
 
 in summary proceedings by landlord, 252. 
 
 form and contents, generally, 352> 
 
 Sunday 415 
 
 Sabbath-breaking, 111. 
 Superior Court. 
 
 of New York city, 105. 
 
 powers and liabilities of, 103. 
 Supplemented pleadings. 
 
 motion for leave to file, 346. 
 Supplementary proceedings. 
 
 power of attorney to institute, 46. 
 
 contempts in, 84. 
 
 proceedings in, generally, 165. 
 Supreme Court. 
 
 appeals to, from county court, 29. 
 surrogate, 30. 
 
 removal of causes to, from inferior courts, 
 391. 
 
 on undertaking on appeal, 30, 440. 
 of assignee for creditors, 40. 
 on administrator's bond, 175. 
 contribution between, 31. 
 of general guardian, 191. 
 who are, nature of their undertaking, gen- 
 erally, 356. 
 right of subrogation, 356. 
 co-sureties, contribution between, 356. 
 exoneration of, 356, 357. 
 on promissory notes, 360. 
 
 of principal, by bail, 49. 
 lease, 257. 
 Surrogates? courts. 
 appeals from, 23. 
 
 power of, to grant allowances, 101. 
 appoint referees, 107. 
 disqualification of surrogate, 107. 
 jurisdiction of, 106. 
 
 as to payment of debts, 170. 
 in will cases, 448, 452. 
 to call personal representa- 
 tives to account, 172. 
 to decree distribution, 130. 
 clerks of, 79. 
 Survivorship. 
 
 presumptions relative to, 152 
 
 of partner, powers aud duties, 338. 
 
 of power of alienation, 448. 
 Syracuse. 
 
 decisions particularly applicable to, 310. 
 
 Taxation. 
 
 of costs, 102. 
 
 Taxes. 
 
 I The Power to Impose Taxes 416 
 
 II. Who may be Taxed, and for 
 
 WHAT Property. Exemptions, 416 
 
 III. Assessment and Collection 418 
 
 IV. Sale of Land eob Non-Payment. 
 
 Tax Titles 418 
 
 V. Eemedies roR Illegal Taxation, 419 
 
 enjoining collection, 207. 
 
 stipulations in lease respecting, 257. 
 
 mandamus to compel refunding of, 269. 
 
 recovering back, 284. 
 
 obligation to pay, as between mortgagor 
 
 and mortgagee, 286. 
 in Brooklyn, 69. 
 for school purposes, 400. 
 Teachers. 
 
 qualifications, compensation, &c., 401. 
 
 Telegraph companies 420 
 
 Temants. 
 
 by the curtesy, 111. 
 in dower, 135. 
 for years, 146. 
 
 Tenants in common ■ . . / 421 
 
 husband and wife as, 201. 
 partition between, 332. 
 
 Tender 422 
 
 of mortgage debt, eflect of, 296. 
 Termination. 
 
 of relation of landlord and tenant, 248. 
 prosecution, to give action for malicious, 
 
 268. 
 public office, 330. 
 Testamentary capacity. 
 in general, 447. 
 evidence to disprove, 452. 
 Theft. See Larceny. 
 Threats. 
 
 to assign property, when ground for attach- 
 ment, 43. 
 
 Time 422 
 
 to apply for revival of action, 2. 
 of occupation, to give title by adverse pos- 
 session, 8. 
 to take an appeal, 12, 17, 25. 
 make award of arbitrators, 31. 
 move to vacate order of arrest, 35. 
 for attachment, 43. 
 to vacate attachment, 45. 
 bring suits against assignee in bank- 
 ruptcy, 53. 
 of delivery by carrier, 72. 
 to apply for certiorari, 75. 
 serve order to show cause in proceedings 
 
 for contempt, 85 
 sue on contract, 91. 
 
TIME— TEESP ASS. 
 
 655 
 
 Time, (continued.) 
 
 fur performance of contract, generally, 89. 
 to apply for inspection of books and papers, 
 
 130. 
 of death, proof of, 224. 
 to take exceptions, 161. 
 -sue for dissolution of marriage, 131. 
 redeem from execution sale, 163. 
 issue execution against person, 164. 
 interpose objection of "no guardian,'' 
 190. 
 averments respecting, in indictment, 205. 
 to serve proofe of loss, 269. 
 pay premiums, 223. 
 sue on insurance policy, 229. 
 move to vacate judgment, 243. 
 of payment of legacies, 259. 
 what lapse of, creates bar to action, 262. 
 when statute of limitations begins to run, 
 
 263. 
 to make motions, 298. 
 move for new trial, 315. 
 demand payment of promissory note, 
 362. 
 reasonable, when question of fact, 368. 
 for referee to report, 387. 
 of delivery of goods sold, 396. 
 when title passes, 397. 
 to apply for removal of cause, 391. 
 sue for services rendered, 402. 
 redeem from tax sale, 419. 
 move for dismissal of complaint, 427. 
 when will takes effect, 449. 
 Title. 
 
 defined, 125. 
 
 who may acquire, by adverse possession, 7. 
 
 what passes by assignment, 37, 39. 
 
 for benefit of 
 creditors, 40. 
 possession as evidence of, 63, 365. 
 transfer of, by bill of lading, 63. 
 proceedings to remove cloud on, 80. 
 •costs in actions raising questions of, 99. 
 what will pass by devise, 128. 
 sufliciency of, to support ejectment, 138. 
 merger of legal and equitable, 147. 
 presumptions in respect to, 151, 152. 
 admissibility of admissions and declarations 
 
 respecting, 157. 
 what passes on execution sale, 163. 
 of personal representatives, 168. 
 
 receiver in supplementary proceedings, 
 166. 
 <x>mpelling purchaser at judicial sale to 
 
 take, 244, 294. 
 plea of, in justice's court, 246. 
 of landlord, tenant cannot deny, 249. 
 to office, determining on mandamus, 269. 
 of assignee of mortgage, 289. 
 
 to office, proceedings to try, 368. 
 
 of cause, in pleadings, 342. 
 
 promissory note, passing by indorse- 
 ment, 360. 
 
 what acquired in taking land for railroad,370. 
 
 of purchaser of chattels, 396. ^ 
 
 when passes, in sales of chattels, 397. 
 
 to vessels, 406. 
 
 what plaintiff must accept, in specific per- 
 formance, 442. 
 
 of purchaser at tax sale, 418. 
 
 what necessary, to support trespass, 424. 
 trover, 432. 
 
 remedy of purchaser for defects in, 443. 
 Tolls. 
 
 on plank roads, 342. 
 Torts. 
 
 what actions are founded in tort, 5. 
 
 arrest in actions for, 33. 
 
 assignability of causes of action for, 38. 
 
 trustees of corporation not liable for, 272. 
 
 burden of proof in actions for, 153. 
 
 when statute of limitations begins to run in 
 cases of, 263. 
 
 of servant, liability of master for, 277. 
 
 new trial for excessive damages in actions 
 for, 315. 
 
 parties in actions sounding in, 332. 
 Total loss. • 
 
 what is, in marine insurance, 226. 
 \ adjustment of, 227. 
 
 abandonment for, 227. 
 Towing. 
 
 contracts for, generally, 407. 
 
 Towns 422 
 
 powers of, to contract for building bridges, 
 
 67. 
 liabilities respecting bridges, 67. 
 
 Trademarks 423 
 
 enjoining infringement of, 208. 
 Transfers. 
 
 in fraud of bankrupt act, 54. 
 of bank stock, 55. 
 
 bills of exchange, 62. 
 
 checks, 78. 
 
 corporate stock, 92. 
 
 title to personal property, 395, et seq. 
 
 of interest by insured, 215. 
 
 promissory notes, 360, et seq. 
 
 non-negotiable notes, 363. 
 
 property, by religious societies, 390. 
 
 vendor's lien, 442 
 T'reoMirer. 
 
 of county, 103. 
 
 Treaties 424 • 
 
 with Wurtemburg, 424. 
 of extradition, 177. 
 
 Trespass 424 
 
 by cattle, driving off, 10. 
 
656 
 
 TRESPASS— USURY. 
 
 Trespass, (continued.) 
 to the person, what is, 36. 
 enjoining repetition of, 209. 
 
 Trial. 
 
 I. Mode op Tbial. Whether by 
 
 Jttby OK BY Court 424 
 
 II. Place of Trial ; and how 
 
 Changed 425 
 
 III. Bringing on the Trial. The 
 
 Calendar 425 
 
 IV. Impaneling the Jury 426 
 
 V. Conducting the Trial 426 
 
 VI. Instructions to the Jury 427 
 
 VII. The Verdict or Finding 429 
 
 VIII. Trial in Criminal Cases 430 
 
 allowing amendments during, 9, 10. 
 
 discretionary powers of judge, 11. 
 
 what objections must be made at, 13, 14, 
 
 19, 27, 76, 146. 
 necessity of taking exceptions on, 160. 
 compelling attorney to produce papers, 129. 
 costs for trial of issue, 99. 
 what is, in respect to extra allowance, 101, 
 admissibility of depositions on, 125. 
 of feigned issues, 142. 
 
 equity causes, generally, 142. 
 use of photographs as evidence, 150. 
 rule requiring best evidence, 152. 
 
 excluding hearsay, 152. 
 what is part of res gestce, 153. 
 burden of proof, 153. 
 taking exceptions on, 160. 
 in murder cases, 195. 
 of issue, on inquisition of lunacy, 212. 
 in justice's court, 246. 
 
 dispossess cases, 252. 
 error on, when ground for new trial, 314. 
 admissibility of evidence under pleadings, 
 
 346. 
 what questions are for the court, 367. 
 jury, 367. 
 mixed questions; 368. 
 by referees, 387. 
 rules of examination of witnesses, 460. 
 
 Trover. 
 
 I. When it lies 432 
 
 II. Procedure 434 
 
 conversion by bailee, 50. 
 carrier, 73. 
 agent, 352. 
 measure of damages in, 114. 
 of promissory note, damages for, 114 364. 
 between tenants in common, 422. 
 Troy. 
 
 decisions particularly applicable to, 310. 
 TrusUes. 
 
 of corporations, generally, 96. ' 
 liability of, for acts of co-trustees, 169. 
 commissions of, when also executors, 174. 
 conveyance to married women through, 
 201. 
 
 Trustees, (continued.) 
 
 of manufacturing companies, 271, 272. 
 
 religious societies, 390. 
 appointment, powers, and duties, generally, 
 
 434, et acq. 
 declarations of, as evidence, 157. 
 
 Trusts. 
 
 I. Creation and Duration. Intee- 
 
 PBETATioN, Validity, &c 434 
 
 II. ThbTrusti;e 437 
 
 III. KlGHTS AND EeMEDIES OP CeSTUIS 
 
 QUE Trust 439 
 
 void trusts in assignments for creditors, 40. 
 in deed, parol evidence to show, 155. 
 powers in trust, 348. 
 
 Turnpike companies 439 
 
 Ultra vires. 
 
 what contracts are, 95. 
 
 Undertakings 440' 
 
 amendment of, 10. 
 
 .on appeal, 15, 18, 25, 29. 
 arrest, 35. 
 
 to procure discharge from arrest, 35. 
 
 on attachment, 44. 
 
 to discharge attachment, 44. 
 
 enforcement of bail-bonds, 50. 
 
 deposit in lieu of, 31. 
 
 security for cosis, 100. 
 
 estoppel by stipulations in, 148. 
 
 what are original, under statute of fi auds,. 
 187. 
 
 when bind wife's separate estate, 200. 
 
 on injunction, 210. 
 
 appeal from justice's judgment, 247. 
 claim and delivery, 392, 393. 
 Undue injluence. 
 
 when avoids contract, 89. 
 
 with aged or infirm persons, 89. 
 
 what amounts to, generally, 182. 
 
 contesting will for, 452. 
 United States. 
 
 constitution of, 83. 
 
 extradition of criminals, 177. 
 
 following decisions of state courts, 105> 
 
 judgments of courts of, 244. 
 
 taxation of bonds of, 417. 
 Untenantable premises. 
 
 rights of tenant of, 249. 
 Usage. See Custom: Usage. 
 Use and occupation. 
 
 action for, 252. 
 Uses. See Trusts. 
 Usurpation. 
 
 of office, 368. 
 
 corporate franchise, 180. ^ 
 
 Usury. 
 
 I. What Constitutes Usury 440- 
 
 II. The Defence op Usury 440 
 
 III. Effect OP Usury 440,' 
 
 IV. Remedies 441 
 
USURY— WAGERS. 
 
 657 
 
 Usury, (continued.) 
 in bank loan, 57. 
 effect of law of place, 363. 
 as a defence in foreclosure, 292. 
 in actions on promissory notes, 365. 
 , effect of, on renewal note, 360. 
 Vtka. 
 
 decisions particularly applicable to, 310. 
 Yacaneftj. 
 
 in public office, how filled, 329. 
 Yaxo&ng. 
 
 orders of arrest, 35. 
 
 warrants of attachment, 44 
 
 levy, 162. 
 
 execution against the person, 164. 
 
 injunction order, 209. 
 
 judgment, 243. 
 
 judicial sales, 244. 
 
 foreclosure sale, 293. 
 
 orders, 298. 
 
 assessments for local improvements, 68, 300, 
 
 321. 
 dismissal of complaint, 427. 
 YdMHiy. 
 
 of award of arbitrators, 32. 
 
 panal appraisers, 71. 
 assignments, generally, 38. 
 
 for benefit of creditors, 40. 
 auction sale, 48. 
 chattel mortgages, 76. 
 contracts, generally, 89. 
 subscriptions to stock, 94. ' 
 composition deeds, 117. 
 ordinary deeds, 118. 
 devises, 128. 
 
 to charitable corporations, 128. 
 of levy of execution, 162. 
 sale on execution, 162. 
 executor's sale, 169, 172. 
 gift, 186. 
 marriage, 196. 
 
 settlement, 197. 
 contracts between husband and wife, 201. 
 agreements for separate maintenance, 
 
 202. 
 infants' contracts, 206. 
 parol lease, 254. 
 written lease, 255. 
 assignment of lease, 257. 
 legacy, 259. 
 mortgages, 285. 
 assignment of mortgage, 289. 
 promissory notes, 360. 
 sales of personal property, 395, 
 statutes giving liens upon vessels, 408. 
 Sunday contracts, 416. 
 trusts, 434. 
 
 contracts foi: sale of land, 441. 
 wills, 448. 
 
 Yalue. 
 
 auction price as evidence of, 49. 
 
 duty of shipper to state to carrier, 71. 
 
 averment of, in indictment, 205. 
 
 of unmatured life policy, 235. 
 death claims, 235. 
 
 evidence of market, 399. 
 
 what is parting with, 361. 
 
 taxable, 418. 
 
 admissibility of opinions on questions of, 
 463. 
 Fon'ance. 
 
 in indictment for forgery, 181. 
 
 Vendor and purchaser. 
 
 I. Contracts for the Sale of 
 
 Land 441 
 
 II. Eights op bona fidb PtrECHAS- 
 
 ERS 442 
 
 III. The Vendor's Lien 442 
 
 IV. Kemedies 443 
 
 requisites of the contract under the statute 
 
 of frauds, 87. 
 law. of fixtures, as between, 180. 
 priority between judgment and vendor's 
 
 lien, 242. 
 rights of purchaser of mortgaged premises, 
 
 286, et seq. 
 when specific performance will be decreed, 
 
 412. 
 YcmM. 
 
 statement of, in summons, 357. 
 place of trial, and how changed, 425. 
 Yerdkt. 
 
 amendment after, 9. 
 
 against evidence, 315. 
 
 juror's affidavit to impeach or sustain, 
 
 316. 
 direction of, 428. 
 
 reception of, in criminal cases, 432. 
 YaripMivm. 
 
 of annual report of manufacturing com- 
 pany, 272. 
 
 pleadings, 345. 
 
 Yexationis tmits. 
 
 remedy for wrongful attachment, 45. 
 
 for malicious prosecution, 268. 
 Villages. See Municipal Corporations. 
 Yoir dire. 
 
 examination of juror on, 431. 
 Yoluntary. 
 
 conveyance, when fraudulent, 183. 
 
 payment, 283, 284. 
 Wager policies. 
 
 what are, validity, &c., 221. 
 Wagers. 
 
 contracts in nature of, 89. 
 
 wager policies, 221. 
 
 42 
 
658 
 
 WAGES— YONKERS. 
 
 Wages. 
 
 of servants, generally, 276. 
 
 of manufacturing companies, 
 275. 
 actions to recover, 402. 
 Waiver. 
 
 effect of appearance as, 5, 6. 
 of right to appeal, 12. 
 demand and notice, 362. 
 strict performance, 90. 
 exemption from execution, 163. 
 conditions in insurance nolicy, 213. 
 
 by agent, 
 233. 
 preliminary proofs of loss, 213, 220. 
 failure to pay premium, 223. 
 lien, 261. 
 
 defects in pleadings, 347. 
 misnomer in summons, 357. 
 lien upon vessel, 408. 
 right to trial by jury, 425. 
 vendor's lien, 443. 
 
 War 445 
 
 Ward. See Guardian and Waed. 
 
 Warehousemen 445 
 
 Warrants. 
 
 meaning of " warrant," 125. 
 of arrest in criminal caaes, 36. 
 
 extradition, recitals in, 177. 
 
 commitment, 246, 359. 
 search-warrants, 359. 
 
 covenant of, 109. 
 
 in insurance policy, 218, 221, 226. 
 what implied on indorsement, 361. 
 on sales of chattels, 397. 
 land, 442. 
 
 meaning of the word, 125. 
 
 Water-courses 446 
 
 enjoining diversion of, 207. 
 right to dam, and liability of owner, 281. 
 natural flow of, 394. 
 
 Wharves 446 
 
 liability of city for defects in, 306. 
 
 regulation of, in New York city, 318. 
 Widow. 
 
 right of, to dower, 135. 
 Wife. See Husband and Wipe. 
 Wills. 
 I. The Power to Make a Will; 
 
 AND HOW EXERdlSBD 447 
 
 11. Proving A Will 448 
 
 III. Validity 448 
 
 IV. Law OE Place 449 
 
 V. Interpretation AND Effect 449 
 
 VI. Contesting a Will fob Inca- 
 pacity OB Undue Influence.. 452 
 probate of, in surrogate's court, 106. 
 provisions in lieu of dower, 135. 
 parol evidence to explain, 156. 
 
 Wills, (continued.) 
 
 sale under power in, 169. 
 
 appointment of guardian by, 191. 
 
 direction to charge advancement in, 6. 
 
 burden of proof in will cases, 153. 
 Winding up. See Dissolution. 
 
 Witnesses. 
 
 I. Attendance and Compensation.. 453: 
 
 II. Competency 453^ 
 
 Iir. Ceedibilitt 456 
 
 IV. Kules of Examination 460' 
 
 V. Opinions of Experts and Others, 462 
 taking depositions of, 125. 
 examination of (parties before trial, 126. 
 privilege to refuse to answer, 127. , 
 proof of handwriting by -subscribing, 158. 
 in supplementary proceedings, 165. 
 corroborating prosecutrix for seduction, 401.. 
 subscribing, to wills, 447, 448. 
 
 written words prevail over printed, 88. 
 parol evidence to vary, 154, et seq. 
 what is subject of forgery, 181. 
 necessity of, to revive debt barred by statute 
 
 of limitations, 264. 
 interpretation of, when question of law, 367. 
 
 fact, 367. 
 mixed question of 
 law and fact, 368.. 
 Writ of error. See Ebbob. 
 Writs. 
 
 when certiorari will lie, 74. 
 of error, 144, et seq. 
 assistance, 293. 
 execution, 161, et seq. 
 habeas corpus, 192. 
 injunction, 206, et seq. 
 mandamus, 269, et seq. 
 possession, 139. 
 prohibition, 359. 
 Wrong-doers. 
 
 recovery over against, by insurer, 220. 
 city, ?06. 
 Wrongful levy. 
 
 liability of sheriff for, 404. 
 
 liability of corporations for, 95. 
 measure of damages in actions for, 114. 
 burden of proof in actions for, 153. 
 of wife, liability of husband for, 198. 
 when statute of limitations begins to run, 263.. 
 by servant, liability of master for, 277. 
 liability of municipal- corporations for, 303. 
 new trial for excessive damages in actions 
 
 for, 315. 
 liability of public officers for, 330. 
 of agent, when principal liable for, 354. 
 Yonkers. 
 
 appeals from city court of, 106. 
 
 powers of common council — city line, 310..